May 6, 2024

The Courts

Colorado Politics: 10th Circuit upholds injunction removing access restrictions on DPS critic

By Michael Karlik

.....The federal appeals court based in Colorado agreed on Tuesday that Denver Public Schools could not restrict a man's access to district property or bar him from his volunteer football coaching position, despite the district's concern about harassment and bullying directed toward employees.

DPS sent a letter to Brandon Pryor in October 2022 outlining his numerous comments to and about staff advocating for their firing, telling them to "stay the f--k away from me" and accusing them of "flagrant racism." The letter informed Pryor he was prohibited from district property because his "persistent intimidating conduct" was affecting DPS operations.

However, a trial judge issued an injunction blocking DPS from enforcing its restrictions after concluding they likely violated Pryor's First Amendment rights. On appeal, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed the restrictions appeared to target Pryor's offensive speech, rather than to address any physical threat he may have posed.

"Plaintiff spoke on matters of serious concern to the taxpaying public — school funding, cronyism, educational choice, and discrimination," wrote Judge Joel M. Carson III in the April 30 opinion. "The impoliteness, passion, or profanity of his speech do not overcome his free speech interests."

Election Law Blog: Trump May Have Some Good Arguments on Appeal in the Hush Money Case If Convicted, But Steven Calabresi is Likely Very Wrong That Donald Trump Would Have a Good First Amendment Defense

By Rick Hasen

.....Steven Calabresi argues that Trump has a First Amendment right to make hush money payments without disclosure, adding: “All that Donald Trump has to do to get any verdict against him overturned is to insist that the predicate felony, which NY alleges he was concealing is not a crime under the Constitution because the First Amendment trumps campaign finance law (pun intended). To the extent that Buckley v. Valeo sustains any such campaign finance violation, Trump should ask the U.S. Supreme Court on his ultimate appeal to overrule Buckley v. Valeo.”

Let’s put aside the state tax law (and maybe the state election law) and focus on the FECA violation. Trump under the FECA theory could have been charged with causing illegal corporate contributions to the campaign and with violating federal campaign finance disclosure laws. For Calabresi to be right, there would have to be a First Amendment right of candidates not to disclose their campaign expenses truthfully. I don’t think even most opponents of disclosure of contributions would find a First Amendment right of candidates to spend money in campaigns without disclosing them. Such payments help deter corruption, inform voters, and help enforce other campaign finance laws. And the Supreme Court in the 2004 case of FEC v. Beaumont has upheld the ban going back to 1910 on direct corporate contributions to candidates. Without such a ban, someone could simply evade individual contribution limits by creating an unlimited number of corporations. The Supreme Court has repeatedly refused to reconsider the Beaumont case even though other aspects of its reasoning have been undermined by subsequent rulings.

Congress

House Judiciary Committee: Weaponization Committee Exposes the Biden White House Censorship Regime in New Report

.....Today, the House Judiciary Committee and its Select Subcommittee on the Weaponization of the Federal Government released an interim staff report titled, "The Censorship-Industrial Complex: How Top Biden White House Officials Coerced Big Tech to Censor Americans, True Information, and Critics of the Biden Administration." The report details the monthslong campaign by the Biden White House to coerce large companies, namely Facebook, Google, and Amazon, to censor books, videos, posts, and other content online. By the end of 2021, Facebook, YouTube, and Amazon changed their content moderation policies in ways that were directly responsive to criticism from the Biden Administration.

The Free Press: Don’t Expand DEI. Dismantle It.

By Christopher F. Rufo and Jenin Younes

.....We come from two sides of the political spectrum. One of us (Christopher) is a conservative, the other (Jenin) is on the left. We also take very different positions on Israel—one of us believes that Israel deserves America’s support in its fight against Hamas; one of us believes that the denial of Palestinians’ right to self-determination is the primary impediment to peace. But both of us agree that the Antisemitism Awareness Act is profoundly misguided.

First, the main purpose of the legislation is to codify a definition of “antisemitism” as a point of reference for civil rights enforcement on college campuses. Legislators outsourced this definition to a nonprofit, the International Holocaust Remembrance Alliance, which defines antisemitic conduct and speech in a broad manner. Under this standard, “claiming the existence of a State of Israel is a racist endeavor,” “drawing comparisons of contemporary Israeli policy to that of the Nazis,” and “accusing Jewish citizens of being more loyal to Israel” will be deemed antisemitism. 

FEC

The Dispatch: The FEC Drops New Rules Affecting Super PACs

By David M. Drucker, Charles Hilu and Michael Warren

.....The Federal Election Commission, in a little-noticed decision that could radically reshape campaign politics, is giving candidates the greenlight to coordinate with super PACs and other outside groups on door-to-door voter turnout activities.

Under the Texas Majority PAC advisory opinion the FEC issued on March 20, candidates for Congress and the White House are permitted to work directly with allied groups on the expensive, labor-intensive work of door-to-door voter canvassing. That includes giving strategic direction to supportive super PACs and other politically active organizations, as well as sharing preferred messaging. Additionally, the FEC’s advisory opinion also permits candidates to access the voter data collected from an allied group’s door-knocking—as long as their campaigns pay for it.

New York Times: Candidates for Federal Office Can Raise Unlimited Funds for Ballot Measures

By Maggie Haberman

.....The Federal Election Commission quietly issued an advisory opinion last week allowing candidates to raise unlimited money for issue-advocacy groups working on ballot measures in elections in which those candidates are on the ballot.

The opinion, issued in response to a request from a Nevada-based abortion rights group, could significantly alter the landscape in the fall in terms of the capacity that candidates aligned with these groups have to help them raise money.

The decision applies to all federal candidates, but with a presidential election taking place in six months, the biggest attention will fall to that race. If Mr. Biden can solicit money for abortion-rights ballot measures, he can add to an already-existing fund-raising advantage that his team currently has over Mr. Trump.

Free Expression

United Nations Office of the High Commissioner for Human Rights: The impact of SLAPPs on human rights and how to respond

.....The present briefer was developed based on a study that the Office of the High Commissioner for Human Rights commissioned to the Aberdeen University. After defining SLAPPs, the briefer examines the impact of such practice on human rights, especially freedoms of expression, assembly and association, as well as the right to public participation. It also suggests measures that States should take to tackle SLAPPs, including the decriminalization of defamation, blasphemy and other offences that may impose disproportionate penalties on those exerting their rights; the adoption of anti-SLAPPs laws; and the possibility for courts to dismiss SLAPPs through abuse of process provisions. In addition, business actors are encouraged to refrain from SLAPPs, develop clear protocols to deal with SLAPPs and grievance mechanisms that address risks throughout the supply chain. Business actors should also exercise human rights due diligence to identify and prevent the use of SLAPPs. 

The States

Just the News: 'Biological sense': NY AG James sued for threatening pro-life centers over abortion 'reversal'

By Greg Piper

.....Some pro-life pregnancy centers promote so-called abortion pill reversal for pregnant women who second-guess taking mifepristone, whose loosened regulation by the Food and Drug Administration is the subject of a pending Supreme Court ruling.

Democratic attorneys general from coast to coast are trying to shut down their efforts, most recently New York's Letitia James, a recurring figure in high-profile litigation involving former President Trump and hot-button free speech issues.

Heartbeat International, CompassCare and a dozen members of a "pregnancy help collective" sued James on Tuesday and sought a preliminary injunction Wednesday to stop her from "further threatening to sue" them for their "noncommercial speech about APR," which involves taking "supplemental" progesterone to "outcompete" mifepristone and continue pregnancy.

"James has long been a strident abortion advocate," the injunction motion says. "From street marches to tweetstorms, she has not hesitated to use her power and platform to attack corporations, nonprofits, and even sister states with whose abortion viewpoint she disagrees."

WRAL News: As NC lawmakers consider antisemitism bill, critics worry about free speech

By Laura Leslie

.....North Carolina lawmakers are proposing to add a broad new definition of antisemitism to state statutes. Some say it’s needed because state law doesn’t clearly define the term, but others say the proposed definition is too broad and could ban political criticism of Israel.

The Shalom Act, filed in the state House and Senate this week, is similar to the Antisemitism Awareness Act passed by the U.S. House on Wednesday, although the federal bill is aimed at educational settings while the state bill is more general.

North Carolina House Bill 942 would adopt the working definition of antisemitism created by the International Holocaust Remembrance Alliance. According to that group's handbook, it is antisemitic to question the legitimacy of the country of Israel or to accuse Jewish people of mass atrocities or genocide. The bill could get a hearing later this month.