July 26, 2024

Ed. note: The Media Update will return Wednesday, July 31.

In the News

Kansas Reflector: Federal judge issues temporary order blocking enforcement of a Kansas campaign finance law

By Tim Carpenter

.....A federal judge granted an Overland Park nonprofit organization’s request for a temporary restraining order blocking the Kansas Governmental Ethics Commission from enforcing a campaign finance law until a trial on constitutionality of the state’s definition of a political action committee.

U.S. District Court Judge Daniel Crabtree issued the order Wednesday on behalf of Fresh Vision OP, which ran afoul of the state commission in 2021 after sending a mailer endorsing the candidacy of Faris Farassati, an Overland Park City Council member campaigning for mayor.

Jonathan Turley: “All Men are Created Equal”: University of Oregon Loses Key Motion in Free Speech Case

.....We previously discussed the free speech lawsuit of Portland State University Professor Bruce Gilley who was blocked from the Twitter account of the University of Oregon’s Division of Equity and Inclusion after tweeting “All men are created equal.” The court just granted a preliminary injunction holding that there was a substantial likelihood that he would prevail on the merits against the University of Oregon.

Portland State University Professor Bruce Gilley was excluded from a Diversity Twitter page by the Communication Manager of the Division of Equity and Inclusion at the University of Oregon. (The manager is identified as “tova stabin” who the court notes “spells her name with all lowercase letters.”). Stabin has now left the school…

In his decision, Judge Hernández zeroed in on the guidelines allowing for the censorship of offensive or hateful speech:

Election Law Blog: Trump Campaign Complaint About Harris Using Biden-Harris Campaign Funds Is Unlikely to Get Anywhere at the FEC or In Court, and If It Does It Will Likely Take Years

By Rick Hasen

.....The New York Times reports that the Trump campaign has filed a complaint at the FEC against Kamala Harris for using the Biden-Harris campaign funds for her own campaign following Biden’s withdrawal from the 2024 race...

The Times does not link to the complaint, so I’m guessing it’s going to make similar arguments to Spies, but we’ll see. Conservative campaign finance scholar Brad Smith (who was going to testify for Trump at his trial) said on Fox Business before this complaint was filed that the Spies argument was good but that the Harris argument is at least “plausible.” He did not think a judge would get involved, and I can think of no real-time enforcement by a judge of federal campaign finance laws.

Instead, as Smith explained, this will go to the FEC where it would take at least 60 days for anything to happen. And the FEC could well deadlock as it often does. The issue could then eventually get decided and end up in courts years later. We could be looking at the results of the 2028 elections or later before there’s something definitive.

Colorado Sun: Colorado campaign donation limits case to be decided later this year

By Sandra Fish

.....A federal court judge will decide after the Nov. 5 general election whether Colorado’s state political donation limits for candidates are legal.

In a trial that concluded Tuesday, three Republicans are challenging the limits enacted by voters in 2002 claiming they violate the First Amendment by limiting donors’ freedom of speech. They sued Secretary of State Jena Griswold in 2022 seeking to overturn the limits, though Senior U.S. District Court Judge John Kane rejected their attempt to suspend the limits immediately.

Kane on Tuesday ordered attorneys for the plaintiffs, who work for the national nonprofit Institute for Free Speech, to file a summary of their case by Sept. 23. The Colorado Attorney General’s Office must file a response by Oct. 23, with a reply from the Institute for Free Speech due Nov. 12.

Colorado limits individual contributions to $1,425 for statewide candidates and $450 for legislative candidates.

“Political speech is the lifeblood of democracy,” Institute for Free Speech attorney Ryan Morrison said in his opening argument. 

Broadband Breakfast: After NetChoice, Internet Companies Face Hard Work in Court

By Tyler Martinez

.....Americans for Prosperity Foundation highlighted attempts to breach security to find out its donors by ideological opponents who lied to work in “belly of the beast” to gain non-public information. Trial also showed knife attacks at various Foundation events and other threats. 

Contrast that with a companion case, Center for Competitive Politics v. Harris, which came up through the court system quickly based on motion for preliminary injunction–very similar to the truncated process used to get the pair of NetChoice challenges.

New from the Institute for Free Speech

Kansas PAC Law Ruled Unconstitutional

.....In a decisive early ruling, a federal court granted a temporary restraining order (TRO) in favor of Fresh Vision OP, a grassroots nonprofit organization, in its lawsuit challenging provisions of Kansas campaign finance laws. Attorneys for the Institute for Free Speech and local counsel Josh Ney and Ryan Kriegshauser filed the federal lawsuit on behalf of Fresh Vision OP in June in the U.S. District Court for the District of Kansas.

Federal Judge Rules for Portland State University Professor Bruce Gilley in Free Speech Case

.....In a decisive win for free speech, a federal court has granted a preliminary injunction preventing the University of Oregon’s Division of Equity and Inclusion’s communication manager from blocking Bruce Gilley’s online interactions with the division’s official X account.

Institute for Free Speech attorneys, working with local counsel Angus Lee, scored a significant victory in Professor Bruce Gilley’s ongoing free speech lawsuit. The U.S. District Court for the District of Oregon has granted a preliminary injunction, protecting Gilley’s right to interact with the University’s @UOEquity social media account on X (formerly Twitter) without his speech being blocked, muted, or censored.

DOJ

Washington Post (Tech Brief): FBI should clean up its interactions with online platforms, DOJ watchdog says

By Will Oremus

.....The 53-page report, published Tuesday by Justice Department Inspector General Michael E. Horowitz, affirmed that U.S. law enforcement agencies need to communicate with tech firms about foreign influence operations, such as Russia’s campaign to interfere in the 2016 presidential election. But it warned that officials need to be more systematic and careful about the nature of those communications to ensure they don’t cross the line into government censorship...

The report doesn’t allege any First Amendment violations. But it does suggest that the DOJ lacked clear policies to prevent them.

Congress

Washington Post (Tech Brief): Schumer expects child online safety bills to pass Senate by wide margin

By Cristiano Lima-Strong

.....Senate Majority Leader Charles E. Schumer (D-N.Y.) told the Tech Brief this week that he expects a pair of bills boosting online privacy and safety protections for children to clear the chamber “by a very large vote,” with initial consideration set for as early as Thursday.

Schumer, who has faced months of pressure from child safety advocates and parent activists, said lawmakers would probably greenlight the bills “either this week or early next week” after the procedural vote Thursday…

India McKinney, director of federal affairs for the nonprofit Electronic Frontier Foundation, said in a statement that KOSA would amount to “an unconstitutional censorship bill” and urged lawmakers to focus instead on a broader privacy bill that “would protect young people without infringing on the First Amendment rights of everyone who uses the internet.”

FCC

The Hill: FCC advances proposal requiring political advertisers to disclose AI use

By Nick Robertson

.....The Federal Communications Commission (FCC) on Thursday moved forward with a proposal to require the makers of political ads to disclose any use of artificial intelligence (AI).

The rule means advertisers on broadcast television, radio and cable will be required to reveal the use of AI technology for voice and image generation...

FCC Commissioner Brendan Carr, an appointee of former President Trump, voted against the proposal, citing concerns about timing and partisanship. He agreed with concerns aired by Federal Election Commission Chair Sean Cooksey, also a Republican, who said the regulations infringe on his agency’s jurisdiction and could result in legal action.

“We are in the home stretch of a national election. We are so close, in fact, that the comment cycle in this proceeding will still be open in September — the same month when early voting starts in states across the country,” Carr wrote in a statement. “If there ever were a moment, if there were a time, for a federal agency to show restraint when it comes to the regulation of political speech and to ensure that it is operating within the statutorily defined bounds of its authority, now would be that time.”

“This is a recipe for chaos,” he continued. “Even if this rulemaking were completed with unprecedented haste, any new regulations would likely take effect after early voting already started. And the FCC can only muddy the waters.”

Online Speech Platforms

Wall Street Journal: Meta Censors a Paralympic Shooter

By Tim Rupli

.....McKenna Geer is scheduled to represent Team USA at the Paralympic Games in Paris next month. The 28-year-old Washington state native, who was born with a muscular disorder called amyoplasia arthrogryposis, will compete in the air-rifle event. Yet if Ms. Geer wants to post about her athletic adventures abroad on social media, she’ll likely be out of luck. Why? Meta, the parent company of Instagram and Facebook, has shadow-banned her for her shooting-related posts…

“I have always feared the day the media would censor my sport and speech just because I use firearms,” Ms. Geer posted on Instagram on July 17. “That day has finally come.” Meta initially blocked Ms. Geer’s ability to appeal the decision, and her account remains shadow-banned while her appeal is under review with only a month to go before the competition. Meantime, the tech company is shielded from civil lawsuits under Section 230 of the Communications Decency Act.

Candidates and Campaigns

The Hill: Trump calls for jail sentence for desecrating flag: ‘Stupid people’ will say it’s unconstitutional

By Brett Samuels

.....“You should get a one-year jail sentence if you do anything to desecrate the American flag,” Trump said Wednesday on “Fox & Friends” when asked about the protests. 

“Now, people will say, ‘Oh, it’s unconstitutional.’ Those are stupid people. Those are stupid people that say that,” the former president continued. “We have to work in Congress to get a one-year jail sentence. When they’re allowed to stomp on the flag and put lighter fluid on the flag and set it afire, when you’re allowed to do that — you get a one-year jail sentence, and you’ll never see it again.”

In the 1989 case Texas v. Johnson, the Supreme Court ruled in a 5-4 decision that the act of burning an American flag is constitutionally protected free speech under the First Amendment.

The States

Reason: Firearms Policy Coalition Takes No Prisoners in Sharp Response to Thin-Skinned Maine Governor

By J.D. Tuccille

....."Documents obtained by the Maine Wire via a Freedom of Access Act show that Gov. Janet Mills' personnel referred social media posts from the Firearms Policy Coalition and the Maine Wire to the State Police, flagging them for the governor's Executive Protection Unit," The Maine Wire's Steve Robinson reported last week.

The posts in question were entirely unthreatening, except perhaps to sensitive feelings. The Maine Wire added nothing to the video clip except for a short summary of the content: "Governor Mills is leaving the door open for a possible assault weapons ban following the Lewiston shooting."

The FPC was, characteristically, a little sharper: "Hey @GovJanetMills, Three words: Fuck you. No."

That's short, to the point, and perhaps a bit sharp, but it implies no threats whatsoever.

Nevertheless, The Maine Wire found emails showing that Mills' press secretary passed a link to the post around the office, and that "another staffer immediately forwarded the post to the Maine State Police employee responsible for protecting the governor."

Fox 2 Detroit: Man driving ATV runs over Trump supporter in Michigan Upper Peninsula, police say

By Jack Nissen

.....Police in Michigan's Upper Peninsula are investigating an assault on an 80-year-old man that law enforcement described as politically motivated.

The individual was posting a political sign in his yard when someone riding an ATV drove into his yard and ran over him, Hancock police said in a news release posted on Facebook this week.

It was one of three separate incidents that local police responded to over the weekend, adding the individual "appeared to target both Trump and Law Enforcement supporters."