November 3, 2023

In the News

Detroit Metro Times: Michigan gets ‘F’ grade for lack of law against costly, speech-chilling lawsuits

By Lee DeVito 

.....Michigan has earned the dubious distinction of being one of just 17 states with no law protecting against costly, frivolous lawsuits that are used to intimidate and silence critics. As a result, these states earned an “F” in the 2023 Anti-SLAPP Report Card, recently released by the Institute of Free Speech.

People United for Privacy: Wyoming Nonprofit Wins Legal Fight Protecting Supporters’ Privacy

By Brian Hawkins

.....A Wyoming nonprofit represented by the Institute for Free Speech recently scored a major legal victory for free speech and donor privacy in Wyoming Gun Owners v. Gray. Wyoming Gun Owners (WyGO), a pro-Second Amendment group, challenged an expansive Wyoming law regulating “electioneering communications,” a form of speech that encompasses commentary on policy issues.

New from the Institute for Free Speech

Doug Granger Joins the Institute for Free Speech as Director of Development

.....The Institute for Free Speech is pleased to announce that Doug Granger has joined the Institute as its new Director of Development.

“Doug’s background and enthusiasm will be a valuable asset for our organization as we work to increase support for the cause of free political speech,” said Institute for Free Speech President David Keating.

Previously, Doug served as Director of Development Marketing at the Institute for Humane Studies where he worked to advance free speech and academic freedom in higher education.

“‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.’ Variations of this famous line from Supreme Court Justice Louis Brandeis have been quoted so often that it almost seems cliché, but in reality, more of our fellow American citizens need to hear it repeatedly,” said Doug on the importance of free speech.

Supreme Court

SCOTUSblog: Court likely to reject “Trump too small” trademark claim

By Ronald Mann

.....Wednesday’s argument in Vidal v. Elster involved a provision in the federal Lanham Act that directs the Patent and Trademark Office, the entity that registers federal trademarks, to refuse to register any mark that identifies “a particular living individual.” In this case, Steve Elster argued that the PTO’s refusal to register the phrase “Trump too small,” which he has used to sell T-shirts mocking the former president, violated the First Amendment. Largely because the court twice in the last 10 years has invalidated other parallel restrictions in the Lanham Act, the lower courts accepted that argument and held the statute unconstitutional.

The argument Wednesday, though, suggested that the justices are unlikely to take the same approach this time. Because the court splintered in both of the previous cases, it’s no surprise that the justices offered a variety of different approaches to the “Trump too small” reaction. The problem for Elster is that none of the approaches suggested any interest in forcing the PTO to register the mark.

The Courts

Courthouse News: Website terms of use lead to First Amendment lawsuit against San Diego health care district

By Sam Ribakoff and Sergio Frez

.....While many may blindly accept websites' terms of use without even reading them, an elected member of the Palomar Health District's Board of Directors bristled at the prospect of having to agree to a wide ranging set of rules in order to see the district's web page.

But after Laurie Edwards-Tate criticized the terms of use agreement in an interview with local media, the health district reprimanded her. Now, she's suing the San Diego County-based health district, claiming it violated her First Amendment rights.

Congress

The Hill: AI forum on elections to be held in Senate next week, Schumer says

By Rebecca Klar

.....The Senate will hold a forum with experts about the impacts of artificial intelligence (AI) on elections next week, Senate Majority Leader Chuck Schumer (D-N.Y.) said Wednesday.  

The forum will be the fifth in a series of AI Insight Forums Schumer convened that bring in stakeholders from tech companies, civil society groups and other experts to discuss the risks and benefits of AI with senators in closed-door meetings.  

The election-focused forum will be one of a “bunch more” the Senate will hold, Schumer said.  

FEC

Statement of Commissioners Allen J. Dickerson and James E. “Trey” Trainor, III Regarding the Commission’s Newly Adopted Directive Concerning Investigations Conducted by the Office of General Counsel

.....Today, a bipartisan majority acknowledged the need to reform the Federal Election Commission’s approach to investigating potential violations of law. While we preferred the original draft circulated by Commissioner Dickerson (“Draft A”), we voted in favor of Chair Lindenbaum and Commissioner Broussard’s revised proposal (“Draft B”). 

The differences between the two drafts are important, but they do not diminish the Commission’s striking agreement on key points. The revised directive prohibits the Office of General Counsel (“OGC”) from conducting self-directed investigations and instead requires it to present the Commission with a formal Investigative Plan for approval. It recognizes that the Commission cannot allow OGC to conduct open-ended investigations that reach beyond the legal theory adopted by the Commission. And it ensures that there is no “informal” government action; OGC’s investigations must be conducted formally, pursuant to Commission approval and explicit limitations. 

It also bears special emphasis that both the decision to find reason to believe (“RTB”) a violation has occurred – the statutory predicate to any investigation – and the “conduct” of any investigation are entrusted to the Commission and not to the Office of General Counsel. Congress chose to separately enumerate the Commission’s investigative authority and to require four votes for its exercise.This Directive binds OGC, but it does not limit commissioners’ responsibility to exercise their best judgment in enforcement matters, including by conditioning their RTB votes where appropriate.

Free Expression

Wall Street Journal: Cancel Culture Won’t Defeat Hamas

By Vivek Ramaswamy

.....Gov. Ron DeSantis last week instructed the chancellor of Florida’s state university system to disband campus chapters of Students for Justice in Palestine after the group celebrated the Oct. 7 attack and called for protests against Israel. In banning the group, Florida officials accused it of “knowingly provid[ing] material support” to a foreign terrorist organization—a crime under Florida law. Nikki Haley vowed to “pull schools’ tax exemption status” if they don’t “combat antisemitism in all of its forms,” including “denying Israel’s right to exist.”

These are textbook constitutional violations. SJP expressed heinous opinions—and the First Amendment protects them all.

Persuasion: Free Speech Defenders Must Be Consistent

By Jacob Mchangama

.....But open democracies should not retreat from the institutional and civic commitment to free expression, however ugly many of its current manifestations are. Freedom of expression serves its most important function at times of deep polarization, where the sense of righteous indignation tempts us to silence the viewpoints we hate with scant regard for the collateral damage to democracy, freedom, and tolerance that constitute the necessary precondition for social peace in diverse societies.

Online Speech Platforms

Persuasion: The Radicalization of the American Mind

By Rikki Schlott and Greg Lukianoff

.....Imagine you’re debating a contentious issue with a friend. You listen to their point, they listen as you respond, but then things start getting heated. They start condemning your views as reprehensible and beyond the pale. As you attempt to respond, they suddenly scream “Shut up!”

Would being told to shut up ever change your opinion? We imagine not. Would their unwillingness to even hear you out make you even more sure that you must be right? Perhaps.

Well, screaming “Shut up!” is effectively what social media companies are doing to radical users. Should we really be surprised that the effect of censoring them and shutting them down isn’t changing their minds—but actually just further radicalizing them?

The States

Reason (Volokh Conspiracy): Court Reverses Personal Protective Order Issued Against "Distasteful and Provocative" Critic of Inkster City Attorney

By Eugene Volokh

.....From DWJ v. CLB, decided today by the Michigan Court of Appeals, in a nonprecedential opinion by Judges Anica Leticia, Christopher Murray & Sima Patel (as the public record below reveals, the plaintiff is Inkster City Attorney David W. Jones, and the defendant is Charles Blackwell):