In the News
DC Bar: Legal Scholars Foresee Major Shift on High Court
By William Roberts
Of course, how [Supreme Court nominee Amy Coney] Barrett’s judicial philosophy will translate to decisions remains to be seen, but constitutional scholars and practitioners throughout the country are looking for clues to her thinking in her academic writings at the University of Notre Dame Law School, her rulings from the U.S. Court of Appeals for the Seventh Circuit, and, importantly, her clerkship in 1998-1999 for the late Justice Antonin Scalia…
“If she adheres to the judicial philosophy of Justice Scalia, as she promises, a 6-3 Court will continue to act as a guardian of free speech and a foe of unjustified excessive regulation of political action,” said Jan Baran, a partner at Wiley Rein LLP who has argued many cases before the Supreme Court.
“Judge Barrett has a limited but consistent record preserving free speech,” said Baran, an election law expert and former counsel to the Republican National Committee.
It is not clear, however, from Barrett’s limited First Amendment case record on the Seventh Circuit that she will adhere to Scalia’s interpretations or deviate from established law.
In two cases decided by the Court, including one in which she wrote the majority opinion, Barrett showed she “will faithfully apply well-established precedent correctly to cases that come before her,” according to an Institute for Free Speech blog. In a third case, her opinion “suggests that she may think differently” than Scalia on some matters, according to the Institute.
New from the Institute for Free Speech
Facebook’s Political Ad Ban Will Harm Challengers and Block Useful Information
By Alex Baiocco
Accusing one’s opponents of lying has always been, and always will be, a feature of political debate. So, how does a social media company achieve a platform free of political ads that politicians claim to be false or misleading? Ask Twitter.
Facebook’s recent decision to ban any new political and issue ads from running the week before Election Day is a predictable result of elected officials’ endless threats to punish companies over the content of political ads on their platforms.
The unfortunate loser in all of this is political and social change. Restrictions on advertising, especially cost-effective online ads, are most detrimental to challengers, political newcomers, and grassroots movements.
Commenting on Facebook’s new ad ban, Mark Jablonowski, Managing Partner and Chief Technology Officer at a digital marketing agency for Democratic candidates, told Politico, “You are de facto bolstering incumbents and reducing the chances for challengers, and that’s true at the top of the ticket but all the way down to local races even more so.” Incumbents already have name recognition, a donor base, and an audience. The ability to reach voters and potential donors with ads is most essential to challengers, with whom citizens may not be as familiar.
Supreme Court
SCOTUSblog: COVID-19 outbreak in GOP caucus complicates Barrett confirmation
By Katie Barlow
The Republican plan to swiftly confirm Judge Amy Coney Barrett to the Supreme Court is in disarray after three Republican senators – including two on the Senate Judiciary Committee – tested positive for the coronavirus.
SCOTUSblog: Case preview: Justices to consider Delaware rules on bipartisanship in judiciary
By Amy Howe
Under the Delaware constitution, judges are appointed by the governor for 12-year terms and must be confirmed by a majority of the state senate. The state’s constitution also imposes additional limitations on the governor’s appointments. One section, known as the “bare majority” provision, directs that no more than a bare majority of the judges on the state’s five main courts can be affiliated with any one political party. Another section, known as the “major party” provision, applies to the three courts known as the “business” courts: the Delaware Supreme Court, the Court of Chancery and the Superior Court. It divides the seats on those courts between the two major political parties – currently the Democratic Party and the Republican Party.
The case before the U.S. Supreme Court on Monday, Carney v. Adams, was filed by John Adams, who became a lawyer in 2000. A registered Democrat, Adams worked as a family-law lawyer in the Delaware Department of Justice from 2003 to 20015. Adams changed his party affiliation in 2017 to Independent and decided that he wanted to serve as a judge, but he believed that he would not be able to apply for any future vacancies on the business courts because he wasn’t a Democrat or a Republican. Adams went to federal court in Delaware, where he argued that the “bare majority” and “major party” provisions violate the First Amendment to the U.S. Constitution by limiting a judicial candidate’s freedom to associate with the political party of his choice.
The Courts
Politico: Justice Department sides with D.C. Baptist church lawsuit challenging Covid restrictions
By Nick Niedzwiadek
The Department of Justice is wading into the legal fight of a Washington, D.C., church seeking to nix local public health restrictions in order to hold services outdoors.
The department on Friday filed a “statement of interest” in support of Capitol Hill Baptist Church, arguing that the city is violating both the Constitution and federal law by preventing churches from holding gatherings of more than 100 people.
“The right to free exercise of religion and the right to protest are both enshrined in the First Amendment of the Constitution,” Eric Dreiband, assistant attorney general for DOJ’s civil rights division, said in a release. “We are a nation dedicated to freedom of conscience and freedom of expression. The District of Columbia has, unfortunately, neglected these rights.”
The lawsuit, filed Sept. 22, argues that religious organizations are being treated unfairly while political protests – such as those in support of racial justice and against police misconduct – and other activity protected by the First Amendment are not being held to the same limitation.
“To be put simply, Defendants’ current approach to COVID-19 limitations has the effect of treating some forms of protected First Amendment activity differently than other forms of comparable activity and in so doing singles out religious exercise for different treatment,” DOJ writes in its 24-page brief.
DOJ
Washington Post: Justice Dept., FBI planning for the possibility of Election Day violence, voting disruptions
By Matt Zapotosky and Devlin Barrett
Bracing for possible civil unrest on Election Day, the Justice Department is planning to station officials in a command center at FBI headquarters to coordinate the federal response to any disturbances or other problems with voting that may arise across the country, officials familiar with the matter said.
Though the Justice Department monitors elections every year to ensure voters can cast their ballots, officials’ concerns are more acute this year that toxic politics, combined with the potential uncertainty surrounding vote tallies, could lead to violent demonstrations or clashes between opposing factions, those familiar with the matter said.
Congress
Washington Times: Gabbard gains GOP supporters for her push for U.S. to drop charges against Assange, Snowden
By Andrew Blake
Rep. Tulsi Gabbard, Hawaii Democrat, has gained support from Republican colleagues in calling for the U.S. government to abandon its criminal cases against Julian Assange and Edward J. Snowden.
Along with Rep. Thomas Massie, Kentucky Republican, she introduced a resolution Friday urging the U.S. to drop all charges and efforts to extradite Mr. Assange, the founder of WikiLeaks.
Rep. Matt Gaetz, Florida Republican, joined the Democrat days earlier by co-sponsoring a similar resolution asking the U.S. to drop its case against Mr. Snowden, who is also wanted for leaking.
The Courts
Politico: Justice Department sides with D.C. Baptist church lawsuit challenging Covid restrictions
By Nick Niedzwiadek
The Department of Justice is wading into the legal fight of a Washington, D.C., church seeking to nix local public health restrictions in order to hold services outdoors.
The department on Friday filed a “statement of interest” in support of Capitol Hill Baptist Church, arguing that the city is violating both the Constitution and federal law by preventing churches from holding gatherings of more than 100 people.
“The right to free exercise of religion and the right to protest are both enshrined in the First Amendment of the Constitution,” Eric Dreiband, assistant attorney general for DOJ’s civil rights division, said in a release. “We are a nation dedicated to freedom of conscience and freedom of expression. The District of Columbia has, unfortunately, neglected these rights.”
The lawsuit, filed Sept. 22, argues that religious organizations are being treated unfairly while political protests – such as those in support of racial justice and against police misconduct – and other activity protected by the First Amendment are not being held to the same limitation.
“To be put simply, Defendants’ current approach to COVID-19 limitations has the effect of treating some forms of protected First Amendment activity differently than other forms of comparable activity and in so doing singles out religious exercise for different treatment,” DOJ writes in its 24-page brief.
DOJ
Washington Post: Justice Dept., FBI planning for the possibility of Election Day violence, voting disruptions
By Matt Zapotosky and Devlin Barrett
Bracing for possible civil unrest on Election Day, the Justice Department is planning to station officials in a command center at FBI headquarters to coordinate the federal response to any disturbances or other problems with voting that may arise across the country, officials familiar with the matter said.
Though the Justice Department monitors elections every year to ensure voters can cast their ballots, officials’ concerns are more acute this year that toxic politics, combined with the potential uncertainty surrounding vote tallies, could lead to violent demonstrations or clashes between opposing factions, those familiar with the matter said.
Congress
Washington Times: Gabbard gains GOP supporters for her push for U.S. to drop charges against Assange, Snowden
By Andrew Blake
Rep. Tulsi Gabbard, Hawaii Democrat, has gained support from Republican colleagues in calling for the U.S. government to abandon its criminal cases against Julian Assange and Edward J. Snowden.
Along with Rep. Thomas Massie, Kentucky Republican, she introduced a resolution Friday urging the U.S. to drop all charges and efforts to extradite Mr. Assange, the founder of WikiLeaks.
Rep. Matt Gaetz, Florida Republican, joined the Democrat days earlier by co-sponsoring a similar resolution asking the U.S. to drop its case against Mr. Snowden, who is also wanted for leaking.
First Amendment
Public Policy Legal Institute: With rising calls for violence, where’s the line between protected assembly and prohibited violence?
By Barnaby Zall
[A] new report finds that one-third of Americans would see violence as “justified” after the November elections “if the other side wins.” And protests across the country are increasingly violent, as protestors and counter-protestors share tactics, travel to join protests, and attack others. Gabriella Coleman, an anthropologist at McGill University who specializes in online activism and social movements, told the Washington Post that the current protests are moving “the needle of what is considered a peaceful protest.”
So, where’s the First Amendment line between peaceable and violent? Under both modern and traditional jurisprudence, that line is very tolerant, but fairly-well established. Protestors can advocate violence, but not incite, organize, direct, support, or engage in it. “The mere abstract teaching of the moral propriety … [of] a resort to force and violence[] is not the same as preparing a group for violent action and steeling it to such action.”
In 1969, the Supreme Court protected a Ku Klux Klan leader who was charged under Ohio’s criminal syndicalism statute for holding a meeting at which firearms were displayed, advocating a march on Congress and state capitols, and saying “it’s possible that there might have to be some revengeance taken.” In 1973, the Court protected a college student who said “we’ll take the f__king street again”, because it “amounted to nothing more than advocacy of illegal action at some indefinite future time.” …
Just saying “No Justice, No Peace,” seems to fit comfortably within the American tradition of forceful advocacy.
Dallas Morning News: Floyd Abrams: The First Amendment is the soul of our democracy
By Floyd Abrams
In his State of the Union address delivered on Jan. 6, 1941, as war raged in the world outside the United States and one nation after another had fallen under the freedom-crushing control of Germany and Japan, President Franklin D. Roosevelt delivered a speech that still resonates today. It was called the Four Freedoms Speech, and the first of them was freedom of speech.
Later that year, the artist Norman Rockwell, with Roosevelt’s speech still in mind, attended a town meeting in Vermont in which the topic was whether to build a new school to replace one that had just burned down. All in attendance at the meeting supported doing so except one man, who rose to speak in opposition to doing so. Rockwell was impressed with the fact that all those who disagreed with the speaker listened carefully and respectfully to what he had to say. He painted a picture of it, titled Freedom of Speech, which portrayed the lone dissident addressing the group.
The painting became Rockwell’s best known and most honored work, over a half-century later described by Bruce Cole, writing in The Wall Street Journal, as illustrating “the very embodiment of free speech, a living manifestation of that abstract right.”
In all likelihood, the Vermont dissenter immortalized by Rockwell had no need of a First Amendment to assure that he would have a chance to try to persuade his neighbors not to build a new school. A culture of freedom in this country has led to town meetings at which all may be heard without anyone even referring to or even thinking about the Constitution.
Without that culture, however, no words of a Constitution can carry the day.
Online Speech Platforms
Vice (Motherboard): Twitter Says You Cannot Tweet That You Hope Trump Dies From COVID
By Jason Koebler
Twitter told Motherboard that users are not allowed to openly hope for Trump’s death on the platform and that tweets that do so “will have to be removed” and that they may have their accounts put into a “read only” mode. Twitter referred to an “abusive behavior” rule that’s been on the books since April…
As Motherboard has previously reported, Facebook has different rules for speech that is focused on celebrities and public figures. Facebook says it “distinguish[es] between public figures and private individuals because we want to allow discussion, which often includes critical commentary of people who are featured in the news or who have a large public audience. For public figures, we remove attacks that are severe as well as certain attacks where the public figure is directly tagged in the post or comment.” What this means is that it’s OK to post on Facebook that you hope Trump dies, so long as you do not tag him in the post or “purposefully expose” him to “calls for death, serious disease, epidemic disease, or disability.”
Twitter makes no such distinction between public and private figures.
Candidates and Campaigns
Washington Post: The U.S. may be safe from foreign interference in this election. But what about perception hacking?
By Editorial Board
Russia and other adversaries may not need to hack the election if they can hack something else: our minds…
The technique of choice heading into the election is something experts have come to call “perception hacking,” which essentially means manipulating people into thinking they are being manipulated – to the point that they cease to trust in democracy itself. During the Cold War, the Soviet Union discovered the effectiveness of laundering its narratives through unwitting sources in target nations to lend them more legitimacy. Today’s Russia exploits the same tactic: dangling fantastical scoops in front of low-profile journalists to bait them into writing conspiratorial false stories, in the hope that reputable publications will eventually mention them, even as rumor. Especially clever is planting tales of supposedly far-reaching influence operations that either don’t actually exist or are having little impact.
Business Insider: Easily overblown, little-understood, and dangerous: Why we need to understand political microtargeting
By Isobel Asher Hamilton
[E]xperts warn that while microtargeting is troubling, imputing the technology with mysterious abilities to persuade vast numbers of voters may be a distraction from real voter suppression. Ultimately, we need to understand the technology better…
Felix Simon, a communications expert at the Oxford Internet Institute, told Business Insider that too often media reports on political campaigns using microtargeting take it as read their tactics have been successful in changing people’s minds…
Simon is broadly skeptical of the so-called “psychographic” microtargeting employed by Cambridge Analytica – i.e. trying to use people’s data to make conclusions about their personality and target them accordingly. He believes the media has, in some ways, fallen for these firms’ own hype.
“It’s [presented as] this almost magical technology which promises so much and which is heavily pushed by the industry in this, which is all these digital campaigning companies and the political data analytics industry. And they make all these big promises,” he said.
The States
Washington Post: Judge: Energy company can continue donations to lawmakers
By Farnoush Amiri, Associated Press
An effort by Ohio’s attorney general to block an energy company and its affiliated entities from donating to lawmakers is an infringement of First Amendment rights, a judge ruled Friday.
A Franklin County judge denied Attorney General Dave Yost’s attempt to stop campaign contributions to Ohio lawmakers from First Energy while the House is considering a repeal of a $1.3 billion bailout of two nuclear plants formerly owned by the company’s subsidiary.
The lawsuit sought to freeze the assets of former House Speaker Larry Householder’s $1 million campaign fund and dissolve the dark money groups involved in the bribery scheme.
But Franklin County Common Pleas Court Judge Chris Brown noted in his ruling that blocking donations and other speech would be an infringement of the companies’ and individuals’ First Amendment rights.
“I don’t know that there’s any way, absent a judicial determination of criminal conduct, that I can prohibit future speech,” Brown wrote.
Reason (Volokh Conspiracy): Mask Mandate Doesn’t Violate the First Amendment
By Eugene Volokh
Yesterday’s Minnesota Voters Alliance v. Walz, decided by Judge Patrick J. Schiltz (D. Minn.), correctly rejects the argument that the Minnesota mask mandate “violates the First Amendment because it does not permit them to enter indoor public spaces without face coverings as a way to protest the requirement that they wear face coverings when they enter indoor public spaces”[.]
Rochester Democrat and Chronicle: Rochester Mayor Lovely Warren indicted in felony campaign finance fraud
By Gary Craig and Brian Sharp
Mayor Lovely Warren has been indicted on two felony campaign finance charges, Monroe County District Attorney Sandra Doorley announced Friday.
The first charge is for first-degree scheme to defraud; the second is an election law offense for illegally coordinating activities and expenditures.
The grand jury indictment is connected to Warren’s 2017 mayoral re-election campaign. Warren has adamantly refused any wrongdoing in the matter.
Warren and two campaign associates also indicted Friday will be arraigned at 4 p.m. Monday, Oct. 5, in front of Cayuga County Judge Thomas Leone in Monroe County.
Montana Free Press: Record penalties levied in dark money lawsuit
By John S. Adams
A judge has ordered a pair of corporations to pay more than $1.76 million in fines for their roles in an illegal campaign scheme involving 15 Republican candidates running for state legislative offices in 2010.
The Sept. 17 default judgment in Lewis and Clark County District Court is likely the final chapter in a well-known political corruption case that spanned more than a decade, led to the largest-ever fine against a sitting politician in Montana, and was featured in the 2018 PBS documentary film Dark Money.
CBS 21 News: Mifflin County School District bans students from wearing clothing with political messages
In a letter to parents, Mifflin County School District officials announced that students and staff will be banned from wearing clothing that presents a political message.
School administrators say that starting Monday, Oct. 5, that no masks, articles of clothing, or other items may be worn or brought onto school district property that contain political speech or symbolize a particular political viewpoint.
District officials say the ban includes, but is not limited to, Confederate flags and swastikas, as well as Black Lives Matter logos or phrases associated with the movement.
The letter states that the decision was made after officials received complaints about how such items have disrupted the education of students within the Mifflin County School District.
