August 26, 2024

In the News

PennLive: Pennsylvania lawmakers must protect free speech in elections

By David Keating

.....A bill purporting to stop “foreign influence in elections” might sound like a good idea. But, as the saying goes, don’t judge a book by its cover.

Instead, we should judge this proposed law by its text. And a careful reading of the bill, which recently passed the Pennsylvania House of Representatives, reveals that it threatens fundamental free speech rights.

The bill would prohibit so-called “foreign-influenced corporations” from making political expenditures in Pennsylvania. However, the measure uses an absurd standard for “foreign-influenced”—a single foreign investor owning just 1% of a company’s equity, or all foreign investors collectively owning 5% or more, would make that company “foreign-influenced.”

This threshold is remarkably low, considering the global nature of modern financial markets. A stockholder owning 1% of a corporation can hardly be described as having any effective influence. Neither would 100 shareholders from different countries who collectively own 5% and didn’t act in concert with each other.

Some naturalized citizens allow relatives in foreign countries to own a small share of their business. It’s hardly the American way to say these small businesses can’t speak out.

The Courts

Live Action: Federal court says New York pregnancy centers can speak about ‘abortion pill reversal’

By Bridget Sielicki 

.....A federal court ruled Thursday in favor of New York pregnancy resource centers (PRCs), affirming the right of those centers to inform their clients about the so-called abortion pill reversal protocol.

Reason (Volokh Conspiracy): Briefs Supporting Strong First Amendment Protection for K-12 Students' Outside-School Speech

By Eugene Volokh

.....The Second Circuit will be hearing the appeal of the district court decision in Leroy v. Livingston Manor School Dist.; here's the summary of the facts from Leroy's opening brief (the image involved is included above):

Congress

Breitbart: Exclusive: Sen. Eric Schmitt Demands Facebook, Google Answer for 2024 Election Censorship Practices, Citing 2020 Big Tech-Government Collusion

By Sean Moran

.....Sen. Eric Schmitt (R-MO) sent a letter to Facebook and Google on Friday, demanding to know their policies on censoring free speech before the pivotal 2024 presidential election.

Schmitt wrote to Google CEO Sundar Pichai and Meta CEO Mark Zuckerberg, expressing concern about the “increasing attacks on free speech facilitated” by Meta and Google:

Free Expression

Forbes: A Psychologist Explains The ‘Streisand Effect’ —When Censorship Fails

By Mark Travers

.....A 2015 study published in the International Journal of Communication shed light on the mechanisms behind the Streisand effect—revealing them to be as simple as they are ironic. Long before Barbra Streisand’s unfortunate legal battle, scholars and thinkers had recognized that censorship often backfires.

The study’s authors cite the Roman historian Tacitus, who wrote about the consequences of emperor Nero’s censorship: “So long as the possession of these writings was attended by danger, they were eagerly sought and read: when there was no longer any difficulty in securing them, they fell into oblivion.” Tacitus’ observation, despite being made in 109 AD, underscores a timeless truth: when something is made inaccessible, it becomes even more desirable.

Donor Privacy

The Federalist: Democrat ‘Dark Money’ Network Founder Wants The Names Of Conservative Donors For One Reason

By Brian Hawkins

.....If “dark money” is so beneficial to Democrats, why do the party’s leaders consistently push for new and expansive donor disclosure laws?

The answer may be simple: Even when the left outspends the right, the value of silencing conservatives far exceeds the value of spending by left-leaning nonprofits...

Eric Kessler, the founder of Arabella Advisors, which serves as the head of the left’s sprawling nonprofit network, recently pledged his support to Sen. Sheldon Whitehouse’s plan to “end the scourge of dark money.”

“I support the DISCLOSE Act, which would go a long way, even as a first step toward overturning the mistake in American politics, which is the conservative-led Citizens United decision. I’m in favor of campaign finance reform for all — evenly across the board — and I think that we should have a new playbook and a new set of rules for everybody,” Kessler told The Chronicle of Philanthropy.

Minding the Campus: The AAUP Discredits Itself

By Joseph M. Knippenberg 

.....The white paper begins by describing an ecosystem of think tanks funded by “dark money,” a term borrowed from the partisan discourse over campaign finance, which is intended to give these organizations a negative valence, even though they’re doing what all think tanks do—explore and promote policies at the state and national level—and they’re funded in the same way as all think tanks are, by donors—some anonymous—who support their political orientation. Kamola also professes to find something nefarious in the fact that there are conservative and libertarian policy networks around issues in higher education, with experts and scholars who—shudder!—talk to one another and share ideas. Who would have thought there’s anything wrong with the collaborative creation of model legislation? Indeed, at the state level, with—for the most part—part-time legislators and small staffs, there’s inevitably a heavy reliance on what we in higher ed call “best practices.”

Candidates and Campaigns

RealClear Politics:  This Election Is a Referendum on Free Speech

By Kenin Spivak

.....Since the court’s ruling in Murthy, the Biden-Harris administration has ramped up its censorship enterprise. A July report from the Justice Department recycles the same justification of malign foreign influence it used in defending Murthy to again authorize DOJ collaboration with social media platforms to suppress disfavored postings. Last week, referring to Elon Musk’s interview with Donald Trump on X, White House Press Secretary Karine Jean-Pierre channeled former Press Secretary Jen Psaki, asserting that social media companies have a “responsibility” to stop disinformation and misinformation.

Though the Court’s rulings leave an opportunity for future plaintiffs to more carefully link coercion to specific instances of censorship, unless Republicans win in November, government-encouraged censorship of conservatives will only get worse.

Sharyl Attkisson: Full text of Kennedy speech endorsing Trump

....."What alarms me is the resort to censorship and media control and the weaponization of the federal agencies. When a US president colludes with or outright coerces media companies to censor political speech, it’s an attack on our most sacred right, a free expression, and that’s the very right upon which all of our other constitutional rights rest [.]"

Election Law Blog: ELB Book Corner: Bob Bauer: “Law and Ethics in the Domain of Campaign Finance”

By Rick Hasen

.....I’m pleased to welcome Bob Bauer to the ELB Book Corner, writing about his new book, The Unraveling. Here is the second of three guest posts:

The States

Reason (Volokh Conspiracy): Government Official's Attempt to Use an Anti-Stalking Order Against a Citizen

By Eugene Volokh

.....I've written about some other such cases in my Overbroad Injunctions article; this case involves a somewhat different set of facts than the ones I discussed there, but I thought it worth noting as well. (I agree that some citizen behavior related to officials—such as violence or true threats of crime—should indeed be enjoinable and even criminally punishable; but, unsurprisingly, protective order statutes that aren't limited to violence or true threats are sometimes used to target behavior that isn't violence or true threats.)

From Frenchko v. Shook, decided Monday by Ohio Court of Appeals Judge Eugene Lucci, joined by Judges Mary Jane Trapp and Robert Patton; note that the opinion is long, and this excerpt necessarily omits some details about Shook's background (and alleged past mental health problems):