February 14, 2025

New from the Institute for Free Speech

Comments to the FEC on the Modification and Redaction of Contributor Information

By Bradley A. Smith

.....On February 13, 2025, the Institute for Free Speech responded to a notice of proposed rulemaking and wrote comments to the Federal Election Commission supporting the proposed rules and approach set forth in REG 2024-06 (Notice 2024-29). The comments suggest several ways to broaden the proposed rules to better address the full scope of the reporting exemption.

Read a PDF of the comments here.

Free Speech Arguments – Can the SEC Permanently Silence Critics? (Powell, et al. v. SEC)

.....Powell, et al. v. United States Securities and Exchange Commission, argued before Circuit Judges Sidney R. Thomas, Daniel A. Bress, and Ana de Alba in the U.S. Court of Appeals for the Ninth Circuit on February 13, 2025. Argued by Margaret A. Little of the New Civil Liberties Alliance (NCLA) (on behalf of Powell, et al.) and Archith Ramkumar (on behalf of the United States Securities and Exchange Commission).

Background of the case, from the Institute for Free Speech amicus brief:

The Courts

New York Post: New Hampshire town and bakery take their ‘First Amendment’ legal battle over colossal pastry mural to trial

By Anna Young

.....A New Hampshire bakery and the town of Conway are headed to federal court Friday to settle a years-long First Amendment dispute over a brightly painted mural of baked goods atop the businesses roof. 

The highly-contentious trial will kick off nearly three years after Leavitt’s Country Bakery owner Sean Young was informed his colorful 90-square-foot sign violated local code and needed to be modified or taken down – or face possible criminal charges or fines. 

Congress

New York Times: Ro Khanna: Democrats Have a Future. Here It Is.

By Ro Khanna

.....Actually listening can help heal divisions in a nation that, despite appearances to the contrary, is longing for reconciliation. For this to happen, the first step is for my party not to look down on people who have differing viewpoints on social or cultural issues. “Canceling” needs to stop, as does policing language and lecturing people on exactly how they must express themselves. Without giving up on our values as a party, we should respect different ways of life across our vast nation and show humility about our own prejudices and imperfections…

That is not all. We must be crusaders against corruption because right now only politicians with independence, who dare to call out the status quo, will get a hearing from the public. This has to mean more than lofty promises about getting money out of politics or overturning Citizens United, which people may doubt will come to pass anytime soon.

We should lead with concrete initiatives such as replicating, nationally and in the other 49 states, Maine’s referendum that limited the contributions the wealthy can make to super PACs (which passed with more than 70 percent of the vote). We should refuse PAC money, bar members of Congress from becoming lobbyists once they leave office, and call for term limits for ourselves and Supreme Court justices.

Free Expression

New York Times: How Elon Musk and the Right Are Trying to Recast Reporting as ‘Doxxing’

By Ken Bensinger

.....For years, journalists have written about the social media posts of government employees to help reveal the positions, motivations and actions of public officials.

But when a journalist recently trained that same lens on Elon Musk’s new government efficiency program, the billionaire suggested that the reporting might be illegal, joining other powerful figures connected to the Trump administration who have made similar claims in recent weeks.

The offense, they argue, is doxxing: publishing private information about someone with malicious intent. The term refers to a revenge tactic, originally used by hackers, to bully, harass or intimidate people online, and can incite third parties to commit acts of violence.

The Verge: The FCC is a weapon in Trump’s war on free speech

By Nilay Patel

.....I’ve been the editor-in-chief of The Verge for over 10 years now, and a tech journalist for about 15 — and until recently, it felt pretty safe to assume that there was a zero percent chance that the US government would punish me for doing my job. There’s that whole First Amendment in this country, after all — we don’t usually tolerate government interference with speech, and we have a high bar for how public figures like politicians and celebrities can use defamation law to shut down reporting they don’t like.

So it’s been fairly disconcerting these first few weeks of the second Trump administration to realize, suddenly, there’s a nonzero chance the government will punish our work. All that talk about the media being the enemy of the people is turning into concrete legal action against publishers, broadcasters, and platforms that don’t do what the Trump White House wants.

NorthJersey.com: Can US cancel student visas of pro-Palestinian protesters? It's happening, says legal group

By Hannan Adely

.....President Donald Trump's pledge to revoke student visas of pro-Palestinian protesters sparked outcry over threats to free speech and legal debates over constitutionality, but it was already happening quietly under the Biden Administration, according to a legal advocacy group.

Even as the measure was debated, federal officials were canceling visas for some students who had traveled outside the United States, due to their activism, the American-Arab Anti-Discrimination Committee said Wednesday.

"Hearing more and more from students who left for a short trip abroad and are unable to return after their visas got cancelled," Abed Ayoub, national executive director of the ADC, wrote on X…

"The First Amendment protects everyone in the United States, including foreign citizens studying at American universities," Carrie DeCell, senior staff attorney at the Knight First Amendment Institute, said in a statement. "Deporting non-citizens on the basis of their political speech would be unconstitutional."

Still, the federal government does have "significant authority over those who may enter and stay in the country," and court cases around the issue are complicated, said the Foundation for Individual Rights and Expression.

People United for Privacy: Debanking Undermines Fundamental American Principles

By Luke Wachob

.....Debanking is a problem for Americans both individually and in groups. In one instance, Chase closed the account of a religious nonprofit organization without warning. When asked to reconsider, they demanded to see the group’s confidential donor list and a list of candidates they supported in upcoming elections.

An organization’s political leanings should have no bearing on their ability to open a bank account. The demand for access to a nonprofit’s donor list is also highly inappropriate. Even if the bank itself did not misuse the information, even a single rogue employee with access to the list could do irreversible damage to donor privacy and public trust.

The States

Idaho Capital Sun: Anti-SLAPP bill heads to Idaho House with bipartisan support

By Clark Corbin

.....A bill that its sponsors say is designed to protect free speech and public participation from frivolous lawsuits is heading to the floor of the Idaho House of Representatives with bipartisan support. 

Late Thursday afternoon, the House Judiciary, Rules and Administration Committee voted unanimously to send Senate Bill 1001 to the House floor with a recommendation to pass it.

Rep. Heather Scott, a Blanchard Republican who presented the bill Thursday at the Idaho State Capitol in Boise, described Senate Bill 1001 as a tool designed to fight strategic lawsuits against public participation, or SLAPP lawsuits…

If passed into law, the bill would create a new anti-SLAPP motion that people could file if they are subject to a frivolous lawsuit. The anti-SLAPP motion would place a stay, or a freeze, on the case and allow a judge to quickly dismiss frivolous lawsuits that are filed without merit without having to go through a lengthy, drawn out legal case. In such cases, the winning party would also be able to recover court costs and attorney fees. 

The Texas Lawbook: The Truth About the TCPA

By Professor Robert Sherwin & Laura Prather

.....The truth is that the TCPA allows Texans to speak freely on matters of public concern without having to fear reprisal from powerful interests. The TCPA allows for an expedited motion to dismiss baseless lawsuits in order to spare Texas citizens from intrusive and expensive legal proceedings. To ensure that protection, the TCPA includes an automatic stay of discovery and the right to pursue an interlocutory appeal of a trial court’s decision. The law has protected Texans of all political persuasions — from pro-life activists to left-leaning media outlets.

Critics of the TCPA are now working to scale back its protections — in SB 336 sponsored by Texas Sen. Bryan Hughes and its companion HB 2459 sponsored by State Rep. Jeff Leach — by eliminating the discovery stay and stay of trial court proceedings during an interlocutory appeal in cases where a trial court has determined that the motion to dismiss is untimely, frivolous or covered by an exception to the law. These “reforms” would remove critical checks and balances that prevent speakers from being punished while courts determine whether a case has merit. 

Kansas Reflector: Kansas House committee advances election-reform bill that’s more than a name change

By Tim Carpenter

.....The House Elections Committee approved a package of campaign finance reforms arising from disputes about Kansas’ definition of a political action committee, coordination among PACs and candidates, and contributions given by a person in the name of another.

The Kansas Governmental Ethics Commission, which would be renamed the Kansas Public Disclosure Commission in the bill, has engaged for several years in political and legal battles with Kansas attorneys representing activists who bristled at vague language in state election statutes and challenged constitutionality of the nine-member commission’s interpretation of laws.

Discord reached the Republican-led Kansas Legislature, which has responded by embracing changes that reduced the commission’s authority.

Josh Ney, who has represented Kansans in election lawsuits in state and federal court, told legislators House Bill 2206 would bring Kansas into constitutional compliance by compelling the commission to apply new standards to determining what level of advocacy equated to operation of a PAC and sorting out issues of coordination among PACs and candidates.

GPD: As Georgia lieutenant governor raises cash, a possible 2026 opponent questions how it can be spent

By Associated Press

.....Georgia Attorney General Chris Carr raised $2.2 million for his 2026 gubernatorial bid in less than two months after taking the unprecedented step of announcing in November.

Lt. Gov. Burt Jones, who could be Carr's top opponent in the 2026 GOP primary, raised $1.7 million for what Georgia calls a leadership committee, filings show.

The question, though, is whether Jones can use that money in a Republican primary. In 2022, a federal judge ruled that incumbent Gov. Brian Kemp couldn't spend money from his leadership committee against challenger David Perdue in a GOP primary.

Carr strategist Heath Garrett said the ruling still applies.

Tallahassee Democrat: Push to ban Pride, Black Lives Matter flags on public buildings in Florida renewed by GOP

By John Kennedy

.....A push to ban Pride flags and banners supporting Black Lives Matter from government buildings and schools is back in the Florida Legislature, sponsored by a Republican lawmaker poised to win a seat in Congress.

Sen. Randy Fine, R-Melbourne, who is expected to win an April 1 special election for the seat vacated by President Trump’s National Security Advisor, Michael Waltz, had sponsored a similar flag ban last year in the state House.

But the measure was derailed then by the state Senate, whose leaders said they wanted to steer clear from divisive, culture war issues on the eve of election season.

With last fall’s elections over, Fine’s bill (SB 100) is back.