March 15, 2024

In the News

SCOTUSblog: The morning read for Friday, March 15

By Ellena Erskine

.....Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:

...

Government Censorship of Social Media Demands Bright-Line Rule (Charles Miller & Brett Nolan, Bloomberg Law)

Supreme Court

SCOTUSblog: Announcement of opinions for Friday, March 15

.....The court held in Lindke v. Freed that speech by a government official about job-related topics on social media is attributable to the state only if the official possessed actual power to speak on the state’s behalf and purported to exercise that authority when he spoke on social media.

In a short per curiam opinion, the court sent O’Connor-Ratcliff v. Garnier back to the lower court in light of the approach outlined in Lindke.

The Courts

Bloomberg Law: Ohio ‘Ballot Selfie’ Ban Challenger Gets Another Shot in Court

By Eric Heisig

.....A Cleveland federal judge must take another look at a lawsuit over Ohio’s ban on “ballot selfies” because the challenger meets the requirements necessary to bring the case, a federal appeals court ruled Thursday.

Plaintiff Alison Kareem has standing to challenge two state criminal laws that ban posting such photos online because she credibly fears prosecution, US Court of Appeals for the Sixth Circuit Judge Eric L. Clay wrote for a three-judge panel.

Congress

Washington Post (Technology 202): Six takeaways as House TikTok vote shifts action to Senate

By Cristiano Lima-Strong

.....On Tuesday, Senate Majority Leader Charles E. Schumer (D-N.Y.) said he planned to consult with his committee leaders about how to move forward on legislation related to TikTok. 

After Wednesday’s vote, one of those panel chairs came out in favor of the bill, while another remained noncommittal on the legislation’s fate, complicating the political outlook in the Senate.

Warner, who chairs the Senate Intelligence Committee, joined Vice Chair Marco Rubio (R-Fla.) in backing the legislation, saying in a joint statement that they “look forward to working together to get this bill passed through the Senate and signed into law.” The remarks were significant given that both previously sponsored alternative bills, and Warner last week questioned the House’s approach.

But notably, Senate Commerce Chairwoman Maria Cantwell (D-Wash.) and her Republican counterpart, Sen. Ted Cruz (Tex.), on Wednesday declined to endorse the House bill or agree to take it up in the committee, which probably would have jurisdiction over a companion measure.

Donor Privacy

Philanthropy Roundtable: What Social Science Tells Us About Forced Donor Disclosure

By David M. Primo

.....[A]s Ben-Shahar and Schneider write, “‘Mandated disclosure’ may be the most common and least successful regulatory technique in American law.” This paper explores one form of mandated disclosure— of donors to nonprofit organizations—and assesses the benefits and costs of these types of policies.

Since the U.S. Supreme Court’s decision in Citizens United and a U.S. Circuit Court decision in SpeechNow, campaign finance reformers have focused their attention on disclosure as a means to regulate money in politics. The rise of super PACs which are permitted to raise and spend unlimited amounts on politics made restrictions on contributions to candidates seem ineffectual...

In recent years, there have been numerous state and federal efforts to change or create disclosure rules to force the public disclosure of donors to nonprofit organizations, with particular focus on 501(c)(4) social welfare organizations (with some attention also paid to 501(c)(3) charitable organizations). And, as the states and Congress consider, and sometimes enact, changes to disclosure laws, the jurisprudence around disclosure is evolving. This is seen most notably in the major U.S. Supreme Court decision Americans for Prosperity Foundation v. Bonta (AFPF), which struck down a California rule mandating that charities reveal many of their donors to the government. The AFPF decision has spurred subsequent litigation to address questions left unanswered by the decision.

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FEC

FEC: FEC approves Federal Register notice, Statement of Policy concerning enforcement process

.....Advisory Opinion Request 2024-01 (Texas Majority PAC) The Commission held over discussion of two drafts of Advisory Opinion Request 2024-01, in response to a request from Texas Majority PAC concerning its proposal to hire vendors to canvass potential voters. Texas Majority PAC asks whether canvassing literature and scripts, and their associated costs, would be public communications, coordinated communications, or coordinated expenditures, and about the provision of data resulting from the canvass to a federal candidate or party committee at less than fair market value. The Commission intends to hold a tally vote on the drafts. The Commission received a comment on the drafts, in addition to several other previously submitted comments on the drafts and the advisory opinion request.

Free Expression

Axios: College Republicans and Democrats agree: Defend speech that hurts feelings

By Margaret Talev and Noah Bressner

.....More than two-thirds of college students believe universities should protect free speech — even if the speech extends to physical threats or inciting violence, according to a new Axios Vibes survey by The Harris Poll...

Free speech was the third most-cited concern (32%) of the 643 students polled about their institutions, after tuition (50%) and safety (46%).

A clear majority of students — 68% — argued for pushing the limits of speech on campus even if there's some risk of violence. That's much higher than the 43% of the 3,525 non-students polled who share that view.

77% of respondents said campus speech should be protected even if some feel the language is deeply upsetting.

86% said their institutions should make them feel safe sharing their opinions on tense social issues and global conflicts, and be a safe haven for free speech for the student body.

There was no difference between Democratic students and Republican students. But there was a gender gap, with 74% of men but just 61% of women arguing for expanded speech.

Independent Groups

New York Times: Democrats Meddle in Ohio G.O.P. Senate Primary, Pushing Trump’s Choice

By Michael C. Bender

.....A Democratic group is wading into the Republican Senate primary in Ohio with a new television spot aimed at promoting the conservative credentials of Bernie Moreno, a Cleveland-area businessman who has been endorsed by former President Donald J. Trump.

The States

The Dispatch: Why ‘Intellectual Diversity’ Requirements on Campus Won’t Work

By Keith E. Whittington

.....Indiana Senate Bill 202 has passed the state legislature and now awaits the governor’s signature. The bill has several components, some more controversial than others. It directs boards of trustees to create “diversity committees” focused on “cultural and intellectual diversity issues” and to expand the mission of diversity offices to include intellectual diversity. It bans politicized diversity statements for admission and hiring, and directs universities to adopt a policy of institutional neutrality on matters of public controversy.

The heart of SB 202, its real innovation, would add an article to state code for “the protection of free inquiry, free expression, and intellectual diversity.” Essentially, the bill would bar faculty at state universities from receiving tenure if their past performance indicates that they are: 

USA Today: Millions blocked from porn sites as free speech, child safety debate rages across US

By Jonathan Limehouse and Kayla Jimenez

.....A high-stakes battle over pornography, child safety and free speech is heating up across the nation, with more than a half-dozen states passing age-verification laws aimed at halting minors from accessing Pornhub and other adult web sites.

Texas this week became the 7th - and largest - state to pass some form of the controversial legislation, which effectively blocks millions of adult video enthusiasts from entering Pornhub's site unless they can prove they are at least 18 years old.

Attorneys and advocates for porn sites argue that the laws are not just prohibiting minors, but adults, too. Pornhub says it had no choice but "to completely disable access to our website in Texas" in order to reduce the risk of hefty fines and penalties.

In addition to Texas, Pornhub has reluctantly blocked site access for people in other states with age-verification laws, including Arkansas, Louisiana, Mississippi, Montana, North Carolina, Utah and Virginia.