In the News
The Detroit News: “For the People Act” gives politicians more power, curtails speech
By Bradley A. Smith and David Keating
Free speech is not the enemy of democracy. It is one of its most vital ingredients. But apparently, that’s not the view in Washington.
House Democrats just passed the biggest restriction on political speech in a generation. Yet you probably haven’t heard a peep about it. House leaders hope you won’t notice what they’re doing. They rushed the nearly 800-page bill to the floor after only one committee hearing, and heard no testimony at all regarding its restrictions on speech.
It’s politics at its worst. Proponents of H.R. 1 say they want to make democracy work for the people, a popular but meaningless cliché. In reality, H.R. 1 creates new burdens on your rights, as Americans, to speak, assemble, and petition the government.
The threats to free speech in the so-called “For the People Act” span hundreds of pages and are too numerous to cover in their entirety here. But the short version is this: The bill makes speaking easier for politicians and harder for American citizens. It subsidizes politicians’ campaigns while allowing elected officials and their allies to compile enemies lists of private supporters of causes they don’t like. It imposes crushing regulatory burdens on groups that speak about elections, government or legislation.
One America News: Institute For Free Speech Analyzes Impacts Of H.R.1 (Video)
House lawmakers passed the H.R. 1 legislation, which is also known as “For the People Act of 2021.” One America’s Stephanie Myers spoke with the President of the Institute for Free Speech, David Keating, about the dire impacts of the legislation.
Fred Holland Podcast: Luke Wachob-Communications Director, Institute For Free Speech (H.R. 1)
On this episode of the Fred Holland Podcast Luke Wachob, Communications Director for the Institute for Free Speech blasts HR1 as a “Blatant Assault on our Constitution.”
Twitter: @LukeIFS
Supreme Court
Above the Law: How Appealing: Monday March 8, 2021
By Howard Bashman
Access today’s rulings of the U.S. Supreme Court in argued cases: Justice Clarence Thomas delivered the opinion of the Court in Uzuegbunam v. Preczewski, No. 19-968. Justice Brett M. Kavanaugh issued a concurring opinion. And Chief Justice John G. Roberts, Jr. issued a dissenting opinion. You can access the oral argument via this link.
By Jacob Sullum
Sixty-three years ago, in a case challenging Alabama’s requirement that the National Association for the Advancement of Colored People (NAACP) disclose its membership lists, the Supreme Court recognized that such demands can pose a grave threat to freedom of association. In that case and subsequent decisions, the Court established a test for compelled disclosure of organizational information that may result in “reprisals against and hostility to the members”: The requirement must be “substantially related” to a “compelling” government interest, and it must be “narrowly tailored” to serve that interest.
As a federal judge recognized in 2016, California’s requirement that all nonprofit organizations disclose information about their donors plainly fails that test. But two years later, a panel of the U.S. Court of Appeals for the 9th Circuit reversed that decision, concluding that California’s policy passed constitutional muster based on a weaker standard that usually applies only in the context of campaign finance regulation. In Americans for Prosperity Foundation v. Becerra, which the Supreme Court will hear later this term, two conservative organizations are asking the justices to overturn the 9th Circuit’s decision. They are joined by a remarkably wide range of groups from across the political spectrum, reflecting the significance of the First Amendment threat posed by California’s nosiness.
[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.]
The Courts
ABA Journal: 9th Circuit upholds part of federal anti-riot law in case against white supremacists
By Debra Cassens Weiss
The 9th U.S. Circuit Court of Appeals at San Francisco on Thursday revived the prosecution of four white supremacists under a federal anti-riot law, even as it struck down some parts of the law for infringing protected speech.
The 9th Circuit decision allowed the Anti-Riot Act prosecution of members of the Rise Above Movement, a white supremacist group, who were accused of traveling to California rallies where they attacked people.
Politico and Courthouse News Service have coverage.
The appeals court upheld provisions of the Anti-Riot Act that ban inciting, participating in or carrying on a riot, and that ban committing acts of violence in connection with a riot.
But 9th Circuit cited the First Amendment in striking down parts of the law that ban urging, encouraging, promoting or organizing a riot. The court cited the standard set by the 1969 U.S. Supreme Court decision Brandenburg v. Ohio, which said speech that advocates illegal conduct is protected under the First Amendment-unless it is directed to inciting imminent lawless action.
The 9th Circuit said the unconstitutional provisions of the Anti-Riot Act could be severed from the rest of the law…
The case is United States v. Rundo.
Reason (Volokh Conspiracy): Short Circuit: A Roundup of Recent Federal Court Decisions
By John Ross
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice…
-Turns out that the transmissibility of COVID-19 has no connection to whether your large gathering consists of lockdown protestors or BLM protestors. Relatedly, the governor of Kentucky committed a “textbook” First Amendment violation when he threatened the former with prosecution, while inviting and speaking to the latter. But, as the Sixth Circuit notes, the case is moot on appeal, because the governor rescinded the COVID-19 restrictions.
Congress
Cato: Is H.R. 1 a “Voting Rights Bill”?
By Walter Olson
Both the Washington Post and New York Times in recent days have seen fit to describe [H.R. 1] as a “voting-rights bill.”
In fact H.R. 1 is a sprawling omnibus measure that would assert federal control over a broad array of areas of American life related not just to elections and campaigns but to the dissemination of opinion about politics and policy, as well as a range of matters yet further afield:
-Seeking to strike back against the Supreme Court’s Citizens United decision, the bill would require disclosure of the names of many persons who donate to organizations that engage in policy-orientated speech that falls far short of electioneering. Per a critical account by two ACLU lawyers, that would menace the confidentiality of a nonprofit that bought an ad “criticizing House Speaker Nancy Pelosi (D-Calif.) for supporting immigration reform or criticizing Sen. Ted Cruz (R.-Tex.) for opposing the Equality Act.” That “could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.” (More about the speech implications here.) Whether that’s a good idea or a bad one, it’s not a voting rights issue.
-The bill would create a new public fund to finance congressional campaigns. Good idea or bad, that’s not a voting rights issue.
-The bill would tag more persons as lobbyists and create a new obligation for various persons connected with foreign states to say so before weighing in on social media discussions of American politics. Not a voting rights issue.
Free Speech
Deseret News: The self-silencing majority
By Bari Weiss
I know a lot of people who live in fear of saying what they really think. In red America and in blue America – and, perhaps more so, on the red internet and the blue internet – we are in the grip of an epidemic of self-silencing. What you censor, of course, depends on where you sit…
On the left, liberalism is under siege by a new, illiberal orthodoxy that has taken root all around, including in the very institutions meant to uphold the liberal order. And cancellation is this ideology’s most effective weapon. It uses cancellation the way ancient societies used witch burnings: to strike fear into the hearts of everyone watching. The point is the assertion of power. By showing the rest of us that we could be next, it compels us to conform and obey, either by remaining silent, or, perhaps, offering up our own kindling.
Online Speech Platforms
Wall Street Journal: YouTube CEO Says Trump Suspension to Last Until Violence Risk Decreases
By Sarah E. Needleman
YouTube’s chief executive said the company still sees a risk of violence in the aftermath of the Jan. 6 Capitol Hill riot and that it would only lift its suspension of former President Donald Trump from the video-sharing platform once it determines “the risk of violence has decreased.”
Candidates and Campaigns
Daily Beast: Kanye’s Zombie Campaign Attracts Teen Donors-and Feds’ Scrutiny
By Roger Sollenberger
Former Birthday Party presidential contender Kanye West has not yet terminated his campaign, but he has disabled donations and removed merch from his website after receiving a notice from the Federal Election Commission and numerous complaints about extended shipping delays from some of his zoomer donors hopeful that their federal contribution would return a black-market payday.
The unusual violations in the West campaign’s FEC reports include multiple donations from minors, multiple possible contributions from foreign nationals and several fake names and addresses that trace to drop-shipping warehouses on both coasts. On top of that, experts say, West himself may face an investigation for unlawful fundraising practices that pulled in nearly $100,000 in small donations this year.
“In five-plus years of doing this I’ve never come across something like this,” said Jordan Libowitz, communications director for government watchdog Citizens for Responsibility and Ethics in Washington, which has filed 14 federal lawsuits targeting illegal campaign finance activity since 2016.
Politico: Scoop: Trump sends legal notice to GOP to stop using his name
By Rachael Bade and Tara Palmeri
Lawyers for former President Donald Trump sent out cease-and-desist letters Friday to the three largest fundraising entities for the Republican Party – the RNC, NRCC and NRSC – for using his name and likeness on fundraising emails and merchandise, a Trump adviser tells Playbook…
None of the committees returned a request for comment. But privately GOP campaign types say it’s impossible not to use Trump’s name, as his policies are so popular with the base. If Trump really wants to help flip Congress, they argue he should be more generous. His team, however, sees this differently.
The States
Louisville Courier Journal: Insulting a police officer could become a crime in Kentucky
By Joe Sonka
A Senate committee advanced a bill Thursday enhancing punishments for crimes related to rioting, including a provision making it a crime to insult or taunt a police officer to the point it could provoke a violent response.
Sen. Danny Carroll, R-Benton, a retired police officer and lead sponsor of Senate Bill 211, told the committee his legislation was a response to “riots” seen in many cities throughout the country last summer, including Louisville.
“This is not about lawful protest in any way, shape, form or fashion,” Carroll said. “This country was built on lawful protest, and it’s something that we must maintain – our citizens’ right to do so. What this deals with are those who cross the line and commit criminal acts.”
The bill passed through committee by a 7-3 vote, but faced criticism from Sen. David Yates, a Louisville Democrat, and the ACLU of Kentucky as a “dangerous” government overreach limiting protected free speech and protest…
[The bill contains] language making a person guilty of disorderly conduct – a Class B misdemeanor with a penalty of up to 90 days’ imprisonment – if he or she “accosts, insults, taunts, or challenges a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.”
Star Tribune: GOP pushes bills to allow social media ‘censorship’ lawsuits
By Anthony Izaguirre, Associated Press
Republican state lawmakers are pushing for social media giants to face costly lawsuits for policing content on their websites, taking aim at a federal law that prevents internet companies from being sued for removing posts.
GOP politicians in roughly two dozen states have introduced bills that would allow for civil lawsuits against platforms for what they call the “censorship” of posts. Many protest the deletion of political and religious statements, according to the National Conference of State Legislatures. Democrats, who also have called for greater scrutiny of big tech, are sponsoring the same measures in at least two states…
The bills vary slightly but many allow for civil lawsuits if a social media user is censored over posts having to do with politics or religion, with some proposals allowing for damages of $75,000 for each blocked post. They would apply to companies with millions of users and carve out exemptions for posts that call for violence, entice criminal acts or other similar conduct.
Dallas Observer: Backed by Abbott, Texas Anti-Riot Bill Could Have ‘Chilling Effect’: Rights Group
By Patrick Strickland
Backed by Gov. Greg Abbott, a bill in the Texas House would enhance penalties for individuals who allegedly participated in a riot. But a civil rights watchdog says it could harm protesters’ right to free expression.
Republican State Rep. Brooks Landgraf introduced the bill, HB 2461, on Monday, saying it would both “protect” First Amendment rights and crack down on “rioters,” according to a news release…
Brian Klosterboer, a staff attorney for the ACLU of Texas, described the bill as worrisome, citing several parts of the legislation’s text as potentially having a “chilling effect” on peaceful demonstrators…
“It also gives the police broad discretion to arrest people who they think are participating in a riot,” he said, and “bills like this one would make it easier for police to crack down and silence protesters” while also opening the door for “guilt by association.”
