February 13, 2024

Supreme Court

SCOTUSblog: Trump asks justices to intervene in Jan. 6 case

By Amy Howe

.....Four days after the justices heard oral arguments in his quest to be restored to the ballot in Colorado, former President Donald Trump was back at the Supreme Court, asking the justices to temporarily block a decision by a federal appeals court holding that he can be tried on criminal charges that he conspired to overturn the results of the 2020 election.

In a 39-page filing on Monday afternoon, Trump argued that “[w]ithout immunity from criminal prosecution, the Presidency as we know it will cease to exist.” …

Moreover, Trump added, if he is required to stand trial “at the height of election season,” it would “radically disrupt” his ability to campaign. Therefore, he concluded, the D.C. Circuit’s ruling poses a threat to both his own First Amendment rights and those of “tens of millions of Americans” – who, he insisted, “are entitled to hear” his “campaign message as they decide how to cast their votes in November.”

The Courts

Bloomberg Law: Appeals Court Wary of GOP Operative’s Campaign Finance Appeal

By Suzanne Monyak

.....A federal appeals court appeared unlikely to reverse a Republican political operative’s conviction for funneling political contributions from a Russian billionaire to former President Donald Trump’s 2016 presidential campaign.

A three-judge panel of the US Court of Appeals for the District of Columbia Circuit heard Jesse Benton’s challenge on Monday in a case that delved into complex campaign finance laws and communications to the jury at trial.

Benton, a one-time aide and grandson-in-law to Ron Paul, the former Texas GOP congressman and presidential candidate, is fighting his conviction on six counts of campaign finance violations and obstruction of justice. He was sentenced to 18 months in prison.

On appeal, Benton has challenged instructions given to the jury on how to consider a since-pardoned campaign finance conviction, and how a political contribution should’ve been defined.

Politico: SEC’s ‘Gag Rule’ denounced as ‘occupational death sentence’

By Declan Harty

.....A long-running battle over the Securities and Exchange Commission’s policy of muzzling defendants in enforcement cases is gaining new momentum in the courts, thanks to one of the biggest critics of federal regulatory power.

The New Civil Liberties Alliance, a conservative legal group that has been at the forefront in the clash over regulatory reach, is leading a pair of long-shot challenges looking to knock down the SEC’s half-century-old policy of barring most defendants who settle with the agency from speaking out against the charges...

Officially known as the No-Admit-No-Deny rule — or, to critics, the “Gag Rule” — the SEC’s prohibition on defendants openly protesting their cases after settling with the agency has faced years of criticism from activists, billionaires like Mark Cuban and Elon Musk, and even some judges who say they worry that it violates the First Amendment...

“What is the SEC so afraid of?” Judge Ronnie Abrams of the Southern District of New York wrote in 2022, while reluctantly approving a settlement. The answer, she said: “Any criticism, apparently — or, rather, anything that may even ‘create the impression’ of criticism — of that governmental agency.” ...

The Fifth Circuit panel of judges on Thursday voiced skepticism about NCLA’s arguments against the policy.

News 5 Cleveland: Judge blocks Ohio law requiring parental consent for teen social media use

By Ian Cross, Associated Press

.....On Monday, a federal judge blocked Ohio's law requiring parents to sign off on their child's new social media accounts, siding with a group representing several social media sites that has filed a lawsuit against the state and argues the law is unconstitutional.

In a ruling, United States District Court Judge Algenon Marbley with the Southern District of Ohio, Eastern Division, sided with NetChoice, the internet trade organization representing sites including Google, Meta, X, formerly Twitter, and others, and granted a preliminary injunction to prevent Ohio from enforcing the law, which was supposed to take effect Jan. 15, 2024.

National Review: Michael Mann Verdict Is an Assault on the First Amendment

By The Editors

.....In a recent editorial, we posed the two key questions that would be answered by the Washington, D.C., jury that had been given responsibility for resolving Michael Mann’s interminable crusade against American journalism. The first was whether Americans are “able to disagree about hotly contested political topics without being harassed, dragged into court on the most specious of pretexts, and subjected to ruinous legal fees.” The second was whether the protection of American law “attaches to those who ruffle feathers.” [Last week], in the nation’s capital, a panel of jurors answered both of them with a resounding “No.”

Free Expression

New Yorker: Avoiding the Disinformation Trap

By Joel Simon

.....But fighting disinformation is a fraught endeavor. In some instances, researchers say, efforts to do so have hurt more than they have helped...

The growing consensus that fighting disinformation is a legitimate government function provided an excuse for autocratic regimes around the world to crack down on critical speech. A 2023 study from the Center for International Media Assistance (cima) found that, during the previous decade, a hundred and five misinformation laws were enacted or amended in seventy-eight countries. Using these new powers, some governments acted to restrict “misleading” or “false” information and jailed several dozen journalists. “We have to acknowledge that the rhetoric and the efforts to combat mis- and disinformation are giving cover for authoritarian governments to stifle freedom of expression and a free press,” Nicholas Benequista, the senior director of CIMA, told me.

Donor Privacy

People United for Privacy: Forecasting 2024 State Threats to Nonprofit Advocacy and Donor Privacy

By Matt Nese and Alex Baiocco

.....People United for Privacy expects lawmakers in as many as 31 states to consider legislation in 2024 that would chill nonprofit advocacy and expose members and supporters of nonprofit groups to threats, harassment, and intimidation. This concern is particularly pronounced in California, Hawaii, Idaho, Michigan, Minnesota, Ohio, Oklahoma, Oregon, Virginia, and Wyoming.

As the 2024 sessions intensify, here are five key takeaways for free speech and citizen privacy advocates:

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Online Speech Platforms

Washington Post: AI companies agree to limit election ‘deepfakes’ but fall short of ban

By Gerrit De Vynck

.....Leading artificial intelligence companies are planning to sign an “accord” committing to developing tech to identify, label and control AI-generated images, videos and audio recordings that aim to deceive voters ahead of crucial elections in multiple countries this year.

The agreement, developed by Google, Microsoft and Meta, as well as OpenAI, Adobe and TikTok, however, does not ban deceptive political AI content, according to a copy obtained by The Washington Post. X, previously Twitter, was not a signatory to the agreement.

Instead, the document amounts to a manifesto stating that AI-generated content, much of which is created by the companies’ tools and posted on their platforms, does present risks to fair elections, and it outlines steps to try to mitigate that risk, like labeling suspected AI content and educating the public on the dangers of AI.

The States

Axios: Indiana's plan to combat election deepfakes

By Arika Herron

.....A bill requiring disclaimers on some political ads that have been digitally altered or created with generative AI is moving through the Indiana Statehouse…

 The bill proposed by Rep. Julie Olthoff (R-Crown Point) requires political ads made without a candidate or officeholder's consent that contain digitally altered or AI-generated images, video or audio include a disclaimer about its use.

The measure also allows candidates and officeholders to sue the people who paid for or sponsored the ad if it doesn't include the disclaimer.

Olthoff's bill passed the House unanimously last month.

It will get its first Senate hearing during a committee meeting this morning.

KSL NewsRadio: Committee advances bill preventing Utah public teachers, staff from expressing political opinions

By Alexandrea Bonilla

.....A bill advancing in the House would prevent Utah public school teachers and staff from expressing any kind of political or social speech to students, including classroom displays.

Bill ponsor Rep. Jeffrey Stenquist, R-Draper, said HB303 is intended to build trust between teachers and parents, and that it only affects teachers and staff. The bill does not limit what students can say.