New from the Institute for Free Speech
Updates to the Anti-SLAPP Report Card
This blog post provides information on states that have either enacted new anti-SLAPP laws or improved existing laws since the February 2022 publication of our Anti-SLAPP Report Card.
April 20, 2022: Kentucky Enacts Strong Anti-SLAPP Law
House Bill 222, which Governor Andy Beshear signed into law on April 20, 2022, was modeled after the Uniform Law Commission’s Uniform Public Expression Protection Act (UPEPA). An initial review shows that the final version of the legislation retains the essential provisions of the UPEPA. We therefore expect Kentucky’s anti-SLAPP statute to receive a near-perfect score under our methodology. Most importantly, the recently enacted law covers all speech protected “by the United States Constitution or Kentucky Constitution, on a matter of public concern.”
In a testament to the UPEPA’s bipartisan support, the legislation passed 82-0 in the House of Representatives and 30-2 in the Senate. After receiving bipartisan approval in the overwhelmingly Republican-controlled Kentucky General Assembly, the bill was signed by Kentucky’s Democratic governor.
Kentucky will join 6 other states with grades of “A” or higher and 17 jurisdictions with grades of “B” or higher in our Anti-SLAPP Report Card.
Supreme Court
The Atlantic: The Good That Ted Cruz’s Win Can Do
By David Frum
In a world of enormously potent and enormously unregulated super PACs, perhaps the FEC’s old focus on policing campaigns has become obsolete, even counterproductive. The question for today may be: How do we put candidates back in charge of their campaigns and restore their responsibility rather than allow them to take refuge in the deniability of secretive, overly mighty super PACs?
Election Law Blog: “The Good That Ted Cruz’s Win Can Do”
By Richard Pildes
Frum does not make this point, but it was the McCain-Feingold law, well before Citizens United, that initially triggered the dramatic rise in outside spending by cutting off the flow of what was called “soft money” to the political parties. Instead of that money disappearing, it flowed from the parties to these outside groups. Citizens United then compounded this development.
Washington Post: Texas, 12 states fire back at tech industry in Supreme Court filings
By Cat Zakrzewski
Texas on Wednesday filed a petition calling on the Supreme Court to reject an emergency application seeking to block a state law regulating content moderation decisions at large social media companies.
Texas Attorney General Ken Paxton argued that the state law, which bars platforms from blocking users based on viewpoint, is focused on businesses’ conduct and does not violate the First Amendment, which protects private companies from government regulation of speech. In his response to the petition, filed by tech industry groups, he says that social media platforms are the “twenty-first century descendants of telegraph and telephone companies” and that they should be treated as “common carriers,” which are subject to government regulation because of the essential nature of the services they offer.
Shortly after the Texas filing, Florida, along with 10 Republican attorneys general and the solicitor general of Iowa, filed an amicus brief supporting the law, highlighting how the policy is unifying parts of the country in a conservative playbook to address long-running claims of tech “censorship.” In the filing, the states argue that tech platforms are effectively the 21st century public square and have “enormous control over speech” due to their massive size.
“The states have a strong interest in seeing that it is not abused,” they wrote.
Biden Administration
Wall Street Journal: The Disinformation Governance Board, Disavowed
By The Editorial Board
Quick as she came, the Mary Poppins of Disinformation unfurled her umbrella and floated away to her next job, nannying another nation of children who had the wrong ideas. Nina Jankowicz, age 33, was supposed to lead the Department of Homeland Security’s new Disinformation Governance Board.
Only three weeks after that announcement, media reports say the board is being “paused” and Ms. Jankowicz has resigned. It isn’t difficult to see why.
Reason: Nina Jankowicz’s Faulty Record, Not Her Critics, Doomed the Disinformation Board
By Robby Soave
This news comes from an exclusive report by The Washington Post’s Taylor Lorenz, whose scoop is buried underneath layers of pro-government verbiage. Lorenz’s story excessively flatters Jankowicz—she is glamorized as “well-known” in the field, having “extensive experience,” and “well-regarded” in just the first two paragraphs—while ignoring legitimate criticism of this so-called expert’s track record. Indeed, there is zero mention, none whatsoever, of the fact that Jankowicz was flagrantly wrong about the pivotal “disinformation” episode of the 2020 election cycle: the Hunter Biden laptop story.
For WaPo, the story is not that DHS shuttered the Disinformation Governance Board—the real story is that right-wing “coordinated online attacks” achieved this outcome after subjecting Jankowicz to an “unrelenting barrage of harassment.”
FEC
By Kimberly Leonard
A Republican US House candidate in Florida potentially violated federal campaign laws by using donor funds to pay for her home’s electric bill.
Amanda Makki’s campaign paid more than $600 to Duke Energy, according to a letter the Federal Election Commission sent the campaign last week.
FEC rules prohibit candidates from using donor funds for personal use, whether it be for rent, personal travel, or to pay for an energy bill…
Eric Wang, an attorney for the Makki campaign, told Insider in an email that the campaign had thought they were allowed to use the funds based on a “good faith” understanding of the “highly confusing” rules…
“The campaign has used her home for campaign organizational and strategy meetings, campaign fundraising, general work space for campaign staff and volunteers, printing materials for her campaign, storage space for campaign materials, campaign media appearances, and media production associated with her campaign,” he said.
The arrangement actually saves money, Wang said, by limiting overhead expenditures as well as additional costs the campaign would otherwise have to take on by renting a separate office space — particularly at a time when Florida rents are soaring.
“The campaign legitimately believed it could reimburse for a portion of the utility costs it incurred,” Wang said…
The Makki campaign said current campaign finance reimbursement rules favor wealthier candidates.
Candidates and Campaigns
MarketWatch: Despite $11 million in donations from a crypto billionaire, Carrick Flynn loses big in Oregon primary
By Weston Blasi
Despite nearly $11 million in donations from FTX CEO Sam Bankman-Fried, Democratic House candidate Carrick Flynn lost his Oregon primary race.
Early Wednesday, Flynn conceded to state Rep. Andrea Salinas, a three-term state lawmaker who is looking to become Oregon’s first Hispanic woman in Congress…
Through his super PAC called Protect Our Future, Bankman-Fried spent money on TV ads, radio ads and direct mail services on Flynn’s behalf, making the Oregon-6 primary race the third most expensive House Democratic primary of this election cycle…
Flynn received roughly 19% of the total vote, half of what winner Andrea Salinas received, according to the latest tally from the Washington Post. About 72% of the vote has been counted, but the race has already been called.
The States
Reason (Volokh Conspiracy): Florida Bans Residential Picketing with “Intent to Harass or Disturb” — but What Exactly Does That Mean?
By Eugene Volokh
Now a flat ban on all “focused picketing taking place solely in front of a particular residence” would be constitutional, as the Court expressly held in Frisby v. Schultz (1988), interpreting an ordinance that used the “before or about” language. (In Carey v. Brown (1980), the Court had held that a content-based residential picketing ban was unconstitutional, but Frisby held that content-neutral ones are fine.)
But this statute wouldn’t ban all such residential picketing, but only picketing “with the intent to harass or disturb.” I appreciate the desire to narrow the ordinance; consider Justice Stevens’ dissent in Frisby, which faulted the ordinance for making it a crime “for a fifth grader to carry [a] sign” outside a friend’s home saying, “Get well Charlie—our team needs you.” But I think this attempt to narrow it might actually make it unconstitutionally content-based, unconstitutionally vague, or perhaps effectively meaningless.
The problem is that the ordinance doesn’t define “harass,” and the closest state law analog—the Florida stalking statute—defines “harass” to “mean[] to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” What counts as a “legitimate purpose”? The stalking cases haven’t set forth a categorical test, and indeed acknowledge its uncertainty (and circularity):
Reason: New York’s Governor Wants to ‘Silence’ Constitutionally Protected Speech
By Jacob Sullum
When politicians echo Justice Oliver Wendell Holmes’ famous observation about “falsely shouting fire in a theatre,” it typically means they are trying to justify unconstitutional speech restrictions. So it was with New York Gov. Kathy Hochul’s comments after the racist mass shooting that killed 10 people at a Buffalo grocery store on Saturday.
Hochul, a Democrat, was responding to questions from Meet the Press host Chuck Todd, who during Sunday’s show condemned “a permissive culture on the internet” that allows “right-wing extremism” and “white supremacy” to run rampant. Given the role that such views played in Saturday’s horrifying attack, Todd asked Hochul, shouldn’t “internet companies” be “held responsible for the easy spread of this propaganda”?
Todd noted with dismay that critics of that proposition tend to cite “freedom of speech or things like this.” Hochul shared his impatience with such objections.
“I’ll protect the First Amendment any day of the week,” the governor said. “But you don’t protect hate speech. You don’t protect incendiary speech. You’re not allowed to scream ‘fire’ in a crowded theater. There are limitations on speech.”
