May 31, 2024

In the News

AL.com: Flowers ruling 60 years ago guarantees ‘We, the People’ can express political views: op-ed

By Helen J. Knowles-Gardner

.....Sixty years ago, on June 1, 1964, the U.S. Supreme Court issued a landmark First Amendment decision in NAACP v. Alabama ex rel. Flowers. The justices unanimously decided that Alabama could not compel the National Association for the Advancement of Colored People (NAACP) to disclose the identity of its members. This was a victory for freedom of speech and assembly.

At a time when these constitutional freedoms are under attack by individuals and entities across the ideological spectrum, the anniversary of Flowers should be remembered and celebrated.

Supreme Court

SCOTUSblog: Supreme Court rules for NRA in First Amendment dispute

By Amy Howe

.....The Supreme Court on Thursday reinstated a lawsuit by the National Rifle Association, alleging that a New York official violated the group’s First Amendment rights when she urged banks and insurance companies not to do business with it in the wake of the 2018 shooting at a Florida high school. In a unanimous decision by Justice Sonia Sotomayor, the justices agreed that the NRA had made out a case that Maria Vullo, then the head of New York’s Department of Financial Services, had gone too far in her efforts to get companies and banks to cut ties with the NRA, crossing over the line from efforts to persuade the companies and banks – which would be permitted – to attempts to coerce them, which are not.

Early Returns - Law and Politics with Jan Baran: A Supreme Path: From Latin to Campaign Finance Law, to 38 Oral Arguments – Kannon Shanmugam

.....Arguing before the Supreme Court increasingly has become a specialty of an elite group of lawyers. A former Scalia judicial law clerk, Kannon Shanmugam has argued 38 cases at the court. 

In this episode, Jan speaks with Kannon about his Midwest upbringing, his route to being a lawyer, his exceptional career, and his times before the Supreme Court. They discuss his most memorable case, Maryland v King, involving DNA and the Fourth Amendment; he shares his observations about the Dobbs decision leak at the Court; and they recall the campaign finance case, McConnell v. FEC (how Jan and Kannon met) which largely upheld the Bipartisan Campaign Reform Act, otherwise known as McCain-Feingold.

The Courts

Politico: Donald Trump found guilty in New York hush money trial

By Erica Orden

.....Donald Trump was found guilty Thursday of 34 counts of falsifying business records to cover up a hush money payment to a porn star, making him the first former president to become a convicted felon.

The unanimous verdict from the 12-person jury ends a six-week trial in which prosecutors accused Trump of orchestrating an illegal conspiracy to influence the 2016 presidential election…

Trump and his team reacted quickly and hyperbolically to the trial’s outcome. “I AM A POLITICAL PRISONER!” he declared in a fundraising email sent moments after the verdict, although he was not jailed.

Intelligencer: Prosecutors Got Trump — But They Contorted the Law

By Elie Honig

.....Both of these things can be true at once: The jury did its job, and this case was an ill-conceived, unjustified mess...

The following are all undeniable facts.

The judge donated money — a tiny amount, $35, but in plain violation of a rule prohibiting New York judges from making political donations of any kind — to a pro-Biden, anti-Trump political operation, including funds that the judge earmarked for “resisting the Republican Party and Donald Trump’s radical right-wing legacy.” Would folks have been just fine with the judge staying on the case if he had donated a couple bucks to “Re-elect Donald Trump, MAGA forever!”? Absolutely not.

Ballot Access News: Sixth Circuit Rules 2-1 that Ohio Attorneys General Cannot Indefinitely Block Circulation of Initiative Petitions

By Richard Winger

.....On May 29, the Sixth Circuit issued an opinion in Brown v Yost, 24-3354, that is protective of the ability of people to use the initiative process in Ohio. 

Reason (Volokh Conspiracy): Judge Suggests Courts Should Consider Using "AI-Powered Large Language Models" in Interpreting "Ordinary Meaning"

By Eugene Volokh

.....That's from Judge Kevin Newsom's concurrence yesterday in Snell v. United Specialty Ins. Co.; the opinion is quite detailed and thoughtful, so people interested in the subject should read the whole thing. Here, though, is the introduction and the conclusion:

Congress

Freedom of the Press Foundation: Sen. Durbin should advance the PRESS Act before time runs out

.....Sen. Dick Durbin has a rare chance to strengthen freedom of the press right now by advancing the bipartisan PRESS Act, a bill to protect journalist-source confidentiality at the federal level. Freedom of the Press Foundation (FPF) has called it the “strongest shield bill we’ve ever seen” and “the most important press freedom bill in modern times”

But Durbin needs to act quickly. Today, a coalition of 123 civil liberties and journalism organizations and individual law professors and media lawyers wrote to Durbin, who chairs the Senate Judiciary Committee, and ranking member Sen. Lindsey Graham, urging them to schedule a markup of the PRESS Act right away.

Among the signers is acclaimed First Amendment lawyer Floyd Abrams, who said that “The PRESS Act has long been needed and the time to enact it is now.”

Ed. note: The Institute for Free Speech signed the above letter.

FEC

Washington Post: RFK Jr. files complaint over potential exclusion from debate stage

By Amy B Wang and Meryl Kornfield

.....In the [FEC] complaint, filed Tuesday, Kennedy’s campaign alleges that Biden, Trump, their respective campaigns and CNN “colluded” to leave Kennedy off the debate stage. The complaint also alleges that CNN’s decision to hold the debate could be tantamount to the network making “prohibited corporate contributions” to Biden and Trump’s campaigns and thus violate the Federal Election Campaign Act — a claim met with dubiousness by one campaign finance expert…

Saurav Ghosh, director of federal campaign finance reform at the nonprofit Campaign Legal Center, said it would be an “uphill legal climb” for Kennedy’s campaign to successfully argue that CNN hosting a debate with only Biden and Trump is effectively a corporate campaign contribution.

FCC

People United for Privacy: FCC Chair Proposes AI Disclosure Rules for Political and Issue Advertisements

By Luke Wachob

.....People United for Privacy recently warned policymakers and the public about legislation in the U.S. Senate that would expand restrictions on campaign and issue advocacy under the cover of addressing concerns about the use of artificial intelligence in political advertising. Of particular concern to PUFP is the impact these proposals would have on nonprofits that advocate on public policy issues rather than elections and candidates.

Unfortunately, the Senate is not the only source of the threat. On May 22, Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel, a Democratic appointee, announced a proposal to initiate a rulemaking that would require groups running political and issue ads to disclose the use of AI-generated content both on-air and in government filings. While different in some respects from the Senate proposals, the FCC plan raises many of the same concerns for nonprofit advocacy and free speech.

The Media

Wall Street Journal: ProPublica’s ‘Massive Trove’ From the IRS

By The Editorial Board

.....To be clear: We do not have Mr. Stoll’s corporate or personal tax returns,” [ProPublica President Robin] Sparkman writes. Now she tells us. When Mr. Stoll earlier emailed ProPublica’s editor, Stephen Engelberg, and posed the question, Mr. Engelberg refused to answer. “As a news organization,” he wrote, “we do not typically comment on news gathering materials or sources.” (We have reprinted the full exchange, along with the letter from the IRS to Mr. Stoll.)

Mr. Engelberg also insisted that “no publication decision is ever made on the basis of . . . any non-purely journalistic reason.” If that is ProPublica’s policy, Ms. Sparkman doesn’t follow it. Her letter, which ProPublica published on Twitter Wednesday, asserts that “at least one individual who is in our database has a partnership share in [Mr. Stoll’s] company.”

If that is true, revealing it is a breach of Mr. Stoll’s privacy. That demonstrates the bad faith of Ms. Sparkman’s assertion that “we have never—and will never—target any subject simply because he or she has criticized us.” ProPublica withheld all information from Mr. Stoll, only to release it publicly in response to his criticism in our pages.

Free Expression

Jewish Insider: ‘Opposite of inclusive’: A look inside the increasingly hostile environment for Jewish therapists

By Gabby Deutch

.....When someone posted in a private Facebook group for Chicago therapists in March, asking whether anyone would be willing to work with a Zionist client, several Jewish therapists quickly responded, saying they would be happy to be connected to this person. 

What happened next sparked fear and outrage among Jewish therapists in Chicago and across the country, and illuminated the atmosphere of intimidation and harassment faced by many Jews in the mental health world who won’t disavow Zionism. Those who replied, offering their services to this unnamed client, soon found themselves added to a list of supposedly Zionist therapists that was shared in a group called “Chicago Anti-Racist Therapists.”

The States

Cleveland.com: Cleveland-Cliffs’ efforts to unmask anonymous message board critic ‘trivializes’ First Amendment, judge finds

By Cory Shaffer

.....A judge has rejected an attempt by the Cleveland-based steel giant Cleveland-Cliffs to force Yahoo Inc. to reveal the identity of an anonymous online critic of the company.

Cuyahoga County Common Pleas Judge Deborah Turner ruled Wednesday that the publicly traded corporation amounts to a public figure, and the comments that the user posted on a Yahoo message board concerning the company’s stock prices were largely statements of opinion.

ABC 6: Ohio House cracking down on foreign campaign aid that may not exist, already illegal

By Darrel Rowland

.....Ohio Republicans are on their way to approving a plan to crack down on foreign money they assert is flowing into campaigns for statewide ballot issues.

A revamped five-page bill was approved along a straight party-line vote by a House committee Thursday morning. The entire House approved the proposal 64-31 on Thursday afternoon.

Sponsor Rep. Bill Seitz—who spent hours personally negotiating with GOP senators—said he feels "reasonably confident" the Senate will OK the measure when it is set to return Friday.

Ed note: Read Ohio AG Dave Yost's statement about the bill here.