December 6, 2024

In the News

Boston Globe (LTE): Don’t gut free speech rights to go after super PACs

By David Keating

.....Re “Citizens United isn’t going away any time soon. But we can still make campaign financing less corrupt” (Ideas, Dec. 1): Representative Ro Khanna and Harvard Law School professor Lawrence Lessig argue, in essence, that we gut the First Amendment to stop “corruption.”

They say that Maine’s new law limiting contributions to independent expenditure groups gives the Supreme Court a chance to “correct the super PAC mistake.”

But protecting free political speech is no mistake. Limiting contributions for speech would restrict our ability to call for the defeat of corrupt or incompetent incumbent politicians.

I’m grateful that federal case law protects Americans’ First Amendment rights from unconstitutional measures such as the one approved in Maine.

Thirty federal appellate judges who have ruled on similar contribution limits for independent groups found them unconstitutional. Each reached the same conclusion as the court in SpeechNow v. FEC, the case the authors cite and in which I was a plaintiff.

Forbes: Bipartisan Federal Anti-SLAPP Legislation Reintroduced And Improved

By Jay Adkisson

.....Senator Ron Wyden of Oregon, along with Representatives Jamie Raskin and Kevin Kiley have introduced a new federal Anti-SLAPP law known as the Free Speech Protection Act ("FSPA")…

"Two-thirds of the states now have laws limiting frivolous lawsuits that seek censorship. Most pass with strong bipartisan support that is often nearly unanimous," said David Keating, President of the Institute for Free Speech. "It’s time Congress caught up with the states. The Free Speech Protection Act addresses a critical gap in defending Americans’ First Amendment rights. The state laws often don’t apply in federal courts, so censors frequently file these abusive lawsuits there. This legislation would ensure defendants can quickly end meritless, speech-suppressing lawsuits in federal court and recover their legal costs. The next Congress should move quickly to consider this important bill, which is an excellent starting point for protecting Americans from this threat to free speech. I hope there will be helpful suggestions for improving it in committee. To protect free speech, Congress must soon pass the strongest possible Free Speech Protection Act."

New from the Institute for Free Speech

Journal of Supreme Court History Publishes New Work of Knowles-Gardner on NAACP v. Alabama

.....This November, the Journal of Supreme Court History published a new article from Institute for Free Speech Research Director Helen Knowles-Gardner detailing the oral argument history of the critical 1964 Supreme Court case, NAACP v. Alabama ex rel. Flowers. The resulting decision in that case was a historic victory to preserve the First Amendment rights of speech and assembly.

The article can be found in the Journal of Supreme Court History Volume 49 Issue 3 (November 2024), pages 213-239…

This piece is the second of two articles authored by Knowles-Gardner about the NAACP litigation. The Seattle University Law Review published the first installment, “The First Amendment to the Constitution, Associational Freedom, and the Future of the Country: Alabama’s Direct Attack on the Existence of the NAACP,” on First Amendment Day (September 25^th) this year.

Supreme Court

Law & Crime: ‘Very unusual’: Thomas overrides Kagan in COVID-related First Amendment case where RFK Jr. serves as cocounsel, sends dispute to full court

By Colin Kalmbacher

.....Supreme Court Justice Clarence Thomas on Wednesday overrode Justice Elena Kagan in a high-profile First Amendment case involving COVID-19 regulations, basketball legend John Stockton, and putative Donald Trump administration cabinet nominee Robert F. Kennedy, Jr.

Stockton is the lead plaintiff in the fast-paced litigation that aims to avail the free speech rights of physicians who, in the original petition’s words, “speak out against the mainstream Covid narrative.”

The lawsuit was filed in the spring and subsequently shot down at various stages in the federal system. Using a different procedural vehicle allowed the plaintiffs to quickly file an application for an injunction pending appeal with Kagan in late October. The Barack Obama-appointed jurist declined to do so — without a word — in late November.

Now, an admittedly “long shot” effort to convince Thomas to overrule his colleague on the bench has panned out and managed to keep the case alive, for now at least, with the nation’s high court.

The Courts

The Tennessean: Tennessee age verification law for adult websites challenged on free speech grounds

By Angele Latham

.....A free speech advocacy group has filed a federal lawsuit against a new Tennessee law that requires websites with content deemed "harmful to minors" to age-verify users through an upload of a state ID or other means, claiming the law infringes on the First and Fourth amendments.

The Free Speech Coalition, a nonprofit trade association that represents adult entertainers in First Amendment cases, along with a number of plaintiffs including Nashville-based adult content creator MelRose Michaels, are claiming the state law, which was signed by the governor in June and is set to go into effect Jan. 1, is "censorship."

Just Security: Treasury’s Reversal on Sanctions Authority Is a Victory for Free Speech

By Joshua Andresen and Xiangnong (George) Wang

.....The Foundation for Global Political Exchange (Exchange Foundation) reached a settlement last month in a case raising important questions at the intersection of national security and free speech. The settlement is a significant victory because it resulted in the government’s abandonment of a legal theory that would have profoundly undermined Americans’ ability to exchange ideas with people from around the world. Brought by the Knight First Amendment Institute (where one of us works) and the Exchange Foundation (with which the other of us works), the lawsuit argued that the Treasury Department’s Office of Foreign Assets Control (OFAC) overstepped its authority and violated the First Amendment when it barred the Exchange Foundation from organizing political discussions with people whom the U.S. government had sanctioned.

Trump Administration

Fox News: Trump names David Sacks as White House AI and cryptocurrency czar

By Sarah Rumpf-Whitten 

.....President-elect Trump named former PayPal Chief Operating Officer David Sacks to be his White House artificial intelligence (AI) and cryptocurrency czar…

Trump said that Sacks would also prioritize "safeguarding" free speech and away from "Big Tech bias and censorship."

"He will safeguard Free Speech online, and steer us away from Big Tech bias and censorship," he said. "He will work on a legal framework, so the Crypto industry has the clarity it has been asking for, and can thrive in the U.S. David will also lead the Presidential Council of Advisors for Science and Technology."

Free Expression

Persuasion: Cass Sunstein on Campus Free Speech

By Yascha Mounk

.....In this week's conversation, Yascha Mounk and Cass Sunstein discuss his “law of group polarization” and how it contributes to today’s factionalism; how echo chambers work (and why social media makes them worse); and whether meeting the challenge of misinformation requires new government regulations.

Wall Street Journal: Walmart Says Goodbye to DEI

By Daniel Cameron

.....Walmart joins Tractor Supply, John Deere and others that have withdrawn from the controversial scorecard. Many more, such as Lowe’s, Ford, Caterpillar and Boeing, have publicly committed to scaling back diversity, equity and inclusion objectives in favor of neutral policies that don’t alienate most of their workforce, customers and vendors.

Since starting its index in 2002, the Human Rights Campaign’s demands have steadily increased, raising the bar for companies to achieve a perfect score. As a result, many companies forced DEI training on employees, donated millions to progressive causes, pushed their employees to donate to far-left efforts, and publicly advocated progressive legislation at the local, state and federal level. The index’s long and expanding list of criteria has moved so far to the left that to receive a perfect score companies must now cover the cost of sex-change surgeries for children. Companies lose points if they support religious liberty, give to conservative causes, or back what the Human Rights Campaign deems bad legislation.

Independent Groups

New York Times: Elon Musk Backed Trump With Over $250 Million, Fueling the Unusual ‘RBG PAC’

By Theodore Schleifer and Maggie Haberman

.....One of Mr. Musk’s most brazen moves — which emerged only on Thursday — was spending $20 million to prop up a super PAC that was named after Ruth Bader Ginsburg, the late liberal Supreme Court justice, but that sought to help Mr. Trump by softening his anti-abortion positions.

The States

New York Times: University of Michigan Ends Required Diversity Statements

By Nicholas Confessore and Steve Friess

.....The University of Michigan will no longer require diversity statements as part of faculty hiring, promotion and tenure decisions, the school announced on Thursday, marking a major shift at one of the country’s leading public research institutions.

The new policy, issued by Michigan’s provost, comes as the university’s regents weigh a broader overhaul of its sprawling diversity, equity and inclusion programs, among the most ambitious and well financed in the country…

Michigan’s decision may add momentum to growing efforts to restrict the use of diversity statements, which have proliferated widely in academia in recent years...

Critics view them as a form of compelled political speech that are often used to evade legal restrictions on affirmative action. In at least some instances, job candidates have been eliminated from consideration based solely on their diversity statements.

The City: Campaign Board Head Hints Eric Adams Could Be Denied Reelection Matching Funds

By Katie Honan 

.....Mayor Eric Adams will know as soon as Dec. 16 if his reelection bid will qualify for millions of dollars in public matching funds as the Campaign Finance Board votes on the first tranche of payments for the 2025 contest.

At a City Council hearing on Wednesday, CFB executive director Paul Ryan testified that a candidate could be denied funding overall months ahead of the election, depending on questions about that particular campaign.

“There will be some judgment calls made by the board when making public funding determinations,” Ryan told Council members on the governmental operations committee — declining to mention Adams specifically. 

The CFB will approve the first of eight payouts of matching funds for the 2025 elections by Dec. 16, he noted.

Texas Tribune: Texas weighs social media bans for minors as schools and police face challenges

By Stephen Simpson

.....As school districts struggle to control the spread of cyberbullying, pornographic images and online exploitation among their students, Texas lawmakers could consider banning social media from minors, among other sweeping measures, in the upcoming legislative session.

Over the last decade, Texas lawmakers have attempted to slow the spread of social media's harmful effects by criminalizing cyberbullying and preventing online platforms from collecting data on minors, the latter of which has faced court challenges by social media companies.

While law enforcement and prosecutors have traditionally been responsible for cracking down on these online dangers, lack of resources in those agencies has meant enforcement has fallen onto educators, who already struggle to meet the demands of instruction, let alone stay knowledgeable on all the ways children use the internet.