This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected].
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We're Hiring!
.....The Institute for Free Speech is seeking a skilled communicator with experience in media relations and a proven record of developing relationships with journalists and influencers. This role will support all aspects of the Institute for Free Speech’s work. The Communications Director will understand both traditional media outreach efforts and social media to share the Institute’s pro-speech message.
This position demands a candidate who has an in-depth understanding of what drives news stories and can use the news cycle to educate the public on the threats to and the importance of free speech. In short, you will help spread the Institute’s message and fight for the First Amendment’s speech freedoms and a culture of free speech in the court of public opinion.
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In the News
By Alex Swoyer
.....The Internal Revenue Service‘s rule requiring nonprofit groups to disclose their donors is facing a legal challenge following the Supreme Court‘s ruling last year that a state law requiring charities to identify their donors ran afoul of the First Amendment.
“There are a lot of groups not comfortable about giving this information over,” said David Keating, president of the Institute for Free Speech, a group that filed the lawsuit on behalf of the Buckeye Institute, a free-market think tank.
His lawsuit argues that the IRS has already recognized that privacy issues were at stake in the collection of personal information of donors. In 2020, the tax agency eliminated the requirement for certain tax-exempt organizations, but left the requirement in place for others, prompting the new lawsuit.
Collecting donor information has been happening for decades. Since 2010, there have been more than a dozen leaks of confidential data, according to the court filing...
Mr. Keating said the high court’s precedent makes his case likely to succeed. He noted that the rise of social media and the internet makes these types of leaks more widespread and damaging to an individual’s rights.
“The internet has made it more difficult and more risky for the IRS to keep this information confidential,” Mr. Keating said. “When the leaks do happen, they inflict more damage.”
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ICYMI
By Bradley A. Smith and David Keating
.....Update: On November 28, FEC Chairman Allen Dickerson and Commissioner Shana Broussard submitted a revised draft of the proposed final rule. The revised draft, which was approved December 1 on a 5-0 vote (Commissioner Ellen Weintraub abstained), resolved the concerns noted in I through III below.
Regarding the small items exception we discuss below, after the vote the three Republican commissioners released statements indicating their views that the exception applies to certain internet ads. Chairman Allen Dickerson and Commissioner Trey Trainor released a statement that noted “in cases where even the adapted disclaimer provided by this regulation is too burdensome for a given advertising format, our existing regulatory exemptions for small items and impractical disclaimers will continue to apply.” Commissioner Sean Cooksey’s statement said that “Commission regulations will maintain exemptions from disclaimer requirements for small-item advertisements and communications for which disclaimers are impracticable, such as with exceptionally short video clips.”
Kudos to Allen Dickerson and Shana Broussard for leading the effort to finalize a sensible internet disclaimer rule and to Sean Cooksey, Commissioner Dara Lindenbaum and Trey Trainor for their efforts to refine and support it.
It’s great to see bipartisan efforts to improve the law.
If you’d like to learn more about the new rule, read a summary Wiley partners Lee Goodman and Andrew Woodson.
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Supreme Court
By Aaron Mackey
.....Lawsuits claiming that online services aid terrorist organizations just by hosting their content or having users who espouse the organizations’ views potentially could censor a vast amount of protected expression online, EFF and a coalition of other civil society groups argued in a brief filed this week.
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The Courts
By Patrick Svitek
.....The gubernatorial election is over, but Kelcy Warren’s defamation lawsuit against Beto O’Rourke lives on.
Warren, the Dallas pipeline tycoon, sued O’Rourke in February over accusations he made on the campaign trail that Warren effectively bribed Gov. Greg Abbott with a $1 million contribution following the 2021 power grid collapse. The lawsuit has since been working its way through the legal system, and a state appeals court heard oral arguments Wednesday on O’Rourke’s motion to dismiss it.
Addressing a three-judge panel at the Third Court of Appeals, O’Rourke lawyer Chad Dunn argued that O’Rourke’s scrutiny of the donation was protected by the First Amendment and involved someone who had become a public figure.
“The minute you give $1 million to a gubernatorial candidate in one of the largest states, in Texas, you can expect attention,” Dunn said. “Mr. O’Rourke’s attention was not libel or slander.”
Warren’s lawyer, Dean Pamphilis, maintained his client is a private citizen.
“What they’re asking you to do here is to conclude that a million-dollar — or any — campaign contribution makes you a public figure, opens you up to attack that you can’t defend against unless you prove actual malice, and there is no precedent for that whatsoever,” Pamphilis said.
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.....Fort Bend County resident Justin Pulliam was standing still when a Fort Bend County deputy walked up and arrested him for interfering with the police in December 2021. While Justin had permission from the property owner to record a mental health call and was far from the active scene, the deputy cuffed him and put him in a squad car. Justin was forced to undergo a strip search and spent several hours in jail, during which the Sheriff personally called Justin in for a meeting and became angry when Justin refused to speak to him without a lawyer present.
This was not the first time that Justin had problems with the Fort Bend County Sheriff’s Office. In July 2021, Justin was excluded from a press conference at Sheriff Eric Fagan’s explicit direction. The First Amendment prohibits government officials from unreasonably restricting an individual’s right to record the police, and it doesn’t let them decide who is or isn’t a journalist. Today, Justin filed a federal lawsuit against the Sheriff and his deputies with the Institute for Justice (IJ), a non-profit public interest law firm that defends free speech nationwide.
“Arresting and prosecuting Justin is a violation of his First Amendment rights, and it can’t stand,” said IJ Attorney Tori Clark. “The Sheriff may not like Justin’s style, but the government doesn’t have the power to single out journalists because they don’t like their viewpoint.”
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FEC
By Dan Mangan
.....An ethics watchdog group has asked the Federal Election Commission to investigate former FTX CEO Sam Bankman-Fried for alleged “serious violations” of election law, citing his admitted contributions of “dark” money to Republican-aligned groups during the 2022 primary season.
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Nonprofits
By Dave Levinthal
.....The Campaign Legal Center confirmed to Insider that Bankman-Fried, who is now himself facing significant legal and ethical scrutiny, gave the organization about $2.5 million since 2021.
Bankman-Fried gave $1.06 million to the Campaign Legal Center's advocacy arm during 2021, and $1.5 million — split between the group's advocacy and charitable arms — during 2022.
Brendan Quinn, a spokesperson for the Campaign Legal Center, says the nonprofit organization cannot return or give away Bankman-Fried's money because the money is already spent…
Amid this mess, would the Campaign Legal Center reject future contributions from Bankman-Fried?
"That's not something we're considering or need to consider at this time," Quinn said…
The Campaign Legal Center has previously suggested political candidates who receive contributions from tainted sources have options for giving back the money...
Asked whether the Campaign Legal Center would consider disgorging an amount of money equivalent to what Bankman-Fried contributed, Quinn noted that the Campaign Legal Center is not a political candidate or committee.
"When a campaign is asked to disgorge an already-spent contribution, it generally does so by giving an equivalent amount to a charity. CLC is a charity," Brendan Quinn said.
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By Rob Gillies
.....The Canadian branch of Amnesty International said Monday it was the target of a cyberattack sponsored by China.
The human rights organization said it first detected the breach Oct. 5 and hired forensic investigators and cybersecurity experts to investigate.
Ketty Nivyabandi, Secretary General of Amnesty International Canada, said the searches in their systems were specifically and solely related to China and Hong Kong, as well as a few prominent Chinese activists. The hack left the organization offline for nearly three weeks...
Nivyabandi encouraged activists and journalists to update their cybersecurity protocols in light of it.
“As an organization advocating for human rights globally, we are very aware that we may be the target of state-sponsored attempts to disrupt or surveil our work. These will not intimidate us and the security and privacy of our activists, staff, donors, and stakeholders remain our utmost priority,” Nivyabandi said.
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Online Speech Platforms
By Joseph A. Wulfsohn
.....The second installment of Elon Musk's so-called "Twitter Files" shed light on the company's practices of secretly "blacklisting" certain tweets and users.
"A new #TwitterFiles investigation reveals that teams of Twitter employees build blacklists, prevent disfavored tweets from trending, and actively limit the visibility of entire accounts or even trending topics—all in secret, without informing users," journalist Bari Weiss began her thread on Thursday.
"Twitter once had a mission ‘to give everyone the power to create and share ideas and information instantly, without barriers.’ Along the way, barriers nevertheless were erected," Weiss wrote.
She pointed to Stanford University's Dr. Jay Bhattacharya, a longstanding opponent of COVID groupthink during the pandemic who expressed opposition to lockdowns.
"Twitter secretly placed him on a 'Trends Blacklist,' which prevented his tweets from trending," Weiss reported.
Weiss highlighted that Fox News host Dan Bongino was placed on a "Search Blacklist" and Twitter had Turning Point USA's Charlie Kirk on "Do Not Amplify."
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The States
By Eugene Volokh
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By Eugene Volokh
.....From Gruber v. Bruce, decided last week by Judge Waverly Crenshaw (M.D. Tenn.):
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By Julia Shumway
.....Campaign finance reform advocates who couldn’t get measures on the ballot this year have proposed one to limit campaign contributions and require more disclosure of who pays for political ads. A second proposal would prohibit the Legislature and local governments from changing voter-approved campaign finance laws without a three-quarters vote.
Supporters of the campaign finance measures objected to Rosenblum’s ballot titles, as did conservative and progressive opponents of the measure.
League of Women Voters President Rebecca Gladstone, Portland attorney Jason Kafoury and David Delk, a former progressive candidate for Congress, are the chief petitioners behind Honest Elections Oregon, the group backing the campaign finance reform measure. In October, they petitioned the Oregon Supreme Court to change a ballot title to make it clear that voter-enacted campaign laws could also be changed by referring the laws to the ballot and not solely by a three-quarters or supermajority vote.
In a separate complaint, the three seek to reword a ballot title to specify that political ads must specify their largest contributors. They also want a clear description of current campaign finance laws in a section that explains what voting “no” would mean.
Angela Wilhelms, the CEO of Oregon Business and Industry and a former Republican congressional staffer, sued in October over the title of the more substantive campaign finance measure, arguing that it should specify that only certain nonprofits, including the one she works for, would be barred from giving candidates money.
And a trio of progressive opponents of the measures, including Christy Mason, deputy director of Our Oregon; labor organizer Lamar Wise; and lobbyist Michael Selvaggio, have filed multiple Supreme Court complaints. They’re seeking court intervention to declare that it’s unclear which campaign finance laws could only be changed by a supermajority vote, among other revisions.
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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."
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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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