February 16, 2024

Ed. note: The Daily Media Update will return Tuesday, February 20.

In the News

St. Louis Post-Dispatch: Opinion: Our legislation would stop plaintiffs from using the courts to silence critics

By Missouri Sen. Elaine Gannon and Missouri Rep. Chad Perkins

.....Costly, meritless lawsuits that punish speakers for exercising their First Amendment rights present a serious threat to Missourians under current state law.

We want to change that.

The danger to free speech comes in the form of “SLAPP” suits. “SLAPP” stands for “strategic litigation against public participation.” …

The nonpartisan nonprofit Institute for Free Speech recently released its 2023 Anti-SLAPP Report Card, which analyzes anti-SLAPP laws in all 50 states and the District of Columbia. While the report shows momentum toward more and stronger anti-SLAPP protections across the nation, Missouri isn’t part of that trend. Instead, our state lags behind much of the rest of the country. We earned an embarrassing “D-minus” grade, with a score of only 26 out of a possible 100 points.

These results contrast sharply with the direction of the United States as a whole. Just since the 2022 version of the report, eight states have improved their anti-SLAPP grades. And, for the first time, over half of the American population resides in a jurisdiction with a good anti-SLAPP law, meaning a grade of “B” or better on the Institute’s rating scale.

Idaho Statesman: Idaho bill could offer protections for retaliatory lawsuits. Here’s what it would do

By Ian Max Stevenson

.....The president of the Institute for Free Speech, a conservative nonprofit in Washington, also wrote an opinion article in the Statesman supporting anti-SLAPP legislation and pointing out that Idaho is one of only a few states that doesn’t already have those protections.

The Courts

Courthouse News: Educators who opposed school district’s anti-racism training bring free speech claims to Eighth Circuit

By Joe Harris

.....Two Missouri educators challenging their school district’s requirement to “commit” to anti-racism attempted to revive their First Amendment claim at the Eighth Circuit on Thursday morning.

“They believe in equality and they believe in colorblindness and they hold faith-based views that inform their belief on race, politics and the nature of human identity,” the plaintiffs' attorney Braden H. Boucek, of the Georgia-based Southeastern Legal Foundation, told a three-judge panel.

“But during the feverish political climate of 2020, [Springfield Public Schools] adopted conflicting views to theirs. And while the government is allowed to have a viewpoint, what it may never do is use a role of public employer to compel political advocacy out of its employees.”

Bloomberg Law: RFK Jr. Wins Deferred Injunction in Vax Social Media Suit

By Peter Hayes

.....Robert F. Kennedy Jr. won a preliminary injunction against the White House and other federal defendants in his suit alleging government censorship of his statements against vaccines on social media.

The injunction, however, will be stayed until the US Supreme Court rules in a related case brought by Missouri and Louisiana.

An injunction is warranted because Kennedy showed he is likely to succeed on the merits of his claims, Judge Terry A. Doughty of the US District Court for the Western District of Louisiana said Wednesday.

Washington Times: New York AG Letitia James conducts the left’s war on free expression

By Tim Murtaugh

.....New York state passed a law that forces websites and platforms to police online speech that could be perceived as being harmful or vilifying to someone based on gender, race, religion, or other identifying characteristics. This “hate speech” law instructs platforms to publish policies describing how they would respond to such speech incidents, mandates that they create a way for people to register complaints, and requires them to respond to the complainers directly.

If it sounds like the state of New York is trying to deputize website operators in the war against free speech, it’s because that’s what they’re doing.

“New York politicians are slapping a speech-police badge on my chest because I run a blog,” said Eugene Volokh, a UCLA law professor who runs the legal blog “The Volokh Conspiracy” and who sued New York to block the law in 2022.

Also involved in the suit as plaintiffs are the online platforms Locals and Rumble, which are free speech video hosting platforms and clients of my public affairs firm. Lawyers from the Foundation for Individual Rights and Expression represent the plaintiffs.

Courthouse News: Federal judge skeptical of jurisdiction in Media Matters suit against Texas AG

By Ryan Knappenberger

.....A federal judge heard arguments Thursday regarding whether he had jurisdiction to hear a case brought by progressive watchdog Media Matters against Texas Attorney General Ken Paxton. 

The suit stems from an investigation Paxton had opened into the organization following its report that major ad campaigns on X, formerly Twitter, were running next to white nationalist and antisemitic content on the app in the wake of Elon Musk’s takeover of the social media site. 

Media Matters’ reporting seemingly led large advertisers like Apple and Disney to pull out their ads off the platform, after which X sued the organization in November 2023, in the Northern District of Texas. The social media platform accused Media Matters of misrepresentation. 

Paxton announced his investigation the same day, seeking to prove whether Media Matters committed “potential fraudulent activity.” In his announcement, Paxton referred to Media Matters as a “radical left-wing organization who would like nothing more than to limit freedom by reducing participation in the public square.” 

Free Expression

Northwestern: Has Citizens United decision undermined democracy?

By Shanice Harris

.....In a high-stakes presidential election year, the nonpartisan debate series Open to Debate (formerly known as Intelligence Squared U.S.) and the Newt and Jo Minow Debate Series at Northwestern Pritzker School of Law are taking a look at the U.S. Supreme Court case Citizens United v. Federal Election Commission, which determined the first amendment prohibits the government from restricting corporations from spending money on political campaigns…

Open to the public, the debate, “Has Citizens United Undermined Democracy?” will be presented in person and streamed live at 5 p.m. Feb. 21 in the Law School’s Thorne Auditorium.

Arguing yes will be Francesca Procaccini, assistant professor of law at Vanderbilt University Law School, and Ciara Torres-Spelliscy, professor of law at Stetson University…

Arguing no will be Floyd Abrams, senior counsel in Cahill Gordon & Reindel LLP’s litigation practice group, and Eric Wang , partner at The Gober Group and a pro bono senior fellow at the Institute for Free Speech.

Abrams often is involved with cases on the First Amendment, intellectual property, public policy and regulatory issues. He represented The New York Times during the Pentagon Papers case, Judith Miller in the CIA leak grand jury investigation and Citizens United in Citizens United v. FEC, among other high-profile clients.

Wang’s practice focuses on federal and state campaign finance, lobbying, political nonprofits and government ethics laws. He has advised clients on the campaign finance laws in all 50 states and in many municipalities.

Boston Globe: I wrote a definition of antisemitism. It was never meant to chill free speech on campus.

By Kenneth S. Stern

.....Increasingly, mainstream Jewish groups have been pushing lawmakers and universities to adopt what’s known as the International Holocaust Remembrance Alliance definition of antisemitism on campus to chill or suppress much pro-Palestinian speech. I was the lead drafter of the 2005 text that became the 2016 IHRA definition. It was designed primarily for European data collectors to be able to craft reports over borders and time to measure the level of antisemitism. Examples were the heart of the definition to guide the data collection process. There were examples about Israel, not to label anyone an antisemite but because there was a correlation, as opposed to causation, between certain expressions and the climate for antisemitism. But it was never intended to be weaponized to muzzle campus free speech.

Reason: Progressives Are Ditching Free Speech To Fight 'Disinformation'

By Steven Greenhut

.....In my column last week, I detailed how GOP lawmakers in several Western states have jettisoned their usual concerns about free speech and have passed laws that require cellphone users to disable government-mandated filters before having open access to apps. It's a foolhardy endeavor done in the name of protecting The Children from obscenity, but at least these measures are narrow in scope (and mostly about posturing).

Meanwhile, progressives are hatching attacks on "disinformation" that threaten the foundations of the Constitution. Republicans share some responsibility, as they've backed various proposals targeting Big Tech out of pique about the censorship of conservative views. These ideas included limits on liability protections for posted content and plans to treat social media sites as public utilities.

Conservatives have already shown a willingness to insert government into speech considerations, so they are left flat-footed as leftists hatch plots to rejigger open debate. Whenever the Right plays footsie with big government, the Left then ups the ante—and conservatives end up wondering what happened. What is happening now is an effort to use legitimate concerns about internet distortions to squelch what we read and say.

The States

Wall Street Journal: Fani Willis, Alvin Bragg and Donald Trump

By The Editorial Board

.....In New York, a state judge set a March 25 trial date for the hush-money case he faces, meaning the weakest charges against Mr. Trump will go to a jury first…

As the 2016 election loomed, Mr. Trump’s fixer Michael Cohen paid $130,000 to Stormy Daniels. Manhattan District Attorney Alvin Bragg indicted Mr. Trump for falsifying business records, saying Mr. Cohen’s reimbursement was “disguised as a payment for legal services.” Sordid behavior. But because Mr. Bragg jacked the charges up to felonies, he must also prove Mr. Trump kept dirty books intending to commit or conceal a second crime.

Even legal minds who don’t like Mr. Trump have said this case is a stretch. What’s the other crime? One theory is that Mr. Bragg will argue that Mr. Trump violated campaign-finance laws. But it’s far from clear that hush money like this is a campaign contribution, and that question could spend years on appeal.

Ed. note: Read IFS founder and former FEC Chairman Bradley A. Smith's March 2023 Wall Street Journal op-ed on this issue here.