This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected].
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In the News
By Michael Gormley
.....David Keating, president of the Institute for Free Speech in Washington, D.C., argues that super PACs help make people more motivated to vote. “We have more competitive elections, we have more turnout, we have more changes in power,” he said...
Bradley Smith, a law professor at Capital University Law School in Columbus, Ohio, and former chairman of the Federal Election Commission, said, “There are a lot of good things about super PACs. I see it as a pretty straightforward application of free speech."
“Obviously, a lot of people don’t like it,” Smith added. “I just point out that what they mean by ‘outside spending’ is spending by you and me and for that, I don’t think that’s bad at all."
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By Jonathan Ritchie
.....Rep. Sheila Jackson Lee (D-TX) recently filed a bill in the House of Representatives that proposes to “prevent and prosecute white supremacy-inspired hate crime and conspiracy” by expanding the definition of hate crime currently found in U.S. law...
David Keating, the President of the Institute for Free Speech, told The Dallas Express, “fortunately, it’s not going to pass in this Congress. I think we can, we can bet the farm on that one.”
“But I mean, this bill is clearly unconstitutional,” the free speech advocate continued. “It goes against some of the most important and famous free speech cases including NAACP v. Claiborne Hardware Co. [1982].”
Giving an example, Keating suggested, “Suppose if you’re a journalist and you write something [in] a news report, and that news report caused some nut to commit a crime because he didn’t like what was reported on.”
“The bill would deem you as having conspired with the person that committed the crime even though you have never met the person, never spoken to them, never corresponded with them, never had any communication with them at all,” he claimed.”
“That’s a really strange definition of a conspiracy,” Keating remarked. “It’s so flagrantly unconstitutional in what it is proposing.”
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The Courts
By Alex Pickett
.....A federal judge upheld Florida Governor Ron DeSantis’ suspension of a state attorney on Friday, citing a lack of jurisdiction while still chiding the governor for violating the First Amendment and Florida Constitution.
In his 59-page opinion, U.S. District Judge Robert L. Hinkle wrote that the Republican governor’s suspension of Hillsborough County State Attorney Andrew Warren was based on “Mr. Warren’s speech on matters of public opinion.”
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By Alex Ebert
.....Ohio’s largest-ever public corruption trial begins Friday featuring powerful lawmakers, big business, and a question that could resonate across the nation’s fraught political landscape: When do campaign donations veer from protected speech into bribery?
Federal prosecutors say they’ve got the evidence proving a $60 million pay-to-play scheme against former Republican Ohio House Speaker Larry Householder and former GOP Chairman Matthew Borges.
The Department of Justice lawyers are armed with guilty pleas from accomplices, implicating texts, phone recordings, bank statements, and a 49-page mea culpa from Akron-based FirstEnergy—which admitted to funding the scheme in exchange for a $1.3 billion energy bailout bill meant to support Ohio’s two struggling nuclear power plants.
The defense brings a much simpler pitch to jurors in a Cincinnati courtroom: This is legal, politics as usual, and protected by the US Supreme Court in its 2010 Citizens United v. FEC decision and other precedent. Some legal observers think they could have a case.
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Congress
By David Harsanyi
.....Adam Schiff and a group of Democrats introduced a proposed constitutional amendment to overturn the Citizens United decision, one of the greatest free-speech victories in history.
It’s just a political stunt, of course, as Schiff doesn’t have the votes. But it does reflect the authoritarian outlook of the contemporary left on free expression...
Recall [that the] Citizens United decision revolved around the federal government’s banning of a documentary critical of 2008 presidential candidate Hillary Clinton before the Democratic primary elections. At the time, McCain-Feingold made it illegal for corporations (groups of freely associating citizens) and unions (ditto) to engage in “electioneering” a month before a primary or two months before a general election. It was outright censorship. In oral arguments, then-Solicitor General of the United States, now-Supreme Court Justice Elena Kagan initially contended that the federal government had the right to censor books that “express advocacy.”
Also recall that “campaign finance” laws — speech codes, in reality — were written by politicians and defended by a media encumbered by any limitations on their own free expression. These detestable laws prohibited groups of citizens from assembling and pooling their resources to engage more effectively in what is the most important kind of political expression at the most vital time, right before an election.
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Free Expression
By Matthew L. Schafer and Jeff Kosseff
.....Nearly 60 years ago, the U.S. Supreme Court decided a case that set the stage for a dramatic expansion of First Amendment rights across the country. While New York Times v. Sullivan dealt with arcane issues about burdens placed on public officials suing for defamation, it also declared our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” ...
Like so many other cases of its time, Sullivan is in more jeopardy today than ever before. Since 2019, Justices Clarence Thomas and Neil Gorsuch have called on the Supreme Court to reconsider this precedent. Others may be open to that call. As a law professor, Justice Elena Kagan questioned whether the court went too far in extending Sullivan, and Justice Amy Coney Barrett refused to class Sullivan as a “super-precedent,” cases that, according to her, “no people seriously push for their overruling.” ...
But we don’t have to sit back and wait for the Supreme Court to destroy one of the most important protections for free speech and press. In an article that we recently published in the Federal Communications Law Journal, we propose a solution: the Freedom of Speech and Press Act, a federal bill that would codify Sullivan and other vital free speech safeguards that rely on it. By writing Sullivan into law, we could insulate it from attacks by the court. (The bill’s text is in the article’s appendix.)
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By John Inazu
.....On Sunday, David French drew attention to the right of expressive association, which ostensibly protects our ability to join with others to promote our shared views. Quoting law professor David Bernstein, French described expressive association as “a necessary adjunct to the right of freedom of speech.” …
French reflected on some recent legal and policy decisions implicating associational rights and concluded that “when it comes to preserving the indispensable right of freedom of expressive association, our American system is delivering” and our liberties are “more secure than they’ve ever been.”
French’s embrace of expressive association as a “necessary adjunct” to free speech repeats a common but incorrect understanding that positions our ability to form and join groups as ancillary to a seemingly more important free speech right. That’s the wrong way to think about it. Our ability to speak or express our beliefs and values is predicated on our ability to form and join groups where we develop and cultivate those beliefs and values. French is correct to describe free speech as “fatally degraded” without protections for the groups from which speech emerges, but that hardly makes expressive association an “adjunct” right.
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By Tiffany Hsu
.....Digital rights groups such as the Electronic Frontier Foundation are pushing legislators to relinquish deepfake policing to tech companies, or to use an existing legal framework that addresses issues such as fraud, copyright infringement, obscenity and defamation.
“That’s the best remedy against harms, rather than the governmental interference, which in its implementation is almost always going to capture material that is not harmful, that chills people from legitimate, productive speech,” said David Greene, a civil liberties lawyer for the Electronic Frontier Foundation.
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The States
By Howard Fischer
.....Sen. Steve Kaiser has introduced legislation that could make him a hero of Arizona motorists — assuming it gets approved and survives a likely court challenge.
The Phoenix Republican wants to ban political signs from street corners, medians and other public rights of way. Kaiser said SB 1116 simply does what his constituents want.
“They hate those things,’’ he told Capitol Media Services.
“They cause a ton of bad traffic because you can’t see around them, people put them in the wrong spot,’’ Kaiser explained. “It creates a ton of trash.’’
And then they can get defaced “and everybody freaks out.’’
What they also are, Kaiser contends, is unnecessary.
“It’s the least effective way to reach voters,’’ he said. Kaiser said text messaging and digital ads are more effective and cheaper.
Yet Kaiser, in his 2020 and 2022 campaigns, put up signs around his district...
Kaiser also denied that banning these signs becomes an incumbency protection act, denying challengers the ability to create the same name ID that those in office may already have.
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By Mike Cook
.....The consensus among testifiers and members at a Wednesday hearing is too much money exists in elections that cannot easily be tracked — if at all.
Rep. Zack Stephenson (DFL-Coon Rapids) admits he does not have the perfect solution. But he says his offer is better than nothing.
And it’s going to the House Floor.
Approved on a split-voice vote by the House Elections Finance and Policy Committee, HF117, as amended, would restrict certain types of political activity by foreign-influenced corporations.
Examples include promoting or defeating a candidate or ballot question; getting a question placed on a ballot; and contributing to a candidate’s principal campaign committee, political committee, political fund or party unit.
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By Jerod MacDonald-Evoy
.....A Republican bill aimed at stopping protests outside of residential properties has some First Amendment advocates worried, but lawmakers say it is needed in the currently heated political environment.
Senate Bill 1023 by Fountain Hills Republican John Kavanagh would amend the state’s existing residential picketing law to say that a person can be charged with picketing if a “reasonable person” would find their actions harassing, annoying or alarming, regardless of if the person doing the picketing intended to harass, annoy or alarm.
Currently state law only allows for a person to be charged with residential picketing, a misdemeanor, if they intentionally engage in picketing to “harass, annoy or alarm another person.” The new law leaves out the protester’s intent.
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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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