July 17, 2024

Supreme Court

Courthouse News: Supreme Court wills Confederate monument protesters to jail despite appeal

By Kelsey Reichmann

.....The Supreme Court on Tuesday said three Texas protesters can't delay serving a seven-day jail sentence stemming from a 2020 protest of a Confederate monument despite an ongoing appeal. 

For nearly four years, Amara Ridge, Torrey Henderson and Justin Thompson have been allowed to remain free throughout their trial and appeals, but prosecutors said the trio had to report to jail to serve their sentences before the Supreme Court reviewed their case.

Ridge, Henderson and Thompson claim their convictions raised fundamental First Amendment questions and asked the justices to delay their sentences, scheduled to begin on July 23. 

“In the context of a peaceful protest, the First Amendment forbids punishment without proof that applicants themselves intentionally obstructed a passageway or directed others to do so — yet the court below affirmed the convictions without any such evidence,” the trio wrote in their emergency application. 

The protesters are being presented by Savannah Kumar, an attorney with the ACLU Foundation of Texas. 

Thomas More Society: Pro-Life Sidewalk Counseling Organization Asks U.S. Supreme Court to Restore Free Speech Rights

.....Pro-life advocates from Coalition Life, the nation’s largest professional sidewalk counseling organization, are asking the United States Supreme Court to restore sidewalk counselors’ First Amendment right to offer compassionate support to abortion-minded women outside abortion facilities. The Petition for Writ of Certiorari in Coalition Life v. City of Carbondale, filed on July 16, 2024, by Thomas More Society attorneys and former U.S. Solicitor General Paul Clement, asks the Supreme Court to overturn its heavily criticized decision in Hill v. Colorado.

Reason (Volokh Conspiracy): Making Sense of Justice Barrett's NetChoice Concurrence

By Josh Blackman

.....On Monday, I tried to make sense of the various opinions in Moody v. NetChoice. Really, nothing lines up. Everyone agrees that the lower courts failed to apply the proper standard for the facial challenge. But the Justices then sharply divide about what kind of instructions to provide the lower courts, even as they all profess some sort of minimalism. After Justice Alito (likely) lost the majority opinion, the entire case went schizophrenic.

Here, I'd like to write about the most confounding opinion in the lot: Justice Barrett's concurrence. Unlike in Trump v. United States, she joins the majority opinion in full. Presumably, she agrees with Part II concerning the facial analysis, but she doesn't say a word about that part. But she does expressly agree with the Court's First Amendment analysis:

The Courts

Reason (Volokh Conspiracy): No Qualified Immunity When "Public Officials … Baselessly Threaten[] a Citizen-Journalist With Legal Action"

By Eugene Volokh

.....From Berge v. School Committee, decided yesterday by the First Circuit, in an opinion by Judge O. Rogeriee Thompson, joined by Judges David Barron and Lara Montecalvo (though there's a lot more going on in the opinion as well):

Center Square: California judge: first grader too young for free speech rights, family appeals

By Kenneth Schrupp

.....The mother of a first grader punished for handing an “innocent” drawing with the phrases “black lives matter” and “any life” to a classmate of color is appealing to the Ninth Circuit Court of Appeals after a lower court ruling declared first-grade students are too young to be protected by the First Amendment. 

The Hill: Court rebukes FEC for failing to investigate ‘extreme example’ of coordination

By Taylor Giorno

.....Lee Goodman, a former Republican FEC chair and commissioner who left before the commission voted to dismiss the complaint, told The Hill that “the case probably needed a surgical approach” to sort out what did and did not fall under the internet exception.

“It was almost like a whole bunch of political activity got thrown in a dump truck and somebody painted an internet exemption on the dump truck, and then they backed the dump truck up to the FEC and just dumped the whole pile of political activity right there at the FEC’s doorstep,” Goodman, who is now a partner at Wiley Rein LLP, said...

“What I hope is that, first, on remand, the FEC declares the internet exemption alive and well and robust, and secondly, that they very carefully include in the internet exemption those input costs, production costs, dissemination, staff time, software, copyright, all of those parts of an internet communication, to be exempt from regulation,” Goodman said. 

Free Expression

New York Times: After Eight Turbulent Years, A.C.L.U.’s Legal Director to Step Down

By Adam Liptak

.....Eight years later, as he prepares to step down from the position, Mr. Cole reflected on what turned out to be a very different tenure. His grueling run included significant victories before an increasingly conservative Supreme Court, more than 400 lawsuits against the Trump administration and dueling complaints from critics who said the A.C.L.U. was either insufficiently or excessively committed to defending free speech…

“When I was at C.C.R., I used to say proudly that the difference between C.C.R. and the A.C.L.U. is, we would never represent the Nazis marching in Skokie,” he said, referring to a planned 1977 march by the American Nazi Party in Skokie, Ill., a home to many Holocaust survivors. “And now that I’m at the A.C.L.U. and somewhat older, I say that the difference is that we would represent the Nazis marching in Skokie.”

That commitment to free speech was reflected in the A.C.L.U.’s decision to represent the National Rifle Association in the Supreme Court in a First Amendment challenge to what the gun rights group said was a New York official’s efforts to blacklist it. The A.C.L.U.’s decision to take on the representation angered some in the civil rights community, including the New York affiliate of the A.C.L.U.

Mr. Cole argued the case in March and won unanimously two months later.

Donor Privacy

Chronicle of Philanthropy: Campus Protests, Donor Secrecy, and a Moment for Reform

By Benjamin Soskis

.....Partisan opportunists have long used philanthropic reform to limit their opponents’ work or power. The conception of the Johnson Amendment, which prohibits 501(c)(3) nonprofits from endorsing political candidates, bears this out as well. As such, philanthropic reform has often simultaneously fostered and constricted the space for civil society to flourish.

A contemporary philanthropic reform campaign is likely to include efforts to do both. At the very least, it’s almost certain that any legislative effort will come with the support of policymakers who are attracted to it as a cudgel to beat their ideological opponents. 

The States

LimaOhio.com: Ohio bill would allow courts to throw out frivolous SLAPP suits

By Tribune News Service

.....Ohio is a few steps away from enacting a new bill that sponsors say would protect First Amendment rights by giving Ohio courts the “long overdue” power to sooner toss aside frivolous and expensive court cases that have come to be known as strategic lawsuits against public participation, or SLAPP suits.