November 22, 2024

In the News

Legal Theory Blog: Knowles-Gardner on the Rejection of the American Jewish Congress Brief in NAACP v. Alabama

By Lawrence Solum

.....Helen J. Knowles-Gardner (Institute for Free Speech) has posted Without a Little Help from Your Friends: The Supreme Court's Rejection of the American Jewish Congress Amicus Brief in NAACP v. Alabama ex rel. Patterson (1958) (Journal of Supreme Court History, Volume 50, Issue 1 (March 2025)) on SSRN. Here is the abstract:

Congress

Nonprofit Quarterly: HR 9495: Bill Threatening Nonprofits Passes House

By Isaiah Thompson

.....A bill, HR 9495, which would allow a presidentially appointed treasury secretary to unilaterally strip a nonprofit of its status if deemed a “terrorism-supporting” organization, has passed in the US House of Representatives.

The bill passed 219-184, mostly along partisan lines, with Republicans in support and Democrats opposing; 15 Democrats broke with their caucus to vote in favor of the bill.

The measure, formally named the Stop Terror-Financing and Tax Penalties on American Hostages Act, has raised alarm across the nonprofit sector and US civil society, and a multitude of organizations—from civil rights groups to nonprofit media to advocacy and direct service groups—have mobilized against the bill…

This September, the ACLU and some 150 organizations cosigned a letter opposing the legislation, expressing “deep concerns about the bill’s potential to grant the executive branch extraordinary power to investigate, harass, and effectively dismantle any nonprofit organization—including news outlets, universities, and civil liberties organizations like ours—by stripping them of their tax-exempt status based on a unilateral accusation of wrongdoing.”

Last week, the Council on Foundations, Independent Sector, National Council of Nonprofits, and United Philanthropy Forum penned another letter, stating:

Politico: Rand Paul has plans to kneecap the nation’s cyber agency

By Maggie Miller

.....Sen. Rand Paul (R-Ky.) is set to take over as chair of the Senate Homeland Security and Governmental Affairs Committee now that Republicans have clinched the chamber and has a plan for overseeing the nation’s cyber agency: eliminate, or severely curtail the powers of, the Cybersecurity and Infrastructure Security Agency.

Paul, whose committee has jurisdiction over the cyber agency and others, has long had concerns about CISA and its efforts to counter disinformation, particularly around the 2020 U.S. presidential election. The senator has accused the agency of singling out conservative voices and infringing on free speech and has supported calls for an overhaul.

“I’d like to eliminate it,” Paul told POLITICO Thursday. “The First Amendment is pretty important, that’s why we listed it as the First Amendment, and I would have liked to, at the very least, eliminate their ability to censor content online.”

The Hill: McConnell announces new roles in next Congress

By Aris Folley

.....“Defending the Senate as an institution and protecting the right to political speech in our elections remain among my longest-standing priorities,” [McConnell] said. “Ranking Member Deb Fischer has done an outstanding job advancing these causes, and I know she will remain a key partner in the committee’s ongoing work.”

Supreme Court

SCOTUSblog (Relist Watch): Nondelegation doctrine, abortion clinic protest, and transgender student athletes

By John Elwood

.....In Turco v. City of Englewood, New Jersey, and Coalition Life v. City of Carbondale, Illinois, Turco and Coalition Life ask the justices to overrule Hill. They argue that subsequent decisions have undermined the decision in Hill – leaving it, as Thomas argued, “all but interred,” “defunct,” and “an aberration.” They point to a 2014 decision striking down a Massachusetts law that created 35-foot buffer zones outside medical facilities. The challengers argue that the time has come to overrule Hill and make clear that ordinances like the ones the cities adopted are unduly restrictive of speech.

The Courts

Reason: An Alabama D.A. Filed Legally Impossible Charges Against School Board Members Who Crossed Him

By Jacob Sullum

.....On October 12, 2023, the seven-member board that oversees public schools in Escambia County, Alabama, met to consider renewing Superintendent Michele McClung's employment contract. The board had narrowly rejected a motion to renew McClung's contract at a meeting the previous August, and it did not look like the members in the majority, who had concerns about her performance, were inclined to change their minds. Steve Billy urged them to reconsider, effusively praising McClung and arguing that board members who voted against the new contract would be violating state law by forsaking their oaths of office.

That speech was pretty weird, especially because Billy was not just an ordinary citizen. He was (and is) Escambia County's district attorney, and he would later use the powers of that office to file patently frivolous criminal charges against two board members who voted against the new contract, along with a school board employee and a local newspaper reporter. Those charges and the ensuing arrests, Billy's targets argue in a federal lawsuit they filed on Wednesday, violated their First and Fourth Amendment rights.

"Americans must be able to participate in their government without fear that they'll be labeled as political enemies, investigated, and punished for exposing corruption," says Institute for Justice attorney Jared McClain, who represents the plaintiffs. 

FCC

Federalist Society: Sauce for the Goose: The FCC Lacks Authority to Interpret Section 230 Post-Loper Bright

By Lawrence J. Spiwak 

.....Frustrated by a perceived political bias against their views, several conservatives have called for government regulation over digital platforms’ content moderation policies. Proposed remedies range from treating digital platforms as common carriers to declaring that digital platforms are “state actors.” Always standing in the way of such interventions, however, is the First Amendment. As the Supreme Court recognized last term in Moody v. NetChoice, the First Amendment “does not go on leave when social media are involved,“ and “[o]n the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”

So with direct content moderation regulation off the table (at least for now), some argue for an indirect approach: hit digital platforms in their wallets by modifying, or even eliminating, the immunity for content posted by third parties on their sites provided by Section 230 of the Communications Decency Act.

Candidates and Campaigns

National Review: The Misinformation Racket

By Charles C.W. Cooke

.....Do you remember when “money in politics” was the pressing issue of our time? For a while, one could hardly engage with the news without being bludgeoned over the head with slogans about the problem. Whatever the question, whatever the detail, the declarations were always the same. “We have to get money out of politics!” “We have to overturn Citizens United.” “We have to pass comprehensive campaign-finance reform.” “This country is for the people, not for the corporations and billionaires.”

Today, only Bernie Sanders still reliably beats this drum — and even he has had to amend his pitch to exclude “millionaires,” since, rather embarrassingly, he sold enough books to become one himself. Everywhere else, the matter has been dropped, abandoned, buried.

Why? The Democratic Party now habitually outraises and outspends the Republican Party, and the Democrats have finally noticed — that’s why. In the most recent election, Democrats across the nation spent around a billion dollars more on political advertising than Republicans did. In 2020, Donald Trump was not only outspent by Joe Biden to the tune of $225 million, but the Trump campaign was the first in history to raise nearly half of its entire haul from the small, $200-or-less donors whom the Democrats have historically lauded. In 2016, Hillary Clinton raised and spent twice what Trump did. It is possible that Bernie Sanders really does boast a nonpartisan ideological commitment to the changes he seeks. But, if so, he is alone. For a while, the issue of “money in politics” was useful to the Democrats as an explanation for why they lost elections. Now, it is not. The party’s jarring silence on the subject reflects that elementary fact.

Wall Street Journal: Too Little, Too Late: Pro-Harris PAC Takes Flak for Spending Decisions

By Tarini Parti and Ken Thomas

.....Still, donors have questioned how the party could have collectively spent so much with so little to show for it. “Ads ran nonstop in Florida, which was like filling a wheelbarrow full of money and burning it,” said John Morgan, a Biden donor based in Florida, which Harris lost by 13 percentage points. (Future Forward didn’t run ads targeted specifically at Florida, though the group’s national ads ran there.)

Online Speech Platforms

Oversight Board: New Decision: Allow Third-Party Imagery of Terrorist Attacks, With a Warning, When Posts Condemn or Share Information on These Acts

.....The Board has overturned Meta’s decisions to remove three Facebook posts showing footage of the March 2024 terrorist attack in Moscow, requiring the content to be restored with “Mark as Disturbing” warning screens.

While the posts violated Meta’s rules on showing the moment of designated attacks on visible victims, removing them was not consistent with the company’s human rights responsibilities. The posts, which discussed an event on front page news worldwide, are of high public interest value and to be protected under the newsworthiness allowance, according to the majority of the Board. In a country such as Russia with a closed media environment, accessibility on social media of such content is even more important. The posts each contain clear language condemning the attack, showing solidarity with or concern for the victims, with no clear risk of them leading to radicalization or incitement.

The States

WMTW: Question passed, but could face legal challenges

By Jackie Mundry

.....Two weeks ago, Maine voters sided in favor of a citizens referendum that will limit campaign finances to super political action committees to $5,000 a person, but lawyers believe this issue will likely end up in a courtroom.

"That would be initiated at a federal district court here in Maine. It could then be appealed up to the 1st Circuit Court of Appeals if the Supreme Court wanted to," Scott Bloomberg, a University of Maine law professor, said.

"I do think the Supreme Court would be very likely to find this unconstitutional, and that's based on the the reasoning it as applied in other cases, like Citizens United," Bloomberg added.