December 16, 2022

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

In the News

Nonprofit Law Blog: Other Shoe Drops: Lawsuit Filed Challenging Schedule B for Section 501(c)(3)s

By Lloyd Mayer

.....It will probably come as no surprise to readers of this blog that a section 501(c)(3) organization has now filed a lawsuit challenging the statutory requirement that it disclose its substantial donors to the IRS, a requirement fulfilled by completing Schedule B to Form 990. The Buckeye Institute last week announced its complaint against the IRS, filed in the U.S. District Court for the Southern District of Ohio, Columbus Division. Its lawyers include attorneys from the national Institute for Free Speech, indicating that the forum choice of a district court in the Sixth Circuit was intentional. The lawsuit follows in the wake of the Supreme Court's 2021 decision in Americans for Prosperity Foundation v. Bonta, where the Court struck down as unconstitutional a state rule requiring disclosure of charity donor information to a state agency. That case led many, including the non-profit organization scholars who filed an amicus brief supporting California's rule, to predict other donor disclosure requirements could be at risk.

Forsyth County News: ‘I’m here to make you uncomfortable:’ Mama Bears of Forsyth return to face school board amid legal battle

By Sabrina Kerns

.....Alison Hair spoke directly to the Forsyth County Board of Education at its regular meeting on Tuesday, Dec. 13, for the first time in nearly 10 months.

The Forsyth parent had been banned from the board’s meetings in March after attempting to read a sexually explicit passage from a school library book out loud during a meeting, making a point that the board should work to remove similar books from the district’s media centers.

That ban has since been temporarily undone by a preliminary ruling made in a federal lawsuit. She and a group of other parents, named the Mama Bears of Forsyth, filed suit against the board and school system in July alleging its actions and public participation policy violated citizens’ First Amendment rights.

“You have silenced me and many other parents,” Hair told the board as she stepped up to the podium Tuesday night. “For that, in my opinion, you should be ashamed.”

She read from U.S. District Judge Richard W. Story’s preliminary ruling in the lawsuit, specifically pointing out the portion that states the board’s decision to ban Hair from its regular meetings -- and its policy against profane language -- was unconstitutional.

The Courts

Courthouse News: Ken Paxton prevails in Twitter lawsuit

.....The Ninth Circuit denied a petition for panel rehearing in Twitter’s lawsuit against Texas Attorney General Ken Paxton, who ordered the social media platform to produce documents relating to its content moderation after it suspended Donald Trump’s account. The First Amendment retaliation claims did not pass muster.

Read the ruling here.

Washington Post: He flew a ‘thin blue line’ flag to honor his son. His HOA banned it.

By Jonathan Edwards

.....Tom DiSario flew a “thin blue line” flag outside his house in Pataskala, Ohio, nearly every day for 5½ years to honor his police chief son who was gunned down in the line of duty.

On Nov. 16, he lowered the flag — begrudgingly. DiSario, who is in his mid-60s, hopes the concession is a temporary defeat in a months-long battle with his homeowners association over whether he can publicly display the tribute to his slain son.

Last week, DiSario sued the Cumberland Crossing Homeowners Association and Omni Community Association Managers, alleging they violated his First Amendment rights when they threatened him with fines if he didn’t take down the flag, which they deemed “a political statement.” In his federal lawsuit, DiSario is asking a court in the U.S. District of Southern Ohio to block the homeowners association from punishing him if he raises the flag again.

FEC

Federal Election Commission: FEC elects officers for 2023, approves two advisory opinions, a Notification of Availability, and legislative recommendations

.....At its open meeting today, the Federal Election Commission elected Dara Lindenbaum to serve as Chair and Sean J. Cooksey to serve as Vice Chairman for 2023. The Commission also approved two advisory opinions, a Notification of Availability on a Rulemaking Petition, and a package of legislative recommendations to transmit to Congress for its consideration.

Online Speech Platforms

New York Times: Twitter Suspends Accounts of Half a Dozen Journalists

By Mike Isaac and Kate Conger

.....Twitter suspended the accounts of roughly half a dozen prominent journalists on Thursday, the latest change by the social media service under its new owner, Elon Musk.

The accounts suspended included Ryan Mac of The New York Times; Drew Harwell of The Washington Post; Aaron Rupar, an independent journalist; Donie O’Sullivan of CNN; Matt Binder of Mashable; Tony Webster, an independent journalist; Micah Lee of The Intercept; and the political journalist Keith Olbermann. It was unclear what the suspensions had in common; each user’s Twitter page included a message that said it suspended accounts that “violate the Twitter rules.”

The moves came a day after Twitter suspended more than 25 accounts that tracked the planes of government agencies, billionaires and high-profile individuals, including that of Mr. Musk...

Some of the journalists whose accounts were suspended had written about the accounts that tracked the private planes or had tweeted about those accounts. Some have also written articles that have been critical of Mr. Musk and his ownership of Twitter.

Candidates and Campaigns

CNBC: Trump vows ‘free speech’ reform of government, universities, media, tech firms if elected in 2024

By Kevin Breuninger and Dan Mangan

.....Former President Donald Trump on Thursday announced a series of aggressive and ambitious proposals to undo what he characterized as the suppression of free speech in the United States if he is elected president in 2024.

Trump, who lost his White House reelection bid in 2020, promised in a videotaped address that he would target government agencies and employees, universities and tech companies with a series of executive orders and policies aimed at their purported censorship of speech and ideas.

Among other things, Trump vowed to “ban federal money from being used to label domestic speech as ‘mis-’ or ‘dis-information,’” including federal subsidies and student loan support for universities.

The States

Goldwater Institute: Goldwater Defends Donor Privacy Against Unconstitutional AZ Prop 211

By Adam Shelton

.....Everyone has the right to support the causes they believe in without fear of harassment or retaliation. But that right is now under assault in Arizona from the recently passed Proposition 211. Today the Goldwater Institute filed a lawsuit challenging Prop 211’s unconstitutional requirements, continuing its legacy of spearheading the nationwide fight to protect donor privacy.

Deceptively named the “Voters’ Right to Know Act,” Prop 211 requires nonprofit organizations to turn over their donors’ names, addresses, employers, and contribution amounts to the government if those groups engage in speech on matters of public concern. Specifically, it overrides decades-old protections for donor privacy under federal law and U.S. Supreme Court precedent, by requiring nonprofits that spend more than $50,000 over a two-year period speaking about policy issues prior to an election to publicly disclose any donor who gave more than $5,000 over the same two years.

Washington Post: Two court cases show the civil liberties toll of Jan. 6

By Jason Willick

.....Is the answer to the attempted overturning of one election the overturning of another? That question is being litigated this week in Alaska, where David Eastman, a Republican and a member of the Oath Keepers, represents Wasilla in the state legislature. Eastman won reelection in November — but the seat could go to the election’s runner-up if a judge disqualifies Eastman under the 1956 state constitution’s disloyalty clause.

The clause bars from office anyone who “aids or belongs” to a group that advocates “the overthrow by force or violence of the government of the United States.” The Oath Keepers is a small-government, right-wing group created in 2009. More than 38,000 people have reportedly paid for membership since then, according to a 2021 leak. A number of Oath Keepers played significant roles in the Jan. 6, 2021, Capitol siege, and the group’s president, Stewart Rhodes, was convicted last month in D.C. under the federal seditious conspiracy statute.

Eastman, an Oath Keepers member since 2010, traveled to Washington for Donald Trump’s Jan. 6 speech, but he has not been charged with any crime. The disqualification lawsuit centers not on his conduct but on his affiliation with the Oath Keepers (and refusal to renounce it).

Barring Americans from elected office because of their membership in radical political organizations could violate the First Amendment’s guarantee of free association. But the practical scope of the Bill of Rights has often narrowed in U.S. history in periods of heightened political tension.

MPR: Lobbying law could squeeze some Minnesota legislators

By Brian Bakst

.....A new lobbying law could put some Minnesota legislators in a tight spot and also raise problems for regulators in determining who must register as a lobbyist.

The law approved in 2021 is set to take effect in January. It aims to bar legislators from working for entities that exist primarily for lobbying or government affairs work. The same prohibition would apply to legislators who take on certain roles at organizations that employ or contract with lobbyists.

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