In the News
Casper Star-Tribune: Federal judge rules in favor of Wyoming gun group
By Victoria Eavis
A federal judge ruled Monday that a section of Wyoming election code is unconstitutional because it “chills speech.”
In response to a lawsuit by Second Amendment group Wyoming Gun Owners against several state officials, U.S. District Judge Scott Skavdahl ruled that Wyoming’s electioneering communications law is unconstitutional under the First Amendment…
Wyoming Gun Owners and its lawyers emphasized the weight of their court victory.
“Yesterday’s ruling is a victory for free speech and citizen privacy,” said Del Kolde, an attorney at the Institute for Free Speech, which represented the group. “We are pleased the court recognized that Wyoming’s disclosure provision is both vague and not narrowly tailored.”
Reason (Volokh Conspiracy): “Cancel Culture … Is Inconsistent with the Philosophy of Open, Political Debate”
By Eugene Volokh
In Wisconsin Family Action v. Federal Election Commission, decided yesterday by Judge William Griesbach (E.D. Wis.), the WFA—”a non-profit organization whose mission is to advance Judeo-Christian principles and values in Wisconsin by strengthening, preserving, and promoting marriage, family, life, and liberty”—sued to “enjoin the FEC from forcing WFA to disclose … any contributions other than those that are earmarked for specific independent expenditures expressly advocating the election or defeat of an identified candidate for Federal office.” The Court began by generally discussing the First Amendment right of expressive association, which often includes anonymity:
Supreme Court
Romeril v. Securities and Exchange Commission: Petition for a Writ of Certiorari
Floyd Abrams, Counsel of Record
This petition seeks review of the U.S. Securities and Exchange Commission’s (“SEC”) requirement that any settlement with it must include a lifetime restraint on speech, thus barring the settling defendant from ever even “indirectly” leaving the “impression” that “any allegation” in the Commission’s original complaint is “without factual basis.” Paragraph 11 of the “Consent” (the “SEC Restraint Order”) that the SEC requires all settling defendants to sign. The SEC asserts 17 C.F.R. § 202.5(e) mandates this “Gag Rule,” but it is unmoored from well-established constitutional doctrine. No act of Congress authorizes such a sweeping restriction on freedom of speech. Nor could it. Of the hundreds of federal agencies, only the SEC and the Commodity Futures Trading Commission (“CFTC”) have adopted such a rule. The Department of Justice itself imposes no such requirement.
Congress
By Ashley Oliver
Sen. Sheldon Whitehouse (D-RI) used a third of his time allotted for questioning Judge Kentanji Brown Jackson on Tuesday to instead speak about “dark money” groups influencing Supreme Court nominations.
Whitehouse spent more than ten minutes during the Senate Judiciary Committee’s confirmation hearing for Jackson attempting to differentiate between “a dark money interest rooting for” a particular Supreme Court nominee and “right-wing dark money interests having a role in actually picking” nominees…
Whitehouse, who himself is a beneficiary of dark money, began by saying, “I’ll be the first to concede that there is dark money on both sides, and I hope very much we can get rid of it on both sides shortly by legislation.”
The Rhode Island Democrat added, “But there is a difference, I believe, between a dark money interest rooting for someone and right-wing dark money interests having a role in actually picking the last three Supreme Court justices.”
Breitbart: Thom Tillis: It Is ‘Dishonest’ to Deny Leftist ‘Dark Money’ Influence over SCOTUS Nominees
By Ashley Oliver
Sen. Thom Tillis (R-NC) took aim at his colleague Sen. Sheldon Whitehouse (D-RI) on Wednesday during a Supreme Court confirmation hearing after Whitehouse downplayed the role Democrat-aligned “dark money” groups have in influencing Supreme Court nominees.
Tillis used a chart, which he described as the “Whitehouse format,” to present a “balanced understanding” of such groups after Whitehouse used ten minutes of his time during Tuesday’s hearing to discuss “right-wing dark money” groups with a presentation of charts…
Tillis’s chart displayed various groups that could all be traced back to Arabella Advisors, a heavily funded Democrat-aligned consulting group that manages an array of dark money groups that pursue various left-wing agenda items.
By Bryan Metzger
Even during Tuesday afternoon’s confirmation hearings, Senate Republican leadership distributed an email to reporters entitled “Democrats Let The Dark Money Flow And Like Its Power,” which largely focused on a recent New York Times report about how Democrats have increasingly benefited from political spending by nonprofit entities, which aren’t required by law to disclose their donors.
And other Republicans, including Sen. Marsha Blackburn of Tennessee, have also taken up the line of attack…
And Republicans, despite their tough words on dark money, have repeatedly blocked attempts to shed light on who’s contributing to dark money groups several times.
“The idea that Republicans are now claiming that they’re against dark money, even though they have blocked every attempted legislation to get rid of dark money, says something,” said Senate Majority Leader Chuck Schumer at his Tuesday press conference…
Asked at his weekly press conference by NBC’s Sahil Kapur whether he was open to supporting the DISCLOSE Act, McConnell chuckled. “I’ve been pretty clear on this for 25 years,” he said, adding that he’s “in favor of the way campaigns and issues are currently funded” and “there are rational reasons for not having disclosure for those entities.”
Asked by Insider why voters should take Republicans’ concerns about Demand Justice seriously, McConnell indicated that he was more concerned by the group’s goals than the fact that it doesn’t disclose its donors.
Free Expression
Wall Street Journal: Mob Rule and Cancel Culture at Hastings Law School
By Ilya Shapiro
I’ve given more than 1,000 speeches in my career, and I’d never been protested—until March 1, when dozens of students shut down my event at San Francisco’s UC Hastings College of the Law. In January the school’s Federalist Society chapter invited me to talk about my recent book on the politics of judicial nominations, a subject that became timelier with Justice Stephen Breyer’s retirement.
On Jan. 26 I tweeted in opposition to President Biden’s decision to limit his nominee pool by race and sex. I argued that Judge Sri Srinivasan was the best candidate, meaning that everyone else was less qualified, so if Mr. Biden kept his promise, he would pick what, given Twitter’s character limit, I characterized as a “lesser black woman.” I deleted the tweet and apologized for my inartful choice of words, but I stand by my view that Mr. Biden should have considered “all possible nominees,” as 76% of Americans agreed in an ABC News poll.
I was about to start a new job as a senior lecturer at Georgetown and executive director of its law school’s Center for the Constitution. Georgetown placed me on paid leave pending an investigation into whether I violated any university policy. I can’t comment on that investigation because eight weeks later it’s still in process.
First Amendment News: Defend dissent! — FAN 331
By Ronald K. L. Collins
[H]ere is the full “Academic Speech — Protected or Perilous?” series:
- Ronald K. L. Collins, “ACLU’s David Cole Weighs in on Georgetown University Law School Controversy. Commentaries to Follow”
- Erwin Chemerinsky, “The Role of Deans and Administrators in Dealing with Offensive Speech”
- Nadine Strossen, “Some Thoughts About University Officials’ ‘Counter-Speech’”
- Burt Neuborne, “Sticks and Stones”
- Ira Glasser, “Social Justice Requires Free Speech”
- John K. Wilson, “How Suspensions Violate Academic Freedom”
- Ronald K. L. Collins, “Georgetown’s Free Speech Experiment: What’s Next?”
- Emerson Sykes, “Academic Freedom for Whom?”
The Media
Wall Street Journal: Hunter Biden’s Laptop and America’s Crisis of Accountability
By Gerard Baker
We’ll never know what effect the “October Surprise” of 2020, the New York Post’s reporting of the discovery of a laptop belonging to Hunter Biden containing all sorts of embarrassing emails, might have had on the election that year if it had received wider circulation…
But the allegations in the reporting—that the son of the man favored to become the next president had been selling his high-level family political connections to foreigners, including suggestions of a possible cut for his father—were worth pursuing. But enough influential people in and out of government—in the foreign-policy-intelligence complex, in the media, and in the big tech firms—were so alarmed that it would affect the outcome that they pulled off one of the greatest disappearing tricks since Harry Houdini made that elephant vanish from a New York stage.
The States
Chattanooga Times Free Press (via Yahoo): Tennessee Republican lawmakers seek regulation of social media giants
By Andy Sher
Twitter, Facebook, Instagram, YouTube, Google and other online companies could find themselves regulated by Tennessee government under a Republican-backed bill in the state legislature that seeks to stop social media platforms from banning users based on their political content or slapping them with fines if they do.
Sponsored by Senate Finance Committee chair Bo Watson, R-Hixson, and Rep. Dennis Powers, R-Jacksboro, the legislation would treat social media firms as “common carriers” and subject both the companies and their practices to regulation by the Tennessee Public Utilities Commission, which sets rates and service standards for privately owned telephone, natural gas, electric and water utilities.
When presenting his Senate Bill 2161 last week in the Senate Commerce and Labor Committee, Watson said the structure of the bill stems from an opinion offered by U.S. Supreme Court Justice Clarence Thomas.
Albany Times Union: Nonprofit attacking Hochul must name donors, complaint says
By Chris Bragg
State Democratic Party Chairman Jay Jacobs filed a complaint on Monday with the state Board of Elections, arguing that a nonprofit has violated state law by not disclosing the donors behind a barrage of ads attacking Gov. Kathy Hochul.
In a letter to state Board of Elections Chief Enforcement Counsel Michael Johnson, Jacobs wrote that “for too long, the influence of dark money and the unethical, if not illegal, use of loopholes has led to campaigns that were not fair and therefore do a disservice to the voters of our state.”
According to a copy of the letter obtained by the Times Union, Jacobs is asking Johnson to force the nonprofit, Empire Results, to disclose its anonymous donors…
An Empire Results spokeswoman previously told the Times Union that the group is not “a campaign committee, it is not making political ads, it is not lobbying, so it does not have to file campaign finance or lobbying reports.”
The nonprofit is “complying with the law,” Lily Goldman, a spokeswoman for Empire Results, said Monday. “It is a nonprofit organization. It is not a political committee. It is not making independent expenditures. It is not required to campaign finance reports.”
The group’s ads do not explicitly call for Hochul’s election or defeat at the ballot box — benchmark in state law for determining whether a group’s spending constitutes an “independent expenditure.”
Boston Globe: A Newton couple were ordered to remove their political yard signs. Now they want their names cleared.
By John Hilliard
For years, Newtonville’s Martina Jackson put her politics out for all to see. The longtime Democratic campaigner’s front-yard signs are a “who’s who” display of state and national issues.
But last year, city officials said they received a complaint about the signs, which include messages supporting Black Lives Matter and welcoming immigrants, as well as backing politicians such as Joe Biden, Kamala Harris, and Ed Markey.
The signs violated a local ordinance and had to go, officials said. If they stayed put, she and her husband, Daniel, faced up to a $300-per-day fine, and a potential criminal court complaint, according to the city’s written order to remove the signs.
Now those yard signs are at the center of a Middlesex Superior Court suit filed by the Jacksons against the city of Newton, which currently imposes limits on when — and for how long — signs with political messages may be displayed…
The city has rescinded the order against the Jacksons, and a city spokeswoman said Monday that officials are working on a new proposed sign ordinance. In January, a city attorney told a group of city councilors that the current regulation is unconstitutional.
