April 1, 2024

In the News

The Post and Courier: Editorial: Before more SC voters get slapped with SLAPPs, Senate should shield free speech

By Editorial Board

.....The legislation — which the House passed unanimously and sent to the Senate — allows the target of the lawsuit to recover attorney fees if the judge dismisses the suit. The Washington-based Institute for Free Speech says such provisions increase the chance that a defendant "with limited financial resources who faces a SLAPP will be represented by an attorney" and thus more likely the lawsuit will be dismissed.

The bill...would apply only to cases that involve matters “under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding” or that involve our constitutionally guaranteed freedom of speech "on a matter of public concern." But then, that's what the First Amendment was meant to protect.

New from the Institute for Free Speech

Senior Attorney Brett Nolan Analyzes Gonzalez v. Trevino with the Federalist Society

.....Institute for Free Speech Senior Attorney Brett Nolan joined the Federalist Society’s “A Seat at the Sitting” program on Thursday, March 14 to break down Gonzalez v. Trevino, argued before the Supreme Court the following week on March 20.

“A Seat at the Sitting” convenes a monthly panel of constitutional experts to discuss the Court’s upcoming docket. Brett’s comments on Gonzalez v. Trevino explored the standards required for a plaintiff alleging an arrest in retaliation for speech protected by the First Amendment, focusing on what evidence must be shown to prove such a claim, especially in light of exceptions outlined in precedent cases.

The Institute for Free Speech filed an amicus brief in the case advising the Supreme Court to overturn a Fifth Circuit ruling that makes it nearly impossible for citizens to hold police accountable for retaliatory arrests aimed at silencing criticism.

Watch “A Seat at the Sitting” here:

Free Expression

Reason (Volokh Conspiracy): Missouri Government Agency Threatening to Sue Critic for Libel

By Eugene Volokh

.....The Washington Post (Danielle Douglas-Gabriel) covers the story, in an article titled "Student loan servicer MOHELA tells advocacy group to stop 'misleading claims.'" The article links to MOHELA's demand letter, which closes with,

Reason (Volokh Conspiracy): Journal of Free Speech Law: "Investigative Deception Across Social Contexts," by Prof. Alan Chen

By Eugene Volokh

.....The first of twelve articles from the Knight Institute’s Lies, Free Speech, and the Law symposium.

The article is here; the Introduction:

Election Law Blog: My New Paper: “From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection”

By Rick Hasen

.....I have posted this draft on SSRN. I will be presenting it at a May 3 Knight Columbia conference, and it is forthcoming as a book chapter in THE FUTURE OF PRESS FREEDOM: DEMOCRACY, LAW & THE NEWS IN CHANGING TIMES (Cambridge U. Press, RonNell Andersen Jones and Sonja R. West eds. forthcoming 2025). Here is the abstract:

AP News: Scotland’s government says a new law will tackle hate crime. Critics say it could hurt free speech

By Jill Lawless

.....A new law against hate speech came into force in Scotland on Monday, praised by some but criticized by others who say its sweeping provisions could criminalize religious views or tasteless jokes.

The Hate Crime and Public Order (Scotland) Act makes it an offense to stir up hatred with threatening or abusive behavior on the basis of characteristics including age, disability, religion, sexual orientation and transgender identity. Racial hatred was already banned under a law dating from 1986.

The maximum sentence is seven years in prison.

The legislation does not ban hatred on the basis of sex.

Candidates and Campaigns

Houston Chronicle: Ted Cruz campaign says he doesn't get paid to podcast. IHeartMedia gave $630K to a PAC backing him

By Benjamin Wermund

.....U.S. Sen. Ted Cruz's office has repeatedly dismissed ethical questions about his three-times-a-week podcasting gig, saying he makes no money from the venture with a company that lobbies Congress. 

But over the last year, iHeartMedia, the massive radio network that picked up the "Verdict with Ted Cruz" podcast in 2022, has made regular, and growing, payments to a super PAC supporting the Texas Republican's reelection effort. The payments, which the media company says are associated with ad revenue from the podcast, total $630,850 — about a third of the $2 million the Truth and Courage PAC reported raising since the start of 2023, according to the latest Federal Election Commission data.

Ethics and campaign finance experts say the payments appear to be a novel arrangement that blur the lines between what is allowed under campaign finance law and Senate ethics rules. Cruz is the top Republican on the Senate Commerce Committee that oversees the communications industry. 

"This is not an arrangement we’ve seen before, and it seems like Sen. Cruz is trying to find a way to walk the lines between not falling into an ethics violation and not falling into a campaign finance violation," said Shanna Ports, senior legal counsel at the Campaign Legal Center, which filed an ethics complaint about the senator's podcast deal in 2022. 

CNBC: Trump’s deals to sell Bibles, sneakers and perfume are unprecedented for a presidential candidate, experts say

By Kevin Breuninger

.....Sneakers. Perfume. Trading cards. Bibles.

Those are just some of the products Donald Trump is hawking while he runs to unseat President Joe Biden...

“There is no precedent for this level” of business activity during a presidential campaign, Harvard Law School Professor Lawrence Lessig told CNBC, though “the trend has been building for many years.”

Brendan Fischer, deputy executive director of money-in-politics watchdog Documented, agreed.

“I can’t think of any other modern example of a presidential candidate hawking an array of goods for their private benefit,” Fischer said.

For an average candidate, that activity might trigger a campaign finance investigation — but it likely won’t for Trump, who has been selling branded goods long before he entered politics, according to Fischer.

“Trump is a unique case,” he said.

The States

Philanthropy Roundtable: Just How Contagious is Arizona’s Radical Donor Disclosure Law?

By Megan Schmidt

.....To be clear, Arizona’s law doesn’t simply impact individual donors and organizations that engage in public policy discussions. It threatens all nonprofits—even indirect involvement can trigger these new disclosure requirements.

For example, if nonprofit A donates to nonprofit B and nonprofit B is engaged in public policy communications, under Arizona’s new law, nonprofit A is required to disclose all donors above a certain threshold, even if donors to nonprofit A had no knowledge of nonprofit B’s activities. The sweeping implications are a major concern for those in the nonprofit sector. Unsurprisingly, the constitutionality of Arizona’s new law is being litigated. But in the meantime, other states may follow Arizona’s lead.

At the Lectern: Eastman disciplinary case probably not going to the California Supreme Court just yet

By David Ettinger

.....A State Bar Court judge yesterday issued a 128-page decision recommending that John Eastman, one of former President Trump’s lawyers, be disbarred for “transgress[ing] . . . ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support.”

Many media reports suggest that the next stop for the disciplinary proceeding is the California Supreme Court. (See, e.g., the Associated Press: yesterday’s recommendation “now goes to the California Supreme Court for a final ruling on whether he should be disbarred.”) But the court is not necessarily next, or last for that matter.

Billy Penn: Philly ethics board looks to tighten rules after Jeff Brown super PAC scuffle

By Meir Rinde

.....After losing a court battle over alleged campaign finance improprieties during last year’s mayoral election, the city’s Board of Ethics is moving to tighten its restrictions on spending by the big-money political action committees called super PACs.

The agency is also asking a judge to throw out a lawsuit recently filed against it by Jeff Brown, the supermarket magnate and former mayoral candidate, and a dark-money super PAC that spent heavily to support his run.

The board’s proposed amendments aim to prevent future candidates from using strategies that allowed the super PAC to avoid violating rules on campaign contribution limits while pumping millions of dollars into TV advertising and other election activities supporting Brown.

In particular, the revisions would make it clear that someone who plans to run for office can’t get around the limits by delaying the announcement of their candidacy, as Brown did.