January 13, 2025

In the News

Daily Advocate: Ohio Joins Anti-SLAPP movement

By Brittany Hill

.....Prior to the new law’s passage, the absence of anti-SLAPP protections in Ohio left its citizens vulnerable to frivolous lawsuits designed to silence public expression and criticism. These SLAPP suits, typically filed by wealthy individuals or organizations, have been weaponized to intimidate critics, forcing them into silence through the sheer burden of legal costs. The Institute for Free Speech’s 2023 Anti-SLAPP Report Card previously awarded the state an “F” grade for not having any statutory protections against this pernicious form of lawfare.

Federalist Society: A Seat at the Sitting: The January Docket in 90 Minutes or Less

.....Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below…

Moderator: Brett Nolan, Senior Attorney, Institute for Free Speech

New from the Institute for Free Speech

Free Speech Arguments – Can the Government Shut Down TikTok or Force its Sale? (TikTok Inc. v. Merrick Garland)

.....TikTok Inc. v. Merrick Garland, argued before the Supreme Court of the United States on January 10, 2025. Argued by Noel Francisco (on behalf of TikTok, Inc. and ByteDance, Ltd.) and Jeffrey Fisher (on behalf of Creator Petitioners Brian Firebaugh, et al.), and Elizabeth Prelogar, Solicitor General of the United States (on behalf of Merrick Garland).

Background on the case: Adam Feldman’s “The Universe of TikTok v. Garland in a Nutshell” contains an excellent synopsis of relevant facts and procedural history.

Question Presented:

Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.

Supreme Court

SCOTUSblog: Supreme Court skeptical of ban on TikTok

By Amy Howe

.....The Supreme Court on Friday was divided over the constitutionality of a federal law that would require social-media giant TikTok to shut down in the United States unless its Chinese parent company can sell it by Jan. 19. During two hours of oral arguments, the justices raised questions about whether the law at the center of the case actually restricts TikTok’s freedom of speech, as well as about what will happen if there is no sale by the deadline.

The Courts

Reason (Volokh Conspiracy): Misinformation Expert's "Citation to Fake, AI-Generated Sources in His Declaration … Shatters His Credibility with This Court"

By Eugene Volokh

.....From today's order by Laura Provinzino (D. Minn.) in Kohls v. Ellison (see this Nov. 19 post for more):

The Federalist Society: Settlement in Council on American Islamic Relations v. Gaubatz Leaves an Unresolved Tension Between the First Amendment and Secret Recording Laws

By Stephen R. Klein  

.....The Council on American Islamic Relations, or CAIR, is no stranger to controversy or litigation, though one can be forgiven for not recognizing its name or if one hasn’t heard of it since the George W. Bush administration. One of its lawsuits, CAIR v. Gaubatz, lasted just over 15 years before its quiet settlement and stipulation of dismissal this past Christmas Eve. The case began in October 2009, just a few days before I was first sworn into the bar, and it loomed over some of my legal work for several years. Recently, it has mostly lingered in the background, but its resolution—whatever it was—leaves unresolved a chilling provision of federal law: the criminal or tortious purpose exception to one-party consent for audio recording under federal law and the laws of several states and the District of Columbia.

FEC Weekly Digest: Week of January 6 – 10, 2025

.....End Citizens United PAC v. FEC (Case No. 22-5277) On January 2, the National Republican Senatorial Committee (NRSC) and the National Republican Congressional Committee (NRCC) filed a Brief of Amici Curiae in Support of Appellees and Affirmance in the U.S. Circuit Court of Appeals for the District of Columbia Circuit.



FEC v. Rivera (Case No. 17-22643) On January 8, the U.S. District Court for the Southern District of Florida issued an Order Closing the Case and Dismissing with Prejudice.

Politico:  Eric Adams donor pleads guilty in straw donor scheme

By Jeff Coltin

.....A Turkish American construction executive pleaded guilty Friday to making illegal straw donations to Mayor Eric Adams’ 2021 campaign.

Adams himself has been charged in the same scheme but has denied wrongdoing.

Online Speech Platforms

Silver Bulletin: The rise and fall of "fact-checking"

By Nate Silver

.....So, the news is that Facebook is eliminating a partnership that began in December 2016 with independent fact-checking organizations and replacing them with a Twitter/X style Community Notes program.

To which I say: that sounds fine, actually.

The fact-checking partnership was implemented during what was something of a moral panic on the left about “fake news” and the role it played in Trump’s first election win. I’ve always thought this was at most a minor factor in Trump’s victory over Hillary Clinton.

Still, the term “fake news” took off after 2016 — and so did the notion of perpetual, round-the-clock fact-checking. “Fake news” waned in popularity once Trump embraced the term, but right on cue, the more scientific-sounding terms “misinformation” and “disinformation” displaced it. Before Trump’s election, meanwhile, broader public interest in fact-checking was pretty much limited to election years. But by 2017, Trump’s first year in office, Google searches for “fact check” were almost three times higher than four years earlier in 2013.

The States

AZ Mirror: Arizona Supreme Court to weigh fate of ‘dark money’ disclosure law

By Jim Small

.....The Arizona Supreme Court agreed Thursday to hear key portions of a challenge to the state’s landmark campaign finance disclosure law aimed at ending anonymous political spending, potentially impacting rules meant to shine light on who spends money to influence voters.

The high court will consider whether Republican legislative leaders have the right to challenge “dark money” disclosure rules created by the Citizens Clean Elections Commission under Proposition 211, the “Voters’ Right to Know Act,” which voters overwhelmingly approved in 2022. The court will also determine if a provision limiting legislative oversight can be separated from the rest of the law.

Politico: New Jersey’s race for governor is poised to be one of the least transparent

By Matt Friedman

.....New Jersey’s 2025 gubernatorial election could be the least transparent in memory thanks to a new campaign finance law that lets super PACs keep their donors secret until shortly before the primary.

It will be the biggest test yet of the financial overhaul, and supporters of a few candidates have already sought to leverage it by forming independent expenditure committees that can raise and spend unlimited amounts.

AP News: Ohio Supreme Court hears arguments in watchdog group’s records dispute with state attorney general

By Julie Carr Smyth

.....The Ohio Supreme Court heard oral arguments Wednesday in a long-running public records case pitting the state’s top law enforcement officer against a national watchdog group that is digging into his ties with the Republican Attorneys General Association.

At issue is whether GOP Attorney General Dave Yost should be required to provide records to an appeals court that had been requested by the Center for Media and Democracy, which pertain to the nonprofit Republican association as well as its fundraising arm, the Rule of Law Defense Fund. Yost’s office also is fighting a magistrate’s order requiring the attorney general to be deposed in the now five-year-old case.

The center, an investigative group, is seeking records from a period when RAGA — a nonprofit that accepts corporate donations — organized a letter opposing clean air restrictions to the U.S. Environmental Protection Agency that was signed by Republican attorneys general. More recently, the association came under fire for soliciting thousands of supporters of Donald Trump to march on the U.S. Capitol on Jan. 6, 2021.

NPR: Fox News headed for trial, again, over 2020 election fraud claims

By David Folkenflik

.....Now, an appellate court ruling in New York state is allowing Smartmatic's parallel, $2.7 billion suit to press ahead. The same ruling also dismissed some counts against the network's parent company, Fox Corp.

Reason (Volokh Conspiracy): N.H. Court Rejects Attempt to Impose Hate Crime Liability on Neo-Nazis for Hanging "Keep New England White" Sign on Overpass

By Eugene Volokh

.....From yesterday's N.H. Supreme Court decision in Attorney General v. Hood: