March 29, 2024

In the News

The Jewish Voice: Lawsuit Alleges Suppression of Conservative Voices in Brooklyn Parent Board

.....A contentious legal battle is brewing in Brooklyn as a group of parents has accused an ultra-liberal parent board and the Department of Education of stifling conservative voices and infringing upon their First Amendment rights. According to a report on Wednesday that appeared in the New York Post, the lawsuit, filed in Brooklyn Federal Court on Tuesday night, alleges that the Community Education Council 14 (CEC 14) in the Greenpoint and Williamsburg sections of the borough have implemented draconian speech codes and systematically blocked dissenting voices from public events.

The lawsuit was filed by the Institute for Free Speech, a First Amendment think tank. 

Buckeye Institute: The Buckeye Institute Calls on SCOTUS to Protect America’s “Honorable Tradition” of Anonymous Political Speech

.....On Thursday, The Buckeye Institute filed an amicus brief in No on E v. Chiu, calling on the U.S. Supreme Court to hear the case and protect America’s “honorable tradition” of anonymous political speech...

The Institute for Free Speech represents a bipartisan coalition of groups and individuals in No on E v. Chiu challenging a San Francisco requirement that forces candidates and groups backing or opposing ballot measures to list not only the name of the organization sponsoring the ad, but the names of donors and donors to those donors on any advertisements. This lengthy disclaimer is government speech that San Franciscans must pay for before they are free to speak their own message. Failure to include the disclaimer can trigger criminal and civil penalties, including fines of up to $5,000.

Northwestern Pritzker School of Law:  Minow Debate Series Addresses Whether Citizens United Has Undermined Democracy

.....On February 21, 2024, students, faculty, alumni, and guests filled Thorne Auditorium to observe the latest installment of the Newt and Jo Minow Debate Series at Northwestern Pritzker School of Law…

This year’s discussion, co-produced with the series Open to Debate, featured law experts addressing the question, “Has Citizens United Undermined Democracy?” …

With Open to Debate host John Donvan moderating, Vanderbilt University’s Francesca Procaccini and Stetson University’s Ciara Torres-Spellicsy argued in favor of the motion. Cahill, Gordon & Reindel’s Floyd Abrams and the Institute for Free Speech’s Eric Wang spoke against it.

Congress

National Review: Time to Ditch ‘Stand by Your Ad’

By Christian Schneider

.....In 2002, Congress was intensely focused on regulating the “tenor” of campaign speech. Senators and representatives supporting the Bipartisan Campaign Reform Act (known as “McCain-Feingold”) believed they could legally impose decorum, turning campaign rhetoric up or down like the volume on a car radio.

As if it were a Boeing plane in mid flight, much of the BCRA has fallen apart. In case after case, the U.S. Supreme Court has mercifully dismantled the law’s attempted micromanagement of the timing and content of political speech, recognizing that campaign messaging is the type of speech that should be protected the most.

But the Supremes have let stand the most useless and obnoxious provision of the law, the section that requires candidates to say their name, provide a photo of themselves, and declare “I approve this message” in every campaign ad. It is pointless, annoying, and above all, unconstitutional.

The original bill didn’t have a so-called stand-by-your-ad provision. That came about via an amendment offered by Collins (R., Maine) and Senator Ron Wyden (D., Ore.). 

The Courts

Washington Post: Trump seeks to dismiss Georgia charges claiming free speech

By Holly Bailey

.....An attorney for Donald Trump pressed the judge overseeing the Georgia election interference case to dismiss charges against the former president, arguing that Trump’s statements challenging the outcome of the 2020 presidential election, even if they were false, were protected political speech under the First Amendment.

In a Thursday court hearing, Steve Sadow, an attorney for Trump, argued his client’s claims “calling into question” his 2020 loss should not be criminalized because they were “core value, political discourse” that is constitutionally protected free speech even if it is found to be untrue.

“There is nothing alleged factually against President Trump that is not political speech,” Sadow argued. “Take out the political speech. No criminal charges.”

Sadow suggested that Trump had been charged in Georgia because prosecutors believed the former president’s statements were untrue. But he told Fulton County Superior Court Judge Scott McAfee, who is presiding over the case, that even false statements made in campaign or election statements are still protected speech under the First Amendment.

Orlando Sentinel: Federal judge to weigh Florida’s school pronoun restrictions

By Jim Saunders

.....A federal judge Friday will hear arguments in an attempt by a transgender teacher and a nonbinary teacher to block part of a 2023 law that restricts pronouns and titles that educators can use in Florida public schools.

Chief U.S. District Judge Mark Walker will consider motions for a preliminary injunction as part of a lawsuit that contends the restrictions violate a federal civil-rights law and the First Amendment.

Plaintiffs Katie Wood, a transgender Hillsborough County teacher, and AV Schwandes, a nonbinary teacher fired last year by Florida Virtual School, are seeking the injunction. Wood’s injunction motion, for example, said she has been prevented from using the title “Ms.” and she/her pronouns.

Free Expression

Cato: Courts Should Affirm First Amendment Rights of Youths in the Digital Age: The Case for a 21st–Century Tinker

By Jennifer Huddleston

.....In 1965, five students were suspended from school for a silent and nondisruptive protest of the Vietnam War. The legal challenge to this action was decided nearly 55 years ago in Tinker v. Des Moines Independent Community School District, with the Supreme Court finding that the students’ First Amendment rights had been violated. As the Court famously observed, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”1 But today, laws passed in the name of keeping young people safe raise a similar, but different, question: Do minors shed their constitutional rights to freedom of speech or expression at the user login page?

Independent Groups

Politico: An Obscure Group Hounded Kyrsten Sinema for Years — and It Worked. Is This a Sign of Things to Come?

By Michael Schaffer

.....For years, Sinema was on the receiving end of a relatively unusual political-money phenomenon in the capital’s politics industry: the single-target PAC, an outfit geared towards creating precisely the outcome that became real when the senator announced her exit.

For better or worse, it is a model that probably won’t stay rare for long. And whatever you think of Sinema, the effort against her is also likely to speed up some of the most brutal trends in politics, another way for deep-pocketed donors to further wage permanent war on rivals who might not always make such obvious targets.

Other political committees might beat up on a senator in the name of an issue or to help a particular rival. The Replace Sinema super PAC, by contrast, existed solely to run robust oppo research on, buy ads against, pitch unflattering media stories about and otherwise hound, harry and hector one solitary elected official: Sinema, who had enraged progressives with hostile stances on the filibuster, the minimum wage and Joe Biden’s “Build Back Better” bill, among other things.

Candidates and Campaigns

Election Law Blog: Campaign Finance Vouchers Do Not Expand the Diversity of Donors: Evidence from Seattle

By Richard Pildes

.....As I’ve written before, a mistake many political reformers make is in assuming that most citizens are as engaged in politics as the reformers are, or would be if given the appropriate opportunities. A new paper on the Seattle campaign voucher system concludes that providing campaign vouchers to all citizens does not increase the diversity of those who donate to campaigns. Abstract here:

The States

Colorado Politics: Colorado appeals court upholds fine, requirement for 'dark money' group to disclose spending

By Michael Karlik

.....Colorado's second-highest court on Thursday agreed a group that spent $4 million backing conservative causes on the ballot in 2020 is required to disclose its contributions and spending, and pay a $40,000 fine for failing to register as an advocacy group.

A trial judge previously believed Unite for Colorado, which spent roughly $17 million during 2020, was not subject to the registration and disclosure requirement because its $4 million spent across multiple ballot initiatives was not substantial enough when broken down issue-by-issue.

However, a three-judge panel for the Court of Appeals rejected the idea that Unite for Colorado could spend millions of dollars on ballot measures and still be shielded from the requirement to register and disclose. The panel further rebuffed Unite for Colorado's argument that compelling it to follow campaign finance law would violate its First Amendment rights.

"The more money spent, the stronger the public’s interest in disclosure," wrote Judge Terry Fox in the March 28 opinion. "Coloradans recognized their interest in preventing wealthy special interest groups from anonymously exercising undue influence on the political process."

Reason (Volokh Conspiracy): Tennessee Generally Bans Political and Religious Discrimination by Financial Institutions

By Eugene Volokh

.....From a newly enacted bill:

A financial institution shall not deny or cancel its services to a person, or otherwise discriminate against a person in making available such services or in the terms or conditions of such services, on the basis of:

Reason (Volokh Conspiracy): Call to "Update Free Speech Policies" to Address Supposed Hate Speech at Public University

By Eugene Volokh

.....I'm against it, whomever it's coming from.

I've seen plenty before, but this one is from Texas Gov. Greg Abbott, and the particular target is "antisemitic speech." An excerpt from Wednesday's Executive Order: