September 10, 2024

In the News

NH Journal: Nashua Slapped With Lawsuit After Banning Pine Tree Flag

By Damien Fisher

.....Appealing to Heaven may not be feasible in a First Amendment dispute, but a federal lawsuit could work.

A Nashua official’s decision to ban the historic Pine Tree flag from outside City Hall this summer is landing Mayor Jim Donchess’ administration in court. Attorneys with the Institute for Free Speech say the city’s abuse of its flagpole policy violates the First Amendment.

“Nashua’s flag policy gives city officials unbridled discretion to censor speech they dislike,” said Institute for Free Speech Attorney Nathan Ristuccia. “The First Amendment doesn’t permit the government to turn a longstanding public forum into a personal billboard for city officials’ preferred views. The Supreme Court has warned against exactly this abuse.”

The Institute for Free Speech is representing Nashua resident Beth Scaer in the lawsuit filed in the United States District Court in Concord. Scaer applied to fly a Pine Tree flag from the city’s flagpole in June, but was denied.

Reason (Volokh Conspiracy): N.Y. Community Education Council Speech Restrictions Likely Violate First Amendment

By Eugene Volokh

.....An excerpt from yesterday's long opinion by Judge Diane Gujarati in Alexander v. Sutton (E.D.N.Y.); read the whole thing for more:

New York Daily News: Speech must stay free: NYC Speech must stay free: NYC school council rules violate the school council rules violate the First Amendment

By Editorial Board

.....The bar for removing an elected official from her position for saying something politically inappropriate should be extremely high — so high the whole city should have to squint to see it. Which is why we side with Brooklyn Federal Judge Diane Gujarati, who threw a legal brush-back pitch at a Blasio era regulation used by Schools Chancellor David Banks for removing Maud Maron from a Manhattan parent council…

In reinstating Maron, Gujarati wrote that there was a “clear and substantial likelihood” that as written, the department’s regulations, adopted by former Mayor Bill de Blasio 10 days before he left office, were overly broad, violating the First Amendment. Under precedent established over the centuries, the government can have content-neutral rules about speech but, with the exception of prohibitions on libel and obscenity and pornography, it can’t favor or disfavor based on the beliefs the speaker is attempting to articulate. Indeed, individual rights are most intensely protected when the speech is political, as opposed to commercial.

New from the Institute for Free Speech

New Hampshire Residents Sue City of Nashua Over Discriminatory and Unconstitutional Flag Policy

.....Should a city be able to pick and choose whose messages are “worthy” to appear on its public “Citizen Flag Pole?”

The City of Nashua thinks so. A new federal lawsuit aims to change that.

Attorneys from the Institute for Free Speech and local counsel Roy S. McCandless filed the lawsuit in the U.S. District Court for the District of New Hampshire on behalf of Bethany and Stephen Scaer (pronounced “scare”), two Nashua residents whose flag requests have been denied.

The suit challenges the constitutionality of Nashua’s policy governing the use of its Citizen Flag Pole, alleging that the city engages in unconstitutional viewpoint discrimination in deciding what messages are permissible for citizens to display. The lawsuit seeks to enjoin Nashua city officials from denying flag applications based on viewpoint and from enforcing parts of its flag policy that limit acceptable flags.

The Courts

Election Law Blog: En Banc Sixth Circuit Rejects Challenge to Federal Campaign Finance Rules Limiting Coordinated Spending Between Candidates and Parties, with Strong Hint SCOTUS Will Strike the Limits Down

By Rick Hasen

.....I have been waiting for this issue to get back to the Supreme Court for a while, and this is just the vehicle that could get it there. I don’t expect the Court, if it considers the issue, to uphold the limits. The Sixth Circuit saw itself bound by existing Supreme Court precedent in a way that the Supreme Court itself will not be.

Wall Street Journal: How Tim Walz Defines Free Speech

By The Editorial Board

.....A federal court next week will hear a challenge to a 2023 Minnesota law that bars employers from discussing “religious or political matters” at mandatory meetings. The latter includes elections, government regulations, laws and whether to join or support a union. This seems to mean that employers can’t criticize Mr. Walz, advocate for pro-business policies or discourage unionization.

Free Expression

Reason: The War on 'Foreign Influence' Has Become a War on the First Amendment

By Matthew Petti

.....Some in the anti-war and noninterventionist camp would like tighter regulation around this type of funding, in order to prevent foreign powers from pulling the U.S. into overseas entanglements. The Quincy Institute wants the Department of Justice to require more detail in FARA disclosures, impose fines for failure to disclose, and enforce FARA on think tanks.

Some civil libertarians, however, believe that cracking down on think tanks would threaten Americans' ability to engage in charity work—and that FARA is already too expansive. When the Department of Justice started to tighten FARA enforcement on think tanks in late 2021 and early 2022, the ACLU and the libertarian foundation Americans for Prosperity warned that the crackdown could "undermine and chill First Amendment rights to speech and association."

For example, the Department of Justice required a pro-life organization to register as a foreign agent when it hosted a foreign delegation to the March for Life in Washington and required an environmental organization to register as a foreign agent because it received money from a Norwegian development fund.

And then there's the question of when organic American support for foreign causes, which is a clear First Amendment right, bleeds into coordination with foreign powers. The Irish, Armenian, and Israeli nationalist causes historically leaned heavily on American diasporas, sometimes courting controversy.

The States

Center Square (Colorado) : Colorado law on disclosing AI-generated political ads raises free speech concern

By Joe Mueller

.....As Democratic Attorney General Phil Weiser issued an advisory on Monday on Colorado’s new “deepfake” law on political messages, the statute might raise First Amendment concerns.

Weiser’s two-page public advisory refers to House Bill 24-1147, which took effect July 1. It created new regulations and penalties for using artificial intelligence and deepfake-generated content in communications about candidates for elected office. The law requires anyone using AI to create election communications featuring images, videos or audio of candidates to include a disclaimer explaining the content isn’t real.

Candidates who have their appearance, actions or speech depicted in a deepfake can pursue legal prohibition of the distribution, dissemination, publication, broadcast, transmission or other display of the communication. The bill provides for compensatory and punitive damages and the possibility of criminal charges.

Kansas City Star via Yahoo: Inside the Kansas court case that could cripple a sweeping campaign finance investigation

By Jonathan Shorman

.....Kansas law for decades has prohibited political contributions given “in the name of another person.”

The classic example is a boss who gives employees money to donate in their own names, then reimburses them.

But does that same law also make it illegal for political groups to shift funds among themselves until the dollars arrive at a desired destination?

Over two years, $54,000 in contributions moved through a series of political committees before ending up in the accounts of the Kansas Republican Party. Why those transfers happened in 2020 and 2021 is the subject of a lengthy, ongoing investigation.

The investigation – by the Kansas Governmental Ethics Commission, the state’s official campaign finance watchdog – is looking to determine whether the committees and individuals associated with them broke the state’s campaign finance laws, including the prohibition against making contributions in the name of another.

Oklahoma Voice: New proposal would allow Oklahoma candidates to spend campaign money on caregivers

By Nuria Martinez-Keel

.....The Oklahoma Ethics Commission has proposed a new policy to allow political candidates and elected officials to spend campaign funds on child care or other caregiving expenses.

The commission released a draft opinion Friday in response to a request from Sen. Jessica Garvin, R-Duncan, who has said the policy could reduce barriers to elected office for parents of young children.

The opinion, if approved, would allow candidates and officeholders to spend privately raised campaign funds on care of their dependents — such as children, elderly relatives or a person with a disability — as long as the caregiving costs would not have been incurred if they had no campaign or elected position.

NHPR: NH Supreme Court rules in favor of opinion piece writer in defamation case

By Grace McFadden

.....The New Hampshire Supreme Court dismissed a defamation case Wednesday against the Union Leader and an op-ed writer who penned a piece about racism and the classroom.

The opinion piece, which was written by Robert Azzi in the Union Leader in June 2021, discussed policies around teaching race in schools.

In the article, Azzi accused the plaintiff, Daniel Richard of Hanover, and others of “disseminating white supremacist ideology” by submitting public testimony supporting a bill that would prohibit certain classroom discussions around race.

Richards originally filed suit in September 2021 against Azzi and the Union Leader, and appealed his case to the Supreme Court after it was thrown out by the Grafton Superior Court.

Gilles Bissonette, the legal director for the ACLU, filed an amicus brief in support of the Union Leader and Azzi. He said they felt the case was important because of the possible repercussions of the court ruling against the op-ed writer.

“When you have political opinions, it needs to be zealously protected under the First Amendment,” Bissonette said. “It can't be actionable and subject to suit for defamation, because to allow those types of lawsuits would have a massive chilling effect on political speech. And that's what would have happened if this case was allowed to proceed.”