March 27, 2024

New from the Institute for Free Speech

Institute for Free Speech Senior Attorney Joins Expert Panel to Discuss Murthy v. Missouri

.....On Monday, March 18, Institute for Free Speech Senior Attorney, Charles “Chip” Miller joined a panel of experts assembled by the Program on Information Justice and Intellectual Property at American University’s Washington College of Law to discuss the implications of Murthy v. Missouri, an important free speech case recently argued before the Supreme Court.

The panel discussed the questions presented in the case: “(1) Whether respondents have Article III standing; (2) whether the government’s challenged conduct transformed private social media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights; and (3) whether the terms and breadth of the preliminary injunction are proper.”

The Institute also filed an amicus brief in the case urging the Supreme Court to establish a clear, robust prohibition against government officials privately soliciting the removal or suppression of lawful political speech. Chip Miller and fellow Institute Senior Attorney Brett Nolan, co-authors of the amicus brief, wrote an opinion piece for Bloomberg Law underscoring the need for a bright-line rule as well.

Watch the panel here:

Supreme Court

Reason (Volokh Conspiracy): More on Coercion, Social Media, and Freedom of Speech: Rejoinder to Philip Hamburger

By Ilya Somin

.....Professor Philip Hamburger has posted a response to my critique of his post on the social media free speech cases currently before the Supreme Court. The latter, in turn, responded to my earlier argument that courts should focus on coercion in Murthy v. Missouri. For those keeping track, this is now the fifth post in this series.

In his latest post, Prof. Hamburger accuses me of repeating my "errors." But I remain unrepentant. It is in fact Hamburger himself who has doubled down on his mistakes.

The Courts

Slate: Why Is Joe Biden’s DOJ Prosecuting a Journalist While Pretending Otherwise?

By Seth Stern

.....When President Joe Biden said “journalism is not a crime” last April, federal prosecutors in Tampa, Florida, apparently took that as a challenge. Not a crime yet.

The next month, FBI agents raided the home of journalist Tim Burke. He is scheduled to be arraigned in the coming weeks under the Computer Fraud and Abuse Act (CFAA) and wiretap laws for finding and disseminating unaired Fox News footage of Kanye West’s antisemitic rant to Tucker Carlson. The indictment doesn’t accuse Burke of hacking or deceit. Instead, its theory is that he didn’t have permission to access the video, even though it was at a public, unencrypted URL that he found using publicly posted demo credentials.

But finding things that the powerful don’t want found is essentially the definition of investigative journalism—which, as Biden said, is not criminal in this country.

A recent court filing heightens concerns about whether prosecutors hid from the judge who authorized the raid that Burke was a journalist. By doing so, they may have avoided scrutiny of whether their investigation—and eventual indictment—of Burke complied with the First Amendment, federal law, and the Department of Justice’s own policies.

Southeast Texas Record: Liberty Justice Center and Pelican Institute Sue SEC, Challenging Climate ‘Disclosure Rule’

.....The Liberty Justice Center and the Pelican Institute for Public Policy have jointly filed a lawsuit against the U.S. Securities and Exchange Commission to challenge recent regulations that require public companies to make extensive disclosures related to climate change... 

The lawsuit contends that the rules unconstitutionally compel speech in violation of the First Amendment – requiring companies by law to implicitly endorse viewpoints on climate change that are the subject of intense public debate.

“The SEC didn’t enact these rules to protect investors’ financial interests – it enacted them to pursue an ideological agenda and influence companies’ decisions to favor that agenda,” said Jacob Huebert, president of the Liberty Justice Center. “Worse yet, the rules force companies to file reports that implicitly endorse the SEC’s views on climate change in violation of the First Amendment. We look forward to seeing these rules struck down.”

The petition was filed March 26 in the U.S. Court of Appeals for the Fifth Circuit. 

Washington Free Beacon: Federal Judge Says Dark Money Behemoth Arabella Advisors Must Open Its Books

By Andrew Kerr

.....The largest subsidiary of the liberal dark money behemoth Arabella Advisors will soon have to open its books to a former executive, who alleges she was unlawfully terminated after blowing the whistle on the group’s alleged abuse of charity laws.

Former New Venture Fund vice president, Sarah Walker, alleged in an October 2022 lawsuit that she lost her job after warning her superiors that the group was violating IRS tax laws in 2020 and 2021 by secretly directing the 501(c)(4) nonprofit Secure Democracy to run ads against Republican lawmakers and lobby in over 20 states to expand mail-in balloting. New Venture Fund sought to dismiss the lawsuit, but Washington, D.C., District Judge Amit Mehta issued a ruling on March 14 authorizing the case to proceed to discovery.

FEC

Politico: Threats against politicans are prevalent. The FEC wants to let campaigns pay for security.

By Zach Montellaro

.....The Federal Election Commission wants to allow federal candidates to use campaign funds for a wide range of security measures, a significant expansion of what campaign war chests can be used for amid a heated political environment…

The proposed FEC changes would allow federal candidates to use their campaign accounts to pay for things like security personnel, equipment like cameras or motion detectors at their homes and cybersecurity services — so long as these purchases “address ongoing dangers or threats” arising from their status as federal candidates or officials and they pay a fair market value.

“The bottom line is I don’t want anybody to get killed trying to run for office, or trying to serve the country,” FEC Chair Sean Cooksey said in an interview with Score.

Online Speech Platforms

Cato: New Oversight Board Decision Raises New Opportunities, and Concerns on Norms of Free Expression Online

By David Inserra

.....While Zemmour’s views are abhorrent, the challenge in this case is whether strident anti‐immigrant speech, even regarding potential conspiracy theories, causes enough harm on Meta’s platforms to justify the suppression of core political speech.

For those who care about free expression, the board’s decision to allow this content is worth celebrating. Removing offensive speech that is not closely linked to objective and imminent harm may be counterproductive because it fails to address the underlying problems. Europe already has aggressive and growing layers of hate speech laws—the politician in this case has previously been convicted for hate speech multiple times.

And yet, “hate speech” and those accused of being its greatest purveyors in Europe have only grown in popularity. Rather than stopping “hate speech” and protecting the vulnerable, Europe’s censorial policies are emboldening these speakers.

Axios: Meta's broad-brush ban on Islamic term harmed free speech, board rules

By Ryan Heath

.....Meta has "substantively and disproportionately" restricted free speech through a blanket ban on content that uses the term "shaheed," which can be a reference to Islamic martyrs, Meta's independent Oversight Board said in a ruling released Tuesday.

Candidates and Campaigns

Washington Examiner: House Democrat collects thousands in corporate PAC money after swearing it off

By Gabe Kaminsky

.....A freshman Democratic congressman has raked in tens of thousands of dollars from political action committees tied to corporations despite pledging to refuse corporate cash, records show.

Rep. Shri Thanedar (D-MI) vowed on the campaign trail in 2022 “never to take a dime of corporate PAC money.”

The States

Cowboy State Daily: Free Speech Lawyer Says Charging Wyoming Man For Angry Signs ‘Really Lame’

By Clair McFarland

.....A case charging a 10-year felony against an Evanston man who posted angry signs facing his neighbor's home after she reported him for having unsightly property is "really lame," according to a First Amendment attorney who practiced in Wyoming for decades.