October 18, 2024

In the News

NH Journal: Nashua’s Flag Repeal Doesn’t Fly, Free Speech Lawyer Says

By Damien Fisher

.....Hit with a free speech lawsuit for denying residents the ability to fly a historical, patriotic flag at City Hall, Nashua Mayor Jim Donchess seemingly retreated by repealing the public flag pole policy.

The repeal isn’t a white flag, the city’s attorneys insist. But lawyers for the residents who’ve brought the lawsuit say it’s a bait and switch to avoid legal peril.

Nashua resident Beth Scaer filed her lawsuit last month after the city refused to allow her to fly a Pine Tree Riot flag on City Hall’s “Citizen’s Flag Pole.” In its rejection statement, the city said the Pine Tree Flag, and a “Protect Women’s Sports” flag she attempted to fly previously, were “not in harmony with the message that the city wishes to express and endorse.”

After the lawsuit was filed, Donchess quietly ended the city’s long tradition of having a public flagpole, declaring that in the future, Nashua’s government would decide what flags would and wouldn’t fly and do so without community involvement.

But that repeal, done without any public input or approval from the city’s Board of Alderman, isn’t enough to get out of legal trouble, insists Scaer’s attorney, Nathan Ristuccia, with the Institute for Free Speech.

“This abrupt change is a transparent attempt to avoid judicial scrutiny, but it cannot moot the Scaers’ claim for injunctive relief,” Ristuccia said in a court filing this week.

Washington Examiner: Courts are vindicating rights of faith, speech, and parental authority

By Quin Hillyer

.....The third recent victory came on Oct. 8, when a three-judge panel of the U.S. 11th Circuit Court of Appeals decided unanimously that the board of the Brevard Public Schools in Florida did not have the authority to choose which views parents can air at public meetings and, effectively, to censor disfavored opinion. “The government’s rules must be viewpoint neutral and reasonable,” wrote the court in Moms for Liberty v. Brevard Public Schools. Because the school board used “unrestrained discretion” in choosing whom to silence and whom to hear, it “did not meet these requirements.”

The Courts

Axios: Scoop: House Dems sue FEC over campaign finance loophole

By Stephen Neukam

.....The campaign arm of House Democrats is suing the Federal Election Commission (FEC) over a controversial campaign finance loophole, Axios has learned.

Republicans have resorted to legally-contested tactics to get around their cash crunch, with Democrats hammering the GOP in fundraising this year.

Democrats have accused Republicans of illegally financing their campaign ads, appealing to the FEC to rule if the tactic is allowed. The commission deadlocked along party lines last week, allowing the GOP to continue the practice.

The Democratic Congressional Campaign Committee (DCCC), the campaign arm of House Dems, is asking a federal court to declare the practice illegal. A blockage from federal court would be a blow to GOP spending plans.

"I fully expect the FEC to prevail in this frivolous lawsuit. We will see the DCCC in court," FEC Chairman Sean Cooksey told Axios…

The DCCC is asking a federal court on Thursday to rule whether the practice is illegal in the next 10 days, putting a stop to the GOP spending before the election.

Reason: 'It's the First Amendment, Stupid': Federal Judge Slams Florida for Threatening TV Stations

By Elizabeth Nolan Brown

.... Floridians this fall will vote on a constitutional "Amendment to Limit Government Interference with Abortion." So authorities decided to interfere with free speech in an attempt to thwart voters from limiting the government's right to interfere in reproductive decisions. The state threatened TV stations with criminal penalties for running an ad supporting the abortion initiative (known as Amendment 4).

A federal judge isn't impressed. "To keep it simple for the State of Florida: it's the First Amendment, stupid," wrote U.S. District Judge Mark E. Walker in an October 17 opinion.

The Texas Tribune: Judge reportedly strikes down Texas law that Ken Paxton frequently uses to investigate companies and nonprofits

By Alejandro Serrano and Kayla Guo

.....Attorney General Ken Paxton can’t use a state statute that he repeatedly relies on to scrutinize various companies and nonprofits — including an El Paso migrant shelter network and a nonprofit focused on increasing Latinos’ civic participation — after a federal magistrate judge on Friday ruled the tool unconstitutional, according to Bloomberg Law.

Judge Mark Lane of the Western District of Texas verbally granted a permanent injunction stopping Paxton using what’s called a “request to examine” to probe myriad practices. The ruling stemmed from a lawsuit filed by Spirit AeroSystems, Inc., a Boeing 737 jets manufacturer that received such a request from Paxton earlier this year requiring the company to produce a variety of documents.

Free Expression

The Tennessean:  Presidential election and campus protests top concerns in new First Amendment survey

By Angele Latham

.....With less than a month left until the presidential election, Americans across the political spectrum say that their concerns over how their First Amendment rights are protected will influence how they vote in November, according to the Freedom Forum’s annual survey, “Where America Stands.”

The survey series, created by the nonprofit First Amendment advocacy organization, has gauged the level of knowledge held by everyday Americans regarding their First Amendment rights for four consecutive years.

“We asked a lot about the election this year,” said Kevin Goldberg, an attorney and First Amendment specialist at the Freedom Forum. “One thing we asked about this year was ‘Do you understand how the First Amendment affects your daily life?’ And 77% said yes. And 56% of Americans said the First Amendment will impact how they vote this November.”

Candidates and Campaigns

Politico (Digital Future Daily): Tonight’s strange debate with an AI congressional candidate

By Dana Nickel

.....In one of the zanier twists of this campaign season, two Virginia congressional candidates will face off tonight, in a virtual debate, against an AI bot.

The candidates are Bentley Hensel and David Kennedy, both running for Virginia’s 8th district — both independents, and both expected to lose.

The bot is based on Rep. Don Beyer, the Democratic incumbent, heavily favored to win, who decided not to show up when the True Representation Movement and the Black Alumni National Alliance invited him to the only debate in his district.

Hensel, one of the candidates, is also the software engineer who built the bot. He told DFD he developed it without Beyer’s permission out of frustration that the lawmaker appeared to be sitting out campaign events. “Sadly, [it’s] not that unusual for an incumbent congressperson in a safe seat,” he said in an interview...

Hensel said he used generative AI to train a bot on Beyer’s press releases, official websites and Federal Election Commission data. He couldn’t find enough audio to generate a convincing Beyer voice, so Hensel said a generic AI voice will provide responses.

The specter of an unauthorized AI bot being built to dunk on a candidate’s absence raises an obvious question: Is this really OK?

Bloomberg Law: Political Law Firm Starts AI Practice as Campaigns Adopt Tech

By Tatyana Monnay

.....Growing artificial intelligence use in politics and advocacy has prompted a law firm known for its election work to start a practice focused on the technology.

Holtzman Vogel, founded more than two decades ago by the former chief counsel of the Republican National Committee, has created the practice in part because clients are worried AI use will run afoul of regulations.

“There’s not insignificant consequences for people that use AI in ways that get them in trouble,” said Jason Torchinsky, a Washington, DC-based firm partner who specializes in campaign finance, election law, and lobbying disclosure who will co-chair the new practice.

Independent Groups

New York Times: Inside the Secretive $700 Million Ad-Testing Factory for Kamala Harris

By Theodore Schleifer and Shane Goldmacher

.....The biggest super PAC in American politics is in the middle of an unparalleled spending spree, unleashing more money on television advertising in the closing weeks of the 2024 race than the campaigns of Donald J. Trump and Kamala Harris combined.

The group, known as Future Forward, has ascended to the pinnacle of the Democratic political universe with remarkable speed, winning over some of the world’s richest people with grand promises of a “Moneyball” method to political advertising that it has pitched as the most sophisticated ever undertaken.

The Media

Gallup: Americans' Trust in Media Remains at Trend Low

By Megan Brenan

.....Americans continue to register record-low trust in the mass media, with 31% expressing a “great deal” or “fair amount” of confidence in the media to report the news “fully, accurately and fairly,” similar to last year’s 32%. Americans’ trust in the media -- such as newspapers, television and radio -- first fell to 32% in 2016 and did so again last year.

For the third consecutive year, more U.S. adults have no trust at all in the media (36%) than trust it a great deal or fair amount. Another 33% of Americans express “not very much” confidence.

Candidates and Campaigns

Washington Times: Conservatives join together to defend free speech from threat they see in the Harris-Walz agenda

By Alex Miller

.....More than a dozen conservative leaders have coalesced in opposition to what they say is the Harris-Walz ticket’s agenda of “unconstitutional violations” of free speech.

The leaders and groups they represent have endorsed a letter outlining the threat they say Vice President Kamala Harris and her running mate pose, citing actions Ms. Harris and Minnesota Gov. Tim Walz have taken in their political careers.

In particular, the letter points to Ms. Harris’ crusade as California attorney general to force conservative nonprofit groups such as Americans for Prosperity to produce donor lists. The effort landed her on the losing end of a Supreme Court decision that upheld the group’s First Amendment rights.

The letter, which was exclusively obtained by The Washington Times, was signed by leaders of 16 conservative nonprofits and advocacy groups. It was titled “Statement of principles opposing weaponization of nonprofit donor lists.”

Washington Times: Harris would target and terrorize conservative America

By Rick Santorum

.....Ms. Harris’ office’s behavior in the case was so careless that even liberal nonprofits such as the American Civil Liberties Union and the NAACP Legal Defense Fund called her out. Yet there is no indication she learned her lesson. In the Senate, Ms. Harris co-sponsored the DISCLOSE Act, which would force nonprofit advocacy groups such as pro-life organizations to publicly expose their donor lists.

Online Speech Platforms

Axios: Scoop: Google will block election ads after polls close

By Sara Fischer

.....Google will block election ads across all of its platforms after the last polls close on Nov. 5, according to a memo sent to its advertising partners Thursday and obtained by Axios...

Meta says it will block new political, electoral and social issue ads during the final week of the U.S. election campaign. It hasn't announced any pause of election ads after polls close, but its policies forbid candidates or campaigns from prematurely claiming victory before results.

The States

Reason: Mark Robinson Files Frivolous Lawsuit Against CNN and a Local Musician

By Joe Lancaster

.....This week, a gubernatorial candidate filed a defamation lawsuit against a major news outlet and a private citizen. The suit will likely fail, but not before causing headaches for the defendants…

Doucette says Robinson's lawsuit has all the telltale signs of a SLAPP—a "strategic lawsuit against public participation," intended to bully someone into silence based on constitutionally protected speech...

SLAPPs are often deployed by companies or politicians against private individuals or news outlets as retaliation for embarrassing or inconvenient speech. Many states have adopted anti-SLAPP laws, which allow defendants to block meritless lawsuits. In some cases, a plaintiff filing a dismissed SLAPP can even be forced to reimburse the defendant's attorney fees. But one state that notably lacks an anti-SLAPP statute of any kind is North Carolina—meaning state residents have no mechanism by which to defeat meritless lawsuits punishing them for their protected speech without mounting a full (and expensive) defense.