In the News
Pacific Legal Foundation: Free speech—past, present, and future
By Brittany Hunter
For over a century, the American Civil Liberties Union (ACLU) has been one of the staunchest defenders of the First Amendment and has routinely come to the aid of those whose rights have been trampled on by the government.
But over the past few years, the organization has shied away from its unbridled support of free speech, leaving a void in the movement to defend First Amendment protections…
The Institute for Free Speech (IFS) has also helped fill the void left by the ACLU. When William Thomas, an owner of several roadside signs in Tennessee, had his signs torn down by government officials who disagreed with its content, IFS came to his aid.
Likewise, the organization helped defend Kells Hetherington, who was fined hundreds of dollars for stating his political affiliation while running for his county school board, which is a crime under Florida law.
Law360: CA Groups Say AB 5 Violates Free Speech In Suit Against AG
By Irene Spezzamonte
A political action committee along with a grassroots campaigning company sued the California attorney general, saying that the state law that requires classifying door knockers as employees violates their First Amendment…
Roll Call: FEC reviewing rules on salaries, benefits for candidates
By Kate Ackley
[Nabilah] Islam, who lost in the Democratic primary in Georgia’s 7th District…is calling on the Federal Election Commission to allow candidates to secure a minimum salary and health benefits through their campaigns. She also wants the FEC to set a uniform time frame for when candidates may begin drawing compensation…
Islam’s petition asks the FEC to set a minimum salary, even for people who did not previously have an income, of $15 an hour…
David Keating, president of the Institute for Free Speech, which advocates fewer campaign finance regulations, said it makes sense to him to set a uniform time frame for when candidates could begin taking a salary, rather than using a state-by-state patchwork. He’s less convinced that the FEC should determine a minimum salary threshold for federal candidates who wish to pay themselves but who did not have income.
“I’m sympathetic to the idea of some minimum amount, but I don’t think the FEC should be defining what a living wage is,” he said, noting that he was speaking for himself and not taking an official position for the Institute for Free Speech. “To me, what makes the most sense is the minimum wage in that district.”
He added that most candidates are still unlikely to pay themselves a salary.
“Very few do it because politically it makes it more difficult,” Keating said. “Voters tend to look with suspicion when politicians are paying themselves to campaign.”
Supreme Court
Election Law Blog: If CJ Roberts Has the Opinion in Americans for Prosperity v. Bonta, Will He Pull the Same Switcheroo on Exacting Scrutiny as He Did in McCutcheon?
By Rick Hasen
Some reading the tea leaves believe Chief Justice Roberts has the Court’s opinion in AFP v. Bonta, on donor disclosure. I’m interested in the case because the decision may affect the constitutionality of campaign finance disclosure laws, even though AFP involves disclosure of donors to the government that is not supposed to be shared with the public (but was shared because CA did not do a good job protecting the security of its website).
A key legal issue, in the face of AFP’s claims that the requirement to disclose violates the First Amendment, is the standard of scrutiny to apply to laws requiring disclosure. The doctrinal answer is “exacting scrutiny,” but what exactly that means is the subject to some debate. There are some who believe the Court should apply strict scrutiny to donor disclosure laws, which would render most such laws unconstitutional.
The situation here reminds me of what happened in the 2014 McCutcheon v. FEC case, involving the constitutionality of aggregate contribution limits. Those too have been subject to “exacting scrutiny,” though its application in the contributions context has been different than in the disclosure context.
Here at Slate is how I described what Roberts did with the “exacting scrutiny” issue when he wrote McCutcheon:
The Courts
Courthouse News: Judge: Facebook’s Efforts to Curb Vaccine Misinformation Didn’t Violate First Amendment
By Nicholas Iovino
A federal judge in California on Tuesday rejected a lawsuit claiming Facebook and its CEO Mark Zuckerberg violated the First Amendment by censoring an anti-vaccine group’s social media posts at the behest of the federal government.
Children’s Health Defense (CHD), a Georgia nonprofit founded by vaccine skeptic Robert F. Kennedy Jr., sued Facebook in August 2020. The group claims U.S. government officials pressured Facebook to block, limit and slap warning labels on the group’s claims about purported harms associated with vaccines…
The First Amendment generally shields internet platforms like Facebook from lawsuits challenging how they moderate or censor content, but CHD claims the government coerced and encouraged Facebook to stifle its speech, transforming a private company’s actions into a state-sponsored directive.
In a 45-page ruling issued Tuesday, Senior U.S. District Judge Susan Illston found that theory unsupported by the facts. She dismissed the lawsuit without leave to amend.
News 4 Jax: Clash over Florida’s social media censorship law continues in court
By Jake Stofan
The state of Florida and organizations representing major tech companies squared off in federal court Monday as they hope to sway a judge in a dispute over the state’s social media censorship law.
In one corner, attorneys representing the state are making the case that the law, which carries fines as steep as $250,000 a day for social media companies that de-platform political candidates, should take effect as scheduled on July 1.
In the other corner, a group representing tech companies is making the case that the law as written would infringe on the companies’ constitutional rights.
Gov. Ron DeSantis, a vocal supporter of the law, has been following the court case closely. He hopes the judge will recognize that some companies have grown too big to continue operating without some sort of check on their influence over public dialogue…
But NetChoice, the group suing the state on behalf of internet giants, doesn’t see it that way. The group holds that the new law violates companies’ First Amendment rights by limiting their ability to regulate content on their own platforms.
“We have a whole litany of cases that make [it] crystal clear governments cannot force private businesses to say things they don’t want to say,” Carl Szabo, vice president of NetChoice, said Monday.
Bloomberg Law: Oklahoma Bar Sees Constitutional Challenge to Dues Reinstated
By Holly Barker
A lawsuit claiming the Oklahoma Bar Association’s mandatory bar dues violate attorneys’ First Amendment rights to freedom of association was revived after the Tenth Circuit found Tuesday the group might engage in ideological activities unrelated to its core purpose.
The lower court failed to analyze whether all the bar group’s activities “were germane to regulating the legal profession and improving the quality of legal services in Oklahoma,” the appeals court said.
Although two articles cited in support of the challenge and published by the Oklahoma Bar Journal weren’t in the record, lawyer Mark E. Schell plausibly alleges “the articles strayed from the germane purposes of the OBA and discussed matters in an ideological matter,” the U.S. Court of Appeals for the Tenth Circuit said.
One of the articles allegedly criticizes “big money and special interest groups” donating to campaigns for elected judges and justices…
The case is Schell v. Williams, 10th Cir., 20-6044, 6/29/21.
New York Daily News: Sergeants union boss sues NYPD, Commish, alleges campaign to shut him up
By Graham Rayman
Police union boss Ed Mullins says the NYPD is trying to muzzle him for his roguish Twitter rhetoric.
Mullins, the president of the Sergeants Benevolent Association, asked a federal court Monday to issue an order stopping the department from conducting disciplinary probes in its alleged campaign of retaliation over his outspoken opinions.
Claiming a First Amendment right to speak out on behalf of the union, Mullins claims he was within his rights, for example, when he called Rep. Ritchie Torres (D-N.Y.) a “first class whore,” dubbed former city Health Commissioner Oxiris Barbot “a b—- with blood on her hands,” and once posted the arrest record of Mayor de Blasio’s daughter Chiara…
“Defendants’ actions are designed to suppress political speech protected by the First Amendment, insulate city leaders from political criticism and unseat Mullins as the elected leader of the SBA,” the lawsuit claims.
“It is critical that labor leaders across the country have the freedom to publicly call out government officials for corruption and incompetence without fear of retribution.”
Congress
Roll Call: Lawmakers weigh in on proposals to change the Supreme Court
By Todd Ruger
Several members of Congress wanted to make sure the White House commission on the Supreme Court heard their views ahead of the first public hearing Wednesday…
Senate Majority Leader Charles E. Schumer sent the commission the series of reports the Democratic Policy and Communications Committee published in May 2020 titled “Captured Courts: The GOP’s Big Money Assault on The Constitution, Our Independent Judiciary, and the Rule of Law.”
A bill that Rhode Island Democratic Sen. Sheldon Whitehouse championed and Republicans opposed, which has a provision to require advocacy groups to disclose donors if they run ads around judicial nomination fights, is in Democrats’ elections, campaign finance and ethics overhaul bill that stalled in the Senate this month…
Whitehouse, in a letter to the commission with fellow Democratic Sens. Mazie K. Hirono of Hawaii and Richard Blumenthal of Connecticut, as well as Hank Johnson, suggested a dozen areas the commission should study that includes the issue of dark money influence on the Supreme Court.
“This set of interwoven problems connected by secret funding is likely the primary driving force behind the degradation of confidence that necessitated this Commission’s formation,” the Democratic members wrote.
That includes the role of dark money nonprofit groups that have held sway over the judicial confirmation process, whether Congress should have a role in cleaning up Supreme Court decisions that rely on factual errors, disclosure requirements for outside groups that file briefs in a Supreme Court case and the disclosure requirements for justices.
Center Square: Republicans question motives of IRS in ruling that could jeopardize tax-exempt status of churches
By Casey Harper
Several Republicans in the U.S. House and Senate sent a letter to the IRS Friday demanding the agency correct a ruling they say could have major implications for churches and faith-based organizations in the U.S.
Fifteen members signed the letter to IRS Commissioner Charles Rettig about a Christian group in Texas called Christians Engaged. The group released a letter from the IRS stating that the federal tax agency denied the group 501(c)(3) nonprofit status, saying “Bible teachings are typically affiliated with the [Republican] party and candidates.”
That line of reasoning has sparked significant controversy.
“These issues have always been at the core of Christian belief and classifying them as inherently political is patently absurd,” the Republican letter reads. “If the IRS applied this interpretation broadly, it would jeopardize the tax-exempt status of thousands of Christian churches around the country.”
Fundraising
Coindesk: State of Crypto: Inside the NRCC’s Plan to Accept Crypto Donations
By Nikhilesh De
The National Republican Campaign Committee (NRCC) is the first major congressional campaign group to accept cryptocurrencies in the U.S. Its chair, Rep. Tom Emmer (R-Minn.) says this move comes at donors’ request…
The Federal Election Commission has allowed political campaigns to accept crypto since 2014. Emmer said the NRCC’s team has worked with the election watchdog to ensure NRCC donations are above board.
Online Speech Platforms
Reason (Volokh Conspiracy): Interpreting 47 U.S.C. § 230(c)(2)
By Eugene Volokh
In a few weeks, the Journal of Free Speech Law will publish its inaugural symposium, on free speech and social media platforms. Prof. Adam Candeub (Michigan State) and I will be writing our own articles for the symposium, as will several other scholars. But Adam and I will also have a joint piece on one specific question—how 47 U.S.C. § 230(c)(2) should be interpreted. Here’s a very rough draft (not yet cite-checked and proofread); I’d love to hear people’s view on it.
I should note that my initial reading of the statute (which I had expressed at some conferences, though not in any articles) was different than it is now; it roughly matched what we discuss below in Part I, which I now think isn’t correct.
The States
Arizona Capitol Times: Bill to define ‘anti-Semitism’ in school lessons passes Senate
By Howard Fischer
Teaching anti-Semitism in Arizona public schools will include any claim that the state of Israel has no right to exist, according to legislation approved Tuesday by the state Senate.
The 16-14 vote came over the objections of every Democratic lawmaker who said that it would effectively stifle any discussion of how the government there is dealing with Palestinians living both within the official state and in occupied territories…
“There is a strong and a well-funded lobbying effort that’s underway right now to take advantage of this crisis to redefine ‘anti-Semitism’ to include any criticism of the nation-state of Israel,” [Sen. Martin Quezada, D-Glendale] said.
Sen. Paul Boyer, R-Glendale, who is behind the measure, denied that is the case. He said nothing in the measure precludes criticizing the policies of the Israeli government.
“If you’ve spent any time in Israel, you know that criticizing the state of Israel and the government is really an Israeli pastime. And he pointed out the legislation spells out that it does not “diminish or infringe on any right that is protected under the Constitution of Arizona or the First Amendment to the United States Constitution.”’
What Boyer said this is aimed at are things he considers “blood libel,” ranging from denying the scope or even existence of the Nazi genocide or even holding Jews collectively responsible for the actions of the state of Israel.
He acknowledged, though, that the definition of anti-Semitism in his legislation does include raising questions about not just the policies of the Israeli government but even whether Israel should exist.
