September 27, 2023

In the News

Philadelphia Inquirer (LTE): Protect speech

By David Keating

.....The rich shouldn’t be able to weaponize frivolous litigation to stifle speech — and Pennsylvania lawmakers have an opportunity to ensure they can’t. House Bill 1466, if passed, would become what’s known as the Uniform Public Expression Protection Act. It would deter meritless lawsuits that aim to silence or punish speakers, usually using a baseless defamation claim. Such lawsuits are known as SLAPPs, which stands for strategic lawsuits against public participation. Anti-SLAPP laws provide defenses to these lawsuits. Without such protections, the costs and stress created by SLAPPs can be devastating. Even worse, the mere threat of litigation can chill speech, discouraging individuals from speaking for fear of financial ruin.

HB 1466 strengthens the commonwealth’s anti-SLAPP protections, which are woefully inadequate. Pennsylvania received a D- grade last year in the Institute for Free Speech’s 50-state anti-SLAPP report because its law covers only speech about environmental rules. HB 1466 cures that defect by expanding protection to all expression on any matter of public concern. The bill also contains critical provisions that deter SLAPPs and minimize litigation costs for defendants. These improvements would protect Pennsylvanians from frivolous, speech-suppressing lawsuits.

Austin Journal: UT-Austin Employee Files Lawsuit Over Speech Infringement

.....An Associate Professor of Finance at the McCombs School of Business has initiated legal proceedings against UT-Austin officials for efforts to restrict his speech.

Richard Lowery alleges the officials threatened him for his criticism of the university. The lawsuit claims the university violated Dr. Lowery's constitutional rights and academic freedom.

In a complaint submitted to an Austin federal court in June, Dr. Lowery claims officials at UT-Austin threatened his job security, a salary reduction, and removal from UT's Salem Center because of his public criticisms of the university. The Salem Center is an academic institute affiliated with the McCombs School.

Supreme Court

Wall Street Journal: Biden’s Social-Media Censorship Harms Us All

By Philip Hamburger

.....The Supreme Court will decide as early as Wednesday whether to stay the lower courts’ injunction against the administration’s social-media censorship in Missouri v. Biden. One of the solicitor general’s arguments in the government’s defense is that the well-documented injuries to the plaintiffs, who were direct targets of the censorship, don’t justify a broad injunction that “covers the government’s communications with all social-media platforms . . . regarding all posts by any person . . . on all topics” (emphasis in original).

But the censorship harmed all Americans, and the injunction is fully justified.

The Courts

Courthouse News: TikTok Free Speech

.....A federal judge found a school district did not violate a school board member's rights by firing her after discovering her history of creating and promoting homophobic, transphobic and anti-critical race theory content on TikTok. Supervisors’ comments that they found her content “disgusting” and “a ball of hate” does not show that her firing was motivated by mere disagreement with her posts, but were explicitly connected to the posts’ impact on student learning.

Read the ruling here.

Congress

People United for Privacy: Failed “Honest Ads Act” Trojan Horse Included in Senate Dems’ AI Bill

By Luke Wachob

.....At a September 27 hearing dedicated to the future of our elections, some Democratic Senators hope to revive failed legislation from the past. Under the guise of new concerns about artificial intelligence in campaign advertising, Senator Amy Klobuchar’s “Honest Ads Act” has new life in the Senate Rules and Administration Committee. It also has new marketing.

The misleadingly named “Honest Ads Act” was first introduced in 2017, supposedly as a measure to stop Russian Facebook ads. That was a hard sell to begin with. Senate Democrats had been grumbling for years about the growing use of internet ads by Americans and nonprofit causes. “Honest Ads” addressed their concerns in detail but offered nothing that would deter hostile foreign actors.

Instead, the legislation proposed making it much harder for law-abiding Americans to speak about policy issues on the internet by creating a stunningly broad new category of regulated speech called a “qualified internet or digital communication.” In practice, this meant that organizations engaging in nonpartisan education and other grassroots outreach on the internet would be subjected to a range of complicated and burdensome reporting requirements. So, too, would the websites and internet platforms that host their speech.

Free Expression

The Verge: Why the First Amendment protects liars

By Jeff Kosseff

.....Alvarez left some questions open. None of the justices suggested that the First Amendment protects all false speech. Although the plurality, combined with the concurrence, stood for the general proposition that false speech is not categorically exempt from the First Amendment’s protection, a majority of the court did not clearly identify how courts should analyze false speech restrictions. A year after the opinion, Congress passed the Stolen Valor Act of 2013, which imposes criminal penalties on a person who “with intent to obtain money, property, or other tangible benefit, fraudulently holds oneself out to be” a recipient of a military honor. As of 2022, the amended law has not been struck down as unconstitutional.

Underlying the entire prosecution of Alvarez — from the initial FBI investigation through the Supreme Court argument — was the implication that liars such as Alvarez are an inevitable by-product of free society. If we will allow a free flow of truthful speech, the theory goes, we must tolerate the occasional (or more than occasional) lie.

Candidates and Campaigns

Politico: Little-noticed result of the Hollywood strikes: A blow to political campaigns

By Melanie Mason

.....California politicians had many reasons to cheer the news when the screenwriters’ union and major production studios reached a tentative deal. The nearly-five month strike, paired with actors also stopping work, wreaked havoc on the state’s economy.

But another little-noticed result of the strike was its chilling effect on political fundraising.

The States

Indiana Capital Chronicle: Indiana law bans corporate campaign finance contributions to PACs, state supreme court rules

By Leslie Bonilla Muñiz

.....The Indiana Supreme Court on Monday ruled 4-1 that state law prohibits corporate campaign finance contributions to independently spending political action committees known as super PACs.

It’s a win for prominent election law and anti-abortion attorney Jim Bopp, who’s expected to argue before a federal court that the law is unconstitutional under national case law.

Bopp represents the Indiana Right to Life Victory Fund, an anti-abortion super PAC. Sarkes Tarzian, a Hoosier radio and television company, wanted to donate to the fund, but didn’t because it believed state law didn’t allow such contributions.

That’s even though state election officials have committed to not enforcing the law, because it conflicts with a 2010 U.S. Supreme Court decision: Citizens United v. FEC. Bopp also successfully argued that case.

“So the plaintiffs are suing to stop the election officials from doing something they say they have no intention of ever doing,” wrote Justice Derek Molter in the majority opinion. “… why (should the court) not just interpret the statutes as allowing the contribution?”