November 6, 2023

In the News

Boston Globe: A GOP senator joins the anti-Citizens United chorus

By Jeff Jacoby

.....In Citizens United, the Supreme Court didn’t rule that corporations have rights. It ruled that Americans have rights. Just as the government cannot, under the Constitution, prohibit one American from publicly supporting or opposing a candidate, neither can it prohibit many Americans from doing so simply because they have joined together in an association. A core value of American constitutional law is that political speech is indispensable to a democracy, the court held, “and political speech does not lose First Amendment protection simply because its source is a corporation.” …

In the 13 years since the ruling in Citizens United, American political life has grown more polarized and unedifying. But the 2010 decision isn’t to blame for the decline in civility and patience. Many corporations steer clear of political spending, regarding it as bad for business. According to former Federal Election Commission chairman Brad Smith, the vast majority of campaign money still comes from individuals donating directly to candidates. Corporations, by contrast, contribute “well under” 10 percent of federal political spending.

KOMU: Sen. Hawley clashes with McConnell over FEC law

By John Murphy

.....Republican Sen. Josh Hawley finds himself embattled with Senate Minority Leader Mitch McConnell (R-Kentucky) over Hawley's proposed legislation that would nullify the landmark Supreme Court ruling in Citizens United v. Federal Election Commission (FEC). Hawley has long-opposed McConnell's leadership, and McConnell has fired back with aggression...

David Keating is the president of the Institute for Free Speech, a national nonprofit that "promotes and defends the First Amendment."

"The Supreme Court made it very clear in the Citizens United decision that the government can't discriminate against who the speaker is," Keating said…

Keating said he doesn't think Hawley's proposal will ever take effect.

"If it were to become law, I'm highly confident the [Supreme] Court would strike it down," he said. 

Supreme Court

NRA-ILA: Supreme Court Accepts NRA First Amendment Case – A “Historic Step Forward” for the NRA and Free Speech

.....The National Rifle Association of America (NRA) commented today on the United States Supreme Court accepting National Rifle Association of America v. Maria T. Vullo for review. The decision is a landmark development in one of the most closely watched First Amendment cases in the nation.

“This is a historic step forward for free speech, the NRA’s millions of members, and for all who believe in freedom,” says NRA CEO & EVP Wayne LaPierre. “The NRA’s fight for justice continues – this time in the highest court in the land. At a time when free speech is under attack as never before, it is important that government officials be sent a message that they cannot use intimidation tactics to silence those with whom they disagree.” …

The American Civil Liberties Union (ACLU) has voiced its support for the NRA…

Eugene Volokh joins Brewer in representing the NRA, along with Brewer Partner Sarah B. Rogers and firm counsel Noah Peters.

Ed. note: Read our previous post about the case from guest blogger Barnaby Zall.

The Courts

New York Times: Appeals Court Temporarily Frees Trump From Gag Order in Election Case

By Alan Feuer

.....An appeals court in Washington on Friday paused the gag order imposed on former President Donald J. Trump in the federal case accusing him of seeking to overturn the 2020 election, temporarily freeing him to go back to attacking the prosecutors and witnesses involved in the proceeding.

In a brief order, a three-judge panel of the U.S. Court of Appeals for the District of Columbia said the pause of about two weeks was needed to give it “sufficient opportunity” to decide whether to enact a longer freeze as the court considered the separate — and more important — issue of whether the gag order had been correctly imposed in the first place.

Congress

Courthouse News: Congress urges judiciary to take final steps to clamp down on amicus brief lobbying

By Benjamin S. Weiss

.....Lawmakers who for years have demanded that the federal judiciary prevent organizations from swaying judges by gaming a common court practice urged the U.S. Judicial Conference this week to wrap up proposed rulemaking that would serve as a major check on such activity.

Members of Congress, particularly Democrats, have long raised concerns that lobbying groups and other organizations use coordinated groups of amicus briefs to push courts toward favorable rulings…

During an Oct. 19 meeting of the U.S. Judicial Conference’s Advisory Committee on Appellate Rules, members discussed altering disclosure rules for amicus briefs.

Among the proposed changes, the conference suggested requiring organizations interested in submitting amici to report whether any person or group has contributed 25% or more of the organization’s annual revenue. The new rules would also mandate the disclosure of so-called earmarked contributions by outside parties — that is, groups or individuals who gave the filing organization more than $1,000 for the express purpose of preparing, filing or submitting an amicus brief.

Some of the language in the Judicial Conference’s proposed rules change was derived from a 2021 bill filed by Rhode Island Senator Sheldon Whitehouse, known as the Assessing Monetary Influence in the Courts of the United States, or AMICUS, Act.

Wall Street Journal: Terrorism and Tax Advantages

By Leslie Lenkowsky

.....Missouri Rep. Jason Smith denounced universities and student organizations for statements “celebrating, excusing, or downplaying” the Oct. 7 attacks by Hamas in Israel. “Releasing such statements, or failing to condemn them,” he said last month, “is unforgivable and runs counter to our values as a nation.”

Mr. Smith’s comments have more weight than most because he is chairman of the House Ways and Means Committee, which has jurisdiction over tax policy. That includes policies governing nonprofit organizations, including colleges and universities as well as groups issuing statements and staging rallies throughout the U.S. Statements celebrating Hamas’s violence, Mr. Smith adds, “call into question the academic or charitable missions they claim to pursue”—in other words, their tax breaks...

Mr. Smith’s statement suggests the tax exemptions of organizations backing Hamas—or tolerating such activity—may be in for congressional scrutiny. Virginia’s Attorney General Jason Miyares has launched an investigation of AJP Educational Foundation, aka American Muslims for Palestine. Mr. Miyares’s office said in a press release that it is looking into whether the group “used funds raised for impermissible purposes under state law, including benefitting or providing support to terrorist organizations,” as well as whether it was properly registered to solicit contributions in the state.

Free Expression

Silver Bulletin: Free speech is in trouble

By Nate Silver

.....[A]fter seeing the latest polling on what college students think about free speech, I don’t concern over “cancel culture” or the erosion of free speech norms is just some moral panic. In fact, I think people are neglecting how quick and broad the shifts have been, especially on the left.

College Pulse and FIRE — the Foundation for Individual Rights and Expression, a pro-free speech advocacy group — recently published the latest edition of their annual survey. Although I don’t love using data from political groups — even ones I generally agree with — the good in this survey outweighs the bad. The methodology is detailed and transparent. And in surveying more than 55,000 undergraduates, the poll provides a look at student opinion across all sorts of colleges and universities — not just from the loudest or most privileged students at elite institutions.

Although I’ve seen a lot of media coverage about the FIRE survey, I’d never really dug into the details. I’m not sure exactly what I was expecting to see. But given my own political philosophy, I can tell you what I was hoping for: robust student support for free speech — perhaps in contrast to the often lukewarm support it receives among university administrators. Unfortunately, that’s not what the survey found. Here’s what it says instead:

Politico Magazine: ‘It Feels Like the New McCarthyism’: How the Israel-Hamas War Is Redefining the Limits of Free Speech

By Calder McHugh

.....War between Israel and Hamas has sparked extensive (mostly) online activism about the conflict — and led to a rash of firings or other workplace discipline from employers concerned about their employees’ views of the conflict...

The situation is making Genevieve Lakier, a professor of law at the University of Chicago whose work is focused on the changing meaning of freedom of speech in the United States, very nervous.

“It feels like the new McCarthyism,” said Lakier, who’s one of the leading legal scholars on matters of free speech.

The States

Boston Globe: Waltham legal opinion chills political debate

By The Editorial Board

.....During a heated municipal election season in Waltham, good luck learning where the candidates stand on contentious local issues.

The Waltham city solicitor has issued a legal opinion calling it “potentially problematic” for elected city officials to participate in discussions at political forums that relate to issues currently before the City Council or its committees.

The election is Tuesday. Don’t voters deserve to know what candidates think? Isn’t comparing where they stand on controversies ... kind of the point?

The opinion appears to be based on vague — and somewhat shaky — legal grounds, and state officials ought to swat it down before the idea spreads. Some candidates in Waltham have understood it as a gag order in the heat of election season, a curb on political candidates’ speech at multicandidate forums that makes it harder for voters to make educated choices.

Reason (Volokh Conspiracy): Idaho "No Public Funds for Abortion" Act Doesn't Preclude Pro-Abortion Speech by Professors

By Eugene Volokh

.....From Idaho Att'y Gen. Op. No. 23-04, released Sept. 15 but not widely reported:

College Fix: Sweeping anti-DEI higher ed reform bill in Ohio inches closer to passage

By Jennifer Kabbany

.....A comprehensive higher education legislative proposal in Ohio to outlaw mandatory diversity, equity and inclusion trainings and statements, require intellectual diversity, and enact post-tenure review is making its way through the Ohio Statehouse.

State Sen. Jerry Cirino, S.B. 83’s primary sponsor, said he and his fellow Republicans have been “working the bill with our heart and soul,” and it’s expected to pass through the final committees in the next few weeks on its way to a full House vote in early December. It was approved by the Senate over the summer.