In the News
Governing: How the Courts Are Being Used to Intimidate Americans into Silence
By David Voorman
SLAPPs enable people to weaponize our legal system to shut down opposing views. And they are ripe for abuse…
Fortunately, there is a policy solution to this problem. State and federal anti-SLAPP efforts enable people to voice their opinions…
According to a new report by the Institute for Free Speech, 31 states and the District of Columbia now have functioning anti-SLAPP statutes. The IFS report assesses the existing anti-SLAPP statutes and provides ratings from A to F for their effectiveness in protecting First Amendment rights. Of the 32 jurisdictions with functioning anti-SLAPP statutes, 17 received a grade of B or higher; the remaining 15 jurisdictions received a C-plus or lower.
Lawmakers can access a map of the United States to view the rating for their state, and the report explains in detail the rationale of those ratings and grades. The report also offers ways that lawmakers can improve their anti-SLAPP efforts and includes a discussion of what the components of a well-designed anti-SLAPP statute look like.
The Courts
Courthouse News: Campaign contributions
A federal court in Washington tossed End Citizens United’s lawsuit against the Federal Election Commission over its dismissal of the political action committee’s allegations that former President Donald Trump’s campaign committee had “solicited and directed contributions to another committee in violation of the Federal Election Campaign Act.” The court ruled it lacks authority to review the dismissal.
Read the opinion here.
The Media
Techdirt: NY Times Uses Anti-SLAPP Law To Sue Guy Who SLAPPed It
By Mike Masnick
In early 2020, Peter Brimelow, the founder of the incredibly sketchy site VDARE, sued the NY Times for calling him an “open white nationalist” among other similar things…
Less than a year after it was filed, the judge dismissed it easily…
Last week, Reuters reported that the NY Times was now suing Brimelow under NY’s anti-SLAPP law…
So, now we can dig in and explain why this is a “first of its kind” lawsuit and provide the info Reuters skipped over…
In the recent trial in which the NY Times defeated Sarah Palin’s bogus defamation lawsuit, the judge had noted that the newly amended anti-SLAPP law could apply to cases that started before the law was changed. That is, the anti-SLAPP law could be used retroactively.
The case from Brimelow was filed before the amended anti-SLAPP law, and the lower court’s dismissal came basically a few weeks after the law was changed, but at a point when all of the briefing had been done. In other words, unlike in a normal anti-SLAPP situation, the NY Times was unable to use the anti-SLAPP law during the case itself to get it kicked out and to get attorney’s fees.
So, what’s new here is that the NY Times is now taking the rulings of a few judges in NY, who have said that the law is retroactively applicable, and arguing that Brimelow’s case was a SLAPP, and he should pay for their fees. Because this option wasn’t available at the time they sought to dismiss the case, they are now filing this new case in order to take advantage of that aspect of the law.
Free Expression
The Federalist: The Only Way To Fight Disinformation Is To Fight Political Censorship
By Stella Morabito
Censorship causes disinformation. It’s the grandaddy of disinformation, not a solution to it. The sooner everyone recognizes this obvious fact, the better off we’ll be.
Whenever a self-anointed elite sets up a Ministry of Truth, the link between censorship and disinformation becomes clear. Before long, they invent reality and punish anyone who expresses a different viewpoint.
So, it’s no small irony that those who claim to be protecting “democracy” from disinformation are the biggest promoters of disinformation and greatest destroyers of real democracy. Their dependence on censorship obstructs the circulation of facts. It prevents any worthwhile exchange of ideas.
Online Speech Platforms
Reason (Volokh Conspiracy): When Is It Unethical to Publicly Identify an Anonymous Speaker?
By Eugene Volokh
The recent controversy about the Washington Post’s Taylor Lorenz publishing the name of the Twitter @LibsOfTikTok account reminds me of this question, though it has of course also come up before. Two things seem to me quite clear:
- Publicizing such names can sometimes lead to the user (a) receiving threats (from a tiny fraction of the people who learn the name), (b) potentially being targeted for physical attacks (likely from even a tinier fraction), and (c) losing jobs and other economic opportunities (whether because the employers or others disapprove of the person’s speech, or are just afraid of lost business if they deal with someone controversial). This in turn can cause these people to stop speaking; and it can deter other people from speaking, for fear that they will be identified this way.
- Publicizing such names can sometimes help people understand the possible biases of the previously-anonymous speaker, the possible relationships between various sources of online information, and the like. In some situations, it can also help readers figure out if the speaker has said or done things inconsistent with the speaker’s anonymous persona, and help readers further investigate the credibility or the motivation of the speaker.
Independent Groups
Politico: Revealed: The $14M mystery behind a new crypto super PAC
By Sam Sutton and Zach Montellaro
Federal election law generally requires that donations to political committees disclose who is the original source of funding. But pseudo-anonymous donations to super PACs have been rampant over the last few years, with donations routed through mysterious LLCs frequently popping up in reports, effectively masking the original source of the funds.
The case with Protect Our Future was different: Bankman-Fried had already been publicly identified as a major supporter of the burgeoning super PAC, and Prime Trust is an established company. But the episode shows how malleable campaign finance laws are — and how even significant political spenders can escape disclosure without scrutiny.
Late last week, the FEC signaled it would start cracking down on at least some of the untraceable donations to super PACs, with four commissioners writing in a statement that super PACs “have become a regular part of the campaign finance landscape” and the rules around so-called conduit disclosures are clear — that the original source of the money must be disclosed.
Fundraising
National Journal: Have Democrats grown too dependent on their donors?
By Josh Kraushaar
Thanks to the parties’ respective online fundraising platforms, it’s never been easier to donate to a favored candidate or cause, allowing candidates to stockpile cash from ideologically driven, small-dollar donors. It’s why a right-wing extremist like Rep. Marjorie Taylor Greene has emerged as one of the GOP’s leading fundraisers, while left-wing agitators like Reps. Alexandria Ocasio-Cortez and Porter typically rival Democratic leaders in their ability to raise campaign cash. The more an officeholder appeals to a party’s hard-core base, the more opportunities arise to raise money from the most aggrieved elements of the electorate, who now can channel their political frustrations into donations with a mere click of the mouse.
Critically, however, the political interests of big-dollar donors—especially on the Democratic side—are often at odds with the interests of the national party. Some of the biggest Democratic donors are advocates of unpopular political causes, backing progressive prosecutors who don’t believe in cracking down on rising crime and embracing teachers’ unions that supported extended school closures during the pandemic. One of the party’s top Silicon Valley donors, psychiatrist Karla Jurvetson, is now focused on purging Sen. Kyrsten Sinema, one of Democrats’ moderate majority-making senators, because she’s stymied progressive goals.
The States
Washington Post: DeSantis proposes dissolving special tax status for Disney World
By Lori Rozsa
Florida Gov. Ron DeSantis (R) is following through on his promise to try and cancel a 1967 deal between the state and the Walt Disney Co. that could leave the company on the hook for millions of dollars a year in local taxes — and with less autonomy over its property.
On Tuesday, DeSantis announced that lawmakers in Tallahassee for a special legislative session would take up the issue. The proposal follows weeks of public attacks on Disney by the governor, who has criticized the company for opposing a new Florida law that limits how educators discuss LGBTQ issues in the classroom.
Reason (Volokh Conspiracy): Florida’s Supposed “Don’t Say Gay” Law
By Eugene Volokh
I was on a couple of podcasts about this, taking the view that the law—which restricts “classroom instruction by school personnel or third parties on sexual orientation or gender identity … in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards”—doesn’t violate the First Amendment (or likely any other part of the Constitution). I think we had an interesting, constructive, and friendly conversation on each:
- On The Dispatch, with Gabriel Malor, moderated by Declan Garvey.
- On The National Constitution Center’s We The People, with Joshua Matz, moderated by Prof. Jeff Rosen.
Gotham Gazette: Ethics, Transparency, Campaign Finance, and Voting in the New State Budget
By Ethan Geringer-Sameth
Good government groups and reform-minded officials have for years called for New York State’s Joint Commission on Public Ethics (JCOPE) to be scrapped and replaced with more independence from the elected officials it is meant to regulate. But since the details of a deal to replace the troubled commission began to emerge last month, reformers have raised alarms that the new body would hardly be better than the old.
A new state ethics commission is one of several measures related to government ethics and accountability, voting, and campaign finance reform included in the $220 billion state budget lawmakers adopted earlier this month…
The enacted state budget contains $20.5 million for the new statewide public campaign finance program slated to go into effect this fall for future state-level elections. That includes $10.5 million for the day-to-day operations of the Public Campaign Finance Board, a new entity within the State Board of Elections responsible for administering the program. The remaining $10 million will go towards public matching funds for participating candidates.
The program, passed by the Legislature and signed by then-Governor Andrew Cuomo in 2020, will create a voluntary public matching system for small-dollar donations (with public matching of up to $250 from qualifying donors) to participating candidates in exchange for certain raise and spend limitations.
