August 24, 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

Just the News: Schools ban Declaration of Independence quote, opposition to gender identity policies: lawsuits

By Greg Piper

.....Portland State University political scientist Bruce Gilley, who survived a discrimination investigation based on his academic work on colonialism, sued a University of Oregon official for blocking him from its official UO Equity account on Twitter...

UO Division of Equity and Inclusion Communication Manager Tova Stabin often uses its Twitter account to ask readers how they can "interrupt racism" through the lens of "critical theory," according to Gilley's suit.

She wrote June 14: "It sounded like you just said______. Is that really what you meant?” Gilley responded the same day with a quote-retweet from the Declaration of Independence, "all men are created equal." He also tagged the UO Equity account...

IFS, which recently secured a six-figure settlement with a Pennsylvania school district that censored viewpoints at board meetings, argued the UO Equity account is a "public forum" and Stabin is a "state actor" subject to First Amendment restraints.

Capital Research Center: Nonprofit Political Activities: Dangers of Donor Disclosure

.....On May 4, 2022, a subcommittee of the U.S. Senate Committee on Finance held a hearing on “Laws and Enforcement Governing the Political Activities of Tax Exempt Entities.” Bradley A. Smith, chairman and founder of the Institute for Free Speech, was among the witnesses. After the hearing, some of the senators submitted additional questions for the record. The following is a selection of Smith's answers. See more of Smith's answers in: Nonprofit Political Activities: Lois Lerner

The Courts

Washington Post: N.C. attorney general can’t be charged with crime over campaign ad — yet

By Rachel Weiner

.....The U.S. Court of Appeals for the 4th Circuit has temporarily blocked an investigation into North Carolina’s attorney general over a negative campaign ad, saying the state law he’s accused of violating is likely unconstitutional.

“Candidates running for office in North Carolina might well be chilled in their campaign speech by the sudden reanimation of a criminal libel law that has been dormant for nearly a century,” the court wrote.

The debate turns on a 1931 law in North Carolina that criminalized the publication of a “derogatory” campaign ad, “knowing such report to be false or in reckless disregard of its truth or falsity.”

A grand jury is investigating whether Democrat Josh Stein lied during his successful 2020 reelection campaign for attorney general in an ad blaming his Republican rival for a backlog of untested rape kits, according to court records.

Bloomberg Law: DeSantis Has Advantage in Battle Over Prosecutor’s Suspension

By Holly Barker

.....Andrew Warren, the twice-elected Florida prosecutor suspended by Gov. Ron DeSantis (R) for pledging not to enforce the state’s abortion laws, could have a tough time getting an order reinstating him as the state attorney for Florida’s 13th Judicial Circuit.

Warren’s lawsuit against DeSantis, filed Aug. 17 in the US District Court for the Northern District of Florida, alleges that the governor is punishing him for what amounts to protected speech about a difference of opinion.

But Florida governors have wide latitude to exercise their constitutionally explicit power to suspend state officials, Zachary Price, a professor at U.C. Hastings College of the Law told Bloomberg Law. The First Amendment may be of limited utility if Warren’s speech amounts to an official local policy that is at odds with statewide Florida law, he said.

FEC

NPR: Trump has raised millions. He may run in 2024, so where will all that money go?

By Deepa Shivaram

....."The stalemate on significant enforcement matters has been an ongoing concern for quite a long time," Democratic FEC commissioner Ellen Weintraub told NPR. "I don't think we are doing the job that Congress set us up to do. I don't think we're doing an appropriate job of enforcing the law."

Several former FEC officials who are now working at the Campaign Legal Center have also said current FEC guidelines are "ineffective" and they are advocating for legislative change.

In some recent complaints that have not been pursued by the FEC, Republican commissioners argued that moving forward would not be "the best use of agency resources." Democratic commissioners, including Weintraub, argued their Republican counterparts are "damaging" the campaign finance process.

"We used to work better at finding four votes to pursue enforcement matters. ... Commissioners used to work harder at finding a path forward," Weintraub said, adding that the commission didn't always act in a partisan manner. "I do worry there is now a new partisan tinge."

Free Expression

New York Times ("The Ethicist"): Is It OK That My Co-Worker Keeps Her Anti-Abortion Views on the Down Low?

By Kwame Anthony Appiah

.....John Stuart Mill drew a picture I find appealing of a society in which people express their opinions and listen to those who have a different opinion. In the absence of such free exchange, he wrote in “On Liberty,” people miss out: “If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

These days, some people too swiftly conclude that Mill’s judgment about the value of free expression was itself an error. But vigorous public discussion of contentious issues remains a valuable part of democratic life, and it’s something to which we can all contribute. Speaking up for what we believe may have consequences, and we should be willing to face them — but only if they are the results of actions that are respectful of our rights.

The difficulty arises when letting your views be known exposes you, wrongly, to the risk of harm — like being denied advancement at work. Employers ought not to penalize workers for views within the range of reasonable political opinion, but they do.

Political Giving

Slate: The Truly Scary Part of the $1.6 Billion Conservative Donation

By Richard L. Hasen and Dahlia Lithwick

.....On Monday, the New York Times broke the news that last year conservative mastermind Leonard Leo had obtained control over $1.6 billion through something called the “Marble Freedom Trust” to further his deeply conservative political and legal agenda...

The same congressional Republicans that Leo’s empire tries to get into Congress help to perpetuate Leo’s political power. For years, they have hobbled the IRS’s ability to limit the political activities of “social welfare” groups organized as 501(c)(4) organizations, such as Leo’s new Marble Freedom Trust...

Leo justifies the secret millionaire donors that support him with claims that this is good for democracy. As he once told the Washington Post:

"Let’s remember that in this country, the abolitionist movement, the women’s suffrage movement, the American Revolution, the early labor movement, the civil rights movement of the 1950s and 1960s were all very much fueled by very wealthy people, and oftentimes wealthy people who chose to be anonymous. I think that’s not a bad thing. I think that’s a good thing." ...

The very same conservative judiciary that Leo helped create has been central to crafting new legal rules which help elect more Republicans to office. Cases like Citizens United and Speech Now have opened the floodgates to fund large outside political groups such as Super PACs. Cases like Americans for Prosperity Foundation v. Bonta are making it easier for that large money to be contributed anonymously or through entities that can mask the identity of those who are pulling the strings, providing an easier path to influence without giving voters valuable information about who is trying to influence them and elected officials.

ProPublica: How a Secretive Billionaire Handed His Fortune to the Architect of the Right-Wing Takeover of the Courts

By Andrew Perez, The Lever, and Andy Kroll and Justin Elliott, ProPublica

.....The creators of the Marble Freedom Trust shrouded their project in secrecy for more than two years.

The group’s name does not appear in any public database of business, tax or securities records. The Marble Freedom Trust is organized for legal purposes as a trust, rather than as a corporation. That means it did not have to publicly disclose basic details like its name, directors and address...

The donation does not appear to violate any laws.

Seid’s $1.6 billion donation is a landmark in the era of deregulated political spending ushered in by the Supreme Court’s 2010 Citizens United decision. That case, along with subsequent changes and weak federal oversight, empowered a tiny group of the super rich in both parties to fund groups that can spend unlimited sums to support candidates and political causes. In the last decade, donations in the millions and sometimes tens of millions of dollars have become common.

Individuals could give unlimited amounts of money to nonprofit groups prior to Citizens United, but the decision allowed those nonprofits to more directly influence elections.

The Media

New York Times: Lachlan Murdoch Sues Australian News Site After It Urged Him to Do So

By Yan Zhuang and Katie Robertson

.....Lachlan Murdoch, the chief executive of the Fox Corporation, filed a defamation lawsuit against an Australian news site on Tuesday, a day after the outlet challenged him to make good on his threats to sue over a column that claimed links between the Murdoch family and the Jan. 6 Capitol riot.

Mr. Murdoch, a son of Rupert Murdoch, the Fox chairman, filed a statement of claim against Private Media, the parent company of the news outlet, Crikey, in Federal Court in Australia. A day earlier, Crikey issued its challenge to Lachlan Murdoch in an open letter and in an advertisement in The New York Times, saying it wanted to make the dispute a test case for Australia’s strict defamation laws.

The opinion article at the center of the conflict, which lamented the “sorry state of U.S. politics and the Jan. 6 insurrection,” carried the headline: “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator.” It went on to say the Murdochs and “poisonous” Fox News commentators contributed to the assault on American democracy.

Candidates and Campaigns

Washington Post: At-large D.C. Council candidate requests probe into Elissa Silverman’s Ward 3 poll

By Michael Brice-Saddler

.....Independent at-large D.C. Council candidate Karim Marshall is asking the city’s Office of Campaign Finance to investigate whether Council member Elissa Silverman (I-At Large), one of his opponents in the race, violated any rules while polling the Ward 3 contest ahead of the June primary.

The complaint, filed Tuesday, brings renewed attention to the sequence of events leading up to the crowded Democratic primary, in which three candidates — Tricia Duncan, Ben Bergmann and Henry Z. Cohen — dropped out to coalesce around the eventual winner, Matthew Frumin, and in opposition to another leading candidate, Eric Goulet...

“If candidates are using public financing to settle grievances or interfere in other elections, that’s not consistent with what we’re using tax dollars for,” said Marshall, a lawyer and first-time council candidate. “It’s possible she shared the information and said, ‘Do what you want with it.’ But what we don’t know is the degree to which the campaigns collaborated.”

Online Speech Platforms

CNN: Ex-Twitter exec blows the whistle, alleging reckless and negligent cybersecurity policies

By Donie O'Sullivan, Clare Duffy and Brian Fung

.....Twitter has major security problems that pose a threat to its own users' personal information, to company shareholders, to national security, and to democracy, according to an explosive whistleblower disclosure obtained exclusively by CNN and The Washington Post.

The disclosure, sent last month to Congress and federal agencies, paints a picture of a chaotic and reckless environment at a mismanaged company that allows too many of its staff access to the platform's central controls and most sensitive information without adequate oversight. It also alleges that some of the company's senior-most executives have been trying to cover up Twitter's serious vulnerabilities, and that one or more current employees may be working for a foreign intelligence service.

The whistleblower, who has agreed to be publicly identified, is Peiter "Mudge" Zatko, who was previously the company's head of security, reporting directly to the CEO. Zatko further alleges that Twitter's leadership has misled its own board and government regulators about its security vulnerabilities, including some that could allegedly open the door to foreign spying or manipulation, hacking and disinformation campaigns.

The States

Arizona's Family: Arizona Supreme Court battle heats up to keep anti-dark money initiative on ballot

By Jason Barry

.....A bipartisan coalition of political and business leaders wants to create more transparency in Arizona elections. They’ve collected more than 350,000 signatures to put an initiative on this November’s ballot that would force dark money groups to reveal themselves...

A lawsuit, however, was recently filed against the Secretary of State’s office by the Arizona Free Enterprise Club and several other political action groups. The lawsuit claims the signatures gathered for the Voters Right to Know Act should be thrown out, based on the claim that petitioners didn’t follow proper procedures registering with the state.

A Superior Court judge rejected the lawsuit, but now, the case has been appealed to the Arizona Supreme Court. Gov. Doug Ducey and other Republican state leaders recently filed a brief with the court, supporting the argument that Arizona voters should not be allowed to vote on the dark money initiative this November.

Terry Goddard is leading the anti-dark money effort. He said they followed all state laws and guidelines to get the initiative on the November ballot...

The Arizona Supreme Court is expected to make a ruling in the next week or two.

Reason ("Volokh Conspiracy"): No Money for a Pure Jane Doe: Totally Unidentified Defendant Can't Recover Sanctions and Attorney Fees

By Eugene Volokh

.....Allison Publications, LLC v. Doe, decided last week by the Texas Court of Appeals (Fort Worth), in an opinion by Justice Brian Walker, joined by Justice Wade Birdwell and Judge Ruben Gonzalez, involves a rare libel lawsuit by a publisher:

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