November 20, 2023

In the News

Washington Examiner: Josh Hawley misses the mark on Citizens United

By Bradley A. Smith

.....The obvious problem with Hawley’s bill is that it is unconstitutional. Citizens United holds that “the First Amendment does not permit Congress to make ... categorical distinctions based on the corporate identity of the speaker and the content of the political speech.”

Because the bill restricts only publicly traded corporations, some suggest it could survive the constitutional scrutiny that the broader ban on all corporations did not. But nothing in Citizens United limits its reach to large or for-profit corporations. In fact, one prominent amicus curiae in the case suggested that the court strike the corporate speech ban only as applied to not-for-profit entities, but the justices declined to do so. And Citizens United, though itself a nonprofit organization, accepted contributions from for-profit corporations.

The Hill: Dissenting faculty score a rare win against retaliation by the powers of DEI

By Jonathan Turley

.....This week, federal magistrate Judge Christopher Baker issued a major 44-page report finding that Bakersfield College in California violated the First Amendment rights of Professor Daymon Johnson with its DEI mandates for faculty.

The Johnson case is important because it challenges the claim of universities that DEI policies are simply guidelines and suggested practices. At the same time, universities have massively increased DEI offices and incorporated reviews in every aspect of academic life. The problem is that many DEI policies raise political, religious and academic values that some academics do not support. This can range from pronoun requirements to required perspectives taught in classrooms.

Election Law Blog: Ninth Circuit, Over the Dissent from Denial of Rehearing En Banc by a Number of Conservative Judges, Upholds a San Francisco Campaign Finance Disclosure Law for Ballot Measure Elections

By Rick Hasen

.....The panel’s result in this case seems both correct and one that the Supreme Court could well agree to hear and overturn. (For reasons I explain here.)

Supreme Court

USA Today: She got a ticket for beeping her car horn. Now she's asking the Supreme Court to sound off.

By John Fritze

.....Susan Porter remembers the shock she felt when the sheriff's deputy finally explained why he pulled her over.

"He said, 'illegal use of horn' and gave me the ticket," the 69-year-old Californian recalled.

"I said, 'There’s a law for that?'"

Porter had been driving by a rally outside her congressman's office in 2017 and her honks were a sign of support – in the same way drivers beep for a political candidate waving a sign at rush hour, or to celebrate a sports team after a game.

Porter has challenged a California traffic law that bans honking – other than to warn another driver – all the way to the Supreme Court. Her argument: Since the dawn of the automobile, car horns have sometimes served as a form of expression. Because of that, Porter says, beeping is protected under the First Amendment.

"The car horn is the sound of democracy in action," her lawyers wrote in their appeal.

The Courts

Washington Post: Intense questioning from D.C. appeals court over Trump gag order

.....Both the government and an attorney representing Donald Trump are facing intense questioning Monday morning from a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit. The topic is whether a limited gag order imposed on Trump by U.S. District Court Judge Tanya S. Chutkan unfairly limits his speech. Trump’s lawyer is arguing that the former president has a First Amendment right to speak about his federal election interference case, especially because he is again running for president. A lawyer from special counsel Jack Smith’s office counters that without guardrails on his speech, Trump will intimidate witnesses, incite threats against government employees and distort public understanding of the case. You can listen to the audio feed here, or follow along with us (or both!).

Free Expression

Wall Street Journal: A Free-Speech Fix for Our Divided Campuses

By Suzanne Nossel

.....As the conflict continues in the Middle East, college students are alternately emboldened and alarmed, faculty are at loggerheads, donors are irate, and college presidents are embattled. But the crisis presents an opportunity. Amid the turmoil, there is a chance to ask how our campuses reached this point and, more important, what they can do to become places where differences of background and viewpoint serve as catalysts for understanding and growth rather than for tribalism and conflict. 

The States

Salon: "Chilling": Maryland lawmakers threaten to cut aid to immigrants because group criticized Israel

By Areeba Shah

.....More than 50 organizations and Jewish activists have banded together to express solidarity with an immigrant rights group after nine Democratic state senators in Maryland threatened to withdraw state funding due to the group’s calls for an immediate ceasefire in Gaza.