The Latest News from the Institute for Free Speech December 6, 2022 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]. New from the Institute for Free Speech The Buckeye Institute Files Lawsuit Challenging IRS Collection of Donor Data .....The Buckeye Institute, an Ohio-based think tank, today filed a lawsuit challenging a decades-old tax law that forces the IRS to demand that nonprofit charities hand over the private information of their largest donors every year. Represented by attorneys at the Institute for Free Speech and its own attorneys, Buckeye’s lawsuit says the law violates the First Amendment and the requirement chills free speech and association. The IRS itself admits that it does not need these donor records, and issued a rule in 2020 to stop collecting the same from other tax-exempt groups that are not classified as section 501(c)(3) nonprofit charities. The agency also noted in the rulemaking that its collection of this sensitive personal data on Form 990 Schedule B “poses a risk of inadvertent disclosure” of private, non-public information. Even though the IRS has stated in related contexts that it would prefer not to collect this information from charities, federal law still requires it. ICYMI PayPal’s Policy Change Demonstrates Users Won’t Tolerate Vague Speech Taxes By Alec Greven .....It has not been a good month at PayPal. “On November 3, the online payment platform was set to institute a policy change that would have fined users for “misinformation” at $2,500 per violation. Essentially, PayPal gave itself the ability to decide whether its users speech was true or false, and them fine them for speaking against their established orthodoxy. IFS previously drew attention to how dangerous these standards were for free expression. After predictable backlash and rapidly falling share prices, PayPal rescinded the policy and said it was an error. But the uproar also brought attention to another controversial fine (in place for over a year) which allowed PayPal to fine users $2,500 for the “promotion of hate, violence, racial or other forms of intolerance that is discriminatory” and “items that are considered obscene” and take the money directly from user accounts. Supreme Court SCOTUSblog: Conservative justices seem poised to side with web designer who opposes same-sex marriage By Amy Howe .....At the oral argument, Justice Sonia Sotomayor asserted that a ruling for Smith would be the first time that the Supreme Court had ruled that “commercial businesses could refuse to serve a customer based on race, sex, religion, or sexual orientation.” But Chief Justice John Roberts countered that the Supreme Court has never approved efforts to compel speech that is contrary to the speaker’s belief, and his five conservative colleagues signaled that they were likely to join him in a ruling for Smith. New York Times: The Supreme Court Is About to Ask the Wrong Question About the First Amendment By David Cole .....Can an artist be compelled to create a website for an event she does not condone? That’s the question the Supreme Court has said it will take up on Monday, when it hears oral arguments in 303 Creative v. Elenis. The answer would seem to be obviously “no.” But that’s the wrong question. The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians? The answer to these questions would seem to be, just as obviously, “no.” Washington Examiner: The ACLU’s embarrassing case for government compelled speech By Conn Carroll .....David Cole, the national legal director for the ACLU, has an oped out today which reads, “The ACLU has been this nation’s leading defender of free speech for more than a century. We firmly believe that states cannot compel artists or anyone else to express messages with which they disagree. But…” Cole’s first two sentences are fine. But that “but” — after saying governments shouldn’t be able to compel speech — shows that no matter how storied the ACLU’s track record of protecting civil liberties may be, the current version of the organization has been completely overtaken by the authoritarian woke left. The legal error Cole makes can first be seen in the oped’s second paragraph. “The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is ‘expressive’ or ‘artistic.’” The Courts New York Times: Corruption Charges Dismissed Against Ex-Lt. Gov. Brian Benjamin By Benjamin Weiser and Nicholas Fandos .....A federal judge in Manhattan dismissed bribery charges against former Lt. Gov. Brian A. Benjamin of New York on Monday, saying prosecutors had not demonstrated an explicit quid pro quo in what they asserted was a scheme to funnel $50,000 in state money to a developer in exchange for campaign contributions. In a 38-page opinion, the judge, J. Paul Oetken of Federal District Court, said that the government had a higher burden when accusing politicians like Mr. Benjamin of exchanging favors for political donations, rather than personal benefit. In Mr. Benjamin’s case, he concluded that prosecutors fell short, failing to show that the favor trading had been “clear and unambiguous” and mutually understood. “The court concludes that the indictment fails to allege an explicit quid pro quo, which is an essential element of the bribery and honest services wire fraud charges brought against Benjamin,” Judge Oetken ruled. Hours after the judge said he would toss out the three corruption counts, the government said it was appealing the decision to the U.S. Court of Appeals for the Second Circuit. The City: Brian Benjamin Bribery Charges Dismissed but Criminal Case Proceeds By Katie Honan and Yoav Gonen .....The City first brought to light campaign donations made in the names of people who say they had no idea they’d donated, which were submitted by a Benjamin associate who has already pleaded guilty to federal bribery and fraud charges. He’s now cooperating with federal prosecutors... Prosecutors alleged that Benjamin had sought to allocate $50,000 in state grant dollars to the nonprofit, Friends of Public School Harlem, founded by Harlem real estate figure Jerry Migdol, in exchange for Migdol securing small-dollar contributions for Benjamin’s 2021 campaign for city comptroller. Small-dollar donors are key to securing the maximum amount of public matching money from the city’s Campaign Finance Board — which pays at a rate of 8-to-1, up to certain limits. Within a month of the grant allocation, Migdol personally handed Benjamin two $10,000 campaign contributions — both in the names of relatives — and a third check for $5,000 in the name of an LLC he controlled, according to prosecutors. Migdol made clear the money, earmarked for Benjamin’s state Senate campaign, was actually coming from him, the indictment alleged. Once Benjamin set up his campaign for city comptroller, he allegedly called Migdol around October 2019 to remind him of the need for multiple small-dollar contributions, the court papers alleged. Migdol subsequently secured a series of smaller donations to Benjamin’s campaign from October 2019 through January 2021, according to prosecutors. In January 2021, THE CITY first revealed suspicious patterns in the donations, including numerous money orders for $250 that went through Michael Murphy, treasurer of Friends of Public School Harlem. Multiple people listed as donors told THE CITY that they did not donate and had no idea why they were listed as donors. Also among the listed donors was Migdol’s 2-year-old grandson. IRS Public Policy Legal Institute: Did John “Jack” Smith Start the Lois Lerner-led IRS Targeting Scandal in 2010? .....Lois Lerner did a fine job when she was in charge of public outreach at the Federal Election Commission, and tried hard when she took over the helm at the IRS Tax-exempt Organizations Division. However, her implementation of the “Be On The Lookout” (BOGO) strategy instead of the tried-and-true Touch and Go (TAG) system to look at potential political intervention by mostly conservative 501(c)(4) organizations ended up wrecking TE/GE’s reputation and working relationship with practitioners, and the damage still resonates today. There’s a reason why IRS TE/GE and the FEC stay separate; if nothing else, the laws are different, as are the First Amendment considerations. One of the well-known things behind the Lerner/IRS scandal is the pressure that Lois was under from the Department of Justice to “do something about” the Tea Party and Citizens United. Lois was quite candid about it later (here’s Lois Lerner on YouTube discussing the “everybody’s screaming at us” pressure). And one of the people applying the pressure? John (“Jack”) Smith. According to both Politico and CNN, the same Jack Smith just appointed special counsel for the current Donald Trump investigations. (Prof. Jonathan Turley explains the tangled web of investigations underway.) Online Speech Platforms Wall Street Journal: Twitter’s Duty to Protect Free Speech By Ro Khanna .....Twitter’s suppression [of the Hunter Biden laptop story] violated the First Amendment principles Brennan articulated in Sullivan. Twitter banned links to the story and suspended accounts that shared it, including President Trump’s press secretary and the New York Post itself—arguing that the story violated company policy because it contained information obtained through illegal means. Under the same logic, they’d have to suspend any account that posted the Pentagon Papers, which is protected by New York Times Co. v. U.S. (1971), or the story of Mr. Trump’s leaked tax returns. As Silicon Valley’s representative in Congress, I reached out to Twitter at the time to share these concerns. In an email meant to be private, but recently made public by Matt Taibbi’s “Twitter Files” thread, I wrote to Twitter’s general counsel that the company’s actions “seemed to be a violation of First Amendment principles.” Although Twitter is a private actor not legally bound by the First Amendment, Twitter has come to function as a modern public square. As such, Twitter has a responsibility to the public to allow the free exchange of ideas and open debate. 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 First Amendment rights to freely speak, assemble, publish, and petition the government. Please support the Institute's mission by clicking here. For further information, visit www.ifs.org. 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