January 24, 2024

In the News

Bloomberg Law: Judges Back Moms for Liberty on Publicly Chiding Teachers, Books

By Chris Marr

.....Two Trump-appointed federal appellate judges appeared sympathetic to Moms for Liberty’s contention that its members were unconstitutionally blocked from criticizing teachers by name or reading obscene passages from books they sought to restrict at one Florida school board’s meetings.

Judges Britt C. Grant and Barbara Lagoa honed in on those two restrictions as potentially unconstitutional limits on free speech as part of a three-judge panel hearing oral argument on Tuesday at the US Court of Appeals for the Eleventh Circuit in Atlanta. The Brevard County, Fla., affiliate of parent-rights advocacy group Moms for Liberty is asking the Eleventh Circuit to revive its lawsuit challenging the Brevard Public Schools policies governing public comments at board meetings.

“How is it reasonable for a person to be prohibited from naming a specific teacher or school official” when criticizing a classroom or school system policy, Lagoa asked…

Alan Gura, an attorney at the Institute for Free Speech who represented Moms for Liberty, criticized the board’s rule against personally-directed comments as “the Voldemort rule: he who must not be named"—a nod to the chief villain from the Harry Potter book series whose name other characters are reluctant to speak.

The board’s policy of banning offensive, insulting, and personally-directed speech runs afoul of the First Amendment even if it’s evenly applied to people with varying political perspectives, Gura told the judges.

“People have a right to use their arguments and words,” he said. “It does not matter that the way they use their words was offensive to the school board.”

Along the Mississippi: Iowa's legislative leaders dodge scrutiny

By Ed Tibbetts

.....[Laura] Belin, who has progressive political views, owns and operates the Bleeding Heartland online news website. Bleeding Heartland is a must-read for anybody interested in Iowa politics, and Belin has been recognized by news organizations in the state—and outside it.

She’s covered the Legislature for years, but first applied for House press credentials in 2019. She was rejected.

Those rejections have continued. Her colleagues in the news media have supported her, but the powers that be won’t budge.

Now Belin is going to federal court to fight the refusals. Last Friday, she filed a lawsuit that argues her First Amendment rights to free speech and press and Fourteenth Amendment right to due process are being violated. The Washington, D.C.-based Institute for Free Speech is joining her fight...

I hope the suit is successful. And not just because Belin is a member of the Iowa Writers Collaborative, as am I. I hope she wins because it is wrong for the custodians of the people’s House to wall off access to journalists for political reasons.

The Courts

Politico: Appeals court shoots down Trump’s bid to sideline his DC gag order

By Kyle Cheney

.....A federal appeals court in Washington, D.C. has rejected former President Donald Trump’s bid to lift a gag order that sharply restricts his ability to criticize witnesses in his criminal case for attempting to subvert the 2020 election.

In a terse ruling on Tuesday, the full 11-member bench of the appeals court — which includes three of Trump’s own appointees — opted against reconsidering a three-judge panel’s Dec. 8 decision upholding the gag order. The order was initially imposed by U.S. District Judge Tanya Chutkan, after prosecutors requested the limitation, citing threats to witnesses, attorneys and court personnel driven by Trump’s vitriol.

Free Expression

Law & Liberty: The New Deal's Dark Underbelly

By Marcus Witcher

.....FDR empowered his allies in the Senate to harass, undermine, and delegitimize political enemies and critics of the New Deal through formal investigations. According to [author David] Beito, the Black Committee—chaired by Hugo L. Black (D-AL) who was an ardent New Dealer—was used “as an instrument of political surveillance.” The committee was created to look into opponents of Roosevelt’s New Deal in 1935 at a time when many of the New Deal initiatives had suffered significant setbacks from the Supreme Court. The Roosevelt administration empowered and supported the committee’s activities. The IRS issued “a ‘general blanket order’ for access to the tax returns of potential witnesses.” Roosevelt’s Federal Communications Commission (FCC) also granted “authorization to require the telegraph companies [to] comply” with Black’s requests that his committee be granted complete access to witness telegrams. Ultimately, the Black Committee succeeded in its goal to “spread the view that the main anti-New Deal organizations represented a small cabal of big business interests” and it successfully discredited opponents of the New Deal and discouraged financial contributions to FDR’s political opponents.

After Roosevelt secured reelection in 1936, the emboldened president made mistakes... The NCUCG was...pivotal in organizing the opposition to Roosevelt’s restructuring of the federal government bill in the fall of 1937. In response to these setbacks, FDR empowered Senator Sherman Minton (D-IN) to form a committee to investigate who was funding opposition to the Second New Deal. The Minton Committee raided offices, utilized some of the techniques of the Black Committee, and tried to force the organizations to disclose their donors. Walter Lippman wrote that the Minton Committee was an attempt by the New Dealers “to embarrass, worry, terrorize and destroy.” He continued, “If this is not to be described as arbitrary government and capricious tyranny, what is the accurate way to describe it.” Like the Black Committee, the Minton Committee’s major success was in freezing donations and silencing criticism. The message these committees sent was clear: if you oppose the president and his program, you might find yourself a target.

New York Times: Barnard College’s Restrictions on Political Speech Prompt Outcry

By Sharon Otterman

.....Three weeks after the Oct. 7 Hamas attacks on Israel, the Department of Women’s, Gender and Sexuality Studies at Barnard College in New York posted a statement on its departmental website in support of the Palestinian people...

Two days later, they found that section of the webpage had been removed, without warning, by Barnard administrators.

What happened next has sparked a crisis over academic freedom and free expression at Barnard at a time when the Israel-Hamas conflict has led to tense protests on American college campuses and heated discussions about what constitutes acceptable speech.

Asked to explain why the page was removed, college administrators told the department that the statement and links were “impermissible political speech,” a statement from the department said.

The Barnard administration then, in late October and November, rewrote its policies on political activity, website governance and campus events, giving itself wide latitude to decide what was and was not permissible political speech on campus, as well as final say over everything posted on Barnard’s website.

The moves caught the attention of the New York Civil Liberties Union, which wrote a letter to Barnard’s new president, Laura Rosenbury, in December, warning that the website and political speech policies violated fundamental free speech principles and were “incompatible with a sound understanding of academic freedom.”

“Such a regime will inevitably serve as a license for censorship,” the letter said.

Candidates and Campaigns

Politico: Seeing a viral pro-Biden TikTok? A PAC might have paid for it.

By Rebecca Kern

.....LaToi Storr, a 42-year-old content creator and lifestyle blogger based in Philadelphia, normally posts Instagram and TikTok videos of local restaurants and skincare tips, mingled with some community-focused material on Black mental health care.

Last fall, she started posting a new kind of message on her feeds.

In an Instagram reel in October, she urged her 16,500 followers to register for a Pennsylvania election for state judges and district attorneys. She posted the same video on TikTok. Then, she posted another reel reminding people to get out to vote.

For her political posts, she was paid by Priorities USA, a super PAC supporting President Joe Biden’s reelection.

The influential Democratic PAC is spending $1 million for its first-ever “creator” program, enlisting Storr and 150 other influencers to post on social media in the 2024 election cycle, according to details first shared with POLITICO.

The Hill: Watchdogs urge presidential candidates to disclose top campaign fundraisers

By Taylor Giorno

.....A coalition of good governance groups is calling on 2024 presidential candidates to routinely disclose their biggest campaign fundraisers, also known as “bundlers.” ...

Candidates are not legally required to disclose their roster of top campaign fundraisers unless the individual is an active registered federal lobbyist. Without voluntary disclosure, the opaque nature of bundling obscures the full picture of money flowing into presidential campaigns.

“Government accountability depends on transparency in our campaign finance system, and that includes transparency about presidential campaign bundlers,” the coalition wrote in a letter to each of the remaining Democratic and Republican presidential candidates, along with independent candidate Robert F. Kennedy, Jr.

Election Law Blog: “Recusal as Remedy: Disincentivizing Donors”

By Rick Hasen

.....Benjamin Edelstein and Sara Benesh have written this article for State Politics & Policy Quarterly. Here is the abstract:

“As judicial elections become increasingly expensive, recusal has emerged as a way to address concerns about the impartiality of judges who receive contributions from lawyers or potential litigants. While it is unclear if strict recusal rules are the best remedy for conflicts of interest created by contributions, they may disincentivize potential donors from investing in judicial campaigns by negating their potential goal of influencing decisions. We consider whether donor behavior in judicial campaigns – especially for those donors most likely to be interested in specifically currying favor with judges – responds to differences in recusal standards. Using data from 219 state supreme court races in 22 states from 2010 to 2020, we find that states with stricter recusal rules attract fewer campaign donations to judicial races, and states with more lax rules attract more overall and, most especially, for attorney donors.”