Supreme Court

Sacramento Bee: Should schools be able to punish students for speech on social media? Supreme Court will decide

By Erwin Chemerinsky

There is an adage that “hard cases make bad law” and I worry this will be true about a major First Amendment case now pending before the Supreme Court.

Mahanoy School District v. B.L., which was argued on April 28, involves whether a student can be punished for speech on social media. The court has not decided a student speech case in over a decade and this will be the first to address the ability of schools to impose discipline for speech out of school and over social media. The challenge for the court will be to craft an approach that protects student speech while also allowing schools to punish bullying and harassment over social media.

The Courts

Politico: Court rejects challenge to federal anti-riot law

By Josh Gerstein

A federal judge in Alabama has upheld the constitutionality of a half-century-old federal anti-riot law in the face of claims that the law has racist roots and threatens protest activity protected by the First Amendment.

U.S. District Court Judge Terry Moorer’s decision Thursday afternoon in favor of prosecutors clears the way for Tia Pugh, 22, to face trial next week on a single felony charge: that she violated the “civil disorder” law by smashing a police car window with a bat during a protest in Mobile six days after a Black man, George Floyd, died in the custody of Minneapolis police.

Congress

The Hill: Schumer in bind over fight to overhaul elections

By Jordain Carney

Senate Majority Leader Charles Schumer (D-N.Y.) faces big headaches in his own party as he tries to get a sweeping elections bill to President Biden’s desk.

Schumer — who is up for reelection in 2022 and trying to keep Democrats in control of the Senate — finds himself trying to juggle competing interests over the fate of the For the People Act, a top legislative priority for the party.

At one end, he’s dealing with a progressive base that wants to get the House-passed bill across the finish line and isn’t interested in substantially narrowing the legislation to make it happen. At the other is Sen. Joe Manchin (D-W.Va.), the biggest hold out who has shown no signs of budging, with others predicting the legislation will need changes if Democrats hope to secure enough votes on their side for passage.

Schumer is supportive of the bill and he’s publicly made big promises to Democratic voters, saying that “failure is not an option.”

And he’s privately starting to lay the groundwork for trying to unify all 50 members of his caucus. Schumer held a closed-door meeting late last week that a person familiar with the meeting characterized as “the first of many discussions on the bill.” He’s also pledged to give the bill a vote before August. 

“We have to find a path to 50 votes … but we’re not there yet,” said Sen. Chris Murphy (D-Conn.). “We’ve got a narrow majority, we’ve got a lot of different opinions in the caucus.”

The Fulcrum: For the People Act falls victim to partisan dysfunction

By David Meyers

When Sen. Joe Manchin’s office told CNN this week that he opposes the For the People Act, the West Virginia Democrat struck a fatal blow to his party’s signature legislation to overhaul the elections, redistricting, campaign finance and ethics rules.

From its debut in 2019, the legislation was considered a long shot at best and likely nothing more than a messaging platform for Democrats. That prediction — the first article written by The Fulcrum — has come to fruition two and a half years later as the parties avoided attempts at compromise and fought over congressional rules that stymied passage.

In March 2019, Democrats forced the bill through the House on a strictly party-line vote while knowing Majority Leader Mitch McConnell was never going to allow a vote in the Republican-run Senate.

But after Joe Biden won the presidency and Democrats took control of a 50-50 Senate, the bill’s backers thought they might have a real opportunity to enact the popular legislation (known to many as HR 1 and S 1). However, while the Democrats again won passage in the House (this time with one Democrat joining all Republicans in opposition), they still faced the daunting challenge of overcoming the Senate filibuster…

With Manchin opposing the bill, there’s no path forward.

Biden Administration

The Verge: Biden revokes Trump executive order that targeted Section 230

By Kim Lyons

President Biden on Friday revoked several of former President Trump’s executive orders, including one that would have changed legal protections for social media sites and other online platforms.

Section 230 of the 1996 Communications Decency Act limits how much online platforms can be held liable for content users share on their platforms. The Trump order, titled “preventing online censorship,” would have allowed federal authorities to hold companies like Twitter, Google, and Facebook responsible if they were found to be infringing on users’ speech by deleting or otherwise modifying users’ posts.

Trump signed the order last May, just as Twitter started applying labels to his tweets as “misleading.” Trump was eventually banned from Twitter for tweets inciting the January 6th riot at the US Capitol. A similar ban by Facebook remains in effect while the company reevaluates it.

FEC

Bloomberg Government: Trump Hush Money, Russia Probes Nixed by GOP Election Officials

By Kenneth P. Doyle

Probes into Donald Trump’s campaign finance activities, including alleged payments to a porn star and accusations of indirect Russian contributions, have been blocked by Republican election regulators reluctant to pursue old cases against the former president.

The recently revived Federal Election Commission has dismissed a half-dozen complaints involving Trump filed by campaign finance watchdog groups, as the equally divided six-member panel failed to garner a majority vote to initiate enforcement on the backlogged cases.

Democrats and watchdog groups said the decisions underscored the partisan divisions that have plagued the panel for years and raised questions about whether commissioners could make fair judgments on complaints against politicians of their own party.

“This is just the latest example of the severe dysfunction of the FEC and points to the need for structural reform,” said Paul S. Ryan, an attorney with the watchdog Common Cause.

Ryan filed a complaint that $130,000 in hush money paid to porn star Stormy Daniels to conceal her alleged affair with Trump was an illegal, unreported campaign contribution. Ryan said he didn’t know if the Republican commissioners who voted to dismiss cases against Trump were put on the election panel for that purpose but said it was reasonable to ask if they were objectively enforcing the law.

Free Speech

New York Times: Looking for Bipartisan Accord? Just Ask About Big Business.

By Ben Casselman and Jim Tankersley

Republicans in Washington and around the country have soured on big business, joining Democrats in expressing concern that corporations wield too much influence. The shift has left corporate America with fewer allies in a tumultuous period for American society and the global economy.

The erosion of support is evident in opinion polls, on cable news and in political campaigning. It is the continued outgrowth of a populist surge among liberal and conservative Americans alike, but it is particularly pronounced on the right and often linked to the grievances of white voters on racial issues…

Many top executives feel they have little choice. They are being pressured by customers and increasingly by young, progressive employees to speak out publicly on major issues. And in the era of social media, companies can get into just as much trouble by staying silent as by weighing in.

Polling data shows the squeeze. A Gallup poll conducted in January, in the days leading up to and immediately following the Capitol riot, found that just 31 percent of Republicans were satisfied with the “size and influence of major corporations.” That was down from 57 percent a year earlier.

And in a survey conducted last month for The New York Times by the online research platform SurveyMonkey, 81 percent of Republicans who knew enough to form an opinion said it was inappropriate for business leaders to speak out against the Georgia law. And 78 percent of Republicans said large corporations had too much influence over American life in general.

Online Speech Platforms

The Intercept: Facebook’s Secret Rules About the Word “Zionist” Impede Criticism of Israel

By Sam Biddle

Facebook’s secret internal rules for moderating the term “Zionist” let the social network suppress criticism of Israel amid an ongoing wave of Israeli abuses and violence, according to people who reviewed the policies.

The rules appear to have been in place since 2019, seeming to contradict a claim by the company in March that no decision had been made on whether to treat the term “Zionist” as a proxy for “Jew” when determining whether it was deployed as “hate speech.” The policies, obtained by The Intercept, govern the use of “Zionist” in posts not only on Facebook but across its subsidiary apps, including Instagram.

Both Facebook and Instagram are facing allegations of censorship following the erratic, widespread removal of recent posts from pro-Palestinian users critical of the Israeli government, including those who documented instances of Israeli state violence.

Wall Street Journal: Facebook’s ‘Fact Checks’ Suppress Debate

By Steven E. Koonin

This paper published Mark Mills’s review of “Unsettled,” my book on climate science, on April 25. Eight days later, 11 self-appointed “fact checkers” weighed in with a 4,500-word critique on the website ClimateFeedback.org. Facebook is waving that fact check as a giant red flag whenever the review appears in anyone’s feed.

By branding Mr. Mills’s review with “very low scientific credibility,” the company directs its billions of users to a website that claims to discredit the review and, by direct implication, my book. This action adds to the growing suppression of open discussion of climate complexities.

The States

Lens: Legal challenge underway to largest campaign finance fine in history

By TJ Martinell

A group of industry advocates, legislators, and former State Attorney General Rob McKenna are voicing support for a legal challenge to the largest campaign finance violation fine in American history, warning it could have enormous implications for free speech.

McKenna told Lens that “this is a very concerning case for anybody involved in campaigns in Washington state, whether it’s people who support ballot measures, whether it’s people who run for office.”

The lawsuit now in front of the State Supreme Court stems from the 2013 campaign regarding Initiative I-522 mandating the labeling of genetically modified organisms (GMOs). The Grocery Manufacturers Association – now the Consumer Brands Association – created an account for members to contribute funds. State Attorney General Bob Ferguson later sued the organization for concealing fund sources and failing to register as a political committee.

The association was ultimately fined $6 million –which was then eventually tripled to $18 million – making it the largest campaign finance violation fine in American history.

“This case isn’t about whether or not the Grocery Manufacturers Association failed to follow campaign finance rules,” McKenna said. “They did. This is about whether or not tripling a penalty…is excessive under the Constitution.”

He added that if upheld, the incredibly high fine could intimidate people from participating in the political process and making their voices heard on issues, whether it be by providing information for or against initiatives, or running for office.

National Coalition Against Censorship: Oklahoma School District Bans Black Lives Matter Shirts

The National Coalition Against Censorship has written to a Ardmore City Schools in Oklahoma after learning that the district had forbidden students from wearing Black Lives Matter apparel in school. Media reports suggest that the superintendent told a parent that “politics will not be allowed at school.” However, as established in Tinker v Des Moines (1969), students’ political speech is protected by the First Amendment.

Tallahassee Democrat: New Florida law strikes down Tallahassee contribution limits in local races

By Karl Etters

Leon County and Tallahassee’s $250 campaign contribution limit is no more after the Legislature preempted local governments’ ability to put a cap on how much an individual can give to candidates.

The measure, SB 1890, was signed into law last week by Gov. Ron DeSantis but won’t go into effect until July 1. It raises the campaign contribution for city and countywide offices, as well as local judicial seats to $1,000 per donor, four times the previous contribution limit of $250 enacted by Leon County voters. It also increases statewide contribution limits to $3,000.