December 10, 2024

Ed. note: The Daily Media Update will return Thursday, Dec. 12.

In the News

Wall Street Journal: Trump Needs a DOGE for Free Speech

By David Keating

.....Donald Trump promises to cut bureaucratic waste through the Department of Government Efficiency. He should apply the same approach to free speech. A task force, which he could name the Federal Initiative to Reduce Speech Threats, or FIRST, could identify federal regulations and guidelines that harm speech or new rules that could protect it.

Such an initiative would have several obvious targets at the outset.

• New rules for bureaucrats. Federal law grants broad powers to executive-branch department leaders to regulate employees’ conduct. The Murthy v. Missouri case helped expose how federal employees facilitated censorship by social-media platforms. Mr. Trump’s cabinet could write rules prohibiting such actions, enforceable by termination if necessary.

Regulations could also force disclosure of most government contacts with social-media organizations asking to take down third-party posts. After uprooting any remaining Biden “anti-disinformation” efforts, future ones could be barred by regulation.

Supreme Court

Newsweek: Supreme Court Won't Lift Gag Order on Donald Trump

By Katherine Fung

.....The Supreme Court has declined to lift the gag order imposed on President-elect Donald Trump in his hush money case.

In a new order list released Monday, the Court denied an application seeking to appeal the gag order set by New York Judge Juan Merchan.

"The application for stay addressed to Justice [Samuel] Alito and referred to the Court is denied," the order list said.

During his trial in New York, Trump was put under a gag order by Merchan. He is prohibited from speaking about jurors, witnesses, prosecutors, court staff or members of their family.

New York Times: After N.R.A.’s Supreme Court Win, a Dispute Over Key Facts

By Danny Hakim

.....There is, however, a new wrinkle: The two women said to be the primary participants in a secret meeting described in the N.R.A. complaint, and pivotal to the Supreme Court ruling, say it never took place. While the veracity of the allegations has no bearing on the Supreme Court ruling, several legal experts said it could become a steep hurdle as the N.R.A.’s lawsuit makes its way back through the lower courts.

Reason (Volokh Conspiracy): Today in Supreme Court History: December 10, 2003

By Josh Blackman

.....12/10/2003: McConnell v. Federal Election Commission decided.

The Courts

Reuters: Court revives free speech lawsuit over Connecticut attorney conduct rule

By David Thomas

.....A U.S. appeals court on Monday revived a lawsuit challenging Connecticut's three-year-old anti-harassment and discrimination professional rule for lawyers.

The 2nd U.S. Circuit Court of Appeals found that the plaintiffs had standing to pursue their claims that the rule violates their rights to free speech under the U.S. Constitution's First Amendment.

The rule forbids lawyers from engaging in conduct that they know or should reasonably know to constitute harassment or discrimination based on race, sex, religion and other characteristics.

Reason (Volokh Conspiracy): Minneapolis Doctor Sufficiently Alleged Demotion Based in Part on Anti-Woke Speech in 2020

By Eugene Volokh

.....From Gustilo v. Hennepin Healthcare System, Inc., decided today by Eighth Circuit Judge James Loken, joined by Judges Ralph Erickson and Steven Grasz:

LA Times: Opinion: The TikTok court case has staggering implications for free speech in America

By Erwin Chemerinsky

.....This is the first time in history that the government has ever banned a medium of communication. It is not simply outlawing a single newspaper or publisher, which itself would be deeply troubling under the 1st Amendment, but banning a platform on which billions of videos are uploaded a year. As the circuit court’s chief judge, Sri Srinivasan, said in a concurring opinion, the TikTik ban will cause a huge number of people in this country to “lose access to an outlet for expression, a source of community and even a means of income.”

FEC

Memorandum from Commissioner Allen J. Dickerson and Commissioner James E. “Trey” Trainor, III dated December 2, 2024: Recommendation that the Office of General Counsel Conduct a Review of the Agency’s Regulations

.....Last Term, the Supreme Court of the United States decided two cases with implications for the Federal Election Commission: Loper Bright Enterprises v. Raimondo, 603 U.S. __, 144 S.Ct. 2244 (2024) (“Loper Bright”) and Corner Post, Inc. v. Board of Governors of the Federal Reserve System, 603 U.S. __, 144 S.Ct. 2440 (2024) (“Corner Post”).

Loper Bright overturned Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). Under Chevron, courts were required to defer to an agency’s judgement where Congress “ha[d] not addressed the precise question at issue” and the agency’s regulations reflected a “permissible construction” of a statute. 467 U.S. at 843. At the same time, Corner Post explained that the six-year statute of limitations for challenges to a regulation under the Administrative Procedure Act runs from a plaintiff’s injury, not from the promulgation of the regulation itself.

Taken together, these cases create significant litigation risk for the FEC. Many of the Commission’s regulations were promulgated under the Chevron regime and may not reflect current legal realities. Given the significant limitations on the FEC’s litigation resources, we propose that the Office of General Counsel conduct a review of the Commission’s regulations to ascertain their vulnerability to challenge under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and to consider what, if any, appropriate action ought to be taken by the Commission.

Trump Administration

New York Times: Trump Picks Strident Supporter for Civil Rights Post at Justice Dept.

By Devlin Barrett

.....President-elect Donald J. Trump said on Monday that he would nominate Harmeet K. Dhillon, a California lawyer who has long championed Mr. Trump in public, in court cases and on social media, to run the Justice Department’s Civil Rights Division.

In declaring his choice on social media, Mr. Trump said Ms. Dhillon “has stood up consistently to protect our cherished civil liberties.” He praised her legal work targeting social media companies, restrictions on religious gatherings during the pandemic and “corporations who use woke policies to discriminate against their workers.”

Nonprofits

New York Times: How a Realtors’ Nonprofit Quietly Funds Conservative Advocacy Groups

By Debra Kamin

.....The pattern of giving, three nonprofit lawyers said, appears politically motivated and out of step with the American Property Owners Alliance’s stated mission as a nonpartisan nonprofit and an “advocate for the rights of all property owners.” It’s the kind of giving that could put its tax-exempt status under the scrutiny of the Internal Revenue Service, the lawyers said.

Independent Groups

Politico: ‘It’s a very dangerous strategy’: The controversial tactic super PACs used to boost Democrats this year

By Ally Mutnick and Jessica Piper

.....A sudden cash infusion boosting Libertarian candidates for Congress. An independent expenditure for a far-right gadfly in Pennsylvania. A mysterious group using offensive messaging against Hispanic Republicans.

These were a few of the unusual, controversial and even desperate tactics deployed as part of a forceful embrace of a traditionally little-used strategy: super PACs helping Democrats by elevating conservative third-party candidates.

The States

AP News: Judge dismisses charges against Karen Read supporter who scattered rubber ducks and fake $100 bills

By Steve LeBlanc

.....A Massachusetts judge dismissed criminal charges Monday against a backer of Karen Read who admitted placing dozens of yellow rubber ducks and fake $100 bills around town in support of Read.

Richard Schiffer Jr. had argued in Stoughton District Court that he had a First Amendment right to support the defense theory that Read — accused of ramming into her boyfriend John O’Keefe with her SUV and leaving the Boston police officer to die in a snowstorm — has been framed in the polarizing murder case.

Schiffer’s attorney Timothy Bradl said Monday that the judge made the right call by quickly tossing the felony witness intimidation and criminal harassment charges against Schiffer.