March 3, 2025

In the News

Louisville Courier Journal: McConnell's most underappreciated legacy: His unwavering support of free speech

By Brett Nolan

.....Sen. Mitch McConnell’s recent retirement announcement closes a chapter on one of the most consequential legislative careers in modern American history.

His most underappreciated legacy, though, may be as the Senate’s foremost advocate for free speech.

For four decades, Sen. McConnell has stood as a xxxxxx against restrictions on speech and association, regardless of who led the attack. His principled defense of these fundamental rights often put him at odds with popular opinion — or his own party.

Despite those challenges, Sen. McConnell remained steadfast in his support for free speech. As he said in 2014 in response to a bipartisan effort to restrict election spending, “If incumbent politicians were in charge of political speech, a majority could design the rules to benefit itself and diminish its opponents. And when roles reversed, you could expect a new majority to try to disadvantage the other half of the country. And on it would go.”

He understands something that many fail to appreciate: Government restrictions on anyone’s speech threaten everyone’s liberty.

Supreme Court Historical Society ("Breaking History"):  New Scholarship — Journal of Supreme Court History

.....In this episode of the Breaking History series, Helen J. Knowles-Gardner delves into her groundbreaking article, “‘The ct is disposed to consider the merits… Wow!'” Anthony Lewis Takes Us Inside the Oral Argument in NAACP v. Alabama ex. rel. Flowers (1964),” featured in the Journal of Supreme Court History (Vol. 49, No. 3). Join Editor Ross E. Davies as they explore the pivotal 1964 Supreme Court case, Lewis’s influence, and the broader implications for civil rights law.

Video

NH Journal: Lawyers for Pink Wristband Parents Say Court’s Delay Denies First Amendment Rights

By Damien Fisher

.....With spring sports starting soon, the parents suing the Bow School District over their silent protest want a ruling before players hit the field.

On Wednesday, attorneys representing the parents filed a request for an expedited decision on their request for a preliminary injunction keeping the school district from banning future protests. And, their lawyers told the court, if a ruling is delayed so long it keeps these parents sidelined, they will consider that a denial of their request for relief and pursue an appeal.

The Courts

Politico: National Dems sue over Trump executive order they say could weaponize FEC

By Kyle Cheney

.....National Democrats sued Friday to stave off what they say could be President Donald Trump’s destruction of impartial campaign finance regulation by the Federal Election Commission.

The Democratic National Committee and the campaign arms for congressional Democrats say Trump’s executive order taking control of all independent agencies in the Executive Branch means the FEC could now be weaponized against Trump’s political adversaries in ways it was designed to prevent in the aftermath of Watergate.

In particular, Democrats pinpoint a section in the order that requires all executive branch officials to defer to Trump’s own interpretation of the law, rather than any judgments they may reach on their own. In the context of boards and agencies meant to exercise independent judgment, this order could “replace that bipartisan consensus with the judgment of a single partisan political figure—the President of the United States,” they wrote.

Democrats are asking a judge to declare that the FEC’s independence from the president is constitutionally permitted and to bar the Trump White House from attempting to apply his executive order to the agency. The Democrats’ lawsuit is the first specifically aimed at the FEC and to seek to have Trump’s order itself deemed invalid — at least for that agency.

Ed. note: Read IFS Chairman Bradley A. Smith's comment on the lawsuit here.

Election Law Blog: DOJ Gets Another Extension to Respond to Cert Petition in NRSC Campaign Finance Case–Making It More Likely We Don’t See a Decision for Another Year Plus If SCOTUS Takes Case

By Rick Hasen

.....The latest extension goes through April 9.

My earlier coverage is here and here.

The Media

New York Times: Can the Media’s Right to Pursue the Powerful Survive Trump’s Second Term?

By David Enrich

.....Yet in the years since Donald Trump was first elected president, railing against “fake news” and “crooked” journalists, the Sullivan decision and its actual-malice standard had entered the cross hairs of the conservative legal movement. Quietly at first, a small group of right-wing lawyers, judges and activists set out to water down or abolish this decades-old precedent, which they viewed as unfairly protecting the mainstream media that many on the right loathed. Over the years, Trump and allies like Sarah Palin, the lawyer Alan Dershowitz and the casino mogul Steve Wynn — in a petition to the Supreme Court this year — cajoled the courts to overturn Sullivan.

By the time Berisha’s appeal was rejected in 2020, this campaign was already gaining momentum, thanks in part to support from officials at a network of conservative groups like the Federalist Society, the Claremont Institute and the Heritage Foundation. Weakening Sullivan was a way to weaken the media. A year earlier, the mission picked up the crucial public support of Justice Clarence Thomas, who said in his 1991 confirmation hearings that he had “no agenda” to overturn Sullivan but now argued that it was not grounded in the original meaning of the First Amendment.

Donor Privacy

ALEC: Defending Free Speech: ALEC’s Response to Proposed Amicus Brief Disclosure Rules

By Rose Laoutaris and Nino Marchese

.....In the American Legislative Exchange Council’s (ALEC’s) most recent efforts to protect free speech and civic participation, we recently submitted a federal public comment opposing the proposed amendments to Federal Rule of Appellate Procedure (FRAP) 29. These amendments, proposed by the Judicial Conference of the United States, would impose new disclosure requirements on organizations filing amicus curiae briefs in federal court. These changes threaten to chill public participation in the judicial process and the rights of free speech and association protected by the First Amendment.

The States

Center Square (Washington): Washington court could rule legal fines for Tim Eyman were ‘excessive’

By TJ Martinell

.....More than three years ago, tax protester and initiative sponsor Tim Eyman was fined millions of dollars stemming from Public Disclosure Commission campaign finance violations in 2012.

Now, a court plans to conduct a “trial on paper” to determine whether or not the fines imposed on him were too excessive under state law.

The Washington State Constitution's Article 1, Section 14 contains a provision that protects individuals from receiving fines considered excessive for several reasons, including too “severe” for the offense committed or regarded as so burdensome it denies them the ability to obtain basic needs. Additionally, the fines must take into account the individual’s ability to pay it.

In his request for remand, Eyman’s legal counsel Richard Saunders, a former State Supreme Court justice, argued that it even if no interest was accrued on the $8 million he owes in fines and attorneys fees, it would take him 67 years to pay it off if he made $10,000 monthly contributions.

“If that does not demonstrate Mr. Eyman’s lack of ability to pay, your undersigned cannot imagine what would,” the court document states.

Free Beacon: Stacey Abrams Faces Georgia Senate Investigation: 'Nobody Is Above the Law, Even If They Were a Darling of MSNBC'

By Matthew Xiao

.....The Georgia Senate introduced a resolution Thursday to investigate twice-failed gubernatorial candidate Stacey Abrams (D.) and the New Georgia Project, a voting rights group she founded, after the organization admitted to illegally aiding her 2018 campaign.

Senate Resolution 292 would authorize the Special Committee on Investigations to examine Abrams's ties to the nonprofit, the Atlanta Journal-Constitution reported. In January, the New Georgia Project agreed to pay a record $300,000 fine after it admitted to more than a dozen campaign finance violations, including failing to disclose $4.2 million in campaign contributions and $3.2 million in expenditures. The group made those contributions under the leadership of then-chairman Raphael Warnock, now Georgia's junior senator.

The resolution, which is expected to pass in the Republican-majority chamber, marks a major escalation in efforts to scrutinize Abrams, who claimed for years that the 2018 race, which she lost to Republican governor Brian Kemp, was "rigged" and "stolen."

It also directs the committee to investigate a $2 billion federal grant awarded to Power Forward Communities, another nonprofit linked to Abrams.

Courthouse News: Nevada high court reverses free speech ruling against Las Vegas Review-Journal

By Alan Riquelmy

.....The Nevada Supreme Court has reversed and remanded a free speech case involving the state’s biggest newspaper, finding a lower court erred in a decision concerning photographs and video of law enforcement the paper published.

The high state court’s decision stemmed from a 2023 article in the Las Vegas Review-Journal about the Henderson Detention Center. The Nevada Association of Public Safety Officers argued that the story, titled “Henderson jailers get millions in overtime but still make critical mistakes,” violated a provision of the Peace Officer Bill of Rights.

Law enforcement is restricted from disseminating photos of peace officers, barring certain circumstances. That meant the newspaper broke the law and the Review-Journal needed to obscure officers’ faces depicted in pictures taken from a video, the association argued.

Politico (Digital Future Daily): The right’s global techlash gains a cause celebre

By Derek Robertson

.....A California Democrat wants social media users to see unskippable pop-up ads about the apps’ potential harms.

POLITICO’s Tyler Katzenberger reported for Pro subscribers on a plan from California Assemblymember Rebecca Bauer-Kahan that would mandate people see the daily ad explaining the potential risk of social media to youth mental health.

“I wanted a warning that gave readers at all levels enough time to digest — not something that could just be skipped past,” Bauer-Kahan told POLITICO in a statement Wednesday.

The bill, AB 56, was referred to the California State Assembly’s Privacy and Consumer Protection Committee, which Bauer-Kahan chairs, and it will likely be heard in the coming weeks.

MN House of Representatives (Session Daily): House passes bill to bar state-funded organizations from making political contributions

By Brian Basham

.....Is it a conflict of interest when an organization receives state funding and can make political contributions to a friendly candidate?

Rep. Elliott Engen (R-White Bear Township) believes so.

“Under current law, there’s an inherent and systemic conflict of interest between politicians and nonprofit organizations who can receive direct state aid that’s authored and passed by those same politicians,” said Engen.

A majority of the House agree.

Passed 130-3 Thursday, HF72, as amended, would prohibit any organization from making political contributions or expending money for a political purpose. It now goes to the Senate.

Engen said the bill would return political influence in the state to voters rather than organizations.

Rio Grande Foundation: New Mexico S.B. 85: A Legally Dubious, Speech-Chilling Proposal

.....As passed by the Senate, S.B. 85 would worsen New Mexico’s already objectionable donor reporting requirement for independent expenditures (IEs). The bill brazenly doubles down on a law the Rio Grande Foundation (RGF) is currently challenging in court for being unconstitutionally overbroad.