October 3, 2024

In the News

Daily Caller: School District Sued After Punishing Parents For ‘Silent Protest’ Against Male Player On Girls Soccer Team

By Jennifer Nuelle

.....A coalition of parents sued the Bow School District in New Hampshire on Monday after being punished and threatened over a “silent protest” standing up for women’s sports.

Multiple parents and one grandfather decided to wear pink wristbands during a soccer game to show support for protecting women’s sports, to which the school district threatened to have them arrested for trespassing, the complaint states. The New Hampshire Department of Education was preliminarily enjoined by the court in September from enforcing a state law that cracked down on biological males from participating in women’s sports.

New from the Institute for Free Speech

A Lawfare Threat Looms in the Lone Star State

By Helen Knowles-Gardner & Peter Russo  

.....Laws protecting Americans against costly, meritless, and speech-suppressing lawsuits are expanding and improving nationwide, now covering 34 states plus the District of Columbia. As detailed in the 2023 Institute for Free Speech (IFS) Anti-SLAPP Report Card, for the first time, over half of the U.S. population now resides in a jurisdiction with a good anti-SLAPP law. Texans have enjoyed the expressive freedom protections of a robust anti-SLAPP law since 2011, when the Texas Citizens Participation Act (TCPA) was enacted.  

However, there are proposals to weaken some of the essential protections the statute affords. One would repeal the provision of the TCPA that stays discovery and trial in a SLAPP case until such time that an appeals court has ruled, if asked to do so, on an anti-SLAPP motion. Supporters of these proposals argue that an anti-SLAPP motion “‘has become an abusive sword’” that is itself frivolous, mainly deployed to delay litigation; is filed in an untimely manner; and/or is unrelated to free speech.  

The data do not support these assertions. In fact, the data show that when a ruling of a trial court on an anti-SLAPP motion is appealed, most of the time the ruling below is wrong. This is based on a review of all appellate rulings (during periods of time indicated below) on anti-SLAPP motions due to claims they are frivolous, untimely, or involve speech that is exempt from the TCPA’s coverage. 

The Courts

San Francisco Chronicle: California deepfake ban blocked by judge

By Bob Egelko

.....California’s new law against deepfake political ads, which impersonate a candidate and misrepresent the candidate’s views, violates the constitutional right of free expression, a federal judge said Wednesday in a ruling blocking enforcement of the law.

The law, signed by Gov. Gavin Newsom on Sept. 17, was a response to videos posted by a conservative producer, and publicized by billionaire Elon Musk, that showed Vice President Kamala Harris appearing to say, in an artificially generated voice, that she was the “ultimate diversity hire” to run for president. Supporters said the legislation would protect candidates and the public from attempts to distort political issues on the eve of an election.

But U.S. District Judge John Mendez of Sacramento said the law suppresses legitimate political speech, which includes parody and satire.

“When political speech and electoral politics are at issue, the First Amendment has almost unequivocally dictated that Courts allow speech to flourish rather than uphold the State’s attempt to suffocate it,” wrote Mendez, an appointee of former President George W. Bush.

He said the California law “acts as a hammer instead of a scalpel, serving as a blunt tool that hinders humorous expression and unconstitutionally stifles the free and unfettered exchange of ideas which is so vital to American democratic debate.”

Politico: Election-betting markets poised for revival as court rejects government plea

By Declan Harty

.....Political gambling is back on in the US, less than five weeks before Election Day.

A federal appeals court in Washington on Wednesday cleared the way for financial exchange startup Kalshi to revive the first fully regulated election-betting markets in the U.S. The three-judge panel lifted a temporary freeze on the markets while rejecting an emergency bid from Wall Street regulators to halt trading pending a full appeal of a lower-court decision in favor of Kalshi.

Now, Kalshi will be able once again to offer trading on whether Republicans or Democrats will control Congress next year — and possibly more. The company has suggested it plans to expand its election-betting markets well beyond which party controls Congress to other political contests, including the presidential election.

Courthouse News: Judge: Middle school student’s ‘blackface’ isn’t protected speech

By Edvard Pettersson

.....A Southern California middle school student who was suspended for purportedly wearing "blackface" at a football game can't claim that his First Amendment rights were violated, a federal judge has ruled.

Not only does the First Amendment not cover school children's speech and conduct to the same extent as it does that of adults, U.S. District Judge Linda Lopez found, the student had not made a plausible case that wearing eye black on his face was somehow constitutionally protected expressive conduct.

New York Daily News: Treasurer for Brooklyn boro prez candidate Anthony Jones charged in straw donor scheme

By John Annese

.....The treasurer for an unsuccessful Brooklyn borough president candidate faces federal charges for a failed straw donor scheme to trick the city Campaign Finance Board out of hundreds of thousands of dollars in public matching funds.

Erlene King, 71, who worked on the 2021 primary campaign of Democrat Anthony Jones, is in plea negotiations after she was charged with wire fraud Wednesday in Brooklyn Federal Court.

King is accused of trying to take advantage of the city’s 8-to-1 matching campaign funds program by submitting to Jones’ campaign $25,000 in straw donations, along with five corresponding “fictitious records,” in the hopes of getting $400,000 in matching funds. The Campaign Finance Board noticed something fishy and denied the matching funds…

King used money-transfer apps like Cash App to send money to the supposed donors, then asked them, in turn, to make $175 donations to the campaign, the feds allege.

Liberty Justice Center:  Grassroots Support for Wyoming Doctor Sweeps State After Governor Gordon Violates First Amendment

.....On October 1, the Liberty Justice Center filed a motion for a preliminary injunction in its lawsuit against Governor Mark Gordon on behalf of Dr. Eric Cubin, a radiologist whom the Governor forced to resign from the state’s medical board for privately writing a letter in support of Senate File 99, known as “Chloe’s Law.”

In February, Dr. Cubin wrote a letter to the Wyoming House of Representatives, speaking as a private citizen in support of the proposed bill, which would prohibit Wyoming physicians from performing gender reassignment surgeries on, or prescribing hormone therapy to, minors. The bill passed the House and Senate with strong support, and Gordon signed it into law on March 22.

However, one month after signing the bill into law, Gordon forced Dr. Cubin to resign from his position on the Wyoming Board of Medicine—and explicitly cited Dr. Cubin’s letter to the House of Representatives as the reason for the removal.

The Liberty Justice Center filed a lawsuit on Dr. Cubin’s behalf, arguing that the Governor engaged in illegal retaliation and violated Dr. Cubin’s First Amendment rights by forcing him to resign for exercising his rights to free speech and to petition the government.

Congress

Nonprofit Law Prof Blog: Ways and Means Chair Issues Enemies List of Nonprofits

By Darryll K. Jones

.....Ways and Means Chair Jason Smith has compiled a political enemies list of organizations whose tax exempt status should be revoked. He sent Werfel a 111 page dossier with lots of exhibits featuring news articles from conservative media. He wants the Service to revoke tax exemptions of eight nonprofits that he says have engaged in speech and activities making them ineligible for (c)(3) status. The eight exempt organizations are (1) Americans for Justice in Palestine Educational Foundation, American Muslims for Palestine, the National Students for Justice in Palestine, the Alliance for Global Justice, the Islamic Relief Agency, Jewish Voice for Peace, The People's Forum, the Tides Foundation, United Hands Relief, and the Westchester Peace Action Committee foundation.  Here is a sample from one of the 8 letters containing the identical accusation -- that the groups "sow chaos and discord in our society."

People United for Privacy: House Republicans Vote to Grant IRS New Power to Police Political Speech

By Alex Baiocco

.....U.S. House Democrats recently prevented a Republican effort to expand the power of the IRS. You read that correctly: House Republicans voted in lockstep to grant the IRS new power to enforce a novel ban on political speech and inevitable violation of citizen privacy, while most Democrats voted against the effort.

Due to Democratic opposition, the so-called “No Foreign Election Interference Act” (H.R. 8314) failed to receive the two-thirds majority approval necessary to pass under a suspension of the House rules. However, the September 17 roll call vote garnered 218 votes in favor of passing the bill, with 16 Democrats joining Republicans in support and 181 Democrats voting against the bill. If that level of support remains unchanged if or when the bill is brought back to the floor through regular order, a majority of the U.S. House of Representatives appears likely to pass a clear degradation of Americans’ First Amendment rights in a misguided and ham-fisted effort to prevent funding from foreign nationals in U.S. elections.

H.R. 8314 establishes a conditional ban, enforced by the IRS, on protected speech by prohibiting American nonprofits from donating to political committees, if the nonprofit has received even a single donation from a foreign individual or entity in the prior eight years. While protecting the integrity of our elections is of the utmost importance, this legislation would do far more to prevent Americans from exercising core First Amendment rights than to prevent already illegal foreign interference.

Candidates and Campaigns

USA Today: Vance is right. Harris and Walz are a threat to Americans' free speech.

By Jonathan Turley

.....As I have said, the Biden-Harris administration has proved to be the most anti-free speech administration in two centuries. You have to go back to John Adams' administration to find the equal of this administration.

Harris has been an outspoken champion of censorship in an administration that supports targeting disinformation, misinformation and "malinformation." That last category was defined by the Biden administration as information “based on fact, but used out of context to mislead, harm, or manipulate.”

In the debate, Walz also returned to his favorite dismissal of censorship objections by saying that it is all just inflammatory rhetoric.

Recently, Walz went on MSNBC to support censoring disinformation and declared, “There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy.”

That is entirely untrue and shows a fundamental misunderstanding of the right called "indispensable" by the Supreme Court. Even after some of us condemned his claim as ironically dangerous disinformation, Walz continues to repeat it. 

The States

Boston Globe: Massachusetts library’s talk on males, females in sports stirs scheduling snafus

By Lance Reynolds

.....A previously canceled talk at a Massachusetts library on the biological differences between males and females in sports is back on after officials reversed their earlier decision.

The Tewksbury Public Library has rescheduled a presentation, “Males and Females are Different, and that Matters in Sports,” to Thursday after canceling the event initially scheduled for Wednesday.

Gregory Brown, a professor of exercise science at the University of Nebraska at Kearney, alerted the Herald Tuesday evening that the library had offered to put his virtual talk on again, which the Tewksbury Town Manager’s Office confirmed...

The library, on Monday, alerted those who had signed up for Brown’s Wednesday presentation that the talk would not go on, with it determining it couldn’t “facilitate a factual, good-faith presentation” on “this hot-button issue.”

Soon after, Women’s Liberation Front, a nonprofit advocacy group, scheduled Brown for a Wednesday evening presentation via Zoom.

“This cancellation is an unconstitutional violation of the First Amendment,” Women’s Liberation Front said of Tewksbury Public Library’s initial decision to cancel.

OregonLive: Portland auditor to reconsider whether mayoral candidate Rene Gonzalez’s Wikipedia edits broke campaign finance rules

By Jamie Goldberg 

.....The Portland auditor’s office plans to take another look at whether Commissioner Rene Gonzalez, who is running for mayor, broke campaign finance rules when he used public funds to spruce up his Wikipedia page.

In a notice sent to Gonzalez and his campaign Wednesday, Chief Deputy Auditor Reed Brodersen said the auditor’s office had received new information that prompted it to reconsider the matter.