July 15, 2024

In the News

Cleveland.com: Finally, Ohio may get a remedy for lawsuits seeking to suppress citizens’ free speech rights: Charles Miller

By Charles Miller

.....Typically, the remedy for untruthful speech is counter-speech — correcting the record. However, some people would rather silence opponents.

This happens more often than you may realize. You might leave an accurate, negative Yelp review after a nauseating experience at a nearby restaurant. Perhaps you decide to voice your opinion about the employment practices of a prominent company. Maybe you take a local public official to task for a misguided new policy.

Pennsylvania NewsMedia Association: Passage of bipartisan First Amendment legislation is huge victory for news media, all Pennsylvanians

.....This week the state Legislature passed a landmark bill that protects public expression through anti-SLAPP reform. HB 1466 sponsored by Rep. Ryan Bizzarro (D-Erie) won unanimous Senate approval this week after achieving full House support in October. The legislation now moves to Gov. Josh Shapiro’s desk to be signed into law. The Pennsylvania NewsMedia Association has actively advocated for comprehensive anti-SLAPP legislation for more than a decade…

Pennsylvania’s current anti-SLAPP law applies only to individuals petitioning the government about environmental issues. The Institute for Free Speech gave the law a “D-” in its anti-SLAPP report card last year.

Enter HB 1466, which protects all forms of First Amendment expression while making it easier for people to defend against frivolous lawsuits.

Election Law Blog: Brad Smith’s Testimony on Trump Hush Money Case

By Dan Tokaji

.....Brad’s testimony to the House Judiciary Committee is definitely worth reading, for those interested in a deep dive into the alleged federal campaign finance violations supporting the felony conviction of former President Trump. Brad explains why he thinks the jury instructions were incorrect, a potential basis for reversing the conviction on appeal.

The Courts

Reason: Louisiana Federal Court Affirms the Right To Peacefully Protest

By Joe Lancaster

.....This week, a federal court in Louisiana dismissed a lawsuit against protest organizer DeRay Mckesson, putting an end to a case that stretched many years and threatened to chill First Amendment–protected speech...

Indeed, the decision is a positive outcome. But the case stretched on for an absurdly long stretch of time. In a statement, Mckesson called it "a grueling eight-year process"—eight years in which an injured police officer sought to use the legal system to punish him despite never accusing him of direct violent action. And in that time, dueling court decisions couldn't come to an agreement over whether nonviolent protest activity was truly protected by the First Amendment.

Bloomberg Law: NY Anti-Bias Law Must Face Photographer’s Free Speech Suit

By Mike Vilensky

.....New York must face claims from a Christian wedding photographer that a state law requiring her to shoot gay weddings violates her constitutional right to free speech, the Second Circuit said Friday.

The US Court of Appeals for the Second Circuit revived Emilee Carpenter’s free speech claim after a district court tossed her lawsuit in 2021.

The district court must reconsider Carpenter’s free speech claim under the First Amendment in light of the US Supreme Court’s decision in 303 Creative v. Elenis, Judge Alison J. Nathan said.

Free Expression

The Eternally Radical Idea: The First Amendment ISN'T out of control

By Greg Lukianoff and Adam Goldstein

.....Those of us who defend freedom of speech have unfortunately gotten used to hysterical headlines from the New York Times decrying the problem of the First Amendment…

Professor Wu's recent piece, “The First Amendment Is Out of Control,” was in this troubling tradition of free-speech catastrophizing. He opened the article by arguing that "[n]early any law that has to do with the movement of information can be attacked in the name of the First Amendment."

Well, yeah. Fear of government power over the free flow of information was a big part of the reason why "Congress shall make no law." 

Indeed, that's also a big part of why the founders included "the press" in the First Amendment. And by “the press,” they didn't mean institutional journalism (although the First Amendment clearly protects that as well) — they meant the literal biggest information moving technology of the day: the printing press. 

New York Times: Even Disinformation Experts Don’t Know How to Stop It

By Tiffany Hsu and Stuart A. Thompson

.....A critical mass of research now suggests that tools such as fact checks, warning labels, prebunking and media literacy are less effective and expansive than imagined, especially as they move from pristine academic experiments into the messy, fast-changing public sphere.

Online Speech Platforms

Washington Post: Meta rolls back restrictions on Trump’s social media accounts

By Naomi Nix

.....Meta announced Friday it’s rolling back heightened restrictions on former president Donald Trump’s social media accounts — an effort to give the Republican presidential contender more leeway to share content in a heated campaign season.

The social media giant said it’s loosening the more rigorous consequences for Trump if he breaks their content rules, such as those that bar hate speech, incitement to violence and voter suppression. The heightened penalties facing Trump’s accounts were introduced following his two-year suspension from Facebook and Instagram.

The Hill: Stop mourning the Murthy case, start fighting the censorship-industrial complex

By Hans von Spakovsky and Daniel Cochrane

.....Ending the government’s weaponization of Big Tech against Americans demands bold and decisive action to hold both accountable for their behavior.

Congress could ban government from using its resources or bully pulpit to promote suppression of the free and equal enjoyment of constitutional rights. That includes cutting off taxpayer dollars for all “mis-” and “dis-” information projects trained on the domestic population.

Legislation like the COLLUDE Act would also go a long way in holding Big Tech accountable. It would clarify that Section 230 does not apply when platforms censor legal speech “as a result of a communication” from a “governmental entity” or from an non-profit “acting at the request or behest of a governmental entity.”

Even in the absence of congressional action, a new presidential administration could order a government-wide audit to ensure that all informal agency actions, civil society partnerships, funding and government contractors are in line with the First Amendment.

The States

Colorado Sun: Political nonprofit tied to Jared Polis admits to violating Colorado’s campaign finance laws, will reveal donors

By Sandra Fish

.....A political nonprofit linked to Gov. Jared Polis has admitted to violating Colorado’s campaign finance laws and will pay an $18,000 fine and disclose its donors under a settlement agreement with state election officials.

Forbes: Kentucky UPEPA Survives State Constitutional Challenge In Davenport Extreme Pools

By Jay Adkisson

.....At any rate, all of the foregoing resulted in the opinion in Davenport Extreme Pools & Spas, Inc. v. Mulflur, 2024 WL 2982718 (Ky.App., June 14, 2024), which we shall next examine.

The Court of Appeals started its analysis by noting that the appeal of a UPEPA special motion should be considered de novo, which means that it gets a fresh look by the appellate court with no deference to the opinions of the trial court.

The first question was whether the UPEPA applied to this particular case at all, since the UPEPA had not yet been adopted by Kentucky when the case was originally filed by Davenport. The issue was whether the UPEPA effected an impermissible retroactive change in the substance of the law (although the Court of Appeals did not use the term, basically an ex post facto law). This in turn lead to the question of whether the UPEPA operated to diminish Davenport's rights under the pre-UPEPA law, as opposed to a procedural or remedial (think in terms of available remedies) change that did not diminish Davenport's rights.