October 6, 2023

New from the Institute for Free Speech

Statement of Bradley A. Smith and David Keating before the 2023 Special Committee on Governmental Ethics Reform, Campaign Finance Law

.....In August 2022, we published our Free Speech Index of the 50 states. It’s the most comprehensive report ever published on state laws regulating speech about government and public policy. An editorial in The Wall Street Journal told readers, “it’s worth spending a few minutes to read a new report from the Institute for Free Speech. It’s an index of how state laws and regulations treat political committees, grassroots advocacy, independent expenditures, and the like. The results aren’t partisan, and they’re probably not what you expect.”

We regret to say that Kansas earned a disappointing 65% score in this report. Many of the free speech deficiencies in Kansas’s law would be addressed by some minor changes. A key problem is that the current law’s definition of a PAC is clearly unconstitutional. If the definition of a PAC and one other major deficiency in the law on reporting of independent expenditures by non-PACs are addressed, we estimate that the score for Kansas would rise to 83%, the second-best free speech score in the nation on campaign finance laws.

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Ed. note: Watch the hearing live at 10am today here.

Supreme Court

SCOTUSblog: The long conference’s relists

By John Elwood

.....The current court is very solicitous of First Amendment rights. So perhaps unsurprisingly, many of the relisted petitions – six of them – implicate the First Amendment.

Tingley v. Ferguson involves a First Amendment challenge to Washington state’s law prohibiting “conversion therapy,” the practice of seeking to change a gay or transgender person’s sexual orientation or gender identity through counseling...

National Rifle Association of America v. Vullo involves a lawsuit in which the NRA alleges that Maria Vullo, then the Superintendent of the New York State Department of Financial Services, violated its First Amendment rights by threatening its business partners to try to encourage them to disassociate from the NRA. The U.S. Court of Appeals for the 2nd Circuit held that because Vullo’s actions did not cross over the line from permissible attempts to convince into improper attempts to coerce, and in any event did not violate clearly established law, she was entitled to qualified immunity. The NRA, represented by First Amendment scholar Eugene Volokh, seeks review of that conclusion.

The Courts

Bloomberg Law: Media Groups Ask to Lift Court Broadcasting Ban in Trump Trial

By Suzanne Monyak

.....More than a dozen major media organizations asked a Washington federal judge for permission to televise next year’s criminal trial after former President Donald Trump, arguing the American public has a constitutional right to watch the proceedings.

Federal procedure rules bar the broadcasting of criminal trials, preventing news networks from airing the former president’s March 4 criminal trial on charges that he tried to overturn the results of the 2020 presidential election.

The prohibition is based on “outdated and long-disproven views about recording and broadcasting trials,” and in this case, would restrict the public’s free speech rights, the organizations — ...

New York Times: George Santos’s Treasurer Pleads Guilty in Federal Inquiry

By Grace Ashford and Michael Gold

.....The treasurer who oversaw the finances of Representative George Santos’s political campaigns surrendered to federal prosecutors on Thursday afternoon and admitted to her role in fraudulently reporting a fictional $500,000 loan that Mr. Santos claimed to have made to his campaign.

The bookkeeper, Nancy Marks, pleaded guilty to one felony count of conspiracy to defraud the United States. She also admitted to falsifying and inflating financial numbers and making numerous false statements in conjunction with Mr. Santos, a Republican from New York. Under the terms of her deal, she faces a recommended sentence of between three and four years in prison.

Free Expression

Jonathan Turley: Poll: Only 20 Percent of Public Believes Conservatives Enjoy Free Speech Rights on Campuses

.....A new poll conducted by The Associated Press-NORC Center for Public Affairs Research and the University of Chicago Forum for Free Inquiry and Expression shows that only a fifth of the public believe that conservatives can exercise free speech on campuses. While faculty members often brush aside objections to the erosion of free speech, this poll is consistent with the view of students. What is striking is that there is years of such polling and objections have made little difference to administrators and academics who continue to maintain a hostile environment for conservative or libertarian views.

Reason (Volokh Conspiracy): The Demand for Political Misinformation is a Bigger Problem than the Supply—Even in the Age of AI

By Ilya Somin

.....The root of the problem of political misinformation is not that the deceptions are highly sophisticated or that a particular new technology (e.g.—social media) makes it easy to produce and spread it, but that voters have little incentive to seek out the truth and evaluate information objectively. Many instead act as biased "political fans," lapping up whatever ideas—including ridiculous conspiracy theories—support their preexisting views and prejudices.

The States

Washington Examiner: Inside Leonard Leo's fight against the investigation into his conservative network

By Gabe Kaminsky

.....Conservative activist Leonard Leo is punching back against a Democratic-led investigation into his finances he views as politically motivated and lacking legal jurisdiction…

As far as Leo is concerned, the investigation is simply "not legitimate," David B. Rivkin, an attorney for Leo, co-chairman of the Federalist Society legal group, told the Washington Examiner.

"Past experience with the D.C. attorney general has featured an almost exclusive focus on conservative organizations," Rivkin said in an interview. "In our case, this investigation is entirely lacking authority. The combination of those two factors suggests it is ideologically driven."