June 19, 2024

In the News

New York Daily News: Ousted NYC school board member seeks job back as controversial regulation faces legal challenge

By Cayla Bamberger

.....A group of school board members — including one who was ousted from a Manhattan education panel last week — are challenging a controversial regulation that allows the Education Department to remove elected parent leaders.

On Tuesday, Maud Maron, a former member of Community Education Council 2 covering lower Manhattan to the Upper East Side, and two other parents asked a Brooklyn federal judge to pause removal proceedings and reinstate Maron. The largely advisory boards in each of the city’s school districts assess education policy and hear public comments on a range of issues.

The lawsuit concerns the Education Department’s disciplinary process for education council members, which allows the public to file complaints that then trigger investigations and potential removals. Created in 2021 and known as “D-210,” the process was not operational until it was staffed years later.

Alan Gura, vice president for litigation at the Institute for Free Speech and a lawyer for the parents, said the regulation is unlawful.

“It imposes all kinds of unconstitutional restrictions on their speech,” he told reporters outside court. “They are allowed to express their views and in fact, they’re elected to express their views and to present a different perspective than the chancellor or the [Education Department] might have.”

New from the Institute for Free Speech

Letter to Texas Ethics Commission on Proposed Disclosure Statement

.....On June 17, 2024, the Institute for Free Speech sent a letter to the Chair and Vice Chair of the Texas Ethics Commission to express concerns about the proposed rule regarding the §26.1 disclosure statement and recommend changes to improve the proposed regulation.

Read a PDF of the letter here.

Free Speech Arguments – Florida’s STOP Woke Act (Pernell v. Lamb)

.....LeRoy Pernell, et al. v. Brian Lamb, et al. (consolidated with Adriana Novoa, et al. v. Commissioner of the Florida State Board of Education, et al.), argued before Judges Charles R. Wilson, Britt C. Grant, and Barbara Lagoa in the U.S. Court of Appeals for the Eleventh Circuit on June 14, 2024. Argued by Charles Cooper (on behalf of Brian Lamb, et al.) and Leah Watson (on behalf of Appellees LeRoy Pernell, et al.) and Greg Greubel (on behalf of Appellees Adriana Novoa, et al.).

The Courts

The Hill: New York’s high court dismisses Trump’s gag order challenge

By Ella Lee and Zach Schonfeld

.....New York’s top court on Tuesday turned away former President Trump’s challenge to a gag order imposed on his public statements in his hush money criminal case.  

Reason (Volokh Conspiracy): Is Promotion of Free Services "Commercial Speech" for First Amendment Purposes?

By Eugene Volokh

.....From today's decision by Judge William K. Session III (D. Vt.) in Nat'l Inst. of Family & Life Advocates v. Clark, which allows plaintiffs' challenge to a Vermont regulation to go forward (denying defendants' motion to dismiss):

The Media

New York Times: Mississippi Opens the Playbook for Dismantling a Free Press

By Adam Ganucheau

.....Slow-moving lawsuits intended to drain newsrooms of their limited financial resources and editorial bandwidth. Threats of jail time for journalists who expose political corruption and refuse to give up their sources and turn over their notes. Judges with close ties to the politicians who have attacked reporters and their coverage.

If you think these things sound outlandish in America, take a close look at what’s happening here in Mississippi. All these possibilities are the subject of very serious conversations I’m having this week with my colleagues as the editor in chief of Mississippi Today, a nonprofit newsroom that covers the state’s politics.

The Federalist: Judge Puts Freedom Of Press On Trial In Nashville Trans Shooter ‘Manifesto’ Battle

By M.D. Kittle

.....Michael Patrick Leahy walked out of a Nashville courthouse Monday morning celebrating his freedom — at least for now. 

“I am a free man and can continue to exercise my First Amendment rights,” the CEO and editor in-chief of The Tennessee Star declared on his X account. 

Tennessee Chancery Court Judge l’Ashea Myles had ordered Leahy to court after his Star News Network had reported on portions of the so-called “manifesto” of Audrey Elizabeth Hale, the transgender-identified shooter who murdered six people at a Nashville Christian school. The Star reported that it had obtained images of roughly 80 pages of the killer’s journal that police found in her vehicle. The journal entries cover the weeks before she stormed into Covenant School in late March 2023 and fatally shot three 9-year-olds and three adults. 

FEC

North Dakota Monitor: North Dakota House candidate files federal complaints alleging fraud, election interference

By Mary Steurer

.....Julie Fedorchak’s campaign filed complaints with two federal agencies related to a video and text messages sent last week that falsely state the candidate dropped out of the race for U.S. House of Representatives.

Complaints were filed with the Federal Election Commission and Federal Communications Commission asking the agencies to investigate the messages, campaign manager Sean Cleary wrote in a Monday email. 

Shane Goettle, the campaign’s attorney, said the complaint to the Federal Election Commission alleges election interference and the complaint to the Federal Communications Commission alleges the “use of texts in a fraudulent manner.”

The States

National Review: Jack Phillips Appears before Colorado Supreme Court for Transgender-Cake Lawsuit: ‘This Case Is about Free Speech for Everyone’

By David Zimmermann

.....Attorneys for Christian baker Jack Phillips, whose First Amendment rights have been challenged in LGBT civil-rights cases over the past decade, argued their client should not be forced to make a cake that violates his deeply held religious beliefs in their Tuesday appearance before the Colorado supreme court…

ADF senior counsel Jake Warner is confident in his team’s case and hopeful that Phillips will get the justice he deserves after spending the last 12 years in court.

“This case is about free speech for everyone,” Warner told National Review prior to Tuesday’s oral arguments. “It’s not just about protecting artists like Jack Phillips. It’s about protecting the LGBT web designer who doesn’t want to create custom websites criticizing same-sex marriage. It’s about protecting all kinds of artists who want to express views consistent with what they believe.”

“So even if you disagree with Jack on the definition of marriage, or whether someone can transition from male to female, we should all agree that the government shouldn’t force anyone to express a message they don’t believe,” Warner added. “A win for Jack is really a win for everyone, regardless of your viewpoint on this issue.”

Maine Wire: Final Ballot Question Wording Released for Citizens’ Initiative Seeking to Limit SuperPAC Contributions

By Libby Palanza

.....Secretary of State Shenna Bellows announced Friday the final question wording for a citizens’ initiative that is set to go before Maine voters this November.

Validated by Secretary Bellows in February, the law proposed by the initiative aims to change campaign finance law in the state by limiting the value of donations made to qualifying political action committees (PACs).

The final question wording that will appear on the ballot this November is:

“Do you want to set a $5,000 limit for giving to political action committees that spend money independently to support or defeat candidates for office?”

Maine state law currently defines independent expenditures as any communication expense — such as for advertisements or phone banks — that clearly advocates for or against a particular candidate but is “not made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized political committee or an agent of either.”

Gothamist: Mayor Adams' 2021 campaign stopped replying to NYC watchdog. It still got public funds.

By Brigid Bergin

.....Gothamist obtained emails and other documents between the Adams campaign and the CFB between March 2018 and August 2023 in a public records request...

While Adams raised nearly $20 million for his 2021 campaign — including more than $10 million from the matching program — documents show that his team ignored the agency's questions about potential violations, even as they inquired about different ways they could spend their funds.

Election Law Blog: Michigan Supreme Court, in Case Against Burkman and Wohl, Holds It Is Constitutional to Punish Intentional Lies About When, Where, or How People Vote (Relevant Also to Pending Mackey Case)

By Rick Hasen

.....Last week, the Michigan Supreme Court in People v. Burkman considered whether John Burkman and Jacob Wohl could be constitutionally charged with violating Michigan law for robocalls intended to deter Black voters from voting. The Court held that some election related speech could be criminally punished without violating the First Amendment. It narrowly construed Michigan law in ways that avoided the constitutional problem. Here is the relevant part of the majority opinion on this point: