Supreme Court
Federalist Society (Teleforum): Litigation Update: FEC v. Cruz for Senate
The webinar [reviews] the traditional free speech issues in the case (including the extent of any risk of corruption or its appearance presented by a candidate’s loan to his or her own campaign), as well as practical concerns about the effect these limitations might have on campaigns — including on the kinds of candidates who will be able to run for office.
Featuring:
Donald A. Daugherty, Jr., Senior Litigator, Institute for Free Speech
Harmeet Dhillon, Founding Partner, Dhillon Law Group Inc.
[Ed. note: Listen at the above link, on Apple podcasts, or Google Play.]
The Courts
New York Times: Judge Says States Can Investigate WinRed’s Fund-Raising Tactics
By Shane Goldmacher
A federal judge in Minnesota on Wednesday dismissed a lawsuit filed by WinRed, a company that processes online donations for Republicans, that sought to block state attorneys general from investigating fund-raising tactics that have triggered complaints of fraud.
The attorneys general from four states — New York, Minnesota, Maryland and Connecticut — first sent letters to WinRed last April, asking for documents after a New York Times investigation revealed the company’s use of prechecked boxes to automatically enroll donors in recurring contribution programs. The boxes resulted in a surge in demands for refunds from supporters of former President Donald J. Trump…
WinRed has argued that the attorneys general, all Democrats, are politically motivated. However, the four also sent a similar request for documents last year to ActBlue, the leading Democratic donation-processing platform. ActBlue said on Wednesday that it had also received a subpoena and that it had shared the requested information.
Washington Post: A win in Florida for academic freedom — and for democracy
By Editorial Board
If you don’t want to be compared to a repressive regime that doesn’t allow free speech and expression, stop acting like one. That was the blunt advice to the University of Florida from a federal judge as he sided with six professors who said school officials had violated their First Amendment rights. The strongly worded defense of academic freedom came in a high-profile case that should serve as a warning about the dangers to democracy when critical inquiry and expression are stifled.
Reason: PETA Sues for Its Free Speech Rights, Again
By Rikki Schlott
In May 2020, PETA attempted to run ads on the interior of Shore Transit’s buses (see below). The phrase, “No One Needs to Kill to Eat. Close the slaughterhouses: Save the workers, their families, and the animals,” is paired with images that are not overtly graphic. However, PETA’s application was denied by Shore Transit, which claimed the ads were “too offensive for [its] market and political in nature.”
The transit company’s policy prohibits “political,” “offensive,” and “controversial” ads, but PETA argues that their advertising doesn’t fall into any of those restricted categories. They view “animal slaughter as offensive, controversial, objectionable, and in poor taste.” To PETA, “No one needs to kill to eat” is a fact.
The Court denied the motion to dismiss the case last week, saying, “While the Court is certainly sympathetic that Defendants may have an interest in limiting graphic or gory imagery on its buses, the manner in which Defendants allegedly have done so appears to be neither viewpoint neutral nor reasonable.”
PETA—represented by Brian Hauss of the American Civil Liberties Union and Robin Cockey of Cockey, Brennan & Maloney—argues that buses should be considered a “designated public forum or, in the alternative, a limited public forum,” and therefore, prohibiting the ads is violating the Free Speech Clause of the First Amendment.
Free Expression
City Journal: A Generational Threat to Free Expression
By Eric Kaufmann
Another front in the culture war is censorship of speech, usually justified on grounds that such speech would inflict psychological harm on minorities and that power should be redistributed to “marginalized groups.” Activists pushing for such censorship organize online flash mobs and pressure campaigns, wielding accusations of racism, homophobia, or transphobia to ruin a person’s reputation and have them fired from their position. The problem is especially acute in higher education: the number of academics targeted for cancellation has exploded in recent years.
Young people are especially afraid of cancel culture. Forty-five percent of employees under 30 worry about losing their jobs because “someone misunderstands something you have said or done, takes it out of context, or posts something from your past online.” Just 29 percent of those over 55 have the same worry.
This fear, however, doesn’t appear to lead young people to oppose cancel culture.
Knight Foundation: College Student Views on Free Expression and Campus Speech 2022
The “Knight-Ipsos College Student Views on Free Expression and Campus Speech” report is the fourth in a series of Knight Foundation reports measuring college student attitudes toward speech and the First Amendment since 2016…
For findings on how the adult population views free speech and expression, please see “Free Expression in America Post-2020,” published earlier in January 2022.
This Knight Foundation-Ipsos report offers nuanced insight into how college students perceive campus speech and First Amendment protections today, including how views are evolving within different factions of the student body. This survey reinforces that students are not a monolithic group when it comes to speech, finding that partisanship, race, and ethnicity drive meaningful differences in how college students view speech. Understanding where different groups stand is vitally important for higher education leaders as they seek to foster free expression on college campuses and create a campus environment that is diverse, equitable, and inclusive.
Online Speech Platforms
Election Law Blog: Social Media and Political Extremism
By Richard Pildes
I’ve been writing about how the communications revolution is one significant factor fueling polarization, the rise of free-agent politicians, and the difficulty of putting together effective political majorities that can legislate. This new data from Axios (which takes it from NewsWhip) highlights the types of elected officials who generate the most social-media attention. Keep in mind how this also affects fundraising, including the role of small donors in fueling the ideological poles: …
From the Axios story:
New data finds that the nation’s most polarizing politicians are often the ones that garner the most attention online.
The States
Seattle Times: Inslee’s solution to ‘big lie’ threatens free speech
By Seattle Times Editorial Board
Following the governor’s wishes, Sen. David Frockt, D-Seattle, introduced Senate Bill 5843, which would make it a gross misdemeanor — punishable by up to 364 days in jail — for public officials and candidates to knowingly make false statements that incite and produce “lawless action.”…
Even with its very specific requirements, the courts are rightly suspicious of any law that runs counter to the First Amendment, especially those that would have the government determining what is true or not…
That may be difficult to accept as we continue to be mired in a fog of misinformation cynically spread by bad actors, but the counter to false speech is true speech, not ill-advised legislation.
SB 5843 is scheduled for a public hearing starting at 10:30 a.m. Friday, Jan. 28, before the Senate State Government and Elections Committee. With a guaranteed First Amendment battle in court, it is likely only a matter of courtesy that the governor’s much-touted proposal has come this far.
In that spirit, we politely ask that this misguided bill go no further.
