November 2, 2023

New from the Institute for Free Speech

Report: Most Americans Now Have Good Free Speech Protection against Frivolous Lawsuits

.....State laws protecting against costly, meritless, speech-suppressing lawsuits are growing and improving nationwide, now covering 33 states plus the District of Columbia. For the first time, most Americans have good protection. Yet, many states still have weak laws or no laws protecting their citizens from such suits, putting those Americans’ rights to speak or publish at significant risk.

Those are the key takeaways from the 2023 Anti-SLAPP Report Card, just released by the Institute for Free Speech.

The report details and rates state-by-state legal protections against “SLAPP” suits, which stands for “strategic litigation against public participation.” Unscrupulous plaintiffs abuse the legal system by using SLAPPs to prevent speakers from exercising their First Amendment rights, suppressing, punishing, or chilling speech that the plaintiff doesn’t like. Such a litigant typically claims that the speech constitutes defamation, suing speakers to harass, silence, or force them to bear significant litigation costs.

Supreme Court

Roll Call: Supreme Court sounds not so big on trademark for ‘Trump too small’ slogan

By Michael Macagnone

.....The Supreme Court at oral arguments Wednesday appeared skeptical of letting people get trademarks of political figures without consent, despite objections that it would unconstitutionally restrict free speech

The Courts

Wall Street Journal: The First Amendment Threat in the Trump Civil Case

By Philip Hamburger

.....Can the government penalize someone for an inaccurate statement that wasn’t made with bad intent, recklessness or negligence, and that didn’t cause concrete harm to an identifiable third party? That’s the First Amendment question underlying the civil-fraud suit against Donald Trump. The stakes are high for the former president—and for the rest of us.

Wall Street Journal: Ken Griffin vs. the IRS

By The Editorial Board

.....Ken Griffin isn’t giving up on his fight to improve the Internal Revenue Service’s privacy protections, and all American taxpayers could benefit if the Citadel CEO wins.

Late last week Mr. Griffin filed an amended version of his lawsuit against the tax agency for the “unlawful disclosure” of his confidential tax information. The hedge fund operator is one of the thousands of wealthy Americans whose private tax data was stolen from the IRS, then leaked and published by the left-leaning ProPublica website.

Mr. Griffin’s original suit in December held the IRS responsible for the leak, citing the ways the agency had flouted Congressional requirements for security. The suit alleges that the IRS also ignored a decade of annual warnings by the Treasury Inspector General for Tax Administration (Tigta) that security deficiencies were the agency’s “number one major management and performance challenge area.”

Courthouse News: Trump raises free speech shield against 14th Amendment offense to block him from Colorado ballot

By Amanda Pampuro

.....A Denver judge on Wednesday declined to toss out a case seeking to bar former President Donald Trump from appearing on the 2024 Colorado GOP primary ballot. Trump raised a First Amendment shield against the lawsuit contending his Jan. 6, 2021, speech disqualifies him from holding office under the 14th Amendment, but Second Judicial District Judge Sarah Wallace said she needed to hear the defense’s evidence before deciding the novel question of law.

Congress

Fox News: House Administration Committee probes Democrat fundraiser ActBlue over reports of illicit cash flows

By Elizabeth Elkind 

.....The House Administration Committee is investigating Democrat fundraising giant ActBlue over concerns that "lenient donor verification standards" are allowing illicit cash to be funneled into left-wing political campaigns.

"I write today to request information on ActBlue’s donor verification policies and procedures. At our recent full committee hearing concerning the oversight of the Federal Election Commission, committee members and some commissioners expressed concern over lenient donor verification standards," Committee Chair Bryan Steil, R-Wis., wrote to ActBlue CEO Regina Wallace-Jones.

National Review: Josh Hawley’s Push to Overturn Citizens United Is a Blatant Populist Prank

By Jeffrey Blehar

.....Hawley was out there on Mischief Night with news of his intent to introduce a bill in the Senate overturning Citizens United v. FEC, the landmark 2010 Supreme Court decision that (correctly, in my view) found that corporations, as associations of citizens, have the same right to donate to election campaigns or make political statements that individuals do.

This is obviously a publicity stunt rather than a serious attempt to legislate...Procedurally it’s a dead letter in a Democratic Senate and a rickety Republican House, and it would be insulting to readers to explain why in plodding detail. It is impossible to evaluate the constitutionality of Hawley’s legislation in any specificity without a copy of the proposed text, but I daresay that the Supreme Court would look askance at any attempt to limit its holding on the nature of constitutionally protected political speech via legislation rather than an actual amendment. (Call it a hunch.)

So this is going nowhere fast. It is meant to stake a flag for Josh Hawley’s political brand. In that sense it is no more or less disappointing than the behavior of at least 80 other legislators on Capitol Hill, but a Harvard Law–educated former Supreme Court clerk (for John Roberts, no less) surely ought to know better than to muster, as legal justification, little more than “yes but you see, I disagree with the Court.”

Free Expression

Free Beacon: Stanford Law School Taps Organizer of Shout-Down Protest To Help Find New Dean

By Aaron Sibarium

.....Stanford Law School has tapped a student involved in the successful effort to shout down a federal judge to serve on a search committee for the law school’s next dean, raising questions about the school’s stated commitment to free speech.

ACLU: Open Letter to Colleges and University Leaders: Reject Efforts to Restrict Constitutionally Protected Speech on Campuses

.....In an open letter delivered to over 650 college and university leaders, the American Civil Liberties Union (ACLU) expressed its strong opposition to any efforts to stifle free speech and association on college campuses, and urged universities to reject calls to investigate, disband, or penalize pro-Palestinian student groups for exercising their free speech rights. The letter follows a call to universities to investigate Students for Justice in Palestine (SJP) chapters for “material support for terrorism,” without citing any evidence of such support.

The Media

Washington Post: Local journalists arrested in small Alabama town for grand jury story

By Paul Farhi

.....A newspaper publisher and a reporter have been arrested for publishing an article that officials said was based on confidential grand-jury evidence — a move that press-freedom advocates are characterizing as an unconstitutional attack on the news media.

The States

Center Square (Washington): WA Legislature expected to reconsider campaign finance voucher program in 2024

By Sue Lani Madsen

.....Campaign finance reform modeled on Seattle’s Democracy Voucher program may be headed back to the Washington State Legislature in 2024. House Bill 1755, introduced but stalled in committee in 2023, is expected to be reintroduced for the 2024 session.

In anticipation of future debate, the House State Government & Tribal Relations Committee scheduled a work session on Friday, Oct. 27. Representatives were present both in Olympia and online to hear from experts describing the Seattle program.