In the News
Reuters: U.S. Supreme Court takes up dispute over California nonprofit donor disclosure requirement
By Lawrence Hurley
The U.S. Supreme Court on Friday agreed to hear a challenge by two conservative groups to a California requirement that tax-exempt charities disclose to the state the identity of their top financial donors.
The justices will take up the appeal of a lower court ruling that said California’s attorney general could require the two nonprofit organizations, Americans for Prosperity and the Thomas More Law Center, to furnish him with donor details.
The groups argued that the demand infringed upon their freedom of speech and association under the U.S. Constitution’s First Amendment…
Another group that challenged the California requirement, the conservative Institute for Free Speech, also has an appeal pending at the high court.
[Ed. note: The Institute for Free Speech filed an amicus brief in AFPF v. Becerra in support of the petitioners. We also filed a related lawsuit challenging then-Attorney General Kamala Harris’s demand for nonprofit Schedule B information in IFS v. Becerra. Read more about that case here.]
Supreme Court
Bloomberg Law: U.S. Supreme Court Takes Up Cheerleader Free Speech Dispute
By Kimberly Strawbridge Robinson
The U.S. Supreme Court will consider the extent to which public schools can discipline students for off-campus speech.
On Friday, the justices agreed to hear an appeal by a Pennsylvania school district over its suspension of a high school cheerleader who posted obscenities about her cheer program to social media after not making varsity.
The Philadelphia-based U.S. Court of Appeals for the Third Circuit found the posting was protected by the First Amendment even though it was “crude, rude, and juvenile.”
The Third Circuit noted that the Supreme Court’s landmark 1969 ruling in Tinker v. Des Moines Indep. Cmty. Sch. Dist. made clear that students “do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'”
But the Tinker decision established a narrow exception for speech that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” The Third Circuit said Tinker doesn’t apply to so-called off-campus speech…
The case is B.L. v. Mahanoy Area Sch. Dist., U.S., No. 20-255.
SCOTUSblog: Case preview: Justices to consider effect of change in government policy on cases seeking symbolic damages
By Amy Howe
The Supreme Court will hear oral argument on Tuesday in a case questioning whether a lawsuit seeking only symbolic damages can go forward after the government changes the unconstitutional policy being challenged, or whether the case is instead moot – that is, no longer a live controversy. The issue comes to the justices in Uzuegbunam v. Preczewski, a dispute over religious speech on the grounds of a Georgia college, but the court’s ruling could have implications well beyond academia.
[Ed. note: The Institute for Free Speech filed an amicus brief in support of the petitioners in Uzuegbunam v. Preczewski.]
Reason (Volokh Conspiracy): Does Twitter’s Ban of Trump “Effectively Moot[]” the Cert Petition in Trump v. Knight First Amendment Institute?
By Josh Blackman
Currently, the Solicitor General’s cert petition is pending in Trump v. Knight First Amendment Institute. This case considers whether President Trump violates the First Amendment when he blocks people on his personal Twitter account, @RealDonaldTrump. This petition has been floating around for some time. The petition was first distributed for conference on October 30, 2020. The Justices may have been waiting for the inauguration for the case to moot itself out.
On Friday, Twitter permanently banned @RealDonaldTrump. Jameel Jaffer, counsel for the Knight Foundation, said that Twitter’s ban “effectively moots” the Solicitor General’s cert petition. It seems it is now impossible for Trump to block, or unblock people, because he no longer has an account.
What does the Court do here? Simply deny cert and let the Second Circuit ruling stand? That decision could have sweeping ramifications for other politicians who are not named Donald Trump. Or the Court could GVR under the Munsingwear doctrine, in light of Twitter’s policy. Though Trump was at fault for Twitter’s change, so I’m not sure Munsingwear is a good fit. A novel application of the shadow docket, for sure.
Congress
The Hill: Turley: Swift new impeachment would damage the Constitution
By Jonathan Turley
With seeking his removal for incitement, Democrats would gut not only the impeachment standard but also free speech, all in a mad rush to remove Trump just days before his term ends.
Democrats are seeking to remove Trump on the basis of his remarks to supporters before the rioting at the Capitol. Like others, I condemned those remarks as he gave them, calling them reckless and wrong. I also opposed the challenges to electoral votes in Congress. But his address does not meet the definition for incitement under the criminal code. It would be viewed as protected speech by the Supreme Court…
So Congress is now seeking an impeachment for remarks covered by the First Amendment. It would create precedent for the impeachment of any president blamed for violent acts of others after using reckless language. What is worse are those few cases that would support this type of action.
Events
Cato: Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters
Featuring David M. Primo and Jeffrey D. Milyo; moderated by John Samples
In recent decades, and particularly since the U.S. Supreme Court’s controversial Citizens United v. Federal Election Commission decision, lawmakers and other elites have told Americans that stricter campaign finance laws are needed to improve faith in the elections process, increase trust in the government, and counter cynicism toward politics. Not surprisingly, the next administration and the new Congress will kick off with proposed legislation to regulate campaign finance.
David M. Primo and Jeffrey D. Milyo argue that politicians and the public alike should reconsider this conventional wisdom in light of surprising and comprehensive empirical evidence to the contrary. Primo and Milyo probe original survey data to determine Americans’ sentiments on the role of money in politics, what drives these sentiments, and why they matter. What have the authors found? While many individuals support the idea of reform, they are also skeptical that reform would successfully limit corruption, which Americans believe stains almost every fiber of the political system. Moreover, support for campaign finance restrictions is deeply divided along party lines, reflecting the polarization of our times. Ultimately, Primo and Milyo contend that American attitudes toward money in politics reflect larger fears about the health of American democracy, fears that will not be allayed by campaign finance reform.
Please join us January 12 from noon to 1 p.m. for a refreshingly contrarian discussion of American politics and campaign finance.
[Ed. note: David M. Primo and Jeffrey D. Milyo are IFS academic advisors. Barnaby Zall reviewed their book in an IFS guest blog, and former IFS attorney Zac Morgan reviewed their book in National Review.]
The Media
CNN: TV providers should not escape scrutiny for distributing disinformation
By Oliver Darcy
After Wednesday’s incident of domestic terrorism on Capitol Hill, it is time TV carriers face questions for lending their platforms to dishonest companies that profit off of disinformation and conspiracy theories. After all, it was the very lies that Fox, Newsmax, and OAN spread that helped prime President Trump’s supporters into not believing the truth: that he lost an honest and fair election.
Independent Groups
CNBC News: Pro-Trump dark money groups organized the rally that led to deadly Capitol Hill riot
By Brian Schwartz
A web of pro-Trump dark money groups helped organize the rally that led to a deadly riot on Capitol Hill…
The rally, officially known as the “March to Save America,” was largely organized by a 501(c)(4) group known as Women for America First. The organization was certified by the Internal Revenue Service as a nonprofit that can engage in limited political activities. These groups are known as dark money organizations as they do not publicly disclose their donors.
However, America First Policies, a pro-Trump policy advocacy dark money group, did disclose in 2019 that they contributed to Women for America First. America First’s 990 disclosure form from that year shows they contributed $25,000 to Women for America First.
America First Policies, which is also a 501(c)(4) that does not disclose its donors, is chaired by Linda McMahon, a longtime Trump ally and former head of the Small Business Administration. The 2019 filing shows America First Policies ended up raising over $30 million. They were not involved with the planning of the rally itself.
NBC News: Republican AGs group sent robocalls urging march to the Capitol
By Laura Strickler and Lisa Cavazuti
An arm of the Republican Attorneys General Association, a national group representing the top law enforcement officers in their states, sent out robocalls encouraging people to march to the U.S. Capitol the day before the building was stormed by a pro-Trump mob…
The calls, which did not advocate violence or suggest the building should be breached, was sent out by the Rule of Law Defense Fund, a fundraising arm of the Republican Attorneys General Association. The groups share funding, staff and office space in Washington, D.C.
Online Speech Platforms
New York Times: How Parler, a Chosen App of Trump Fans, Became a Test of Free Speech
By Jack Nicas and Davey Alba
By Saturday night, Apple and Google had removed Parler from their app stores and Amazon said it would no longer host the site on its computing services, saying it had not sufficiently policed posts that incited violence and crime.
Early on Monday morning, just after midnight on the West Coast, Parler appeared to have gone offline…
“I believe Amazon, Google, Apple worked together to try and ensure they don’t have competition,” [Parler CEO John] Matze said on Parler late Saturday. “They will NOT win! We are the worlds last hope for free speech and free information.” He said the app would probably shut down “for up to a week as we rebuild from scratch.” …
Ben Wizner, a lawyer for the American Civil Liberties Union, said it was understandable that no company wanted to be associated with the “repellent speech” that encouraged the breaching of the Capitol. But he said Parler’s situation was troubling.
That was because Apple’s and Google’s removal of Parler from their app stores and Amazon’s halting its web hosting went beyond what Twitter or Facebook do when they curtail a user’s account or their posts, he said. “I think we should recognize the importance of neutrality when we’re talking about the infrastructure of the internet,” he said.
New York Times: Reddit bans forum dedicated to supporting Trump, and Twitter permanently suspends his allies who spread conspiracy theories.
By Mike Isaac and Kate Conger
The social news and message board site Reddit banned a forum dedicated to discussing and promoting President Trump from its site on Friday, and Twitter permanently suspended Mr. Trump’s account and those of several prominent supporters who used the platform to spread conspiracy theories, the latest moves of major technology platforms to diminish Mr. Trump digitally after his supporters staged an assault on the U.S. Capitol on Wednesday.
The Reddit forum, called a subreddit, was one of many areas for Trump supporters to convene across the site, which is used by more than 330 million people to discuss wide-ranging current events and other topics. The “Donald Trump” subreddit had tens of thousands of subscribers before it was removed, and was considered one of a few highly visible places online where Trump supporters could gather and express solidarity with the president.
Candidates and Campaigns
Cato (Podcast): Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters
By Featuring David M. Primo, Jeffrey D. Milyo and Caleb O. Brown
How has the Citizens United decision changed the competitiveness of politics? Do voters have a basically fair understanding of how campaign spending functions? David M. Primo and Jeffrey D. Milyo are authors of Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters.
Wall Street Journal: Shopify Takes Trump Organization and Campaign Stores Offline
By Vipal Monga
Online stores run by the Trump Organization and Trump campaign were taken offline on Thursday by Shopify Inc., an e-commerce software provider, in response to Wednesday’s riot at the U.S. Capitol.
Visitors to TrumpStore.com and shop.donaldjtrump.com, which sold official Trump branded apparel, “Make America Great Again” hats and other merchandise, were greeted with error messages on Thursday morning.
A Shopify spokeswoman said President Trump violated the company’s policy, which prohibits retailers on the platform from promoting or supporting organizations or people that promote violence. “As a result, we have terminated stores affiliated with President Trump,” the company said.
The States
Salt Lake Tribune: Utah lawmakers spend unlimited amounts in campaign cash – sometimes in violation of state law
By Taylor Stevens and Bethany Rodgers
Utah’s campaign finance guardrails do little to restrict how legislators use the unlimited sums they’re allowed to raise, in part because the state relies on an honor-based disclosure process as a check on spending.
A Salt Lake Tribune analysis found that, since 2015, lawmakers have collectively spent millions of dollars, often with little or no transparency about where the money is going and limited oversight from the state’s tiny elections office, which has one full-time employee to review tens of thousands of expenditures.
Legislators with easy paths to reelection can allocate excess campaign funds into travel, food and gifts – some have done so without explaining how the purchases are connected to their elected office or campaign…
Utah’s legislators say the state’s system demands transparency and dismiss a need for more cumbersome rules to keep candidates and officeholders in check…
Former Sen. Jim Dabakis, who has long been outspoken about the need for campaign finance reform, believes the large campaign chests have “become a kind of slush fund that politicians can use.” …
Sitting lawmakers, who earn $12,825 in base salary during the 45-day legislative session, say the state provides them with little financial support for carrying out their public duties. They need to tap into campaign finance funds to pay for everything from constituent communication to travel, they say, and without the flexibility to do so, elected office could create a financial burden for those who aren’t independently wealthy.
