September 29, 2023

The Courts

Reason (Volokh Conspiracy): Government Employee / Political Candidate's Advertising Gun Raffle for Election Campaign May Be Protected by the First Amendment

By Eugene Volokh

.....From Caparelli-Ruff v. Bd. of Ed., decided Wednesday by Judge John Robert Blakey (N.D. Ill.):

Matthew Schafer: A Conservative Judge’s Ruling about Drag Shows Is a Battle Plan to Undo the First Amendment

.....This week, District Judge Matthew Kacsmaryk ruled in favor of University President Walter Wendell who banished a student group’s drag show fundraiser from campus. According to Kacsmaryk, plaintiff in the case, the student group, failed to “establish a First Amendment right to conduct a ‘PG-13' drag show.”

Kacsmaryk, “a Christian legal activist,” was appointed by former President Donald Trump and quickly made a name for himself for his nakedly political rulings. His fondness of issuing national injunctions to advance conservative preferences and policies by judicial fiat has even earned him the nickname, “Chief Justice Kacsmaryk of the Supreme Court of the United States, Amarillo Division.”

Free Expression

Tech Policy Press: Experts Debate Social Media and the First Amendment

By Justin Hendrix

.....On Friday, I attended a packed lunchtime discussion hosted by the Harvard Law School Rappaport Forum titled “Censorship, Content Moderation, and the First Amendment.” The panel was moderated by Noah Feldman, a Professor Law at Harvard. Speakers included Jameel Jaffer, Adjunct Professor of Law and Journalism at Columbia Law School & Executive Director of the Knight First Amendment Institute, Columbia University; and Daphne Keller, Lecturer on Law at Stanford Law School & Director of the Program on Platform Regulation at the Stanford Cyber Policy Center.

The discussion focused on issues that may soon be considered by the US Supreme Court, including the constitutionality of laws passed in Texas and Florida that would prevent social media platforms from taking action on certain political speech. In August, the Biden administration urged the Court to decide whether the laws are constitutional, and it is expected to do so.

And, the Rappaport Forum panel also considered Missouri v Biden in light of the recent US Fifth Circuit Court of Appeals ruling against the Biden administration.

Federalist Society: New Legal Analysis: Regulatory Implications of Turning Internet Platforms Into Common Carriers

By Neil Chilson

.....The content moderation policies of major internet platforms like Facebook and X (formerly Twitter) have faced escalating criticism in recent years. Many conservatives now argue that because these platforms exhibit political bias and routinely censor right-leaning political views and news stories, some sort of government regulation is required. Standing in the way, however, is the First Amendment.

To get around First Amendment constraints, a novel legal theory has emerged: internet platforms should be regulated as “common carriers”—that is, internet platforms should be required to treat all comers “equally.” Though this theory relies heavily upon an analogy to telecommunications law, it appears that “common carriage” has become a euphemism for broader public utility regulation (which would require some sort of dedicated regulator and enabling statute). But a new legal analysis by Lawrence Spiwak at the Phoenix Center for Advanced Legal & Economic Policy Studies entitled Regulatory Implications of Turning Internet Platforms into Common Carriers warns that this approach could backfire terribly.

Candidates and Campaigns

New York Times: Republican Group Running Anti-Trump Ads Finds Little Is Working

By Jonathan Swan

.....A well-funded group of anti-Trump conservatives has sent its donors a remarkably candid memo that reveals how resilient former President Donald J. Trump has been against millions of dollars of negative ads the group deployed against him in two early-voting states.

The political action committee, called Win It Back, has close ties to the influential fiscally conservative group Club for Growth. It has already spent more than $4 million trying to lower Mr. Trump’s support among Republican voters in Iowa and nearly $2 million more trying to damage him in South Carolina.

But in the memo — dated Thursday and obtained by The New York Times — the head of Win It Back PAC, David McIntosh, acknowledges to donors that after extensive testing of more than 40 anti-Trump television ads, “all attempts to undermine his conservative credentials on specific issues were ineffective.”

The States

Reason (Volokh Conspiracy): "Odd," "Unnerv[ing]," "Disturbing," Comments, Post, and Letter to Politician Weren't "True Threats"

By Eugene Volokh

.....From People v. Peterson, decided Tuesday by the California Court of Appeal (Justice Victor Rodriguez, joined by Justices Allison Tucher and Carin Fujisaki):

Politico (Massachusetts Playbook): MassGOP settles in campaign finance case

By Lisa Kashinsky 

.....MassGOP Chair Amy Carnevale has signed a settlement agreement with Attorney General Andrea Campbell’s office over alleged campaign finance violations under the party’s prior leadership that also involved a sitting state senator and his wife.

Hartford Business Journal: Ritter: No changes to campaign finance rules in special session

By Mark Pazniokas, CT Mirror

.....House Speaker Matt Ritter, D-Hartford, said Monday that the General Assembly will not vote Tuesday in special session on a proposal to allow publicly financed candidates in Connecticut to raise money online using the popular Democratic fundraising platform, ActBlue.

ActBlue’s platform is not compliant with state law, and Ritter said lawyers have struggled to draft statutory language that would open Connecticut to ActBlue without conflicting with or undermining the state’s Citizens’ Election Program, which finances most campaigns for the General Assembly.

“If we could find a way to do it, it would be bipartisan,” Ritter said.