In the News
Forbes: Kentucky Adopts The Uniform Public Expression Protection Act
By Jay Adkisson
The Kentucky General Assembly has adopted the Kentucky Uniform Public Expression Protection Act, which provides the Bluegrass State with Anti-SLAPP legislation for the first time. This is the second enactment of the UPEPA, and follows that of Washington state which adopted the UPEPA about this time last year. Reportedly, at least five other states are considering the adoption of the UPEPA during the 2022 legislative term.
As with Washington, the Kentucky Assembly did not adopt the UPEPA verbatim, but instead made their own slight changes to the Act so as to respond to local concerns…
To this end, Kentucky has already made some modifications to the UPEPA which look pretty good, and frankly I wish we had thought about when drafting the original Act…
Since my last writing on UPEPA, there has come to my attention the excellent and definitive analysis of Anti-SLAPP statutes nationwide entitled Anti-SLAPP Statutes: A Report Card, as published by the Institute for Free Speech. This analysis is worth spending some time with, and illustrates the very problem with gave rise to the UPEPA in the first place: Most states have Anti-SLAPP statutes, but 19 still do not, and there can be considerable differences between the Anti-SLAPP statutes such that a so-called libel tourist still has many opportunities to forum shop for a jurisdiction without an Anti-SLAPP statute or with a weak one.
FEC
Politico: Campaign finance watchdog cracks down on untraceable super PAC donations
By Zach Montellaro
The Federal Election Commission signaled Friday that it will take steps to uncover some types of virtually untraceable donations to super PACs, a potentially significant shift in the enforcement of campaign finance law.
The move came as the FEC released documents resolving a complaint about a pair of 2018 donations to DefendArizona, a super PAC that supported then-Rep. Martha McSally’s (R-Ariz.) Senate bid.
The complaint, originally filed by the nonprofit watchdog group Campaign Legal Center, alleged that a pair of donations to the super PAC were not properly disclosed. The money came in from two limited liability companies, but there was no indication of who was actually behind the money before it went into the LLC…
A statement from four of the six commissioners indicated that the agency would now start cracking down on these straw donations, requiring that the LLCs disclose who is actually behind the companies…
“In prior cases premised on similar facts, the Commission did not agree whether, following Citizens United and SpeechNow.org v. FEC, respondent committees had received adequate notice that the Commission’s LLC reporting rules and conduit contribution rules applied to contributions made to the newly formed [super PACs] authorized by those judicial rulings,” the four commissioners wrote, referring to a pair of federal court cases that are over a decade old.
Supreme Court
New York Times: Can the S.E.C. Require ‘Gag Orders’ When It Settles Cases?
By Adam Liptak
According to a new petition seeking Supreme Court review. . . [s]ince 1972, as a matter of consistent policy, the Securities and Exchange Commission has insisted on a vow of silence when it settles cases.
The agency allows defendants to resolve cases without admitting or denying wrongdoing. But they must also promise not to make “any public statement denying, directly or indirectly, any allegation in the complaint or creating the impression that the complaint is without factual basis.”
Judge Jed S. Rakoff. . . wrote a harsh critique of the policy in a 2011 opinion, calling it “a stew of confusion and hypocrisy unworthy of such a proud agency.”
“The defendant is free to proclaim that he has never remotely admitted the terrible wrongs alleged by the S.E.C.; but, by gosh, he had better be careful not to deny them either,” Judge Rakoff wrote…
The new case concerns Barry D. Romeril, a former Xerox executive whom the S.E.C. accused of participating in a scheme to mislead investors…
Floyd Abrams, a noted First Amendment lawyer who represents Mr. Romeril in the Supreme Court, says there are some rights that cannot be bargained away.
“To impose a speech ban as an element of a settlement is, in my view, unconstitutional,” he said. “The idea that the government is demanding an enforceable promise not to speak ill of it is really troubling.”
Congress
Rolling Stone: How Joe Manchin Knifed the Democrats — and Bailed on Saving Democracy
By Andy Kroll
Rolling Stone interviewed more than 30 key figures inside and outside of Congress to understand how the most ambitious voting-rights bill in generations and the Democratic Party’s main policy response to the Jan. 6 insurrection ended in failure. The blame for this defeat, sources say, lies with multiple parties: Manchin either strung along his party for months with no intention of actually supporting the reforms or gave indications to his colleagues that he was on board only to reverse his position on multiple occasions. Senate Democrats, meanwhile, miscalculated that if they could flip Manchin, another swing vote, Kyrsten Sinema of Arizona, would follow his lead…
Manchin spokeswoman Sam Runyon says the senator “never said he was open to eliminating the filibuster.” If his colleagues believed that, she adds, they were mistaken.
Free Expression
Tablet Magazine: The End of Progressive Intellectual Life
By Michael Lind
If you are an intelligent and thoughtful young American, you cannot be a progressive public intellectual today, any more than you can be a cavalry officer or a silent movie star. That’s because, in the third decade of the 21st century, intellectual life on the American center left is dead. Debate has been replaced by compulsory assent and ideas have been replaced by slogans that can be recited but not questioned…
Having crowded out dissent and debate, the nonprofit industrial complex—Progressivism Inc.—taints the Democratic Party by association with its bizarre obsessions and contributes to Democratic electoral defeats, like the one that appears to be imminent this fall…
Who decides what is and is not permissible for American progressives to think or discuss or support? The answer is the Ford Foundation, the Open Society Foundation, the Omidyar Network, and other donor foundations, an increasing number of which are funded by fortunes rooted in Silicon Valley. It is this donor elite, bound together by a set of common class prejudices and economic interests, on which most progressive media, think tanks, and advocacy groups depend for funding.
Washington Post: Censorship battles’ new frontier: Your public library
By Annie Gowen
A movement that started in schools has rapidly expanded to public libraries, accounting for 37 percent of book challenges last year, according to the American Library Association. Conservative activists in several states, including Texas, Montana and Louisiana have joined forces with like-minded officials to dissolve libraries’ governing bodies, rewrite or delete censorship protections, and remove books outside of official challenge procedures.
“The danger is that we start to have information and books that only address one viewpoint that are okayed by just one certain group,” said Mary Woodward, president-elect of the Texas Library Association.
“We lose that diversity of thought and diversity of ideas libraries are known for — and only represent one viewpoint that is the loudest,” said Woodward, noting that there have been an estimated 17 challenges leveled at public libraries in Texas recently and that she expects many more.
The Media
ABC News: Journalists despair over toll of disinformation on jobs
By David Bauder
Journalists are sounding an alarm about the spread of disinformation in society and how it affects their jobs on a daily basis, along with skepticism on whether traditional methods to combat it really work.
The free speech advocates PEN America found in a survey of journalists released Thursday that 90% said their jobs have been affected by false content created with the intent to deceive.
Candidates and Campaigns
By Sarah Mearhoff
Days after U.S. Rep. Peter Welch, D-Vt., launched his campaign for the U.S. Senate last November, he declared that he would no longer accept contributions from corporate political action committees.
“This campaign is powered by people,” he tweeted at the time. “We aren’t accepting any corporate PAC money. We want Vermonters and people across the country to know we are fighting for them.”
But that doesn’t mean Welch is refusing big-dollar donations from industry groups that frequently lobby Congress.
In its quarterly campaign finance report filed Friday with the Federal Election Commission, Welch’s Senate campaign logged numerous multi-thousand-dollar contributions from PACs associated with the medical, agricultural, real estate and retail industries, among others.
Online Speech Platforms
Newsweek: Elon Musk is Correct—Big Tech Platforms Are Digital Public Squares
By Joel Thayer
Congress, not Elon Musk, needs to step in to fix the courts’ mess by bringing First Amendment-like remedies to the digital public squares. It should consider an approach like what Senator Roger Wicker (R-Miss.) suggested in his PRO SPEECH Act, which would tether Big Tech’s Section 230 immunity to a public accommodation obligation. Such an obligation would prohibit large tech platforms from denying would-be users access to its public square solely based on race, gender, religion or political affiliation. If a company violates that obligation, then it loses its legal immunity. Given that the First Amendment does not guarantee a company legal immunity to host speech, such legislation will almost certainly pass constitutional muster.
Independent Groups
Axios: Out-of-state money floods midterm races
By Lachlan Markay
Candidates in key midterm primaries are getting huge cash boosts from wealthy out-of-state donors — funneled through groups that can raise and spend unlimited sums for them, according to an Axios analysis…
What they’re saying: Some super PAC officials told Axios a national fundraising profile is the only way their candidates can compete with wealthy, self-funded rivals, who can pour unlimited sums directly into their own campaigns.
“Our campaign finance system overwhelmingly benefits people who can self-fund campaigns to the tune of many millions of dollars,” Luke Thompson, the executive director of pro-Vance group Protect Ohio Values, told Axios.
Vance’s primary opponents include Ohio businessman Mike Gibbons, who’s given millions to his campaign. “Candidates who aren’t mega-rich have to try to make up the difference with a combination of small-dollar fundraising and support from outside groups,” Thompson said.
A spokesperson for Saving Arizona, the pro-Masters group, noted self-funders such as Masters rival Jim Lamon can “access the cheapest television rates available due to FCC rules for candidate ads.”
“To a degree, independent expenditure groups like ours level the playing field and allow us to help candidates who aren’t extremely wealthy to be competitive with those that are,” the spokesperson said.
The States
Northwest Arkansas Democrat-Gazette: State treasurer candidate Mark Lowery says computer glitch reason for late campaign finance report
By Michael R. Wickline and Rachel Herzog
State Rep. Mark Lowery, R-Maumelle, said Monday his campaign finance report for March for his state treasurer’s campaign wasn’t posted on the secretary of state’s website until Monday because there was a glitch in the secretary of state’s system that didn’t allow him to file a final report for March, though the contributions and expenses for last month were entered into the system.
Friday was the deadline for state candidates to file campaign finance reports for March with the secretary of state’s office…
Kevin Niehaus, director of government affairs for the secretary of state’s office, confirmed the glitch in an email Monday. The office has taken steps to procure a new computerized system, which Niehaus said would hopefully rectify those glitches.
The Oaklandside: Half the money in Oakland’s elections comes from outside the city. ‘Democracy dollars’ could change that
By Darwin BondGraham
Currently, less than 1% of Oakland residents contribute money to candidates for City Council, mayor, school board, and other local offices, according to a city report.
Over half of the contributions from Oakland residents funding local political campaigns come from just four zip codes…
And about half the money in Oakland elections comes from sources outside of the city.
A 2020 report by the Public Ethics Commission, Oakland’s good government watchdog agency, explained why this is an inequitable system…
A coalition of groups calling itself the Bay Area Political Equality Collaborative, or BayPEC, wants to change this by re-writing Oakland’s campaign finance rules to encourage mass participation.
The groups, including Oakland Rising, ACLU of Northern California, Asian Americans Advancing Justice-Asian Law Caucus, CA Common Cause, League of Women Voters-Oakland, and MapLight presented their plan at last night’s meeting of the Public Ethics Commission…
The coalition’s plan, in a nutshell, is to make it possible for every Oakland voter to give money to political candidates, regardless of their income level. Here’s how it would work.
