Supreme Court
Minneapolis Star Tribune: Seek balance on polling place speech
By Editorial Board
[T]here is value in examining the language of Minnesota’s law, which is undoubtedly broad and invites subjective decisions as to what constitutes a political message…
[I]t is possible for such a vaguely worded law to be interpreted too broadly. Does it protect against arbitrary decisions restricting voters who wear, say, an AARP T-shirt or a button promoting Ducks Unlimited? What about an NRA shirt in a year when there is no gun initiative on the ballot or a Black Lives Matter hat? Volunteer election judges might welcome more guidance on such matters.
A middle ground would be to preserve the law but narrow its prohibitions to issues and candidates on the ballot or messages that could be perceived as intimidating to voters. Free speech is a sacred right in this country, but so too is the right to vote. Both must be protected and the courts must be vigilant in finding a balance.
Bloomberg: Mobile-Phone Case at U.S. Supreme Court to Test Privacy Protections
By Greg Stohr
A U.S. Supreme Court with a record of protecting digital privacy is taking up a case that may curb law enforcement officials’ power to track people using mobile-phone data.
In arguments Nov. 29, the justices will consider requiring prosecutors to get a warrant before obtaining mobile-phone tower records that show a person’s location over the course of weeks or months.
The case could have a far-reaching impact. Prosecutors seek phone-location information from telecommunications companies in tens of thousands of cases a year. Special Counsel Robert Mueller’s team used location data to build a case against George Papadopoulos, the former Trump campaign adviser who pleaded guilty to lying to federal investigators.
Beyond location data, the case has implications for the growing number of personal and household devices that connect to the cloud — including virtual assistants, smart thermostats and fitness trackers.
FEC
Wall Street Journal: Elections Regulator Fines Conservative Groups Over Finance Infraction
By Julie Bykowicz
The commission determined that the American Conservative Union illegally funneled money from a nonprofit that doesn’t disclose its donors to a super PAC that is supposed to do so. The maneuver hid the true donor of more than $1.7 million given for use in several 2012 House and Senate races, the FEC found.
The FEC ordered the ACU, the nonprofit Government Integrity LLC and the super PAC Now or Never PAC to collectively pay a $350,000 fine, the result of a conciliatory agreement the three entities signed with the commission late last month.
The fine is higher than average. Of 148 matters under review that were closed last year by the FEC, the average penalty for the 30 cases that resulted in a conciliatory agreement was $19,848, FEC statistics show…
The FEC looked into the ACU matter after the liberal-funded group Citizens for Responsibility and Ethics in Washington filed a complaint about the activity in February 2015.
The Courts
USA Today: Free speech or destruction: First Trump inauguration protesters go on trial
By Sean Rossman
On Monday, six people became the first to stand trial in connection with violent demonstrations that took place in Washington, D.C., the day President Trump was inaugurated.
Defense attorneys claim their clients are innocent and abstained from violence while prosecutors say by not leaving, the protesters participated in the violence…
Protesters did more than $100,000 in damage to the nation’s capitol on Jan. 20 by setting fire to trash cans, smashing store windows and throwing bricks and rocks at police officers.
A federal grand jury charged more than 200 people with multiple felonies each, charges some claim stifle free speech…
Attorneys for the protesters argued their clients committed no violence and were on trial because D.C. police officers failed to differentiate between the true lawbreakers and those simply expressing their first amendment right to protest the new president…
Carrie Weletz, Armento’s attorney, also argued the police didn’t follow their own handbook. “This case is fundamentally about a person’s right to associate and a person’s right to speak their mind,” she said.
Des Moines Register: Costs mount for Iowa State as it ends its appeal in free-speech lawsuit over pro-marijuana T-shirt
By Kathy A. Bolten
In fall 2012, ISU’s Trademark Office approved the T-shirt design that included the words “Freedom is NormL at ISU.” Cannabis leaves were printed over the word “NormL.”
Several T-shirts were printed and one was displayed in a Des Moines Register photo, prompting complaints to ISU administrators from Iowa lawmakers and state officials.
Several weeks later, when the student group sought approval for the design so another batch of T-shirts could be printed, the request was denied.
The lawsuit was filed as part of the Stand Up for Free Speech Litigation Project overseen by the national organization Foundation for Individual Rights in Education.
In early 2016, a U.S. district court judge ruled that Iowa State administrators, including then-president Steven Leath, violated the students’ free-speech rights and barred the university from prohibiting printing of the T-shirt.
Iowa State appealed twice, losing both attempts at getting the ruling overturned.
In June, the 8th U.S. Circuit Court of Appeals said that the four administrators involved with the decision prohibiting the printing of the T-shirts…can be held personally responsible for violating the students’ constitutional rights.
Free Speech
Kansas City Star: We must defend free speech, because Trump won’t
By Mary Sanchez
In 1917, Wilson signed the Espionage Act into law, and it is this constitutionally dubious legislation that some observers fear will give Trump the power he desires to harass – or, worse, legally silence – his critics in the Fourth Estate.
One expert who raises this possibility is Floyd Abrams, the First Amendment lawyer celebrated for successfully defending the New York Times’ right to publish the classified Pentagon Papers pertaining to the war in Vietnam…
But what about the legions of aspiring mini-Trumps, the elected officials major and minor across the land who observe the president flout the rule of law and regard it as a green light for their own authoritarian tendencies?
Texas offers a chilling example this week in the actions of Fort Bend County Sheriff Troy E. Nehls…
The national mood is such Nehls’ little escapade got shut down pretty quickly. But you have to wonder about other instances where someone’s First Amendment rights will be trampled because the Mayberry Machiavelli doing the trampling isn’t so brazen and stupid about it.
This is exactly why, as Abrams says, the public needs to reaffirm both its understanding of and respect for the First Amendment. As in the Vietnam War era, those in political power will appeal to national security to evade scrutiny, criticism and exposure.
The Media
Politico: Trump tweets on CNN could muddy AT&T-Time Warner lawsuit
By Steven Overly
The DOJ announced Monday that it would seek to derail the $85 billion deal because the combined company could charge competitors hefty fees to distribute Time Warner content, providing an unfair advantage to AT&T-owned DirecTV. But questions about political meddling by the Trump administration have dogged the merger throughout the government’s review process – and those concerns could now factor into arguments the companies make in court challenging the rejection of their proposed union…
A DOJ official, speaking anonymously to discuss the lawsuit, told reporters Monday that CNN ownership was not a factor in the department’s thinking and categorically denied that the White House influenced the decision to file suit…
AT&T officials did not disclose their precise legal strategy on a call with reporters Monday, though CEO Randall Stephenson said his company would not entertain any settlement that involves divesting CNN. He said such a request would violate the First Amendment.
The States
Richmond Times-Dispatch: Virginia House Democrats outline bills on transparency and government reform
By Patrick Wilson
Ending personal use of campaign money was among recommendations made in December 2015 by the bipartisan Commission on Integrity and Public Confidence in State Government. Gov. Terry McAuliffe created the commission after the gifts scandal involving former Gov. Bob McDonnell.
Del. Marcus B. Simon, D-Fairfax, has introduced legislation each year since 2014 to ban personal use of campaign money, but Republicans have fought it. Earlier this year, however, GOP gubernatorial candidate Ed Gillespie called for a ban on personal use of campaign money and House Majority Leader M. Kirkland Cox, R-Colonial Heights, said he supported the move.
Simon said that indicates the plan, laid out in House Bill 5 and House Bill 7, has bipartisan support…
House Bill 1, sponsored by Del. Tony O. Wilt, R-Rockingham, comes in response to a campaign tactic used by Democratic-aligned groups and candidates this year – including Attorney General Mark Herring – that consisted of sending text messages about the elections to cellphones.
Radford University and Virginia Tech turned over student names, addresses and cellphone numbers to progressive political group NextGen Virginia, the Roanoke Times reported.
