October 2, 2023

Supreme Court

SCOTUSblog: Justices take major Florida and Texas social media cases

By Amy Howe

.....The Supreme Court on Friday agreed to weigh in on the constitutionality of controversial laws in Texas and Florida that would regulate how large social media companies like Facebook and X (formerly known as Twitter) control content posted on their sites. The laws were enacted in 2021 in response to legislators’ beliefs that the companies were censoring their users, particularly those with conservative views; the companies contend that the laws violate their First Amendment rights.

The announcement that the justices had granted review in Moody v. NetChoice and NetChoice v. Paxton came as part of a list of orders from the justices’ Sept. 26 conference, the first conference since late June in which the justices had considered new cases to add to their docket for the 2023-24 term. The justices granted review on Friday in a total of 12 cases; the remaining 10 cases will be covered in a separate story.

Wall Street Journal: Justice Alito’s First Amendment

By James Taranto

.....Justice Samuel Alito…vigorously rejects the anything-goes theory. “The First Amendment was not intended to prohibit any regulation of speech,” he said in a Journal interview on July 7. On occasion that view has left him alone in dissent against a free-speech claim.

Even so, in the vast majority of cases he’s a strong defender of the freedom of speech. He accepts Holmes’s dictum and cited it in Matal v. Tam (2017), in which the court held that the government had violated a rock band’s constitutional rights by denying its trademark application for its racially insensitive name.

In oral arguments, Justice Alito has a knack for posing scenarios that reveal the untenability of speech restrictions, particularly on political speech. In Minnesota Voters Alliance v. Mansky (2018), the court reviewed a statute banning “political” attire at polling places. Justice Alito asked if a National Rifle Association T-shirt would be permitted.

“No, it would not,” the state’s lawyer said.

“How about a shirt with the text of the Second Amendment?”

“I think that would be viewed as political.”

“How about the First Amendment?” The lawyer said that would be OK but couldn’t explain why. He lost the case.

The Courts

The Gazette: Linn-Mar schools’ transgender policy too vague, violates free speech, court rules

By Trish Mehaffey

.....The 8th U.S. Circuit Court of Appeals Friday dismissed part of an appeal, but will allow a freedom of speech claim to go forward by a national parents’ advocacy group suing the Linn-Mar Community School District over their policy that protects transgender and nonbinary students.

A U.S. District judge last year denied Parents Defending Education a preliminary injunction — to temporarily ban enforcement — of the school district’s policy pending a civil trial last year. The group appealed, arguing the policy violates a right of parents to direct the care, custody and control of their children, according to the appeal.

The appeals court on Friday concluded the parents’ group was likely to succeed on its claim because the policy is “void for vagueness.” The district’s policy didn’t provide adequate notice of what conduct is prohibited because it fails to define the term “respect.” Because it isn’t defined, it could cover any speech about gender identity that an administrator deems “disrespectful” of another student’s gender identity.

The undefined term of “respect” leaves the policy open to “unpredictable interpretations, and creates a substantial risk that school administrators may arbitrarily enforce the policy,” the court stated.

Ed. note: The Institute for Free Speech filed an amicus brief in the case with Moms for Liberty. Read it here.

Wall Street Journal: Finally, a Tax-Return Leaker Is Charged

By The Editorial Board

.....It took two years, but the feds have finally charged a man with stealing and then leaking private tax information to the press. If found guilty, he deserves the maximum punishment under the law.

In a criminal information released Friday in federal court in Washington, D.C., the Justice Department charged a former contractor with stealing and then leaking the tax data. The criminal filing says Charles Littlejohn worked for an unidentified firm that obtained Internal Revenue Service returns.

Washington Post: Sam Bankman-Fried’s fraud ran through Washington, prosecutors say

By Tory Newmyer

.....Sam Bankman-Fried orchestrated a massive campaign-finance fraud in an attempt to buy favorable treatment in Washington for his once-booming crypto empire, prosecutors will argue in a Manhattan courtroom this week.

Under the scheme, Bankman-Fried allegedly doled out more than $100 million in funds stolen from FTX customers and then illegally routed tens of millions through two of his top lieutenants. Explaining how this fraud worked will feature centrally in the government’s sweeping case against him, according to public court documents.

Free Expression

Washington Post: Why is an Arizona State University law clinic defending Kari Lake?

By Jack Stripling

.....The clinic, which is formally known as the ASU Sandra Day O’Connor College of Law First Amendment Clinic, often takes controversial cases. But this isn’t just any case, and Lake isn’t just any client. By defending her, the clinic has thrust the university into a national debate about the line between heated political rhetoric and defamatory speech that may endanger individuals and undermine public confidence in elections. It’s also a curious partnership for a politician who has railed against the university, which she has described as a “very liberal campus” caught in the clutches of “wokeism.”

Toronto Sun: Trudeau 'trying to crush free speech' with new podcast rules, Musk says

.....Elon Musk blasted the Justin Trudeau government on Sunday for its “shameful” decision to regulate streaming services that offer podcasts in Canada.

“Trudeau is trying to crush free speech in Canada,” the owner of X posted on his social-media site in a reply to journalist Glenn Greenwald. “Shameful.”

Greenwald, the co-founder of The Intercept, said in his post to X that Canada is now “armed with one of the world’s most repressive online censorship schemes.”

The two were responding to changes announced on Friday by the Canadian Radio-television and Telecommunication Commission, which plans to “modernize Canada’s broadcasting framework and ensure online streaming services make meaningful contributions to Canadian and Indigenous content.”

Candidates and Campaigns

Wall Street Journal: How Polarization Sent Washington to the Brink of a Shutdown

By Aaron Zitner and Lindsay Wise

.....Republicans bucking their party leaders and trying to push the government toward a shutdown would have carried a dismissive label in past years. They would be called gadflies—annoying to colleagues, and easily swatted away.

Today, the gadflies dominate the political scene.

They are the members using inflammatory rhetoric and disruptive tactics to draw media attention and campaign donations from the most partisan voters—giving them power to oppose their own party leaders and a majority of their House GOP colleagues. In doing so, they have become heroes to many in the GOP but symbols of what many voters say they lament: The drastic polarization of politics, where the most combative politicians can command status while centrists struggle to be heard…

Lawmakers are less reliant on political parties for money. Greene, for example, was the ninth-largest fundraiser in the 2022 election cycle among current House members, and 98% of her money came from individual donors rather than party, corporate or political-action committee sources, data from the nonpartisan group Open Secrets shows.