December 1, 2023

New from the Institute for Free Speech

Court: IRS Donor Disclosure Law Must Overcome Exacting Scrutiny

.....A recent, positive development in Buckeye Institute v. Internal Revenue Service (“Buckeye”) provides another important indicator that defenders of civil liberties have a potent new precedent with which to challenge unconstitutional disclosure laws.

To recap how we got here, public policy think tank The Buckeye Institute filed suit challenging a law that compels nonprofits to reveal the private information of their largest donors to the IRS every year, even though the IRS admits that it doesn’t need this information.

These requirements chill and suppress speech by creating risk for supporters who might suffer retribution if such disclosures revealed their support for a given nonprofit’s mission.

Supreme Court

New York Times: Sandra Day O’Connor, First Woman on the Supreme Court, Is Dead at 93

By Linda Greenhouse

.....Sandra Day O’Connor, the first woman on the United States Supreme Court, a rancher’s daughter who wielded great power over American law from her seat at the center of the court’s ideological spectrum, died on Friday in Phoenix. She was 93.

The Supreme Court announced her death in a statement, saying the cause was complications of dementia…

Justice O’Connor publicly regretted only one vote in her career: The case of Republican Party of Minnesota v. White, in 2002. At the time, many states with elected judiciaries enforced an ethics rule that prohibited judicial candidates from taking public positions on political or legal issues. The purpose was to maintain impartiality. The case challenged the restriction as a violation of a candidate’s First Amendment right to free speech.

By a vote of 5 to 4, the court agreed. Justice Scalia’s majority opinion, which Justice O’Connor joined, said that “the First Amendment does not permit Minnesota to leave the principle of elections in place while preventing candidates from discussing what elections are about.”

*Some Assembly Required: There is No Such Thing as Negligent Protest

By John Inazu

.....There is no such thing as negligent protest. In suggesting such a standard [in Doe v. Mckesson], the Fifth Circuit endangers core First Amendment protections, specifically the right of assembly. Mckesson has petitioned the United States Supreme Court to review the Fifth Circuit’s decision. This is a matter of great importance, and the Supreme Court should take the case to correct the Fifth Circuit’s error.

Last month, I filed an amicus brief urging the Supreme Court to do just that. I was fortunate to be represented by my former student, Andrea Butler, and the law firm of Bryan Cave Leighton Paisner.

Our brief makes two principal arguments. First, the negligent protest theory violates the right of assembly and deters the exercise of First Amendment rights. Second, the decision drastically departs from earlier Supreme Court precedent. As our brief argues, the Fifth Circuit’s reasoning fails on textual, historical, and precedential grounds.

The Courts

Politico: Judge blocks Montana TikTok ban law

By Rebecca Kern

.....A Montana judge ruled on Thursday to block a state ban on TikTok from going into effect — marking a win for the popular video streaming app who alleged the law violated the First Amendment.

TikTok filed its lawsuit in May in the U.S. District Court for the District of Montana seeking for the court to invalidate the law and block the state from enforcing it.

The judge said the law should be blocked and that TikTok’s arguments held merit that the law likely violated the First Amendment.

Cincinnati Enquirer: If Sittenfeld conviction stands, no politician or contributor is safe

By Caleb P. Burns

.....Imagine that a Midwestern city councilman is running for mayor on a pro-development platform. As part of his campaign, he pledges his support for a project to revitalize a large-and-blighted building in the heart of his city’s downtown. A developer of that downtown property then makes a campaign contribution to the councilman. Is that a crime? Alarmingly, the Department of Justice thinks so.

This is not a hypothetical. It happened in United States v. Sittenfeld where the Department of Justice indicted former Cincinnati Councilman Alexander "P.G." Sittenfeld for accepting a political contribution based on his support of the development project…

[Sittenfeld] is appealing his conviction and the outcome will have far-reaching implications for political campaigns, governing and fundamental issues of free speech and association.

NBC News:  Penguin Random House and bestselling authors sue Iowa over school book-banning law

By Associated Press

.....The nation’s largest publisher and several bestselling authors, including novelists John Green and Jodi Picoult, are part of a lawsuit filed Thursday challenging Iowa’s new law that bans public school libraries and classrooms from having practically any book that depicts sexual activity.

The lawsuit is the second in the past week to challenge the law, which bans books with sexual content all the way through 12th grade. An exception is allowed for religious texts.

Carolina Journal: Federal judge denies Earls’ request for emergency injunction in First Amendment lawsuit

.....Nine days after denying state Supreme Court Justice Anita Earls’ initial request for an injunction against the North Carolina Judicial Standards Commission, a federal judge has denied Earls’ second request for an injunction.

US District Judge William Osteen issued his latest order Thursday afternoon. He denied Earls’ request to block a commission investigation into Earls’ published comments while she appeals to the 4th US Circuit Court of Appeals.

Congress

Roll Call: House GOP takes new tack in advancing conservative election bills

By Justin Papp

.....House Administration Republicans and Democrats did find some common ground on Thursday. On bipartisan votes, the committee advanced legislation to protect election observer access and to protect against the influence of foreign nationals in elections, a legislative recommendation made by the bipartisan Federal Election Commission.

FEC

OpenSecrets: Congressional lawmakers, advocacy groups urge FEC regulation on deceptive AI

By Harshawn Ratanpal and Jimmy Cloutier

.....More than 50 congressional lawmakers and 30 organizations have urged the Federal Election Commission to regulate the use of deceptive artificial intelligence in campaign ads in support of a petition from the consumer rights group Public Citizen. 

Free Expression

Quillette: The Heckler’s Veto and the Right to Free Association

By Holly Lawford-Smith

.....The other, more straightforward implication of thinking about the heckler’s veto in terms of freedom of association rather than freedom of speech is—as philosophers Emily McTernan and Bob Simpson have argued—that for most of the campus events at which the question of the heckler’s veto arises, the group that organized the event and the people who booked tickets have the right to get together for the purpose of the event, and the heckler is hindering them from doing so.

Those who are curious about a topic may invite a speaker to campus and be looking forward to refining their ideas together in response to what that speaker has to say. It’s partly about speech—hearing the speaker’s ideas—but it’s partly about association, too: about meeting up, attending the event together, talking to each other, and perhaps going out together afterwards to discuss things further.

Exercise of this right to freedom of association is likely to be particularly important when the group is united by a minority viewpoint, and even more so when those who hold that minority view are despised or vilified (as radical and gender-critical feminists are, to return to the University of Tokyo case we started with).

Independent Groups and Nonprofits

The Atlantic: Meet the Super SPAC

By Elliot Ackerman

.....Citizens United is a well-known story. But another court case, decided two months later, is also transforming American elections, although it has received far less attention: Unity08 v. FEC. The case was brought by Unity08, an organization that in the 2008 presidential election sought to put a Republican and Democrat on the same ticket to bring the country together. Unity08 didn’t get very far. When confronted with the challenge of raising money for ballot access, an effort that involved my late father, the organization folded. When Unity08 sued the Federal Election Commission, its complaint stated that contribution limits “would hamper its ability to engage in core political speech, such as petitioning and other ballot access activities.”

The ruling, in favor of Unity08, found that the organization was not subject to regulation as a political committee so long as it didn’t favor any single candidate. Although Unity08 was at this point defunct, the ruling created a breach in one of the walls the two major parties have used for decades to prevent independent candidacies. An entity like Unity08, dedicated to creating the infrastructure for an independent candidate to run, could now raise unlimited funds to put a candidate, to be named later, on the ballot.

Archive.today link

Candidates and Campaigns

Mediaite: ‘Banality of Crazy’: Trump’s Vow to ‘Come Down Hard’ on Media Critics Raises Alarm

By Alex Griffing

.....Former President Donald Trump’s latest screed attacking the media on Truth Social raised a lot of eyebrows Wednesday and sounded alarm bells across the country.

Trump wrote late on Tuesday night, “MSNBC (MSDNC) uses FREE government approved airwaves, and yet it is nothing but a 24 hour hit job on Donald J. Trump and the Republican Party for purposes of ELECTION INTERFERENCE.”

“Brian Roberts, its Chairman and CEO, is a slimeball who has been able to get away with these constant attacks for years. It is the world’s biggest political contribution to the Radical Left Democrats who, by the way, are destroying our Country. Our so-called “government” should come down hard on them and make them pay for their illegal political activity. Much more to come, watch!” added the GOP frontrunner.

The comments were quickly denounced by journalists and pundits warning of the former president’s explicit promise to curb press freedoms and punish his critics.

The States

New York Times: Trump Again Barred From Insulting Court Staff in Civil Fraud Trial

By Jonah E. Bromwich and Kate Christobek

.....An appeals court on Thursday reinstated a narrow gag order on Donald J. Trump that bars him from attacking court staff in his civil fraud trial in New York…

In a statement, a lawyer for Mr. Trump, Christopher M. Kise, said the decision represented a “tragic day for the rule of law.”

“In a country where the First Amendment is sacrosanct, President Trump may not even comment on why he thinks he cannot get a fair trial,” the statement said.

Center Square (Arizona): Arizona GOP lawmakers hint at university budget cuts over free speech concerns

By Cameron Arcand

.....Arizona Republican lawmakers are reconsidering appropriations toward public universities in the state, specifically citing free speech concerns at Arizona State University.