July 7, 2022

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This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact Luke Wachob at [email protected].

In the News

Inside Investigator: Sen. Sampson, Joe Markley take campaign finance case to CT Supreme Court

By Marc E. Fitch

.....Sen. Rob Sampson and former Sen. Joe Markley are taking their case against the State Election Enforcement Commission to the Connecticut Supreme Court.

The case, which dates back to 2014, involves the use of state funds for election campaigns, known as the Citizens Election Program. A complaint against Sampson and Markley to the SEEC alleged Sampson and Markley were using Gov. Dannel Malloy’s policy record for campaign communications despite Citizen Election Program only allowing candidates to use the funds for their own election.

Markley and Sampson argued to the SEEC that their roles in the General Assembly were a check on the governor’s powers and was therefore related to their election campaigns.

At the time, Malloy was running against Republican gubernatorial nominee Tom Foley. The SEEC found the campaign communications improperly opposed Malloy, rather than either Sampson or Markley’s opponents, and issued fines of $2,000 and $5,000 in 2018.

Markley and Sampson, represented by attorney and State Representative Doug Dubitsky, R-Chaplin, and the Institute for Free Speech, a Washington D.C.-based legal foundation, took the matter to court, arguing a violation of their free speech rights...

“I’m thrilled to find out that after eight years of limbo, Sen. Markley and I will finally have our day in court,” Sen. Rob Sampson commented. “Back in 2014 when this abuse of administrative authority occurred, the SEEC offered us as opportunity to settle without any fines, but we felt so strongly that a policy that so improperly interferes with the first amendment rights of political candidates simply could not stand. So, we took it upon ourselves to be the voice of protecting constitutional principles when it comes to freedom of speech in political campaigns.”

The Courts

Reason (Volokh Conspiracy): Montana Campaign Finance Laws Unconstitutionally Vague as to Spending Money Driving to Talk to Voter Groups

By Eugene Volokh

.....From Butcher v. Knudsen, decided today by the Ninth Circuit (opinion by Judge Daniel Bress, joined by Judge Sandra Ikuta):

Two retirees, Ed Butcher and Lonny Bergstrom, operate a website that tracks the voting records of Republican state legislators in Montana. Several local Republican groups in Montana took an interest in the website and invited Butcher and Bergstrom to speak on their findings. Based on the travel expenses they incurred in giving these presentations— such as for gas, meals at McDonald's, and a night at a La Quinta Inn—Montana's Commissioner of Political Practices determined that Butcher and Bergstrom had formed a "political committee" under Montana law.

Because Butcher and Bergstrom had neither registered their alleged political committee with the state nor complied with numerous reporting obligations, the Commissioner concluded they were subject to a civil fine and civil prosecution. Butcher and Bergstrom argue, however, that Montana law is impermissibly vague because they lacked fair notice that their conduct would not be treated as "de minimis," and thus exempt, under Montana Administrative Rule 44.11.603.

We hold that Rule 44.11.603 is unconstitutionally vague as applied to Butcher and Bergstrom. Butcher and Bergstrom were engaged in core political speech that lies at the heart of the First Amendment. The protections against impermissibly vague laws, rooted here in the Due Process Clause of the Fourteenth Amendment, are at their maximum in this most sensitive area, in which insufficiently defined legal regimes can discourage valuable speech and invite unbalanced government regulation of less popular views.

Free Expression

Lawfare: How States and Congress Can Prepare for a Looming Threat to Freedom of Speech

By Jeff Kosseff and Matthew Schafer

.....State legislatures should move quickly to adopt anti-SLAPP laws...

Today, a majority of the states have adopted some form of an anti-SLAPP law (although many have not, and in several states that have them, the laws are largely useless). With Sullivan under threat, one of the most obvious remedial measures state legislatures can take is to either adopt anti-SLAPP laws if they do not have one or revisit their anti-SLAPP laws to strengthen them. The Uniform Law Commission has drafted a model anti-SLAPP law that “contains a clear framework for the efficient review and dismissal of SLAPPs.” That framework provides for the filing of a motion for expedited relief. Under that procedure, the plaintiff must produce evidence demonstrating that their claim has prima facie viability—that is, that the possibility of its prevailing is self-evident—and the defendant may show that the claim is nevertheless without merit in either law or fact. If successful, courts must award defendants attorneys’ fees and costs. This year, both Kentucky and Hawaii adopted the Uniform Act—and its supporters are varied and bipartisan. Other states should follow suit.

Privacy

RealClearPolitics: Political Fallout Over Calif.’s Concealed Carry Data Leak

By Susan Crabtree

.....Last week, Rob Bonta, the Democratic attorney general who heads the state Justice Department, acknowledged that the data breach contained a virtual treasure trove of personal data on people who were granted or denied permits to carry concealed weapons between 2011 and 2021. The data exposed online for approximately 24 hours included names, addresses, dates of birth, gender, race, drivers’ license numbers, and criminal histories...

The Concealed Coalition, which provides training nationwide for those seeking permits to carry concealed firearms, questioned the timing of the data breach and called for an independent investigation by an entity unconnected to the California state government and its lawmakers and officials...

[Chris Picou, the coalition’s CEO] also worries that criminals now can target gun owners’ homes to steal the weapons, or that those with concealed carry permits could be subject to workplace discrimination by anti-gun co-workers or employers.

“Now their information is exposed,” he told RCP. “This is something that you can’t take back.”

IRS

New York Times: Comey and McCabe, Who Infuriated Trump, Both Faced Intensive I.R.S. Audits

By Michael S. Schmidt

.....Among tax lawyers, the most invasive type of random audit carried out by the I.R.S. is known, only partly jokingly, as “an autopsy without the benefit of death.”

The odds of being selected for that audit in any given year are tiny — out of nearly 153 million individual returns filed for 2017, for example, the I.R.S. targeted about 5,000, or roughly one out of 30,600...

The minuscule chances of the two highest-ranking F.B.I. officials — who made some of the most politically consequential law enforcement decisions in a generation — being randomly subjected to a detailed scrub of their tax returns a few years after leaving their posts presents extraordinary questions.

Was it sheer coincidence that two close associates would randomly come under the scrutiny of the same audit program within two years of each other? Did something in their returns increase the chances of their being selected? Could the audits have been connected to criminal investigations pursued by the Trump Justice Department against both men, neither of whom was ever charged?

Or did someone in the federal government or at the I.R.S. — an agency that at times, like under the Nixon administration, was used for political purposes but says it has imposed a range of internal controls intended to thwart anyone from improperly using its powers — corrupt the process?

Podcasts

Early Returns - Law and Politics with Jan Baran: Evan Thomas: Did Watergate Change America or Does History Repeat Itself?

.....Fifty years ago, on June 17, 1972, a group of men were arrested here in Washington for breaking into the offices of the Democratic Party headquarters...

The Watergate scandal changed many American institutions including the press, congress, political campaigns and the judicial system. But, America was changing even prior to the Watergate break-in and in some ways accounted for the misjudgments and illegal behavior of the burglars, Nixon campaign officials, White House staff and even Nixon himself.

In this episode of Early Returns, we discuss what Washington and America was like in 1972 and how Watergate seemingly changed things, including the sensationalism of the media.

Our episode guest is the respected journalist and historian, Evan Thomas...

Evan shares his observations, knowledge and opinions on what Watergate represented; how America was changing before Watergate; and how Watergate changed politics, journalism, and perhaps contributed to today’s polarized society.

Candidates and Campaigns

The State: SC Democrat running for US Senate needs to drop out after asking for ‘dope boy money’

By David Travis Bland

.....Matthews, the Democratic primary winner who will in November be buried alive by Republican U.S. Sen. Tim Scott, was recorded on a prison phone asking an inmate “where are the duffel bag boys” — or drug and cash runners — who could donate to her campaign their “dope boy money,” a euphemism for drug money.

A prison phone! ...

Matthews also suggested in the call that the inmate could fraudulently donate the “dope boy money” under a family member’s name, which is a major violation of federal campaign finance law. “At no point does the Democratic Party of South Carolina support or suggest that anybody should break federal election commission or state election commission law,” party Chairman Trav Robertson said. “However, while believing that, I still think that her comments are being taking out of context because she was venting frustration about the challenges of Black women to raise money to become viable candidates.”

The States

Fox News: DeSantis team hits back at media figures' debunked claim of students registering political views with state

By Ronn Blitzer

.....Florida Gov. Ron DeSantis's office is pushing back on a false claim about a new state law that Twitter users, including author Stephen King and several journalists with large followings, have been spreading, despite it being debunked a year ago.

The law, which calls for "intellectual freedom and viewpoint diversity" at state colleges, says schools in the Florida College System must conduct an annual survey of "the extent to which competing ideas and perspectives are presented" and students, faculty and others "feel free to express their beliefs and viewpoints on campus and in the classroom."

The narrative that King and others pushed on Twitter went a bit further.

"DeSantis signs bill requiring Florida students, professors to register political views with state," King tweeted...

DeSantis deputy press secretary Bryan Griffin told Fox News that this is a misrepresentation of what the law really says.

"No, students and faculty are not required to ‘register their political views,'" Griffin said. "This same fake claim was circling the liberal Twittersphere after the bill was signed in 2021. It was debunked then. It has been debunked again, now."

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