Supreme Court
SCOTUSblog: Argument analysis: Justices struggle to define boundaries of Anti-Injunction Act
By Blaine Saito
The Supreme Court in Tuesday’s argument in CIC Services v. Internal Revenue Service tried to clarify the scope of the Anti-Injunction Act, which generally prohibits lawsuits seeking to block the assessment or collection of a tax. The case specifically asks whether a company can sue to block the enforcement of an IRS notice that imposes certain reporting requirements, or whether the company must wait and sue only after the IRS assesses tax penalties for non-compliance with the notice. To arrive at an answer to that question, the court will have to resolve a clash between the AIA and another important federal statute: the Administrative Procedure Act.
[Ed. note: The Institute for Free Speech filed an amicus brief in support of the petitioner in the case.]
The Hill: Constitution doesn’t allow special burdens on pro-life speech, US Supreme Court should say so
By John Bursch
Freedom of speech is one of America’s greatest values, shared by those across the political spectrum. It is our common ground. Without it, the country we know and love would not exist. The Bill of Rights, women’s voting rights, and the civil rights movement were all possible only because individuals had the freedom to convince their neighbors of the justness of their cause. Civil discourse about public issues is our nation’s bedrock.
But 20 years ago, the Supreme Court created a major crack in that foundation when it comes to abortion-related speech on the public sidewalk, a fracture the high court should fix.
That’s why Alliance Defending Freedom, where I work, filed a lawsuit six years ago on behalf of five sidewalk counselors in Pittsburgh. We’ve now asked the U.S. Supreme Court to hear their case.
The Supreme Court is usually a strong defender of free speech. But in 2000, the court veered off course, upholding a Colorado law that banned sidewalk counselors from knowingly approaching within eight feet of another person to give them literature or provide counseling outside medical facilities. Even though the court walked that ruling back in 2014, lower courts continue to give state and local governments leeway to censor peaceful pro-life speech on public sidewalks, where courts safeguard expression about nearly everything else.
The Courts
Courthouse News: Judge Holds Portland in Contempt Over Violent Policing of Protests
By Karina Brown
Police in Portland, Oregon, shot peaceful protesters with rubber bullets and paintballs during demonstrations against police violence in violation of a court order barring that very thing, a federal judge ruled Monday night.
Congress
Washington Post: Trump’s threat to veto defense bill over social-media protections is heading to a showdown with Congress
By Karoun Demirjian and Tony Romm
A full repeal of Section 230, as Trump envisions, would have vast implications for the future of free expression. Its protections against lawsuits offer social networking sites the legal runway to moderate their services as they see fit, according to legal experts, who predicted a repeal could ultimately end up hurting Trump and his allies.
“There are a lot of conservative speakers that are indirect beneficiaries of Section 230,” said Matthew Schruers, the president of the Computer & Communications Industry Association, a trade group that counts Facebook and Google as members. “There are a lot of conservative commentators whose brand is being on the edge. They may well be the first to suffer in a world where there are no Section 230 protections.”
The Hill: Schakowsky to introduce bill to limit reach of tech liability shield
By Rebecca Klar
Rep. Jan Schakowsky (D-Ill.) said Wednesday she will be introducing a bill in January that aims to hold tech companies accountable for their terms of service and would limit the reach of the liability shield that protects tech companies over third-party content posted on their sites.
Schakowsky said the Online Consumer Protection Act she plans to introduce would require platforms disclose to consumers in “easily understood terms” policies regarding health misinformation, incitement of violence, election misinformation and wildlife trafficking.
If platforms fail to enforce these policies, then Section 230 of the Communications Decency Act, which grants tech companies a liability shield, would not protect them from liability related to these new obligations, she said.
Schakowsky announced she would be introducing the bill at a multinational summit on disinformation co-hosted by Rep. David Cicilline (D-R.I.).
She underscored the need for such reform based on rampant election misinformation that spread across social media platforms around this year’s presidential election.
The Verge: Trump’s bias hawk FCC nominee is one step closer to confirmation
By Makena Kelly
On Wednesday, the Senate Commerce Committee voted to advance the nomination of Nathan Simington, a Republican in favor of greater government oversight of speech on the internet, to the Federal Communications Commission. Simington’s nomination now awaits a floor vote for final approval.
NLRB
National Review: The NLRB’s Humorless Insensibility
By The Editors
The text of the National Labor Relations Act does not, so far as we can tell, require the National Labor Relations Board or its personnel to have their sense of humor surgically removed. Nor does it prohibit the NLRB’s judicial proceedings from considering context, common sense, or elementary reality in making decisions. But you could not tell this from its decision upholding an administrative-law judge’s unfair-labor-practices ruling against FDRLST Media, LLC, which operates the conservative website The Federalist.
On June 6, 2019, Twitter was abuzz with the story of a unionized walkout of employees of progressive online conglomerate Vox Media. Many people in conservative media predicted that this would be bad not only for Vox Media’s business interests, but for the journalistic culture of its websites… But even if conservative predictions had not come true, they would be fair grounds for public comment by journalists on a matter of public importance, and not to be muzzled by federal regulators.
Not so, says the NRLB. Ben Domenech, the founder and publisher of The Federalist tweeted that night, “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine”. For the labor-side lawyers out there: This is what the rest of us call a “joke,” mocking the situation at Vox Media. Yet, it led to a finding of unfair labor practices by the NLRB and a government order to a journalist to delete his tweet. (Because the case is on appeal, the tweet still stands.)
Free Speech
Federalist: Why Identity Politics’ Speech Controls Will Cancel Self-Government If We Don’t Resist
By Arthur Milikh
Just in the past few years, U.S. senators proposed to outlaw words they deem offensive; New York City attempted to fine residents $250,000 if they say “illegal alien”; Big Tech companies continue to ban certain kinds of speech from their platforms; deeply embedded regulatory and judicial precedents, originating in civil rights laws and the sexual liberation movement, have expanded their reach into the private sphere, permitting bureaucrats and activists to regulate speech; and denunciations of individuals and institutions who speak contrary to identity-politics dogma are commonplace…
To understand the political and moral consequences of losing freedom of speech, we should examine its original purposes, of which there are three: political liberty, freedom of the mind, and the formation of republican habits of character. For Benjamin Franklin, these purposes were related: “Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech.”
Political liberty is not possible without freedom of speech. On the one hand, arguments about the common good and public policies must be presented to citizens if they are to rule themselves – and to do this, citizens must be free to discuss “the Propriety of Public Measures and political opinions,” as Franklin says. On the other hand, free speech is also a necessary tool for exposing and keeping in check “narrow thoughts and narrow men.”
ScottRasmussen.com: 57% Say Protecting Free Speech More Important Than Preventing Spread Of Misinformation
By Scott Rasmussen
Fifty-seven percent (57%) of voters nationwide believe that protecting free speech so that all voices and opinions can be heard is more important than limiting free speech to prevent the spread of misinformation. A Political IQ survey conducted by Scott Rasmussen found that 31% take the opposite view and believe preventing the spread of misinformation is more important. Twelve percent (12%) are not sure.
A majority of every measured demographic group but one sees protecting free speech as more important. The sole exception is government employees who are fairly evenly divided. Fifty percent (50%) of those on the public payroll say preventing the spread of misinformation is more important while 44% say protecting free speech is the higher priority.
The Media
Daily Beast: Anti-‘Cancel Culture’ Reason Magazine Accused of Canceling Columnist for Being Too Anti-Trump
By Andrew Kirell
A leading critic of “cancel culture” is being accused of canceling one of its own-for speaking out too loudly and too often against President Donald Trump.
Throughout the Trump era, Reason magazine, a digital and print publication published by the nonprofit libertarian Reason Foundation, has routinely sounded the alarm about the perceived threat posed by “cancel culture,” the modern phenomenon in which people are publicly and professionally ostracized for heterodox beliefs or remarks. The magazine has lambasted other outlets like The Atlantic, The New York Times, and The Intercept for firing or pushing out key staffers whose views or actions were determined to have conflicted with their respective editorial missions.
And yet, a long-time Reason columnist and policy analyst alleges that the libertarian magazine dropped her over her vehemently anti-Trump views.
Nonprofits
Law&Crime: How Trump’s Legal Challenges of the Election Results Turned into a Tax-Deductible ‘Coup’
By Adam Klasfeld
From far away, the dozens of lawsuits attempting to overturn President-elect Joe Biden’s victory look like different beasts, but closer inspection reveals that many are a handful of charities apparently coordinating as different tentacles of the Trump campaign-like a Kraken, if you will…
Lawyers Sidney Powell and Lin Wood claim to have set up 501(c)4s-which are not tax-deductible-chipping into the effort. Both declined repeated requests to share exemption applications for the purported charities…
The website for Powell’s organization, called Defending The Republic, directs donors to write checks payable to her law firm, Sidney Powell, PC, a fact that a representative for the anti-corruption watchdog Citizens for Responsibility and Ethics in Washington found concerning.
“That’s not how charities work,” CREW’s spokesman Jordan Libowitz told Law&Crime in a phone interview.“You send the money to the nonprofit, not to a person who works there,” Libowitz added. “No one sends CREW donations to my bank account.”
Asked about how she handles donations written to her firm, Powell told Law&Crime: “All contributions for DefendingTheRepublic are being held in trust while we are working around the clock to fight the corruption and my lawyers are dotting eyes [sic] and crossing T’s.”
Candidates and Campaigns
Roll Call: ‘No corporate PAC’ pledges hit record in 2020, but may face uncertainty in 2022
By Kate Ackley
Swearing off donations from corporate political action committees became all the rage among Democrats during the past two election cycles, but potential cracks in the trend have begun to emerge.
Rep. Elaine Luria, a Virginia Democrat who rejected such contributions in winning her seat in 2018 and getting reelected last month, has changed her position for the coming cycle, representatives of business PACs said. Massachusetts Democrat Seth Moulton also refused contributions from the PACs of businesses and companies during his brief presidential bid, then warmed back up to them as he refocused on congressional races…
A record 155 incumbents and challengers vowed to reject corporate PAC money during the 2020 campaign, according to End Citizens United…
Now, as Democrats face a 2022 midterm cycle in which, traditionally, the president’s party loses seats in the House, incumbents and future challengers are assessing whether the pledges pay off. On the other side, the PACs of companies themselves continue to grapple with diminished clout partly due to contribution limits set long ago that don’t budge for inflation…
“The no-corporate-PAC pledges are a way of virtue signaling, and this can be a powerful political tool,” said Meredith McGehee, executive director of the campaign finance overhaul group Issue One. “The real impact in terms of changing the way business is done in Washington has yet to be proven.”
The States
Toledo Blade: Ohio House splits on party lines over campus ‘free speech’ bill
By Jim Provance
The Ohio House voted 65-27 along party lines on Wednesday to prohibit public colleges and universities from blocking controversial guest speakers from campus.
Republicans argued that Senate Bill 40 protects all free speech on Ohio campuses, while Democrats countered that its genesis was in litigation that followed schools’ refusal to grant forums to far-right speakers…
Dubbed the “Open and Robust Minds Act,” SB 40 would prohibit colleges and universities from unreasonably restricting speech out of fear it could pose a security risk or draw public protests…
The legislation, sponsored by Sens. Andrew Brenner (R., Powell) and Rob McColley (R., Napoleon), would ban “free-speech zones,” particularly in outdoor public areas on campus. It would also make it illegal for organizations and student groups to be charged security fees in order to hold speaking events that could counter-protests…
The Senate unanimously passed the bill earlier this year, and now the bill must return to the Senate for approval of changes made by the House.
Pennsylvania Real-Time News: Middleburg revises ordinance, pays $10,000 to settle suit with flag-burning activist Stilp
By John Beauge
A Snyder County borough has rewritten its burn ordinance in a settlement with a Middle Paxton Twp. activist who burns flags to protest President Trump, political corruption and racial injustice…
Borough police had charged him after he burned flags on July 9. That charge was withdrawn as part of the settlement…
The major change to the borough’s burn ordinance is the addition of a section on public demonstrations to addresses flag burning.
It requires anyone wishing to conduct a public demonstration involving flag burning or other items must apply for a permit at least two days in advance. There is no fee for the permit.
Requirements if a permit is issued include an extinguisher must be present, no flag larger than four-by-six feet can be burned and fires must be in a container.
