New from the Institute for Free Speech
Updates to the Anti-SLAPP Report Card
This blog post provides information on states that have either enacted new anti-SLAPP laws or improved existing laws since the February 2022 publication of our Anti-SLAPP Report Card.
May 27, 2022: Arizona Amends Anti-SLAPP Law
While Arizona has had an anti-SLAPP statute for years, the law was among the worst in the nation, earning a “D-“ in our Anti-SLAPP Report Card. House Bill 2722, signed by Governor Doug Ducey on May, 27, 2022, will slightly improve the state’s overall grade.
As the Anti-SLAPP Report Card notes, Arizona would have jumped to a laudable “B+” simply by expanding the scope of its statute to cover all constitutionally protected speech on matters of public concern. While HB 2722 does add language to this effect, it also has an odd provision not in any other anti-SLAPP statute, which will greatly limit speakers’ ability to make use of the new law. As a result, Arizona will fall well short of the “B+” grade it could have earned without the provision.
Congress
New York Post: GOPers push ban on lawmakers paying family on campaigns
By Callie Patteson
Republican members of Congress want to prevent their colleagues from putting family members on the campaign payroll after several prominent Democratic lawmakers have been called out over the practice.
The Family Integrity to Reform Elections (FIRE) Act, to be introduced by Rep. Pat Fallon (R-Texas) on Monday, would bar any candidate running for federal office from compensating immediate family members for campaign services…
If the bill becomes law, any candidate who violates the ban would face a fine of either $100,000 for each violation or twice the amount paid to the family members — whichever is greater — and/or imprisonment for up to two years. The campaign committee would not be permitted to reimburse the candidate for any of the penalties.
Biden Administration
Wall Street Journal: Climate-Change Censorship: Phase Two
By The Editorial Board
Progressives first demanded that social media platforms silence critics of climate alarmism. Now White House national climate adviser Gina McCarthy wants them to censor content on the costs of a force-fed green energy transition…
Some conservative scholars argue that Big Tech companies could be sued as “state actors” for violating users’ First Amendment speech rights when they censor content at the behest of government officials. Ms. McCarthy is helping make their case.
FEC
National Press Foundation: FEC Commissioner Shares Campaign Finance Challenges
By Hope Kahn
As political ads have shifted from traditional media to online – including social media – the Federal Election Commission has struggled to keep up due to a lack of consensus. [Transcript | Video]
“If you’re on the TV, we can regulate you. If you’re on a piece of paper, we can regulate you. But if you’re on the internet, we have challenges in making sure that disclosure and disclaimer information is provided because this agency has not updated its regulations to sufficiently address,” Federal Election Commissioner Shana Broussard told Paul Miller fellows on June 6…
Another challenge the FEC is currently facing is the use of “dark money” in elections. In 2010, a Supreme Court decision invalidated the FECs ban on corporate and union spending on independent expenditures. Broussard said they were able to come up with a bipartisan statement, “making it clear that we are no longer going to turn a blind eye to contributions through LLCs to mask their identities.” Still, “there’s plenty of other dark money ways.”
Free Expression
The Atlantic: Professors Need the Power to Fire Diversity Bureaucrats
By Conor Friedersdorf
“These sorts of investigations”––lengthy, opaque inquisitions of speech clearly protected by official campus freedom-of-expression policies––“are just not serious,” Shapiro told me, because they proceed as if even one ambiguously phrased, deleted tweet can rise to the level of punishable harassment or create a hostile educational climate. That threshold makes “a laughingstock of the educational mission of the university to grapple with difficult ideas,” he said.
Candidates and Campaigns
VTDigger: Becca Balint has denounced super PACs. Is her campaign winking at them anyway?
By Lola Duffort
A little red button appears on the bottom of the “Meet Becca” page on Balint’s website that says “Learn more about Becca.” It leads to a gallery of photos, and then, in all caps: “Primary voters need to hear that Becca is the candidate in this race who has delivered and been a champion for rural Vermonters on the issues that matter most.” …
VTDigger sent Balint’s website to Campaign Legal Center, a national campaign finance reform nonprofit that has worked to raise awareness about the tactic of redboxing.
That’s what’s happening here, they said.
“This type of coordination between supposedly independent super PACs and outside groups exposes the inadequacy of our existing campaign finance rules, which allow those groups to raise and spend unlimited amounts to support candidates based on the premise that their campaign activities are truly independent from the candidates they support,” Erin Chlopak, senior director for campaign finance at Campaign Legal Center, said in a written statement.
Saul Shorr, a Democratic media strategist who has worked on state and national campaigns, reviewed Balint’s campaign website at VTDigger’s request. He, too, thought it appeared to be a clear case of redboxing.
The States
Reason (Volokh Conspiracy): No Media Libel Liability in Texas for Accurately Reporting Third-Party Allegations on Public-Concern Matters
By Eugene Volokh
Under American libel law, accurately repeating a defamatory allegation is itself defamatory, though with various exceptions. Texas law creates a huge exception, almost large enough to swallow the rule—Tex. Civ. Prac. & Rem. Code § 73.005(b) provides that:
“In an action brought against a newspaper or other periodical or broadcaster, the defense [of truth] applies to an accurate reporting of allegations made by a third party regarding a matter of public concern….”
Here’s an illustration, from Gallaher v. Denton Media Co., decided Thursday by the Texas Court of Appeals (Fort Worth), by Justice Elizabeth Kerr, joined by Justices Mike Wallach and Brian Walker; I think it likely would have come out the same way in other states, under the “fair report” privilege, which applies to accurate reporting of contents of government documents—but the court’s logic would have applied even had the report not been a government document:
