December 18, 2024

Supreme Court

Federalist Society: Free to Speak for a Living? Professional Speech and the First Amendment Back at SCOTUS

By Paul Avelar 

.....The Supreme Court’s 2018 decision in National Institute of Family & Life Advocates v. Becerra (NIFLA), set out a plain rule of law: “Professional speech” is not “a unique category that is exempt from ordinary First Amendment principles.” Nevertheless, in about two dozen federal cases since NIFLA, the lower courts have struggled to, or outright refused to, apply ordinary First Amendment principles. These cases have arisen in a wide variety of contexts—from highly controversial speech involving abortion, sexual orientation, gender identity, and COVID-19 misinformation, to perfectly ordinary and uncontroversial speech about a city’s history, a person’s diet, pictures of real property, and even horseshoeing—and they have involved both licensed and unlicensed people. The lower federal courts again are split and mired in confusion.

The Courts

Wall Street Journal: Judge Broke Rules by Criticizing Justice Alito During Flag Flap

By Jess Bravin

.....Amid collapsing public confidence in U.S. courts, a federal judge has been found culpable of misconduct. The offense? Questioning the ethics of a Supreme Court justice. 

U.S. District Judge Michael Ponsor published an essay in the New York Times arguing that the display of flags associated with President-elect Donald Trump’s MAGA movement at Justice Samuel Alito’s Virginia and New Jersey homes was a breach of public trust. The piece was unusual because judges don’t typically offer personal criticisms of a colleague in public.

According to the jurist assigned to review the matter, Chief Judge Albert Diaz of the federal appeals court in Richmond, Va., it was Ponsor who damaged the judiciary. In a previously unreported order filed last week, Diaz found that by commenting on controversial issues and criticizing Alito, Ponsor violated the code of conduct that applies to all federal judges other than Supreme Court justices.

Reason (Volokh Conspiracy): After Plaintiff "Criticized the City Manager …, the Manager Complained About Him to the Police."

By Eugene Volokh

.....From yesterday's decision in Blackwell v. Nocerini, written by Sixth Circuit Judge Eric Murphy and joined by Chief Judge Jeffrey Sutton and Judge John Bush:

New York Times: Fund-Raiser Who Pocketed Money Meant for Sick Kids and Vets Gets 10 Years in Prison

By David A. Fahrenthold and Camille Baker

.....For years, Mr. Zeitlin stayed on the right side of the law — mostly.

His charity clients were often shut down by charity regulators, who said they were just get-rich-quick schemes masquerading as nonprofits. One example, the Children’s Cancer Fund of America, had allegedly hidden its uncharitable ways by shipping faux care packages full of junk that children with cancer did not need: deep-fat fryers, men’s undershirts, jock itch medicine. It shut down in 2015 after being sued by the Federal Trade Commission, all 50 states and the District of Columbia.

But new customers sprang up. By 2016, Mr. Zeitlin was raising $19.6 million for charity and keeping $17.3 million of it, according to federal charity filings.

Even when authorities came after Mr. Zeitlin himself, the largely state-by-state nature of charity regulation meant that the pain was minimal. In 2010, Ohio’s attorney general said that his company had actually broken the cardinal rule against lying, and falsely told donors that their gifts would benefit a specific sheriff’s department. But Mr. Zeitlin resolved it by paying a $10,000 settlement.

Reason (Volokh Conspiracy): Missouri Legislative Employee Was Unconstitutionally Fired for Pro-Mask-Policy Letter

By Eugene Volokh

.....From Mayfield v. Missouri House of Representatives, decided Friday by Eighth Circuit Judge Jane Kelly, joined by Judges Lavenski Smith and Jonathan Kobes:

Congress

Washington Post: Elizabeth Warren asks Trump to set conflict-of-interest rules for Musk

By  Michael Scherer

.....Sen. Elizabeth Warren (D-Massachusetts) wrote a letter to President-elect Donald Trump on Monday to request clear and transparent conflict-of-interest rules that would bind Elon Musk, the world’s richest man, during his role as a top Trump adviser.

The letter sent by email from the Democrat’s Senate office to Trump’s transition team notes that regular members of the Trump Vance 2025 Transition Team operate under an ethics policy that requires them to “avoid both actual and apparent conflicts of interest.” Those rules, which have been published by the General Services Administration, include prohibition from transition team members working “on particular matters involving specific parties that affect” their interests.

Washington Post (Tech Brief): House unveils AI ‘road map’ but punts on setting priorities

By Cristiano Lima-Strong

.....The House artificial intelligence task force released a sprawling report Tuesday on how Congress can boost the technology’s development and safeguard against its risks, forming what lawmakers said would serve as yet another “road map” for future proposals.

But lawmakers declined to endorse or propose any specific legislation, leaving much of the work of hashing out disputes over policy and priorities to future sessions.

The 253-page document is more detailed and wide-ranging than the Senate’s 31-page “road map” that Majority Leader Charles E. Schumer (D-New York) and a bipartisan gang of senators working on AI released in May. Critics called that one overly vague.

The new document features dozens of findings and recommendations on how AI intersects with labor issues, privacy protections and national security concerns, among other matters. It marks the culmination of the work of the bipartisan House AI task force, launched in February...

The clearest takeaway from the task force’s report is that lawmakers want Congress to take up AI legislation sector by sector, rather than pursuing an overarching bill.

FEC

The Hill: The Hill’s Changemakers: Dara Lindenbaum, FEC commissioner

By Taylor Giorno

.....[Commissioner Dara Lindenbaum] is focused now on urging Congress to eliminate the public disclosure of political contributors’ street names and numbers, which she views as an issue of donor safety. 

“If somebody made a contribution five years ago, their address is out there, and you never know what wack job is going to be there looking for them,” Lindenbaum said. 

“Maybe it’s a doctor, maybe it’s a teacher, maybe it’s somebody who’s in an abusive relationship,” she added. “We need to know who is participating in our elections, who’s donating, who’s receiving, all that. But having somebody’s name, city, state, zip code, occupation [and] employer is more than enough to know that information.” 

JD Supra: A Lookback at the Federal Election Commission in 2024

By Matthew Petersen, Holtzman Vogel Baran Torchinsky & Josefiak

.....Now that the presidential election has concluded and 2024 is drawing to a close, it is worth looking back at one of the most consequential years for the Federal Election Commission (FEC) in recent memory. From expanding opportunities for federal candidates to both collaborate with grassroots groups on getting out the vote and raise unlimited money for state ballot measures to clarifying the ways in which candidates and parties can engage in joint fundraising activities to issuing guidance on the use of AI-generated content in campaign ads, the FEC had a remarkably active year that will have an enduring impact on the country’s electoral system.

Below is a summary of the FEC’s most significant decisions in 2024.

Online Speech Platforms

Wall Street Journal: EU to Investigate TikTok Over Romanian Elections

By Edith Hancock

.....The European Commission opened a formal investigation into TikTok over concerns foreign actors used the video platform to interfere in Romanian presidential elections.

The European Union’s digital regulator said Tuesday that it opened formal proceedings against TikTok, owned by Beijing-based ByteDance, for potentially violating the Digital Services Act, a relatively new European law that forces tech companies to do more to protect users from coordinated campaigns that can sway elections.

“We must protect our democracies from any kind of foreign interference,” commission President Ursula von der Leyen said. “Whenever we suspect such interference, especially during elections, we have to act swiftly and firmly.”

All online platforms, including TikTok, should be held accountable, she said.

The States

Tucson.com: Groups push to keep Arizona campaign spending anonymous

By Howard Fischer

.....Two groups that support Republicans are making a last-ditch effort to have the Arizona Supreme Court kill campaign finance requirements that voters have approved.

And the goal of their legal effort is to let them keep secret who really is funding their efforts to influence elections.

Lawyers for the Arizona Free Enterprise Club and the Center for Arizona Policy are arguing to the justices that Proposition 211, adopted by voters in 2022, violates the Free Speech Clause in the state constitution.

That’s because they say it strips Arizonans from being able to make anonymous donations to organizations — like theirs — that have been spending money on campaigns to get certain candidates elected and various ballot measures approved or rejected.

The result of disclosure, according to lead attorney Andrew Gould, can lead to retaliation, intimidation and “doxing’’ of both individual donors and the groups to whom they are giving.