In the News
Colorado Sun: Colorado campaign donation limits stand — for now — after federal court ruling
By Sandra Fish
Colorado’s 20-year-old campaign donation limits will remain unchanged — at least for now — after a federal judge late Thursday rejected a request from a group of Republicans for a preliminary injunction immediately suspending the limits.
Individual donors are limited to giving $400 to state legislative candidates and $1,250 to candidates for statewide office. Those limits are among the lowest in the nation.
Senior U.S. District Court Judge John Kane issued the ruling after a hearing that lasted eight hours between Wednesday and Thursday…
He said a full trial based on more extensive evidence must be held before the donation limits are rejected. “The public has a significant interest in not suffering the reverberations of a federal court order that declares a constitutional referendum unconstitutional on the basis of an incomplete record,” he wrote.
Still, Kane agreed that the donation limits are likely too low, leaving open the possibility they could be overturned after a trial in the coming months…
Conservative nonprofit Advance Colorado and the national nonprofit Institute for Free Speech will continue their efforts to overturn the limits set by voters in 2002 at a future trial. The groups say the constraints violate First Amendment speech rights by limiting candidates’ ability to get their messages to voters.
Dan Burrows, attorney for Advance Colorado, said the ruling could be appealed, but no decision has been made on that.
NonProfit Times: Foreign Agents Or Free Speech: NPOs Sound Off On Regs
By Mark Hrywna
More than two dozen nonprofits sounded off on a proposal to update and modernize an 84-year-old federal regulation to disclose details and relationships around policy or advocacy work on behalf of foreign interests…
Published in the Federal Register on Dec. 13, 2021, the proposed Implementation of Foreign Agents Registration Act posed 19 questions for public input and received 29 comments by the Feb. 11, 2022 deadline. A variety of nonprofits filed comments, including one letter co-signed by 14 organizations that said FARA “raises clear First Amendment concerns that should be central to the Justice Department’s considerations as it proceeds in the rulemaking process.”
[Ed. note: Read the Coalition Letter Regarding Foreign Agents Registration Act Regulations, co-signed by the Institute for Free Speech, here.]
Supreme Court
AP News: Justice Thomas slams cancel culture, ‘packing’ Supreme Court
By Sam Metz
U.S. Supreme Court Justice Clarence Thomas said he’s concerned efforts to politicize the court or add additional justices may erode the institution’s credibility, speaking Friday in Utah at an event hosted by former Republican U.S. Sen. Orrin Hatch’s foundation.
Thomas, the most senior justice on the nine-member court, said he often worries about the long-term repercussions of trends such as “cancel culture” and a lack of civil debate…
“I’m afraid, particularly in this world of cancel culture attack, I don’t know where you’re going to learn to engage as we did when I grew up,” he said. “If you don’t learn at that level in high school, in grammar school, in your neighborhood, or in civic organizations, then how do you have it when you’re making decisions in government, in the legislature, or in the courts?”
The Media
New York Times: First Amendment Scholars Want to See the Media Lose These Cases
By Jeremy W. Peters
The lawyers and First Amendment scholars who have made it their life’s work to defend the well-established but newly threatened constitutional protections for journalists don’t usually root for the media to lose in court.
But that’s what is happening with a series of recent defamation lawsuits against right-wing outlets that legal experts say could be the most significant libel litigation in recent memory.
The suits, which are being argued in several state and federal courts, accuse Project Veritas, Fox News, The Gateway Pundit, One America News and others of intentionally promoting and profiting from false claims of voter fraud during the 2020 election, and of smearing innocent civil servants and businesses in the process.
NPR: Could libel lawsuits squash misinformation?
Hosted by David Folkenflik
David Folkenflik asks attorney John Langford about using libel laws to combat misinformation in the media.
Online Speech Platforms
Washington Post: Facebook and Twitter could let Trump back online. But he’s still a danger.
By Richard L. Hasen
In the Menlo Park, Calif., offices of Meta, discussions probably have already begun to consider what will happen Jan. 7, 2023, when former president Donald Trump’s ban from Facebook for encouraging the violent insurrection at the U.S. Capitol on Jan. 6, 2021, is set to potentially expire. Judging by how large social media companies have responded lately to the aftermath of the 2020 election and the looming 2022 election in which Republicans may take back control of Congress, there’s ample reason to worry Meta will restore the former president’s ability to post on Facebook — allowing him to continue to spread the false and dangerous claim that the 2020 election was stolen from him. Social media networks and other online platforms such as Google’s YouTube and Spotify can, instead, step up their support for reasonable measures to assure both vibrant political debate and protection of American election integrity and legitimacy. That would include keeping Trump off Facebook.
Free Expression
TK News by Matt Taibbi: Orwell Was Right
One would hope there would be at least a few Americans left who’d hear about Russia barring the BBC and Voice of America and at least recognize the sameness of the issue involved with banning RT and Sputnik. Or, seeing how pathetic and manipulative it is for Russians to prevent reporting on war casualties, we’d recall the folly of the ban we had for nearly twenty years on photographs of military coffins, or the continuing pressure on embeds to avoid publishing images of American deaths from our own war zones. We should be able to read that Twitter and Facebook are cracking down on the “fake accounts” spreading “misinformation” that “Ukraine isn’t doing well” and notice that Russia’s measures against “fake news” and “disinformation” about its own military failures — though far more draconian and carrying much more severe penalties — are rooted in the same concept.
We don’t, however, because we long ago reached the doublethink phase predicted by Orwell, where most of the population is conscious of double standards but ignores them effortlessly.
Wired: The Hypocrisy of Disney’s Response to Florida’s ‘Don’t Say Gay’ Bill
By Angela Watercutter
Bob Chapek, The New York Times wrote this week, needed to emerge from “a crisis of his own making.” It’s been a long week for the Disney CEO. He started it by sending a memo to his staff on Monday stating that, while he and the leadership team stood in support of LGTBQ+ employees and communities, the company wouldn’t be making a public statement condemning the so-called “Don’t Say Gay” bill in Florida, where it is a major employer. Many who work for Disney, as well as Walt Disney’s own grandniece, weren’t pleased.
Then, on Tuesday, the Florida legislature passed the measure… The outcry continued until Wednesday, when Chapek did an about-face during the company’s shareholder meeting, saying, “Our original approach, no matter how well intended, didn’t quite get the job done.” Disney was now opposed to the “Don’t Say Gay” bill.
There’s some history here. Prior to the bill’s passing, the Orlando Sentinel reported in late February that Disney had donated money to every one of its sponsors and cosponsors. When that led LGBTQ advocates to call on a statement from Disney about it’s position, Chapek sent that Monday memo to his employees, saying that “corporate statements do very little to change outcomes or minds”—and adding that Disney, instead, could bring about change “through the inspiring content we produce.”
The States
Reason (Volokh Conspiracy): N.Y. Anti-SLAPP Statute Not Retroactive
By Eugene Volokh
The New York Legislature strengthened its “anti-SLAPP” statute in 2020, among other things by requiring even private figure plaintiffs to show “actual malice” in public-concern libel cases. This raised the question whether the statute retroactively applied to all pending lawsuits, including ones based on pre-2020 speech. Several federal district court decisions, including in Palin v. N.Y. Times Co., answered it, “yes, retroactive.”
But now the New York intermediate appellate court has said the law is not retroactive in this respect. From yesterday’s decision in Gottwald v. Sebert (the Dr. Luke v. Ke$ha case):
Center Square: Virginia bill to protect public workers’ free speech heads to governor
By Tyler Arnold
Legislation that would allow public sector workers to speak against policy proposals in public hearings passed both chambers of the Virginia General Assembly and will be sent to Gov. Glenn Youngkin’s desk.
House Bill 384, sponsored by Del. Glenn Davis, R-Virginia Beach, passed with bipartisan support: 72-27 in the House and 26-14 in the Senate. The governor is expected to sign the legislation.
The bill would ensure that public sector workers do not lose their right to free speech when commenting on current or proposed policies by public institutions during a public hearing. This would apply even if they are speaking against a policy proposal in their workplace. The law is meant to protect the workers’ “freedoms of conscience and expression.”
If Youngkin signs the legislation, employers would not be allowed to fire or penalize workers who criticize policies in such hearings. According to the bill, these hearings provide time for public comment, at which point the employee is speaking on his own behalf as a member of the public.
Empire Center: Catch ‘Em If You Can, JCOPE
By Cam MacDonald
Laws in a civil society must apply to everyone equally — even bad laws, like New York’s vague and over-broad lobbying law.
According to the statute, anyone who spends more than $5,000 per year to influence legislation is considered a lobbyist and must register with the Joint Commission on Public Ethics (JCOPE), the commission created to enforce compliance by the Public Integrity Reform Act of 2011 (I know, hold your laughter). However, per the law, lobbying isn’t limited to gifts, fancy meals, or meetings for drinks and expensive cigars in dark-paneled rooms.
It also can be what JCOPE calls “grassroots” lobbying, including rallies, billboards, print ads, websites, and social media communications. The lobbying law, then, sweeps into its scope people and groups who may only think of themselves as public advocates—First Amendment be damned.
The lobbying law is so broad and vague that JCOPE has concluded that an individual can be a lobbyist who retains only themself as a client. And no, that sentence doesn’t make sense.
But, there’s an even more fundamental problem with the law.
