January 16, 2024

In the News

Time: What’s Behind the Fight Over Whether Nonprofits Can Be Forced to Disclose Donors’ Names

By Helen J. Knowles-Gardner

.....Sixty-six years ago, the Supreme Court unanimously decided in NAACP v. Alabama ex rel. Patterson that compelling private organizations to disclose the identities of their members and donors violates those members' First Amendment freedoms of speech and assembly. The court’s decision constrained Alabama’s efforts to facilitate the intimidation (or worse) of National Association for the Advancement of Colored People (NAACP) supporters and to oust the organization from the state.

Today, this 1958 ruling remains highly relevant as Congress and state legislators across the country debate campaign finance reforms that include compelled disclosure of donors.

The Detroit News: Keating: Protect free speech against lawsuits

By David Keating

.....Being sued for simply expressing an opinion seems downright un-American.

Yet, when it comes to speaking out on a matter of public concern, Michigan currently

offers no protection whatsoever against that risk.

The risk comes in the form of “SLAPP” suits.

“SLAPP” stands for strategic lawsuit against public participation. These are usually

meritless defamation lawsuits that plaintiffs can use to silence speech they don't like,

preventing speakers from exercising their First Amendment rights.

Even a defendant who ultimately prevails can suffer significant, negative financial and

emotional impacts by defending such a suit. SLAPPs can also prompt others to refrain

from speaking, thus “chilling” speech by incentivizing silence.

Monitoring this aspect of free speech is extremely important to my organization, the

Institute for Free Speech. Our recently released 2023 Anti-SLAPP Report Card analyzes protections against SLAPP suits in all 50 states plus D.C.

Unfortunately, Michigan earned an 'F' grade as it has no protection at all.

New York Times: This Is the Actual Danger Posed by D.E.I.

By David French

..... In the name of D.E.I., all too many institutions have violated their constitutional commitments to free speech, due process and equal protection of the law.

First, it is a moral necessity for colleges to be concerned about hateful discourse, including hateful language directed at members of historically marginalized groups. Moreover, colleges that receive federal funds have a legal obligation to protect students from harassment on the basis of race, sex, sexual orientation and other protected categories.

Yet that is no justification for hundreds of universities to pass and maintain draconian speech codes on campus, creating a system of unconstitutional censorship that has been struck down again and again and again in federal court. Nor is it a justification for discriminating against faculty members for their political views or for compelling them to speak in support of D.E.I.

Ed. note: Above, French links to the November 14 Findings and Recommendation in the Institute for Free Speech lawsuit Johnson v. Watkin.

The Courts

Reason (Volokh Conspiracy): Amicus Brief Related to the Mackey "Vote-by-Text" Meme Prosecution

By Eugene Volokh

.....Russell B. Balikian & Cody M. Poplin (Gibson, Dunn & Crutcher LLP) just filed this brief on my behalf Friday; they drafted it based generally on some thoughts that I'd expressed in this 2021 Tablet article. Here's the substance of the brief, in case any of you folks are interested:

The First Amendment likely tolerates narrow and clearly defined bans on disseminating knowing lies regarding election procedures—that is, false statements of fact (not opinion, humor, parody, hyperbole, or the like) made with actual malice regarding the time or place of an election, or the procedures one must follow to lawfully cast a valid vote. But Congress has not enacted any federal law that clearly criminalizes such conduct. While some states have passed legislation that comes close to the mark, Congress has debated and repeatedly failed to enact similar statutes. See infra, at 12-13.

Despite the absence of a federal statute specifically on point, the government prosecuted Douglass Mackey for posting messages on Twitter relating to the 2016 presidential election. To achieve that result, the government repurposed 18 U.S.C. § 241, a statute enacted in 1870 to target violence and intimidation by the Ku Klux Klan during Reconstruction.

Indiana Capital Chronicle: Judge rules in favor of South Bend in 25-foot “buffer zone” lawsuit

By Whitney Downard

.....A federal judge on Friday rejected a request to block an Indiana law establishing a so-called “buffer zone” around law enforcement during official duties, a measure that includes both the public and the press.

Congress

People United for Privacy: Anti-Speech Activists Never Let a Scandal Go to Waste

By Brian Hawkins

.....As is common in Washington politics, free speech opponents are seizing on Santos’s scandals to call for stricter regulation of “money in politics.” Yet advocating for a massive expansion of campaign finance law, which frequently includes burdening nonprofit organizations with onerous donor disclosure requirements, ignores that existing laws already root out the most serious cases of public corruption. If anything, Santos’s indictments demonstrate that campaign finance laws are working as intended, rendering expanded disclosure unnecessary...

Yet, privacy opponents tell The New York Times that the solution to a politician disregarding the law is to pass more laws. According to one such activist, attorney Paul S. Ryan, “The bottom line here is that the only thing the F.E.C. sees, in most instances, at first glance, are the campaign finance disclosure reports… And if someone is smart enough to simply lie about what they are using it for, then it can go overlooked.”

Biden Administration

Washington Examiner: State Department funnels cash to foreign group to fight ‘disinformation’ amid GOP censorship scrutiny

By Gabe Kaminsky

.....The Biden administration is bankrolling a little-known foreign group to thwart “disinformation” in media, despite Congress exerting pressure on Democrats over similar initiatives GOP lawmakers have equated to state-sponsored “censorship,” records reveal.

For a program running until May 2024, the State Department has pledged $24,000 in taxpayer dollars to ESTIMA, a nonprofit organization in the southeast European country of North Macedonia, to “build capacity and resilience among media and journalists to address foreign disinformation and strengthen the media space against malign influence,” according to financial disclosures. ESTIMA, which employs ex-North Macedonian government aides in the landlocked country of around 2 million people, has also partnered with the State Department’s Global Engagement Center, an office facing congressional investigations following reporting from the Washington Examiner on it funding the London-based Global Disinformation Index aiming to strip revenue from conservative media outlets.

The States

Must Read Alaska: Sen. Shelley Hughes files bill targeting deepfake AI use by state agencies and political operations

By Suzanne Downing

.....Mat-Su Valley Sen. Shelley Hughes filed Senate Bill 177 in advance of Tuesday’s legislative session. It addresses state agency potential use of artificial intelligence (AI), data privacy, cybersecurity, and the use of political deepfakes.