June 4, 2024

In the News

Wall Street Journal: Now the Trump Jurors Can Be Told

By James Freeman

.....In the Manhattan trial of former President Donald Trump, it seems that partisan judge Juan Merchan insisted on so many limits on the potential testimony of former Federal Election Commission Chairman Bradley Smith that the defense decided it was pointless to put him on the stand. But now the jurors can learn what Journal readers have known for more than a year—hush-money payments to alleged mistresses are not campaign contributions.

This weekend Mr. Smith noted this again on X and also explained in a series of posts why there was a big chronological hole in the claim that a 2016 payment to alleged mistress Stormy Daniels was improperly reported to avoid damaging news prior to that year’s election:

Legal Theory Blog: Knowles-Gardner on the Oral Argument in NAACP v. Alabama ex rel. Flowers

By Lawrence Solum 

.....Helen J. Knowles-Gardner (Institute for Free Speech) has posted “The ct is disposed to consider the merits…Wow!”: Anthony Lewis Takes Us Inside the Oral Arguments in NAACP v. Alabama ex rel. Flowers (1964) (Journal of Supreme Court History, Volume 49, No. 3 (2024)) on SSRN. Here is the abstract:

Supreme Court

Reason (Volokh Conspiracy): American Voters Need Fast U.S. Supreme Court Review of the Constitutionality of President Trump's Convictions

By Steven Calabresi

.....As I wrote earlier on this blog site, President Donald Trump's First Amendment freedom of speech rights render his recent convictions in a Manhattan New York State trial court unconstitutional...This unconstitutional trial has poisoned the ongoing federal presidential election of 2024 based on a misinterpretation of federal election law making immediate federal Supreme Court review essential. The New York Court of Appeals must rule quickly on the constitutionality of President Trump's convictions, so that President Trump can get federal Supreme Court review of his First Amendment claims well before the November presidential election. American voters deserve to know as fast as possible if President Trump's criminal convictions are unconstitutional, as I believe them to be.

Politico: Supreme Court won’t hear InfoWars host’s First Amendment challenge to Jan. 6 conviction

By Kyle Cheney and Josh Gerstein

.....The Supreme Court has rejected a petition from Owen Shroyer — an InfoWars host who traversed Capitol grounds with broadcaster Alex Jones amid the riot on Jan. 6, 2021 — seeking to overturn his misdemeanor guilty plea on First Amendment grounds.

Shroyer accompanied Jones throughout the day on Jan. 6, helping lead the march from President Donald Trump’s rally to the Capitol while stoking the fury of thousands of Trump supporters who had just attended his “stop the steal” rally…

The justices turned down Shroyer’s case in a routine list of orders issued Monday morning. No justice signaled any dissent from the decision or commented on its rationale.

The Courts

Courthouse News: Ninth Circuit dismisses conservative journalist’s First Amendment lawsuit against San Francisco Supervisor Dean Preston

By Michael Gennaro

.....The Ninth Circuit ruled Monday that San Francisco Supervisor Dean Preston was legally allowed to block a conservative journalist’s publication from his Twitter account.

Susan Reynolds sued Preston in 2022, claiming he violated her First Amendment rights when he blocked her publication, The Marina Times, from his public Twitter account in 2020. Reynolds said that Preston blocked her because she was critical of his policies to cut funding to police and prisons…

Preston said he blocked The Marina Times not because of criticism, but because of a June 2020 tweet in which Preston said Reynolds threatened himself and his family.

In that Tweet, Reynolds asked Person if he had a child. Then she tweeted: “Hope he doesn’t let them out at night by themselves after he gets rid of the entire SFPD and abolishes prisons.” The second tweet was punctuated with the hashtag #PrestonsPurge.

U.S. District Judge William Orrick refused to dismiss Reynolds’ suit, but the appeals court panel, made up of U.S. Circuit Judges Lucy Koh, Holly Thomas and Roopali Desai, all Joe Biden appointees, ruled that Preston was speaking for himself, and not the city, when he blocked Reynolds’ publication.

Reason (Volokh Conspiracy): Black-Women-Only Grant Program Likely Violates Federal Law, Isn't Protected by First Amendment

By Eugene Volokh

.....From American Alliance for Equal Rights v. Fearless Fund Mgmt., LLC, decided today by the Eleventh Circuit, in an opinion by Judge Kevin Newsom, joined by Judge Robert Luck:

FEC

Radio Ink: FEC Chair: FCC’s Political AI Disclosure Rule Will ‘Sow Chaos’

.....The FCC is facing intense pushback from the Federal Election Commission regarding its proposal to introduce new regulations on artificial intelligence in political radio ads. FEC Chairman Sean Cooksey says the FCC is directly interfering with the FEC’s exclusive jurisdiction.

The initiative, announced by FCC Chairwoman Jessica Rosenworcel in May, suggests mandatory on-air and written disclosures for AI-generated content in political advertisements on radio and television. However, this proposal appears to be stirring jurisdictional and legal controversies in Washington.

The crux of the concern, as expressed in a detailed letter to Chairwoman Rosenworcel, centers on an alleged overreach of the FCC’s authority that the Chairman claims would “sow chaos among political campaigns.” The FEC, which is mandated by Congress to oversee the Federal Election Campaign Act of 1971, maintains that it is the sole body empowered to regulate political disclaimers and communications, backed by previous federal court rulings such as Galliano v. United States Postal Service.

Free Expression

National Review: Harvard Faculty End Mandatory DEI Statements in Hiring

By Caroline Downey

.....Harvard’s Faculty of Arts and Sciences announced Monday that it is ending mandatory written declarations of fidelity to diversity, equity, and inclusion as a prerequisite for applying to tenure-track positions. 

Instead of a DEI statement, a more general “service statement” that “describes efforts to strengthen academic communities, e.g. department, institution, and/or professional societies” will be asked of candidates for FAS. The policy shift was quietly implemented in the spring and shared publicly Monday.

The States

Center Square Ohio: Foreign national campaign ban, ballot extension now law in Ohio

By J.D. Davidson

.....Gov. Mike DeWine signed the two bills passed in last week’s special legislative session into law Sunday. Both contain emergency provisions that allow them to take effect immediately.

The special session was the state’s first in a decade.

The first changes the state’s campaign finance law to ban foreign nationals from donating to state ballot issue campaigns even before the issues have been cleared to be on the ballot. It was amended in the House to include a ban on immigrants in the country legally with a green card.

The law also allows Attorney General Dave Yost to investigate complaints rather than using the state election commission, which has authority on all other election-related complaints.

The Tennessean (via Yahoo): Tennessee Gov. Bill Lee signs age-verification bill as First Amendment debate continues

By Angele Latham

.....Tennessee has joined a growing list of states that are requiring websites with adult content to age-verify viewers, a move that is raising alarm from some First Amendment advocates who warn the law may have wider-reaching impact than initially expected.

Gov. Bill Lee signed the Protect Tennessee Minors Act into law on Tuesday following overwhelming, bipartisan passage in the legislature earlier this year. No lawmaker voted against the measure.

Ideastream Public Media: Cleveland City Council doubles campaign finance contribution limits, some residents push back

By Abbey Marshall

.....Cleveland City Council quickly — and controversially — approved legislation Monday that doubled campaign finance contribution limits ahead of council elections in 2025.

Those caps jumped from $1,500 to $3,000 for individuals and from $3,000 to $6,000 for political action committees, groups often run by businesses, labor unions or ideological interests.

Council President Blaine Griffin said the increase is to accommodate inflated costs, as well as prepare for the loss of two of the city’s 17 wards in the upcoming redistricting process since some candidates will have to campaign over larger areas.

Texas Tribune: How Ken Paxton is stretching the boundaries of consumer protection laws to pursue political targets

By Vianna Davila

.....An analysis by ProPublica and The Texas Tribune shows that in the past two years, Paxton has used consumer protection law more than a dozen times to investigate a range of entities for activities like offering shelter to immigrants, providing health care to transgender teens or trying to foster a diverse workplace.

Not a single one of the investigations was prompted by a consumer complaint, Paxton’s office confirmed. A complaint is not necessary to launch a probe.

The analysis is possibly an undercount...

Two attorneys representing nonprofits that Paxton recently targeted said they believe he launched the investigations simply to harass their clients and to cause a chilling effect among organizations doing similar work. Both said the attorney general’s demands violate the First Amendment, which guarantees the right to free speech, association and religion, and the Fourth Amendment, which offers protection against unreasonable search and seizure.