November 15, 2024

New from the Institute for Free Speech

Boehringer Ingelheim v. HHS

.....The Institute for Free Speech filed an amicus brief in Boehringer Ingelheim v. HHS, urging the U.S. Court of Appeals for the Second Circuit to strike down provisions of the “Drug Price Negotiation Program” that compel pharmaceutical companies to endorse messages mandated by the federal government.

“The government cannot compel the companies or anyone else to speak its message, let alone a false one: that they ‘agreed’ to the new ‘maximum fair price,’ and accordingly, that they have overcharged their customers for years,” explains the brief.

The program forces drug manufacturers to adopt these government-mandated messages or face devastating consequences: either a staggering excise tax of up to 95% on all domestic sales, or withdrawal of all products from Medicare and Medicaid—which represent nearly half the prescription drug market.

Supreme Court

Capitol News Illinois: Carbondale faces legal battle over protest restrictions outside abortion clinics

By Carly Gist and The Saluki Local Reporting Lab

.....Now, the city faces a legal battle with potential national implications over the steps it took to protect the clinics: Coalition Life, a St. Louis-based anti-abortion group, has petitioned the U.S. Supreme Court to declare the “buffer zone” ordinance, which has since been repealed, an unconstitutional infringement on First Amendment rights to free speech.

The Supreme Court is scheduled to decide on Friday whether it will take up the case, Coalition Life v. City of Carbondale. It had been scheduled for last week’s conference, but it was postponed.

Brian Westbrook, founder and executive director of Coalition Life, which sends volunteers and paid staff to Carbondale’s clinics, said the restrictions made it nearly impossible to get the attention of people entering the clinics.

“If you can’t approach them and have a conversation with them, it’s very difficult to provide resources and information to individuals,” he said in an interview last week.

Fifteen attorneys general representing states from across the Midwest and South that have restricted abortion access filed a joint brief in support of Coalition Life and against Carbondale, population 21,600.

They argued buffer laws like Carbondale’s, enacted in numerous cities across the nation, curtail rights to free speech “when they are needed most.”

“They cut off speech on a hotly contested moral and political issue,” the brief reads, “And they do so at the last place where the speech could be effective – outside an abortion clinic before a life-altering decision is made.”

Nonprofits

New York Times: Nonprofits Vow a New Resistance. Will Donors Pay Up?

By David A. Fahrenthold and Kenneth P. Vogel

.....Nonprofits are finding that some supporters are not energized by another round of “resistance.” Instead they have been left exhausted, wondering whether their donations made any difference. Some are afraid that they could be targeted for retaliation by Mr. Trump and his allies for donating to groups that oppose his administration...

This resistance-in-waiting illustrates how nonprofits — even tax-exempt charities — have taken on a larger and more aggressive role in American politics. Tax-exempt charities are not allowed to endorse candidates, but they are allowed to condemn policy ideas.

Since Mr. Trump’s first election, these nonprofits have increasingly taken on the role of surrogates for political parties out of power. They reach out to one party’s donors, offering to serve as sand in an opposing administration’s gears, using lawsuits, protests and opposition research.

In Mr. Trump’s first term, the A.C.L.U. fought his ban on travelers from several Muslim countries. The group’s donations doubled in a single year, to nearly $300 million. The A.C.L.U. eventually filed more than 400 suits challenging Mr. Trump’s policies, raising internal concerns that it had gone too far in embracing progressive politics and abandoned its traditional role as a neutral defender of free speech.

After Mr. Trump lost in 2020, his allies started nonprofits that copied this approach. They pelted President Biden’s agenda with lawsuits and opposition research and raised tens of millions of dollars.

FEC

Washington Examiner: FEC chairman says DOJ broke federal policies with ‘warning letter’ to Musk

By Emily Hallas

.....A top Federal Election Commission official has accused the Department of Justice of violating federal policies and targeting “perceived political opponents” for a letter it sent to Elon Musk.

FEC Chairman Sean Cooksey argued that the agency’s actions amounted to efforts “to intimidate and chill private citizens and organizations from campaigning on behalf of President Trump” and tried to influence the outcome of the 2024 presidential election in a letter to DOJ Inspector General Michael Horowitz on Wednesday. 

The FEC chief also called on Horowitz and the DOJ’s Office of Professional Responsibility to open an investigation into the matter and “hold accountable any individuals responsible for any violations of federal law or department policies.” 

Free Expression

NPR: Remembering Ted Olson, a titan of the law

By Nina Totenberg

.....A longtime opponent of attempts to regulate campaign money, he nonetheless argued and won the 2003 Supreme Court case upholding a major campaign finance law aimed at curbing big money's influence in elections.

"It wasn't even close," Olson once told me. "Congress passed the law; my duty was to defend it even if I disagreed with the policy."

But six years later, as a private lawyer, he persuaded the court to eviscerate much of same campaign statute. As he famously put it in a Wall Street Journal interview: "If dancing nude and burning the flag are protected by the First Amendment, why would it not protect robust speech about people who are running for office." ...

He was also a staunch advocate for the rights of reporters, which is how I first met him. He was an assistant attorney general in the Reagan administration, and I was a young, and admittedly ambitious, reporter.

My problem was my beat included the Justice Department and I was being frozen out by the press office. I was not even being notified when the department was announcing a new initiative. So I was frantically looking for a solution when someone suggested I get to know Ted. So I invited him to lunch, and pleaded my case. He promptly took my complaint to Attorney General William French Smith, and as he would later tell me, Smith simply said "this is not the way we do business."

The message was conveyed to the public information office, and the deep freeze melted.

NBC News: Elon Musk worries free speech advocates with his calls to prosecute researchers and critics

By David Ingram and Lora Kolodny, CNBC

.....Musk, the world’s richest person, has in the past two years called for several of his opponents to be prosecuted, and it’s something that free speech advocates say they could overlook if he were only an ordinary private citizen. 

But now that Musk is gaining political power as a close ally of President-elect Donald Trump, his demands for criminal charges against critics are much more worrisome, according to scholars and groups devoted to the First Amendment. 

“If Elon Musk is appointed to some position within the administration, he will continue to jawbone — pressure others to be punished for their speech — and that raises very serious free speech concerns,” said Nadine Strossen, a past president of the American Civil Liberties Union and a professor of law emerita at New York Law School.  

Online Speech Platforms

New York Times: The End of the Obama Coalition

By Ezra Klein

.....I definitely think it was a factor in the 2018-2021 era, where I think that Twitter, in particular — I think it maybe goes back before that, too — was a tremendous accelerator of ideological amplification and division. I don’t think there’s a Bernie Sanders campaign that succeeds in the way it does in 2015 without Twitter and Reddit and places online where the intensity of his support could turn into money, could turn into media coverage. I remember being at Vox back then, and we were watching anything we put Bernie Sanders’ name on go to the top of Reddit. And that leads to a lot more media oxygen for Sanders.

The same thing, by the way, is happening on the right with Donald Trump. I don’t think there’s a Trump campaign in the way we ultimately see it without Twitter, either. So I definitely think that’s true.

There’s also another dimension to this that you just made me think about with the example of trans kids in the Obama administration. Which is: There were issues where the principals understood the issues really well and had political experience with them.

Candidates and Campaigns

CBS News: Sephora says it did not donate to Trump campaign, after online calls for boycott

By Laura Doan, Julia Ingram

.....Beauty retailer Sephora has said it did not make large donations to President-elect Donald Trump's campaign, after viral social media posts called for a boycott of the company and other popular retail outlets over alleged donations.

In a statement, a spokesman for Sephora told CBS News it was aware of "incorrect information circulating on social media," and said Sephora "does not make corporate donations to political candidates. Sephora's mission is to create a welcoming beauty shopping experience for all." 

Calls for a boycott grew after viral social media posts, including one TikTok video with over 11 million views, alleging Sephora and other retailers donated to Trump. The video ended with the line, "I hope we all understand the assignment for this Christmas season." …

Executives and other corporate employees may contribute as individuals to candidates, and information about donations once a donor contributes more than $200 are publicly available, according to Brendan Glavin, Deputy Research Director of Open Secrets, a campaign finance watchdog group.

"When you see those boycott lists, what you may be seeing is an aggregation of all the money that employees of the organization gave to the candidate," said Glavin.

The States

Philadelphia Inquirer: Pa. has rescinded its ‘culturally relevant’ teaching guidelines after a lawsuit by a conservative group

By Maddie Hanna

.....Pennsylvania has rescinded its cultural competency standards for teachers, after a conservative legal group filed a lawsuit last year that claimed they were issued illegally and violated teachers’ First Amendment rights.

Under a settlement reached Wednesday with several Western Pennsylvania school districts, teachers, and parents who were plaintiffs in the case, the Pennsylvania Department of Education agreed to notify all K-12 schools that they have “no legal obligation to implement or comply” with the “Culturally Relevant and Sustaining Education” guidelines.

Those guidelines had directed teachers to reflect on their own biases, work to remove bias from the education system, and recognize and challenge microaggressions, among other standards.

Boston Globe: Mass. lawmakers to allow parents to spend campaign funds on child care.

By Matt Stout

.....Six years after the Federal Election Commission ruled federal candidates can use campaign funds to pay for child care, Massachusetts is poised to do the same.

Massachusetts lawmakers are primed to pass a long-sought change to state law that would allow politicians to cover child care costs using their campaign accounts, removing a barrier for working parents, particularly women, hoping to vie for state or local office.

The measure is among the hundreds of policy riders lawmakers tacked on to a nearly $4 billion economic development bill that is expected to pass the state Legislature on Thursday. Advocates and lawmakers have pushed the proposal for at least seven years, arguing that the ballooning costs for child care in Massachusetts make it difficult for many women to even consider running — either for a seat in a Legislature that remains disproportionately male or one of their local offices.

Willamette Week: City Council Candidate Allegedly Offered Patrons Free Bar Entry in Exchange for Campaign Contributions

By Sophie Peel

.....It was a typical Saturday night at Fortune, a popular West End bar located at 614 SW 11th Ave., for young Portlanders looking to dance and flirt in a low-lit, packed space at the base of the Sentinel Hotel.

Just one thing was different as Aug. 31 rolled into Sept. 1. Near the entrance of the bar, close to where the bouncer was checking IDs, a City Council candidate named Ben Hufford allegedly gave bargoers waiting in line a proposal: Donate $10 to his political campaign, and they wouldn’t have to pay the $20 cover charge. Others recall he said that they couldn’t enter the bar unless they donated to his campaign.