June 11, 2024

The Courts

San Francisco Chronicle: 9th Circuit revives part of journalist’s lawsuit against S.F. Supervisor Dean Preston

By Bob Egelko

.....A federal appeals court on Monday partially reinstated journalist Susan Dyer Reynolds’ suit against San Francisco Supervisor Dean Preston for blocking her from his Twitter account. Although Reynolds cannot seek damages from Preston, the court allowed her to try to prove that he violated her free-speech rights...

The 9th U.S. Circuit Court of Appeals ruled last week that Reynolds’ suit must be dismissed because, under recent Supreme Court rulings on related issues, Preston was speaking for himself and not the city when he blocked the Marina Times from his account.

With no “clearly established law” showing that Preston was acting illegally as a public official, she is not entitled to seek damages, the three-judge panel said.

But the court then granted Reynolds’ request for reconsideration, and issued a revised ruling Monday that allows Reynolds to try to prove Preston was motivated by her views, not her alleged threats, and violated her constitutional rights. She still cannot claim monetary damages but could ask U.S. District Judge William Orrick III to order Preston to allow her access if the supervisor resumes use of his account. His office says he stopped using it last October.

Bloomberg Law: Coordinated Party Spending Caps Meet Conservative Sixth Circuit

By Eric Heisig

.....Republicans have long sought to abolish the cap on how much political parties can spend in coordination with federal political candidates. And while the issue will go in front of appeals judges Wednesday, they ultimately have their sights set on the nation’s highest court.

The full US Court of Appeals for the Sixth Circuit will hear oral arguments in Cincinnati on whether to lift the limits on “coordinated party expenditures” on free-speech grounds. Republicans argue that a lot has changed since 2001, when a divided Supreme Court ruled that the limits should remain...

A win would not only mean coordination on things like advertising, but the infrastructural hoops parties must jump through to independently spend money to boost a candidate may become a thing of the past.

“What you’re doing is you’re frustrating the ability of a political association to engage in its own speech in cooperation with its own candidate for office, with very little demonstration that such expenditures would corrupt the politician,” said Lee E. Goodman, a former Republican FEC chairman and commissioner who’s now a partner at Wiley Rein LLP.

Ed. note: Read our brief in support of plaintiffs-appellants in NRSC v. FEC here.

Reason: 'If They Can Control the Flow of Information, They Can Control You': BASEDPolitics Sues To Stop TikTok Ban

By Elizabeth Nolan Brown

....."We wanted to file a lawsuit that was specifically focused on free speech and the First Amendment from the creators' perspective, rather than some of the other, business-related concerns in other lawsuits," Brad Polumbo of BASEDPolitics tells me. "We also wanted to emphasize the political speech aspect, rather than other creators who are more in the mold of everyday 'influencers,' and show that right-leaning/non-liberal voices are being impacted by this as well."

Polumbo hopes the lawsuit will "help Republicans and conservatives see why this ban is inconsistent with the free speech values they say they care about." …

"If enacted, this would constitute one of the most egregious acts of censorship in modern American history," Cox and Polumbo write, placing the TikTok ban in the midst of larger anti-speech and anti-tech trends:

…

“The truth is that government actors who want to preserve and expand their own power have a vital interest in taking over the tech industry...But social media in particular poses a unique threat to the government—which has for decades been able to control the flow of information and the narrative on political issues via its cozy relationship with many in the mainstream media.”

Colorado Newsline: Rep. Boebert’s threats to sue opposition group’s donors likely improper, judge says

By Quentin Young

.....A lawsuit against U.S. Rep. Lauren Boebert of Windsor can move forward on some of its claims, a federal magistrate judge in Colorado recommended Sunday.

The lawsuit comes from political activist David Wheeler of North Carolina and the super PAC American Muckrakers, of which he is president. Filed a year ago in U.S. District Court of Colorado, it alleges that Boebert made “maliciously false statements” about Wheeler and American Muckrakers on multiple occasions in 2022, when Boebert was running for reelection and Wheeler, citing sources close to Boebert, published unflattering information about her.

Boebert sought to have the case dismissed under Colorado’s anti-SLAPP law, which protects Coloradans who exercise free speech rights from meritless lawsuits. 

In a recommendation that dealt with Boebert’s motion to dismiss the case, as well as a motion from Wheeler to amend his original complaint, U.S. Magistrate Judge Kathryn A. Starnella said that Boebert potentially could be found liable for threatening to sue American Muckrakers donors. But Starnella found that Wheeler’s claim that Boebert defamed him was not likely to succeed.

FEC

New York Times: A Democrat, Siding With the G.O.P., Is Removing Limits on Political Cash at ‘Breathtaking’ Speed

By Shane Goldmacher

.....In a series of recent decisions that are remaking the landscape of money in American politics, an ascendant new bloc of three Republicans and one Democrat is voting together to roll back limits on how politicians, political parties and super PACs raise and spend money.

Reform groups are aghast at what they see as the swift unraveling of longstanding restraints. Conservatives who for years have dreamed of loosening restrictions are delighted, even though many of the rulings were sought by one of the Democratic Party’s most prominent attorneys, Marc Elias, who was seeking political advantage and clarity for his clients.

Those on both sides of the ideological divide agree on one thing: The changes amount to some of the most significant regulatory revisions since the campaign finance law, the McCain-Feingold Act, was put in place two decades ago.

“These decisions are a monumental shift in the law at the commission,” said Sean Cooksey, the Republican chairman of the Federal Election Commission. “The deregulators are winning.” …

“We are in a new era,” said Adav Noti, executive director of the Campaign Legal Center, which pushes for stricter interpretation and enforcement of the law. “It is breathtaking the speed with which the rules are being torn down. There has been more activity in the last two years to allow money into the system than in the 20 years before that combined.” ...

“Who would have thought,” said Mr. Whitehouse, the Democratic senator, “deadlock and dysfunction would be the good old days?”

Reuters: US election officials split on AI disclosure rules for political ads

By David Shepardson

.....FEC vice chair Ellen Weintraub on Thursday supported the May proposal by U.S. Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel, who asked the commission to advance a proposed rule that would require disclosure of AI content in both candidate and issue advertisements. FEC Chair Sean Cooksey criticized the plan…

Weintraub said in a letter to Rosenworcel that the "public would benefit from greater transparency as to when AI-generated content is being used in political advertisements."

She said it would be beneficial for both the FEC and FCC to conduct regulatory efforts. "It’s time to act," Weintraub said.

Congress

Washington Post: How Congress could curb the use of lawfare for partisan attacks

By Jason Willick

.....Another reform could involve campaign finance law — an ill-defined area particularly susceptible to lawfare because it regulates politicians and their donors. The strangest part of Trump’s conviction last month is the way it mixes state laws with a federal campaign finance law. As former federal prosecutor Elie Honig put it in New York magazine, “no state prosecutor — in New York, or Wyoming, or anywhere — has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything.”

It would change U.S. elections if state district attorneys started to prosecute federal candidates for breaking campaign finance rules. In addition to worrying about how the Federal Election Commission and Justice Department understand the rules, campaigns would need to start worrying about their interpretation by local prosecutors as well.

The number of authorities with jurisdiction over campaign spending would dramatically increase. Democratic presidential candidates, for example, could be charged in conservative counties by elected Republican prosecutors for campaign finance crimes that the Justice Department would never have brought. Congress could eliminate this risk with its power, under the Constitution’s supremacy clause, to “preempt” state laws. It could declare that criminal prosecutions relying on the Federal Election Campaign Act of 1971 can only be brought in federal court by federal prosecutors.

Free Expression

Reason: Australian Censors Back Down, Highlighting the U.S. as a Free Speech Haven

By J.D. Tuccille

.....In a welcome development for people who care about liberty, Australia's government suspended its efforts to censor the planet. The country's officials suffered pushback from X (formerly Twitter) and condemnation by free speech advocates after attempting to block anybody, anywhere from seeing video of an attack at a Sydney church. At least for the moment, they've conceded defeat based, in part, on recognition that X is protected by American law, making censorship efforts unenforceable.

Candidates and Campaigns

Washington Post: Tech workers use corporate advertising tricks to turn out Democratic voters

By Naomi Nix

.....[Tech for Campaigns] recruited micro-influencers to post videos that the organization then pays to boost on social media to users who are Democrat-leaning and might not vote. In 2023, the group found that influencer ads in the Wisconsin Supreme Court race had a 3.4x higher engagement rate than ordinary ads and boosted sign-ups among people of color by 25%...

This year, the group is planning to test whether disclosing that artificial intelligence helped design an ad impacts its efficacy, as well as how artificial intelligence can be used to answer would-be voters’ questions.