Email from The Institute for Free Speech The Latest News from the Institute for Free Speech December 16, 2025 Click here to subscribe to the Daily Media Update. This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected]. Supreme Court Executive Functions: Campaign Finance in a Polarized Republic By Bob Bauer .....The precise issue before the Court is the operation under federal campaign finance law of the “coordination” rules. Their significance rests on a distinction the Supreme Court drew many years ago in Buckley v. Valeo between a “contribution” and “expenditure” for the purpose of influencing a federal election. In the interests of protecting against corruption or the “appearance” of corruption, the law limits the amount of any contribution to a candidate, party, or other political committee. Generally—and omitting here discussion of complex exceptions—an expenditure for the benefit of a candidate or political organization is also a contribution, and also subject to dollar limits, if it is “coordinated” with them—that is, it is made at their request or suggestion, or in consultation with them. Special rules apply to the coordination of “public communications,” such as paid advertising. However, an expenditure that is made independently of any involvement by the party or candidate is exempt from limits. The theory behind this constitutionally grounded distinction between a contribution and an expenditure is that the independent spender is engaging in direct First Amendment-protected speech, while a contribution—whether made directly or on a coordinated basis—primarily funds the candidate’s speech and is entitled to less protection. The speech involved in making a contribution is thus treated as lesser order expression, referred to by the Court in 1981 as “speech by proxy.” The funder is speaking, but one step removed from the ultimate, publicly directed speech—the candidate’s—it is paying for. Election Law Blog: Should the First Amendment Provide Greater Protection for Political Parties Than for Other Groups? By Richard Pildes .....In yesterday’s campaign-finance argument, NRSC v. FEC, several Justices asked whether, if the Court held that the First Amendment did not permit limits on political parties’ coordinated expenditures with their candidates, whether that meant coordinated limits for other groups, such as PACs, would also be unconstitutional. This question asks, in essence, whether parties should be understood to have distinct and more protective First Amendment interests in the election process than other groups. The question was not engaged in a sustained way in the argument. The Court has decided a number of cases involving the First Amendment rights of political parties, but it has never had to answer a question of this sort before — though there a couple hints in the cases that might be taken to suggest parties have unique associational rights. My own view is that parties should indeed be understood to have distinct and more protective First Amendment interests, at least in the context of engaging in coordinated political communication with their candidates. The Courts Jonesing for Nonprofits: Judge Denies Motion to Intervene in Johnson Amendment Case, Stays Proceedings Pending Appeal. By Darryll K. Jones .....Last Friday, Judge J. Campbell Barker denied Americans United’s motion to intervene in the Johnson Amendment litigation pending in the Eastern District of Texas. Although he denied the motion, the judge said he would “continue to consider AUSCS’s arguments made in its amicus brief.” I am not an expert in civil procedure but the written order seems eminently reasonable to me. The rationale boils down to a conclusion that Americans United has only an ideological interest in the litigation’s outcome. The most significant consequence, I imagine, is that if the judge approves of the consent order, nobody will have standing to pursue an appeal. An intervenor could have appealed. The parties themselves will have waived any appeal if the consent order is granted. As a result, national law on an important issue will have been determined by a single district court. All without much debate or contemplation of the sort involved in the legislative or regulatory process. Part of the judge’s reasoning for denying intervention was that the case involves a dispute between just the plaintiffs and defendant, and will not affect American United or anybody else’s rights. That might be technically true. But the case will necessarily set national policy. Whatever the IRS concedes to the religious plaintiffs it must concede to all religious organizations. The First Amendment precludes it from allowing certain, but not all religion organizations to engage in campaign intervention. Indeed, the IRS will no doubt cite the consent order (if it is approved) when it proposes new regulations on the Johnson Amendment, as it has promised to do next year. Tallahassee Democrat: CAIR files lawsuit against DeSantis after terrorist designation By Stephany Matat .....One of the largest Muslim advocacy and civil rights groups is taking Gov. Ron DeSantis' administration to federal court, saying that declaring it a "foreign terrorist organization" is a First Amendment violation. The Council on American-Islamic Relations (CAIR) filed the lawsuit in the Northern District of Florida in Tallahassee. DeSantis had signed an executive order on Dec. 8 and announced the move on X. It directs Florida agencies to deny privileges or resources to anyone "providing material support" to the organization. In its complaint, filed late on Dec. 15, CAIR said it speaks on "core protected expression" on matters of public concern, "such as domestic and international issues affecting American Muslims." It further argues that DeSantis' executive order impinged on "political and religious expression," which "demonstrates impermissible viewpoint discrimination," when the government favors or suppresses speech based on the speaker's perspective. "These forms of expression lie at the heart of First Amendment speech protection," the complaint says. Simple Justice: Free Speech In A Texas Bathroom By Scott H. Greenfield .....For many of us, the reaction to an image of a transgender female (a biological male, as the Fifth Circuit notes, lest anyone be confused) washing her hands at the sink in a woman’s rest room would be a shrug. Regardless of our feelings about the new rules for transgender people, this just isn’t worthy of much outrage. For Travis County District Attorney, José Garza, it’s worthy of an investigation toward a felony prosecution. The Fifth Circuit agrees... Notably, Michelle Evans didn’t take the photo. Also notably, Evans was in the lege gallery to observe a debate about transgender issues. Even more notably, the photo reflected one of the problems Evans perceived with transgender issues. Whether you agree with Evans or not, there is no question that she was making a political statement by retwitting the pic about a controversial political issue. So Evans sought to enjoin Garza for prosecuting her for exercising her First Amendment right. The circuit majority wasn’t buying. Trump Administration The Guardian: Beware Trump’s two-pronged strategy undermining democracy By David Cole .....The second prong of Trump’s strategy is to neutralize the opposition. The rule of law cannot rely on courts alone. It depends as well on citizens standing up and speaking out, through the institutions of civil society – from non-profit advocacy groups like the ACLU to universities, the media and the professions. Trump has systematically targeted them all. He’s issued orders penalizing law firms for filing lawsuits or hiring associates that he doesn’t like. He’s pressured universities to clamp down on students’ and professors’ speech. He’s penalized press outlets that don’t parrot his messages, as when he expelled the Associated Press from the Oval Office press pool for refusing to call the Gulf of Mexico the “Gulf of America”, Trump’s preferred rebranding. And he’s threatened to designate non-profit groups and foundations as “domestic terrorists”. The United States has a robust civil society. The ACLU, for example, the American version of the UK’s Liberty, has about 2,000 staff members nationwide. American universities are among the best in the world; American media is read across the globe. And US foundations support essential democracy, health and development work throughout the nation. But these institutions are as strong as they are in part because the government has subsidized them – through grants for research, tax subsidies, access to public airwaves and the like. Trump, however, has shown that that support is simultaneously a source of strength and a critical vulnerability. Trump has repeatedly used threats to withdraw government funding or approval as a means to chill dissent. And it has worked, as universities, law firms and corporations that seek to do business with the government have complied with Trump’s wishes – even where it would be illegal for Trump to compel them to act. Candidates and Campaigns Washington Post: More money, more corruption require more attention, nonprofit says By Paul Kane .....Even the financial backers of an organization founded on the belief that sunlight makes for better government have begun to wonder if their mission has become futile. “We’ve been funding transparency for the last decade and democracy has gotten worse, trust in institutions has gotten worse,” Hilary Braseth, executive director of OpenSecrets, recalled big contributors to her organization telling her... Veteran lawmakers who have tried to reduce the influence of money in politics feel defeated. They predict that only a scandal of massive proportions can bend the arc back toward the reformers’ direction… Braseth, 36, is now almost two years into running OpenSecrets and has set about on a mission to both revamp the organization and, perhaps more important, defeat the cynicism that surrounds the transparency movement. The States New York Times: We Should Teach Our Students How to Think, Not What to Believe By Leighton Woodhouse .....A.B. 715 stipulates that a 2023 federal plan to combat antisemitism “shall be a basis to inform schools on how to identify, respond to, prevent, and counter antisemitism.” That plan embraces the International Holocaust Remembrance Alliance’s definition of antisemitism, which posits, among other things, that “claiming that the existence of a State of Israel is a racist endeavor” and “applying double standards” to Israel are antisemitic acts. But one of the most prominent voices warning against adopting speech codes is the lead drafter of the I.H.R.A. definition himself, Kenneth Stern, the director of the Bard Center for the Study of Hate. “It’s being used as a way to stifle speech and stifle what teachers can teach,” he told me. Mr. Stern noted that when many supporters of A.B. 715 react to efforts by states like Florida or Texas to restrict what teachers say about gender and race, “they get it when there’s a problem there. But when it’s issues they care about, they want to give the same power to the state to go hunting for speech.” South Dakota Searchlight: State issues cease-and-desist to national nonprofit sponsoring abortion pill ads By Joshua Haiar .....South Dakota’s Republican attorney general is threatening a lawsuit and ordering a national nonprofit to cease and desist “the deceptive advertising of the sale of abortion pills in South Dakota,” but the organization is not signaling that it will stop its advertising campaign. Read an article you think we would be interested in? Send it to Tiffany Donnelly at [email protected]. For email filters, the subject of this email will always begin with "Institute for Free Speech Media Update." The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the political rights to free speech, press, assembly, and petition guaranteed by the First Amendment. Please support the Institute's mission by clicking here. 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