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

.....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.

.....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 After predictable backlash and rapidly falling share prices, PayPal rescinded the policy and said it was an error.

SCOTUSblog: Conservative justices seem poised to side with web designer who opposes same-sex marriage

.....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

.....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.”

Washington Examiner: The ACLU’s embarrassing case for government compelled speech

.....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…”

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 City: Brian Benjamin Bribery Charges Dismissed but Criminal Case Proceeds

.....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...

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.

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.)

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.

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