New from the Institute for Free Speech
Free Speech for Christmas? Hearing on Brevard County School Board’s Censorship Set for December 21
By Tiffany Donnelly
The Institute for Free Speech represents the Brevard County, Florida Chapter of Moms for Liberty in a challenge to the Brevard County School Board’s censorship of public comments. In a federal lawsuit filed last month, Moms for Liberty detailed how the Board repeatedly violated its members’ right to speak at public meetings. Moms for Liberty members have been prevented from addressing specific actions or statements by Board members, prohibited from using words and phrases that members of the Board dislike, blocked from participating in meetings on the same terms as the Board’s allies, and threatened by Board officials with fines and penalties for allegedly “disrupting” meetings.
The Board’s response to the First Amendment seems to be, “Bah-humbug.” But while the Board may want every public meeting to be a Silent Night, the Institute is fighting for citizens’ right to be heard. On Tuesday, December 21, that fight will continue as the Institute’s attorneys argue for a preliminary injunction to prevent the Board from enforcing its unconstitutional policies while the case proceeds. The hearing presents another opportunity for a federal court to rule that bans on “personally directed” or offensive comments are unconstitutional under the First Amendment.
FEC
Federal Election Commission: Allen Dickerson elected Chairman, Steven T. Walther elected Vice Chair for 2022
At its open meeting today, the Federal Election Commission elected Allen Dickerson as Chairman and Steven T. Walther as Vice Chair for 2022.
Commissioner Dickerson joined the Commission following his confirmation by the United States Senate on December 9, 2020. He served as Vice Chair in 2021.
Commissioner Dickerson was Legal Director of the Institute for Free Speech, where he led a nationwide First Amendment litigation practice, from 2011 to 2020. Previously, he was an Associate with Kirkland & Ellis LLP and advised the Republican Governors Association. Commissioner Dickerson, who also serves as a Judge Advocate in the United States Army Reserve, is a graduate of Yale College and New York University School of Law.
Congress
Roll Call: Biden, Democrats punt reconciliation, voting rights bills to 2022
By Lindsey McPherson, Suzanne Monyak, Jennifer Shutt, and Laura Weiss
President Joe Biden and Democratic leaders reluctantly acknowledged Thursday that the Senate would soon recess for the year without passing their sprawling $2.2 trillion social safety net and climate spending bill or voting rights legislation…
In punting action on the party’s legislative priorities to 2022, Democrats are relinquishing the momentum of a calendar-driven deadline. No one could quite predict how long it would take to get the job done in the new year.
“I think it’s important to get these things right. It’s about focusing on the details,” said Arizona Sen. Mark Kelly, one of the Democrats up for reelection next year in a battleground state.
Other Senate Democrats acknowledged the possibility of passing either priority this year had evaporated, predicting Majority Leader Charles E. Schumer or Biden would acknowledge that publicly…
Biden spoke Thursday with some of the senators working on voting rights and rules changes, including Manchin, Virginia’s Tim Kaine, Montana’s Jon Tester, Georgia’s Raphael Warnock and Minnesota’s Amy Klobuchar, who chairs the Rules Committee.
Klobuchar couldn’t predict how long it will take the caucus to reach consensus but said she underscored the urgency during their Thursday lunch.
Supreme Court
By Ronald K. L. Collins
The case is Roberson v. United States, a case that may well find its way to the “cert. granted” side of the docket. The issues raised in the case are:
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Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action.
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Whether a jury must be instructed that merely “expressing support” for a policy cannot support a conviction under the federal bribery laws.
The Courts
Bloomberg Law: Judge Calls Fifth Circuit Law on Student Speech ‘Dumpster Fire’
By Brian Flood
A former Texas high school student can move forward with claims that her teacher violated her First Amendment rights by trying to force her to write the Pledge of Allegiance and retaliating against her when she refused.
The U.S. Court of Appeals for the Fifth Circuit Wednesday denied the teacher’s motion for rehearing en banc, drawing several dissents, including one from Judge Stuart Kyle Duncan, calling the circuit’s law in this area “a dumpster fire.”
“We should have taken this case en banc to put it out,” Duncan said. “Then we could have addressed in a more coherent way how the First Amendment applies to student speech and public school curricula, an important and developing field.”
Mari Leigh Oliver refused to transcribe the pledge as part of a sociology lesson because the “under God” language doesn’t match her religious beliefs and because she believes there isn’t “freedom and justice for all” in the U.S., as Black people like her continue to experience racial persecution.
The Media
Washington Post: A judge is restraining the New York Times from reporting on Project Veritas. That sets a dangerous precedent.
By Stephen J. Adler and Bruce D. Brown
This sense of urgency stands in contrast to a current situation in Westchester County, N.Y., where a state trial judge has restrained the Times from reporting on a matter of public interest for 28 days and counting and shows no indication of moving forward with any speed.
The court’s order in New York is nearly unheard of in our court system — thanks to the precedent of the Pentagon Papers case, which famously established that, even in matters of national security, the government faces an almost impossibly heavy burden in seeking to impose a “prior restraint” on a news outlet to forbid it from publishing an article. Only an interest as weighty as shielding the movement of troops in wartime might justify such an action.
The reason is clear. The First Amendment does not tolerate the idea that speech can be censored in advance, even if it might be punished after the fact. This is because prior restraints do not just “chill” speech on public affairs, they “freeze” it, which can give the government and private litigants a powerful tool to hide information and to skew public debate…
It is difficult to overstate the anomaly — and the danger — of the current case.
Political Parties
Washington Post: GOP agrees to pay up to $1.6 million of Trump’s legal bills in N.Y. probes
By Josh Dawsey and David A. Fahrenthold
The Republican Party has agreed to pay up to $1.6 million in legal bills for former president Donald Trump to help him fight investigations into his business practices in New York, according to Republican National Committee members and others briefed on the decision…
That means the GOP’s commitment to pay Trump’s personal legal expenses could be more than 10 times higher than previously known…
Campaign finance experts said there appeared to be nothing illegal about the payments. The RNC was free to pay for Trump’s legal fees, they said…
“To pay the legal fees for someone who isn’t a candidate, and isn’t an employee — I’ve never seen that happen,” said Brett Kappel, a campaign lawyer at the firm Harmon, Curran, Spielberg & Eisenberg…
Trump has more than $100 million in his PAC and could pay his own bills, should he choose to do so…
“This is an abuse of donor trust,” [Paul Seamus Ryan, a campaign-law expert at Common Cause] said. “I’ve been following money in politics closely for more than two decades, and I’m unaware of any similar past abuse of donor trust and donor money to pay personal legal bills of private citizens.”
Online Speech Platforms
Daily Caller: Congressional Republicans Press New Twitter CEO Over Censorship Of Free Speech
By Michael Ginsberg and Henry Rodgers
…..House Republicans requested information about the content moderation plans of Twitter’s new chief executive officer in a letter Thursday.
“Your transition is an opportunity to right the ship. However, your past comments raise serious questions regarding your interest in re-opening the platform you lead to free expression,” New York Rep. Claudia Tenney and twelve other members wrote to CEO Parag Agrawal.
Here are the four questions the Republicans asked:
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Will you commit to applying your content policies fairly, no matter the political leaning of the speaker on your platform? If no, why not?
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What is your plan to avoid the past mistakes made by Twitter in censoring conservative voices and causes?
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How do you plan to use Twitter’s role as an important cultural institution to uphold the spirit and principle of the First Amendment?
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In light of how Twitter influenced the 2020 presidential election, what changes to your policies do you intend to make to ensure Twitter remains neutral in future elections?
Candidates and Campaigns
Daily Beast: Kanye West’s ‘Independent’ Campaign Was Secretly Run by GOP Elites
By Roger Sollenberger and William Bredderman
New documents show Kanye West’s doomed White House campaign—styled as an “independent” third-party effort—appears to have disguised potentially millions of dollars in services it received from a secretive network of Republican Party operatives, including advisers to the GOP elite and a managing partner at one of the top conservative political firms in the country.
Potentially even more alarming? The Kanye 2020 campaign committee did not even report paying some of these advisers, and used an odd abbreviation for another—moves which campaign finance experts say appear designed to mask the association between known GOP operatives and the campaign, and could constitute a violation of federal laws…
Paul S. Ryan, vice president of government watchdog Common Cause, called the revelations “a big deal.”
“The importance of disclosure in this matter can’t be overstated,” Ryan told The Daily Beast. “It’s no secret that Kanye West’s candidacy would have a spoiler effect, siphoning votes from Democrat Joe Biden. Voters had a right to know that a high-powered Republican lawyer was providing legal services to Kanye—and federal law requires disclosure of such legal work.”
