February 25, 2025

In the News

Gilmer Mirror: The threat to the Texas Citizens Participation Act — also known as our anti-SLAPP law

By Amy Kristin Sanders

.....Imagine being the target of a vexatious lawsuit completely without merit in which you ultimately prevail—only to find out that you not only have to pay your attorney’s fees but also the other side’s.

That’s the likely outcome if the Texas Legislature passes HB 2988 this session.

The bill, sponsored by Rep. Mano DeAyala, R-Houston, would gut the Texas Citizens Participation Act, leaving it basically toothless...

A 2023 Report by the Institute for Free Speech estimated the median cost of defending a meritless defamation lawsuit at around $39,000, but the report noted costs could run into the millions.

But Rep. DeAyala’s bill would change that by making the award of attorney’s fees discretionary rather than mandatory. Even worse, it could allow plaintiffs to try to force defendants to pay the plaintiffs’ legal costs or give courts a mechanism to punish speakers with whom they disagree, dramatically chilling free speech.

Texas isn’t alone in having this mandatory ‘fee-shifting’ provision, as it’s called. Right now, 35 U.S. states have laws similar to the TCPA, and the Institute for Free Speech found the majority of them—certainly the ones that provide the most protection for free speech—also require unsuccessful plaintiffs to pay the defendant’s attorney’s fees.

The Courts

NBC News: Greenpeace says a pipeline company's lawsuit threatens the organization's future

By AP News

.....A Texas pipeline company’s lawsuit accusing Greenpeace of defamation, disruptions and attacks during protests against the Dakota Access Pipeline goes to trial in North Dakota on Monday, in a case the environmental advocacy organization says threatens free speech rights and its very future…

“This trial is a critical test of the future of the First Amendment, both freedom of speech and peaceful protest, under the Trump administration and beyond,” Greenpeace USA Interim Executive Director Sushma Raman told reporters. “A bad ruling in this case could put our rights and freedoms in jeopardy for all of us, whether we are journalists, protesters or anyone who wants to engage in public debate.”

Ed. note: Greenpeace's press release is available here.

Nonprofits

Nonprofit Law Prof Blog: An Update on Johnson Amendment Challenges

By Darryll K. Jones

.....Last year, in the run-up to the election, we spent some time discussing the Johnson Amendment.  There were plenty of examples proving the prohibition against campaign intervention pretty much unenforceable, both as a practical and legal matter. Organized worshippers, especially and as happens every four years, openly endorsed or opposed candidates. I used to think the world would not come to an end by campaign intervention but I could be wrong, as it turns out. 

For a brief moment, there was a well-crafted petition that was sure to force Treasury to defend the prohibition in court. But SAFE SPACE withdrew its petition to give the Service more time to rule on the 1023. SAFE SPACE’s 1023 candidly admits that the nonprofit intends to endorse candidates so I am not quite sure what the hold up is. Anyway, there is no word on when the Service will act on the application and the complaint has not been re-filed. 

The other well-publicized Johnson Amendment challenge involves the National Religious Broadcasters, two churches and another religious organization. 

Nonprofit Law Prof Blog: Virginia Legislators Try Again to Revoke Property Tax Exemption for Confederate Heritage Organizations

By Darryll K. Jones

.....Last year I told you that the Virginia Legislature passed a bill that would revoke tax exemption for several specifically named confederate heritage organizations. Governor Glenn Youngkin, who some view as a moderate Republican -- if there still is such a thing -- vetoed the bill, explaining quite reasonably that Virginia's system of granting or revoking charitable property tax exemption by legislative designation was outdated and allowed for abuse. Under Virginia law, an organization can be exempted if it fits within a relatively narrow classification consisting of dissimilar organizations ranging from religious organizations to libraries, the YMCA, and museums. Charitable organizations that do not fit into the disparate group may be exempted by a specific state statute (that process is referred to as "designation").  By statute, the legislature can also revoke property tax exemption by designation. That is what the Virginia lawmakers are attempting to do once again. Here is the summary of HB 1699, introduced and passed in the House last month and then in the Senate on Tuesday:

Free Expression

New York Times (Morning Newsletter):Censoring Games

By German Lopez

.....Marvel Rivals is one of the biggest video games in the world. Since its launch in December, more than 40 million people have signed up to fight one another as comic book heroes like Iron Man and Wolverine.

But when players used the game’s text chat to talk with teammates and opponents, they noticed something: Certain phrases, including “free Hong Kong” and “Tiananmen Square,” were not allowed.

While Marvel Rivals is based on an iconic American franchise, it was developed by a Chinese company, NetEase Games. It has become the latest example of Chinese censorship creeping into media that Americans consume.

You can’t type “free Tibet,” “free Xinjiang,” “Uyghur camps,” “Taiwan is a country” or “1989” (the year of the Tiananmen Square massacre) in the chat. You can type “America is a dictatorship” but not “China is a dictatorship.” Even memes aren’t spared. “Winnie the Pooh” is banned, because people have compared China’s leader, Xi Jinping, to the cartoon bear.

The Hill: As US censorship industry collapses, the fight for free speech moves to Europe

By Jonathan Turley

.....A speech-regulation industry that was booming under Biden has gone bust under Trump. Over the last four years, massive amounts of money were poured into universities, non-governmental organizations and other groups in an unprecedented alliance of government, academia and corporations.

The media lionized many in the industry as “saving democracy” by controlling, targeting and suppressing others’ political speech. Not only did federal agencies fund these efforts, but they also coordinated censorship of groups and individuals with opposing views, even objecting to jokes on the internet.

Universities cashed in on this largesse as well. It was popular with most liberal administrators and lucrative for academics.

Candidates and Campaigns

Wall Street Journal: GOP Email System Infiltrated by Chinese Hackers Last Summer, New Book Reveals

By Meridith McGraw and Dustin Volz

.....As the Republican National Committee was gearing up for its convention in Milwaukee, it was also quietly dealing with a serious security breach of its internal communications by hackers with ties to the Chinese government, according to people familiar with the matter.

In early July, Microsoft reached out to top party officials to inform them that the hackers had for months had access to the RNC email system, the people said. The previously unreported breach is revealed in reporter Alex Isenstadt’s forthcoming book, “Revenge: The Inside Story of Trump’s Return to Power.” The Wall Street Journal viewed an excerpt of the book, which will be released next month, and verified the hack.

New York Times: The Death of Competition in American Elections

By Nick Corasaniti and Michael Wines

.....“One thing incumbents worry about is that it’s pretty easy for someone who doesn’t like you to pull together a super PAC and get money,” said Robert G. Boatright, an elections scholar at Clark University, in Worcester, Mass., who in 2013 literally wrote the book on congressional primaries.

Two decades ago, Mr. Boatright said, incumbents lost primaries because of scandal, age or national issues that overrode local loyalties. Today, they are felled by ideological opponents or issue-oriented interest groups often backed by wealthy patrons or legions of small donors with few ties to the races they are financing...

Steven Rogers, an expert on state politics at Saint Louis University, in Missouri, said politicians who edged closer to the political fringes were less likely to face primary challenges.

“It’s becoming increasingly clear that over time, more extreme candidates are winning at both state legislative and congressional levels,” he said.

The States

KELO: Gosch wants to limit Noem-Johnson finance loophole

By Bob Mercer

.....A campaign finance change that could affect the 2026 contest for governor is moving ahead in the South Dakota Legislature.

House Bill 1242 seeks to limit how much a federal candidate’s fundraising committee can transfer.

Currently there’s no limit. That’s how then-U.S. Rep. Kristi Noem took advantage of the opening to shift $1.6 million from her congressional campaign committee to her Kristi For Governor committee. She went on to win the 2018 election for governor.

In 2018, U.S. Rep. Dusty Johnson won the seat that Noem held. Johnson is now considering a run for governor in 2026 and has been following the same path as she did…

The legislation now moves to the House of Representatives for a vote on Tuesday. The Senate meanwhile is considering Senate Bill 201 that would prohibit South Dakota political candidates from accepting contributions or loans from federal candidates’ committees.

Federalist Society: New Report Fails to Vindicate Public Campaign Finance

By Joseph Thomas Burns 

.....Earlier this month, the progressive Brennan Center for Justice released a report on New York State’s public campaign finance program. The 2024 election was the first one conducted where candidates for the state legislature were able to obtain taxpayer funding through matched contributions for their campaigns. In 2026, candidates for statewide office, including governor, will also be able to obtain taxpayer funding for their campaigns.

The Brennan Center’s report concludes that the public campaign finance program has been a complete success…

The Brennan Center report, however, completely ignores major problems the program encountered during its first run in 2024. For instance, as was predicted by its critics, the public campaign finance program appears to have allowed unscrupulous candidates and consultants to corruptly obtain taxpayer funding for campaigns. One Democratic candidate for state assembly in Queens allegedly used fake donors and forged signatures to obtain over $160,000 from taxpayers for his campaign. The candidate lost the Democratic primary (he was trounced), but that didn’t end the apparent hijinks surrounding his campaign. Late last year, the story broke that the FBI and U.S. Attorney’s Office were investigating the campaign and its participation in the state’s public campaign finance program.

Milwaukee Journal Sentinel: Liberal Wisconsin brewery owner embroiled in another legal fight with local publisher

By Mary Spicuzza

.....A Wisconsin brewery owner and liberal activist is facing another lawsuit from his longtime foe, a conservative newspaper publisher.

The complaint, filed Wednesday in Oneida County Circuit Court, accuses Minocqua Brewing Company owner Kirk Bangstad of defrauding donors to his super PAC by funneling thousands of dollars to himself and "sham entities" he controls.

In the lawsuit, Gregg Walker and Heather Holmes, the publisher and general manager of the Lakeland Times, also allege that Bangstad violated their privacy by using their images on brewery products or for advertising purposes.

In November, Minocqua Brewing began selling "Snowflake Holiday Ale" featuring Walker's name and image, the complaint says. Photographs of the beer included in the filing show a can featuring Walker surrounded by a bright blue snowflake. The company is known for its beers named after Democratic figures such as Joe Biden (Biden Beer), Tony Evers (Evers Ale), and Alexandria Ocasio-Cortez (AOC IPA).

The complaint also cites a Minocqua Brewing Company Facebook post featuring an altered image of Holmes dressed as a latex-clad dominatrix and holding a flogger while standing over Walker.

Accompanying the image: "Disclaimer: similar to Fox News, this content is for entertainment purposes only and is purely fictional in nature. Any relationship to real-life characters is purely coincidental."