January 21, 2025

In the News

Idaho Press: Stapilus: A SLAPP in the right direction

By Randy Stapilus

.....Senate Bill 1001 is described by its backers as a freedom of speech measure, but more specifically it provides a mechanism for “swiftly dismissing meritless Strategic Lawsuits Against Public Participation, ensuring public engagement and expression on matters of societal or community interest not stifled by legal intimidation.” …

Laws comparable to this bill are on the books in 34 states and the District of Columbia. Washington, Oregon, Nevada and California have had anti-SLAPP laws on the books for years. The Institute for Free Speech currently gives Idaho an “F” grade on its lack of an anti-SLAPP law.

Nonprofit Law Prof Blog: District Court Declares Part of Kansas Election Campaign Finance Act Unconstitutional as Applied

By Darryll K. Jones

.....Fresh Vision asserted that Kansas' definition of "political action committee" is unconstitutional. A Kansas federal district court agreed and declared KSA 25-4143(l)(1) unconstitutional as applied to Fresh Vision because Fresh Vision engages in lobbying and campaign endorsements as a major purpose but those political activities are not the major purpose.  The Court declined to strike down the statute on its face, holding that Fresh Vision lacked standing to bring a facial challenge. The holding means that Fresh Vision can continue its activities without disclosing the identity of its donors…

If you would like to get down in the weeds about it, a good place to start is at the Institute for Free Speech. That exempt law firm represents Fresh Vision and has posted the entire court record here. 

New from the Institute for Free Speech

Happy 15th Anniversary, Citizens United

By Tiffany Donnelly & Helen Knowles-Gardner  

.....Fifteen years ago today, the United States Supreme Court decided Citizens United v. Federal Election Commission. A wave of hysteria followed, with confused leftists (and a few confused conservatives) screaming from the rooftops that the ruling was a fatal blow to democracy. With a straight face, MSNBC’s Keith Olberman said that the decision “might actually have more dire implications” than Dred Scott, which held that descendants of slaves were not citizens of the United States.

 People who believe Citizens United was wrongly decided proclaim that the democratic sky fell on January 21, 2010, and claim that, in the intervening years, things have only gotten worse. Nothing could be farther from the truth.

The Courts

Bloomberg Law: Energy Department's DEI Program Violates Free Speech, Suit Says

By Sam Skolnik

.....The Department of Energy has been sued by a higher education reform group opposed to diversity, equity and inclusion programs in academia claiming the department requires research grant applicants to commit to how they’ll promote DEI.

The department’s Promoting Inclusive and Equitable Research plan, part of DOE’s Office of Science, violates the First Amendment and the Administrative Procedure Act, the National Association of Scholars said in their complaint filed Thursday at the US District Court for the Western District of Texas.

The PIER plan requirement “has nothing to do with the advancement of scientific research,” the scholars group says. “Instead ...

Trump Administration

The Hill: Trump signs order on government ‘weaponization’

By Rebecca Beitsch 

.....President Trump on Monday signed an executive order aimed at correcting “past misconduct” he said qualified as weaponization of the federal government.

The executive order largely points the finger at former President Biden, and while it does not directly call out the prosecution into Trump, it’s heavily geared toward the Justice Department.

“The prior administration and allies throughout the country engaged in an unprecedented, third-world weaponization of prosecutorial power to upend the democratic process,” the executive order states, saying that under Biden, the Justice Department “ruthlessly prosecuted more than 1,500 individuals associated with January 6.”

It also blames Biden for having “engage[d] in a systematic campaign against its perceived political opponents.”

The order said the government should take “appropriate action to correct past misconduct” — an idea largely left undefined as it tasked the Justice Department with reviewing the actions of any agency with criminal or civil enforcement power that took action “contrary” to the order.

New York Times: Trump Signs Executive Order in Attempt to Stall TikTok Ban

By David McCabe

.....President Trump signed an executive order on Monday to delay enforcing a federal ban of TikTok for 75 days, even though the law took effect on Sunday and it is unclear that such a move could override it.

The order, one of Mr. Trump’s first acts after taking office, instructs the attorney general not to take any action to enforce the law so that his administration has “an opportunity to determine the appropriate course forward.” The order is retroactive to Sunday.

As he signed the order, Mr. Trump told reporters that “the U.S. should be entitled to get half of TikTok” if a deal for the app is reached, without going into detail. He said he thought TikTok could be worth a trillion dollars.

Free Expression

People United for Privacy: 15 Years After Citizens United, Some Politicians Still Can’t Handle Criticism

By Luke Wachob

.....Before leaving the White House, President Joe Biden took one last parting shot at Americans’ free speech and privacy rights. Drawing a comparison to President Eisenhower’s famous farewell address that warned about the rise of the military-industrial complex, Biden offered a warning of his own about what he called the “tech-industrial complex.” Yet, many of Biden’s complaints actually centered on the constitutional rights of American citizens and organizations to speak out openly about politics and the issues of the day without seeking government approval…

In naming “misinformation” and “dark money” as top crises for the government to address, Biden is essentially saying that America’s biggest problem is the First Amendment. The First Amendment is what stops the government from prohibiting speech it deems to be false or violating the privacy of advocacy groups and their supporters. Those freedoms are not tools for “powerful forces,” as Biden suggests, but essential protections for all Americans against government surveillance and censorship – especially those Americans that disagree with the party in power.

The Media

Mediaite: Florida Jury Finds CNN Defamed Navy Veteran, Awards Him Millions in Damages — With More to Come

By Isaac Schorr

.....A Florida jury found that CNN liable of defaming Navy veteran Zachary Young on Friday, and awarded him a total of $5 million in addition to finding that punitive damages were warranted against the network.

The verdict follows other high-stakes media defamation cases against Fox News, which agreed to pay $787 million to Dominion voting systems, and ABC, which agreed to give $15 million to President-elect Donald Trump’s presidential library.

Online Speech Platforms

Wall Street Journal: American TikTokers Get a Taste of Chinese Censorship as They Rush to RedNote

By Shen Lu, Hannah Miao, and Raffaele Huang

.....It took only about a day for Chinese censors to crack down on posts from Americans who had flooded onto the Chinese social-media app Xiaohongshu.

American TikTok users started downloading Xiaohongshu, which translates as Little Red Book and is known to Americans as RedNote, a little more than a week ago when it looked like TikTok might face a ban in the U.S. Their arrival was greeted by Chinese users and opened an unexpected window for free exchange. American and Chinese Xiaohongshu users have swapped recipes, showed off their homes and compared salaries.

The States

Nonprofit Law Prof Blog: Texas Appellate Court Hears Oral Arguments re: (c)(3) Lobbying and Campaign Intervention Prohibitions

By Darryl K. Jones

.....Wednesday, the brand new Texas 15th Appellate Court heard oral arguments in Paxton v. FIEL. I blogged about the case here, here. and here. That case involves the Lazy-eyed cowboy's effort to revoke a tax exempt nonprofit's state charter because he thinks the nonprofit violates the prohibitions against substantial lobbying and campaign intervention in IRC 501(c)(3). The IRS has never made such allegations against FIEL Houston, but Texas asserts that it has the right to make the determination independently and that if the allegation is proven FIEL should lose its state charter, which requires compliance with 501(c)(3). The state argues that it doesn't matter that FIEL is in good standing at the federal level. During the arguments, which starts at about 58:30, one judge noted that the AG seeks to have the Court act as a "mini-Tax Court" and to do something that no state court has never ever done before in the history of the entire United States.  

You can read the briefs here, but they don't do a very good job of defining or discussing "substantial lobbying" or "campaign intervention."

KNOX: North Dakota House Considers Bills on AI in Political Ads

By Bill Dubensky

.....The House Government and Veterans Affairs Committee held a hearing on House Bill 1167 that would require a “prominent disclaimer” on any political communication or political advertisement created wholly or in part by artificial intelligence tools.

The disclaimer must read: “This content generated by artificial intelligence.”