October 15, 2024

In the News

The College Fix: Professor keeps fighting in court against Bakersfield College DEI policies

By Emma Dayton

.....A conservative Bakersfield College professor is appealing a court’s decision to dismiss his lawsuit alleging his employer’s diversity, equity, and inclusion policies infringe on his First Amendment rights.

Daymon Johnson, a history professor at the public community college, sued the California institution after he said he endured a five-month administrative investigation for voicing his opinions online. The Kern Community College District, which oversees the college, also is named in the lawsuit.

Johnson’s lawyer with the Institute for Free Speech told The College Fix he is appealing the ruling.

“Obviously, we’re disappointed by the court’s decision, and we have appealed from it,” Vice President for Litigation Alan Gura stated in a recent email to The Fix. “Our opening brief on appeal is due October 30.”

Just the News: Moms for Liberty defeats school district that birthed it, speaking rules deemed unconstitutional

By Greg Piper

.....The Florida school district that birthed Moms for Liberty as a repudiation of its COVID-19 mandates on their children is parenting the conservative group all wrong, so to speak, according to the 11th U.S. Circuit Court of Appeals.

Its Tuesday ruling smacked down Brevard Public Schools and four current and former school board members for unconstitutional restrictions on public comments at their meetings in a lawsuit by Moms for Liberty's founding Brevard County chapter and its members, putting public schools on notice across the court's jurisdiction of the Sunshine State, Alabama and Georgia.

Supreme Court

CBS News: Supreme Court tosses lower court decision that shielded officers who arrested Texas citizen journalist

By Melissa Quinn

.....The Supreme Court on Tuesday tossed out a lower court decision that shielded from liability Texas law enforcement officers who arrested a local citizen journalist after she sought information from a police source.

The case of journalist Priscilla Villarreal, who is known to her readers in Laredo, Texas, as "Lagordiloca," pits the First Amendment's guarantee of a free press against the doctrine of qualified immunity, which provides legal protections for police and other government officials.

Villarreal's challenge attracted interest from a range of reporters, major news organizations and journalism nonprofits who have argued that the right to seek information from public officials is fundamental to the practice of journalism.

In its brief order, the Supreme Court wiped away the lower court decision that protected the police officers involved in her arrest and ordered additional proceedings.

Villarreal said in response to the high court's order that it "marks a significant step toward rectifying the wrongs I have faced."

The Courts

New York Times: Let’s Not Bring Back Jail for Swearing

By Jacob D. Charles and Matthew L. Schafer

.....With its new term starting this month, the Supreme Court will most likely confront calls to upend constitutional law yet again. One very possible target is people’s everyday right to voice their political opinions, to speak up, even just to swear.

Consider what happened last month when a federal court of appeals decided a First Amendment challenge by JD Vance and others. The challenge invoked a less literal kind of speech, seeking to allow political parties to coordinate spending with party candidates. As expected, the challenge was rejected. But five judges argued that the case might come out differently if only the Supreme Court would start treating First Amendment cases the way it has recently begun treating Second Amendment cases. Specifically, Judge John Bush said that judges should discern the original understanding of free speech in “linguistical meaning” and “evidence of how Americans ordered their lives” in the 1790s.

If that sounds like a bizarre standard for which views you should and should not be allowed to express, that’s because it is.

Congress

New York Times: A Reporter’s Shield Law Is Vital to Prevent Abuses of Power

By The Editorial Board

.....Safeguarding the anonymity of reporters’ sources is essential in the exercise of this critical role, a need that several federal courts have found is implicit in the First Amendment. It has been recognized by governments or courts in 49 states and the District of Columbia as a form of protection for journalists and news outlets against unfair or overbearing efforts by government to ferret out their sources, punish whistle-blowers and scare off others who might consider speaking up about wrongdoing.

There is nothing of the sort, however, on the federal level, where the need is arguably greatest, in part because of the rapid evolution of electronic snooping and the fallout of sharply polarized politics. Having a federal law on the books would provide a higher level of protection than the recognition now provided by most federal circuit courts.

That could change before the year is out if the Senate Judiciary Committee releases a strong bipartisan bill that has already sailed unopposed twice, in this session and the last, through the House of Representatives. Called the Protect Reporters From Exploitative State Spying Act, or PRESS Act, it would shield reporters from court-ordered disclosure of their sources of information, except in the rare cases in which disclosure is necessary to prevent an act of terrorism or imminent violence.

FEC

Politico: Senate Republicans to save millions of dollars on ads — thanks to the FEC

By Ally Mutnick, Jessica Piper, and Madison Fernandez

.....Senate Republicans are preparing to significantly escalate their plans to exploit a campaign-finance loophole that will allow them to save millions of dollars on TV advertising, irking Democrats who hoped federal regulators would block the GOP plan.

Republicans in late July began quietly piloting their new strategy: running campaign ads for a candidate, framed as a fundraising plea, to get cheaper ad rates and avoid awkward content restrictions. Democrats, furious at what they saw as the crossing of ethical and legal lines, asked the Federal Election Commission to weigh in.

At a contentious meeting Thursday, the agency deadlocked 3-3 on whether these joint fundraising ads should be permitted — effectively allowing the practice to continue.

Nonprofits

Nonprofit Law Prof Blog: Philanthropy Roundtable Report Shows (c)(4)s are Mostly Apolitical

By Darryll K. Jones

.....When the phrase "social welfare organization" is mentioned, we tend to think about fat cats like Lenard Leo and George Soros buying elections with dark money, don't we? But Jack Salmon and Patterson Sheehan have written a serious report about the need to avoid caricatures. And to be cautious about new legislation impacting nonprofit and tax exempt organizations based on caricature. You probably want to download this one. Here is part of the Introduction:

“Philanthropy Roundtable fully acknowledges the legitimate concerns of policymakers regarding organizations that violate existing laws and regulations, particularly those tied to foreign (especially adversarial) government funding or terrorist groups. At the same time, it is important that we avoid applying a broad-brush approach to the charitable sector that could inadvertently harm the vast majority of organizations doing remarkable work in their communities. Through this comprehensive analysis, the paper aims to provide a balanced and well-informed perspective on the nonprofit sector, fostering a deeper understanding of its complexities and the need for nuanced policymaking.”

Free Expression

Reason: If You See the Trump Biopic Before Election Day, Thank Citizens United

By Joe Lancaster

.....[I]t's worth remembering what the Citizens United case was actually about.

Citizens United, a conservative advocacy group, released a film critical of Hillary Clinton in January 2008. Hillary: The Movie was intended to hurt Clinton in that year's Democratic presidential primary; it ran in theaters and was distributed on DVD, and the organization also hoped to both air the film on TV and run ads for it.

But that violated the Bipartisan Campaign Reform Act of 2002, often called the McCain-Feingold Act after its primary sponsors, then-Sens. John McCain (R–Ariz.) and Russ Feingold (D–Wis.). McCain-Feingold amended federal law to ban the use of corporate or union funding for any "electioneering communication," defined as "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office" and is released within 30 days of a primary or 60 days of a general election.

Citizens United sued the FEC, seeking a preliminary injunction so it would not be prevented from airing or advertising the film. The U.S. District Court for the District of Columbia declined to issue an injunction, finding the film "susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her." It determined that McCain-Feingold prevented Citizens United from paying to air the movie within 30 days of the Democratic primary—and potentially within 60 days of the general election.

Reason (Volokh Conspiracy): Harvard Officially Allows Protestors Ten Minutes to Disrupt Events

By David Bernstein

.....From Kassy Akiva's X feed:

“At Harvard for an event with Mosab Hassan Yousef [author of Son of Hamas].

The organizers were just forced to read a note from the Harvard administration stating that disrupters are allowed to make noise for 10 minutes before being removed.

Here's the full statement the students had to read to the audience:”

Institute for Justice: Chip Mellor, Institute for Justice Visionary Cofounder and Former President, Has Passed Away

By John Kramer

.....On Friday, October 11, America lost one of the most significant civil liberties pioneers of the past 40 years: William “Chip” Mellor—the founding president and recent board chairman of the Institute for Justice, a national, public interest law firm—died at his home in Moab, Utah, after a battle with leukemia. 

Candidates and Campaigns

New York Times: Trump Leans On Creative Bookkeeping to Keep Up in Cash Race

By Shane Goldmacher and Maggie Haberman

.....Donald J. Trump’s political operation has been taking extraordinary measures in a bid to stay financially competitive with Vice President Kamala Harris, deploying aggressive and creative accounting strategies that test the legal limits of how far a candidate can go to offload the core costs of running for president.