March 26, 2025

In the News

Reason: 15 Years of Super PACs

By David Keating

.....Super PACs ushered in a new era of speech freedoms and improved American democracy more than I imagined. And I should know—fifteen years ago, I created the first one.

On March 26, 2010, the District of Columbia Circuit Court of Appeals decided SpeechNow.org v. Federal Election Commission (FEC), unanimously striking down a provision of the Federal Election Campaign Act that capped individual contributions to independent expenditure-only committees at $5,000.

I'm proud to have been the lead plaintiff in that case. While Citizens United v. FEC is a watershed political speech case in its own right, commentators often incorrectly give it credit—or blame—for Super PACs. The anniversary of SpeechNow seems an appropriate time to set that record straight.

New from the Institute for Free Speech

FEC Leadership Positions Need Calendar Realignment—and a Fresh Start

By David Keating

.....The Federal Election Commission (FEC) plans to elect a new Chair on Thursday. If it does, the new Chair should take office on May 1 for a one-year term. Here’s why.  

 The FEC previously elected Chairs by calendar year, but this makes no sense. Commissioners’ terms end on April 30, so electing a Chair by calendar year means the Chair’s term is out of sync with commissioners’ terms.  

This situation led to former Commissioner Weintraub arguably illegally serving as Chair twice in a term earlier this year. Under 52 U.S. Code § 30106(a)(5), “A member may serve as chairman only once during any term of office to which such member is appointed.” She stayed long past her original term, which ended in 2007, but the term for her seat would have ended on April 30, 2025. Yet she was Chair in 2019 and then again in 2025. That meant she served for a second time as Chair during the seat’s current term (May 1, 2019 to April 30, 2025). 

 Just as obviously, the law itself is defective, and Congress ought to clean it up. 

Congress

The Center Square: Hearing reveals scope of Biden administration censorship efforts

By Thérèse Boudreaux

.....Jonathan Turley, also a professor at The George Washington University Law School, said that the Biden administration “made censorship efforts part of its official mission” that created “a cottage industry of disinformation experts” funded by millions of taxpayer dollars.

“For years, many in Congress opposed every effort to expose this censorship system,” Turley added. “With the release of the Twitter files, that narrative collapsed. Emails showed government officials directly targeting individuals and groups for censorship or other forms of speech curtailment.”

Benjamin Weingarten, a journalist and contributor to RealClearInvestigations, urged in his testimony that the Republican-controlled Congress act now and shut down any remaining federal censorship initiatives.

“Suffice it to say, if we want to preserve our republic, let alone restore it to greatness, we must abolish this censorship regime,” Weingarten said.

Ed. note: Watch the hearing and read witness testimony here.

The Courts

New York Times: Professors Sue Trump Administration Over Arrests of Campus Protesters

By Sharon Otterman

.....Groups representing university professors sued the Trump administration on Tuesday, alleging that its practice of arresting and threatening noncitizen students and faculty members for protesting on campus deprives U.S. citizens of their right to engage with foreign-born peers and to hear their perspectives.

The lawsuit, filed in U.S. District Court in Massachusetts, takes a broader approach than a flurry of other recent lawsuits challenging the federal government’s deportation policies on college campuses. Those suits, including two involving a Columbia student and a recent graduate who are green card holders, aim to stop individual deportation proceedings.

The lawsuit filed Tuesday challenges the Trump administration’s overall approach to deportation, saying it is unconstitutional.

The decision to target noncitizens who participate in pro-Palestinian protest activity and speech, the lawsuit argues, has created a broadly chilling effect on what can be heard on college campuses.

New York Times: Trump’s Cuts to Columbia Were a ‘Gun to the Head,’ Faculty Lawsuit Says

By Alyce McFadden

.....Two groups representing Columbia University faculty members on Tuesday sued the Trump administration over $400 million in federal funding cuts and demands that the school make dramatic changes to student discipline and admissions policies.

The plaintiffs, the American Association of University Professors and the American Federation of Teachers, asked a Manhattan federal court to restore the funding and argued that the cuts were unconstitutional.

The two groups and Protect Democracy, a nonprofit organization representing them, said in a news release that the funding cuts and an accompanying letter demanding changes to Columbia policy violated the First Amendment. The Trump administration’s actions “have created instability and a deep chilling effect on college campuses across the country,” the statement said.

Washington Post: Law firms refuse to represent Trump opponents in the wake of his attacks

By Michael Birnbaum

.....President Donald Trump’s crackdown on lawyers is having a chilling effect on his opponents’ ability to defend themselves or challenge his actions in court, according to people who say they are struggling to find legal representation as a result of his challenges.

Biden-era officials said they’re having trouble finding lawyers willing to defend them. The volunteers and small nonprofits forming the ground troops of the legal resistance to Trump administration actions say that the well-resourced law firms that once would have backed them are now steering clear. The result is an extraordinary threat to fundamental constitutional rights of due process and legal representation, they said — and a far weaker effort to challenge Trump’s actions in court than during his first term.

Bloomberg: Paul Weiss Cut a Deal With Trump—That Doesn't Mean It Caved

By Stephen Gillers

.....Second, Paul Weiss promised “not to deny representation to clients, including in pro bono matters and in support of non-profits, because of the personal political views of individual lawyers.”

Why is that objectionable, apart from the intrusion on firm governance? Again, would you go to the mat to win that point? The firm remains free to reject a client, as it does now, either because its lawyers disagree with the legal merits of a claim or simply because it doesn’t want to work with a particular client.

The only concession, if it can be called that, is that the political views of individual lawyers won’t create veto power over which clients to accept. Surely, this is true today in any big firm.

Paul Weiss next promises to take on a “wide range of pro bono matters that represent the full spectrum of political viewpoints of our society, whether ‘conservative’ or ‘liberal.’”

What does it mean to say that a legal “matter”—not a person, mind you—represents a “political viewpoint?” Is a First Amendment challenge to a website’s terms of service liberal or conservative? What about a claim that a school board has failed to accommodate a student’s learning disability? Is an amicus brief supporting or opposing birthright citizenship liberal, conservative, neither, or both?

Reason (Volokh Conspiracy): Honestly with Bari Weiss Podcast on Mahmoud Khalil, Speech, and Deportation

By Eugene Volokh

.....I was delighted to be one of the guests on this podcast, which was recorded yesterday and just released this morning:

The Bedrock Principle: The Future of Free Speech’s Comments on The U.S. AI Action Plan

By Isabelle Anzabi

.....On January 23, 2025, the Trump Administration issued an Executive Order titled “Removing Barriers to American Leadership in Artificial Intelligence.” It contends that the U.S. “must develop AI systems that are free from ideological bias or engineered social agendas” to maintain its status as a global leader in the field.

The Administration has invoked free speech as justification for revoking existing AI policies and directives, aligning with broader claims about restoring free speech in America. However, this statement raises some legitimate concerns that the administration could be willing to engage in jawboning or other forms of overreach to shape AI systems’ content moderation policies. This is especially important to highlight given the Administration’s inconsistent commitment to free speech principles.

The States

South Dakota Searchlight: Governor vetoes effort to restrict constitutional amendment process with geographic rule

By Makenzie Huber

.....[South Dakota Republican Gov. Larry Rhoden] signed a large group of other election-related bills into law Tuesday, including a bill requiring labels on political deepfakes within 90 days of an election…

Minnesota Senate DFL: Senator Bonnie Westlin Presents Bill to Prevent Bribery in Minnesota’s Electoral System

By Senator Bonnie Westlin

.....Today, Tuesday, March 25, Senator Bonnie Westlin (DFL – Plymouth) presented Senate File 1812 to the Senate Elections Committee. The bill would expand the current prohibitions on influence in Minnesota elections to prohibit individuals from offering voters a chance to win money or other items in an attempt to influence their vote. 

Currently, it is a felony offense under current law to provide, promise, lend, advance, or give money or other items in an attempt to influence a voter to refrain from voting or to vote in a certain way.

Additionally, the bill also expands the prohibition to include: 

• Attempting to induce a registered or eligible voter to sign a petition that is directly related to an election. This prohibition applies between the start of the absentee voting period and election day. 
• Attempting to influence an individual to register to vote. 

Philanthropy Roundtable: Maine Legislature Considers a Bill That Threatens Donor Privacy

By Megan Schmidt

.....This week, a legislative committee in Maine considered a donor disclosure bill masquerading as a campaign finance transparency measure. The bill, LD 951, would impact any nonprofit that engages in issue advocacy by mandating extensive disclosure of funding sources.  

This bill would require a nonprofit taking a stand on a policy measure to not only report their donors, but their donors’ donors, much like a recently enacted law in Arizona, which is currently being litigated in both federal and state court. Arizona’s Voters’ Right to Know Act, also known as Proposition 211, continues to be problematic for sowing confusion and raising alarms over donor anonymity.