October 14, 2025

In the News

Indianapolis Business Journal: David Keating: Provocative speech can provide teachable moments

By David Keating

.....Teachers play a unique role in educating children and, in the case of younger children, are entrusted with their care. That’s why many public school contracts include clauses that reference morality or “moral turpitude” as a condition of employment.

It’s easy to imagine how a school could reasonably conclude that ill-conceived statements about Charlie Kirk’s assassination make someone unfit to continue teaching young children. But will the punishment meted out under that rationale stand up to constitutional scrutiny?

The legal framework courts often use to navigate these questions is known as the “Pickering Test,” established in the 1968 Supreme Court case Pickering v. Board of Education. This test weighs several factors when determining whether a public employee’s speech is protected. Subsequent court rulings further refined the test.

Speech on political issues—even offensive speech—usually counts as a “matter of public concern” and generally receives significant protection under the First Amendment. Context also matters. Remarks made on personal time and personal accounts are safer than those made at work.

The Courts

Cleveland.com: Constitutional common sense absent in 6th Circuit’s HB 1 ruling: Mark Brown

.....Democracy in Ohio suffered a setback when the 6th U.S. Circuit Court of Appeals in Cincinnati last month refused to block Ohio’s House Bill 1 ban on “foreign nationals” “[m]ak[ing] a contribution … or independent expenditure in support of or opposition to a statewide ballot issue.” Unlike its federal counterpart, Ohio’s ban extends to “issue advocacy” (ballot measures) and criminalizes speech by lawful permanent residents (green card holders) living in Ohio. Further deviating from the longstanding federal prohibition – which allows criminal penalties only when violations are “willful” -- Ohio’s new prohibitions criminalize innocent mistakes.

As then-Judge Brett Kavanaugh explained a dozen years ago, Congress chose not to apply the speech restrictions placed on foreign nationals to green card holders because the latter “stand in a different relationship to the American political community …., [and] have a long-term stake in the flourishing of American society.” Kavanaugh also noted that punishing “issue advocacy — that is, speech that does not expressly advocate the election or defeat of a specific candidate” (which federal law does not do) -- could cross the constitutional “line drawn by the Supreme Court in [FEC v.] Wisconsin Right to Life,” a precursor to its better-known holding in Citizens United v. FEC (extending First Amendment protections from nonprofits to for-profit corporations).

AP News: Supreme Court rejects Alex Jones’ appeal of $1.4 billion defamation judgment in Sandy Hook shooting

By Mark Sherman

.....The Supreme Court on Tuesday rejected an appeal from conspiracy theorist Alex Jones and left in place the $1.4 billion judgment against him over his description of the 2012 Sandy Hook Elementary School shooting as a hoax staged by crisis actors.

Reason (Volokh Conspiracy): School Allowed to Fire Teacher Whose Criticisms of School Policy Led to "Disruptive" Criticism and Insults from Public

By Eugene Volokh

.....From Tempel v. School Dist. of Waukesha, decided Sept. 29 by Magistrate Judge Nancy Joseph (E.D. Wis.):

Reuters: Judge dismisses retail group's challenge to New York surveillance pricing law

By Jonathan Stempel

.....A federal judge on Wednesday dismissed a lawsuit by the National Retail Federation challenging a New York state law that requires retailers to tell customers when their personal data are used to set prices, known as surveillance pricing.

U.S. District Judge Jed Rakoff in Manhattan said the world's largest retail trade group did not plausibly allege that New York's Algorithmic Pricing Disclosure Act violated its members' free speech rights under the Constitution's First Amendment.

Neither the NRF nor its lawyers immediately responded to requests for comment after business hours. Spokespeople for New York Attorney General Letitia James, whose office defended the law, did not immediately respond to similar requests.

The first-in-the-nation law required retailers to disclose in capital letters when prices were set by algorithms using personal data, or face possible civil fines of $1,000 per violation.

FEC

Washington Post: This is no way for political campaigns to treat their own workers

By Jason Ross

.....In 2024, I was left waiting months for a political campaign to pay me more than $20,000 for services I’d already delivered. The campaign lost, the money dried up, and suddenly my calls weren’t being returned. It wasn’t my first campaign, and unfortunately, it wasn’t the first time I’d seen this happen…

Nationally, there’s no reliable data on how much campaign debt goes unpaid, but anecdotal evidence suggests it’s substantial. The Federal Election Commission allows campaigns to carry debt indefinitely, meaning many simply never close their books. The Freelancers Union has long noted that independent contractors in politics are especially vulnerable because they operate outside traditional employment protections.

It’s time for reform — at both the structural and cultural levels. The FEC could require campaigns to place vendor payments in escrow before major expenditures are approved. States could mandate financial disclosure rules that make outstanding debts public, just like donations. Donors and party committees could also help by conditioning future support on candidates with a record of paying their bills in full.

Trump Administration

Fox News: 'Riot Inc.': Trump launches 'whole-of-government' push to expose Antifa funding networks, dark money sources

By Greg Wehner 

.....The Trump administration is intensifying efforts to trace the funding behind Antifa and other protest movements, pursuing what officials describe as a coordinated campaign to expose the nonprofit and dark money networks they believe are fueling organized unrest across the country.

President Donald Trump hosted a White House roundtable Wednesday with independent journalists who have experienced Antifa’s violence firsthand, part of his administration’s broader push to confront domestic unrest.

Among those attending was Seamus Bruner, research director at the Government Accountability Institute, who said the administration’s "whole-of-government" approach is now fully underway…

"It’s not just Antifa, but there is a whole ecosystem of radical, professional protesting organizations," he said, describing what he calls "Riot Inc." as a corporate-style operation with divisions for boots on the ground, marketing, PR and legal support.

Wall Street Journal: MIT Rejects Trump’s Sweeping ‘Compact’ Offering Colleges Funding Advantages

By Douglas Belkin and Natalie Andrews

.....The Massachusetts Institute of Technology became the first university to reject a sweeping proposal from the Trump administration offering colleges funding advantages in exchange for far-reaching campus reforms.

In a letter to Education Secretary Linda McMahon Friday, MIT President Sally Kornbluth said the proposal—called the “Compact for Academic Excellence in Higher Education”—would restrict freedom of expression and MIT’s independence. The proposal is inconsistent with the school’s belief that scientific funding should be based on scientific merit alone, she said.

“In our view, America’s leadership in science and innovation depends on independent thinking and open competition for excellence,” Kornbluth wrote. “The people of MIT gladly compete with the very best, without preferences. Therefore, with respect, we cannot support the proposed approach to addressing the issues facing higher education.”

Online Speech Platforms

Fox News: Newest generation of GPT models show major drop in political bias, OpenAI says

By Nikolas Lanum 

.....OpenAI says its latest generation of artificial intelligence (AI) models, including GPT-5 Instant and GPT-5 Thinking, show a significant reduction in political bias compared to previous versions, according to a new internal report obtained by Fox News Digital.

The report, titled "Defining and Evaluating Political Bias in LLMs," details how OpenAI developed an automated system to detect, measure and reduce political bias in its artificial intelligence platforms. This is part of a broader push to assure users that ChatGPT "doesn’t take sides" on controversial topics.

"People use ChatGPT as a tool to learn and explore ideas," The OpenAI report states. "That only works if they trust ChatGPT to be objective."

The American Prospect: AI Is Changing How Politics Is Practiced in America

By Nathan Sanders and Bruce Schneier

.....Campaigners—messengers, ad buyers, fundraisers, and strategists—are focused on efficiency and optimization. To them, AI is a way to augment or even replace expensive humans who traditionally perform tasks like personalizing emails, texting donation solicitations, and deciding what platforms and audiences to target.

This is an incremental evolution of the computerization of campaigning that has been underway for decades. For example, the progressive campaign infrastructure group Tech for Campaigns claims it used AI in the 2024 cycle to reduce the time spent drafting fundraising solicitations by one-third. If AI is working well here, you won’t notice the difference between an annoying campaign solicitation written by a human staffer and an annoying one written by AI.

But AI is scaling these capabilities, which is likely to make them even more ubiquitous. This will make the biggest difference for challengers to incumbents in safe seats, who see AI as both a tacitly useful tool and an attention-grabbing way to get their race into the headlines. Jason Palmer, the little-known Democratic primary challenger to Joe Biden, successfully won the American Samoa primary while extensively leveraging AI avatars for campaigning.

The States

Wall Street Journal: California Attacks Business Free Speech

By The Editorial Board

.....California Gov. Gavin Newsom, like every politician, claims to be a champion of free speech. Then why is his state arguing in court that progressive climate orthodoxy trumps free speech?

The answer is because the Democratic left wants to force businesses to disclose publicly their putative climate risks and CO2 emissions. The Biden Securities and Exchange Commission’s effort to compel such disclosures hit a dead end when President Trump took office.

Enter Mr. Newsom, who is now leading the campaign. California law requires companies with more than $500 million in annual revenue that “do business” in the state—which can mean having a single employee or contractor in the state—to detail how speculative climate-related risks could affect their businesses.

Politico: Newsom, siding with tech giants, vetoes online hate speech bill

By Tyler Katzenberger

.....Gov. Gavin Newsom on Monday vetoed a bill that threatened massive fines when social media companies intentionally feed their users violent or extremist content, avoiding a potential court fight over free speech rights.

The bill, SB 771, was framed as California lawmakers’ latest attempt to curb violent content and discrimination on social media platforms. Large social media companies would have faced penalties of up to $1 million if they promoted content that violated California’s civil rights laws in a way that harmed a user. The fines would have doubled if the person harmed was a minor.

It was partly a response to Meta, X and other social media companies relaxing their content moderation standards amid criticism from President Donald Trump and Republican allies, who claim stringent controls dampen conservative voices.

Newsom, in a statement explaining his veto, said he shared concerns about “discriminatory threats, violence and coercive harassment online” but called SB771 “premature.”

Oregon Capital Chronicle: Oregon Supreme Court suggests narrowing vape packaging rules in free speech case

By Shaanth Nanguneri

.....The Oregon Supreme Court questioned the scope Wednesday of an Oregon measure struck down by a lower court that regulated vape packaging in a case highlighting the tension between the state’s free speech protections and regulation of corporate activity. 

The court’s seven justices heard arguments from the state Department of Justice and an Arizona-based libertarian think tank on a case involving a 2015 Oregon law that prohibits the sale of vape systems which are “packaged in a manner that is attractive to minors.” The Oregon Court of Appeals in an October 2024 ruling struck down the law on the grounds that it impinged on the free speech rights of owners of a Portland vape shop, but the state appealed the decision.