Supreme Court
The Hill: The First Amendment protects attorneys from compelled speech
By Deborah J. La Fetra and Elizabeth Slattery
Imagine being forced, as the price of doing business, to pay for a trade association’s speech on gun control, immigration, abortion, affirmative action, and many other hot-button political issues. That’s the situation attorneys in many states face just to do their jobs. Whether or not they agree with the bar association’s political and ideological views, attorneys must join and pay dues as a condition of being licensed to practice law.
The First Amendment is supposed to protect your right to speak freely and associate with whomever you like. It also should protect against being forced to pay for other people’s speech. As Thomas Jefferson once explained, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.”
To be sure, state bars serve a legitimate role, deciding who can practice as an attorney, how to handle attorney discipline, and the continuing education attorneys need. But when mandatory state bars combine these regulatory functions with political and ideological advocacy on issues far afield from the practice of law, as more than half the states currently allow, it infringes upon the First Amendment rights of attorneys who disagree with the messages these organizations advance.
Regrettably, the Supreme Court upheld the constitutionality of this arrangement in 1961. That ruling was assumed as an unchallenged predicate in 1990 in Keller v. State Bar of California, where our firm represented the petitioners.
The Courts
Courthouse News: Court Rejects Push to Have Debates Welcome 3rd-Party Candidates
By Tim Ryan
Declining to futz with rules that determine who makes the coveted presidential debate stage, the D.C. Circuit sank a challenge Friday from the Libertarian and Green parties.
Led by the nonprofit group Level the Playing Field, the parties had sued in Washington after the Federal Election Commission rejected their objections to the criteria that the Commission on Presidential Debates uses to admit candidates in the televised presidential debates it has hosted for the last 30 years.
Among other parameters, the debate commission has a 15% polling threshold the debate commission that is difficult for third-party candidates to reach.
But U.S. Circuit Judge Raymond Randolph, writing for a three-judge panel this morning, said selectivity does not run afoul of FEC rules.
“There is no legal requirement that the commission make it easier for independent candidates to run for president of the United States,” the 13-page opinion states.
A private nonprofit company with an independent board of directors, the aptly named Commission on Presidential Debates does not endorse candidates nor does it receive funding from the federal government or any political parties. Subject to rules put forward by the FEC, the debate commission sets its own standards for who can make the stage…
In their brief to the circuit, the groups argued that the debate commission is “not remotely non-partisan,” but instead is led by political loyalists who advance the major parties’ interest in keeping third-parties on the fringes.
Kitsap Sun: Activist jailed over political signs claims port, sheriff’s office violated his rights
By Andrew Binion
An activist jailed July 4 by Kitsap County sheriff’s deputies because he refused to remove homemade political signs from a park at the Port of Kingston is suing, alleging the port and the sheriff’s office violated his free speech rights.
The signs Robin Dirk Hordon, 72, of Kingston, brought with him to the 2019 Kingston Fourth of July Celebration at Mike Wallace Park promoted peace, feminism and environmental stewardship. The largest of the signs, about 6 feet across, said “Protect Democracy Vote” on one side and “Save Earth” on the other…
After his arrest, Hordon was banned “forever” from the park. His attorney is asking for the federal judge on the case to quickly order the Kitsap County Sheriff’s Office to not enforce the ban, as Hordon wants to display his signs at the park next month on the Fourth of July…
A First Amendment expert with the Freedom Forum Institute in Washington, D.C., a free-speech advocacy group, reviewed Hordon’s lawsuit filed May 18 in U.S. District Court and told the Kitsap Sun he thinks there is a case that the port’s sign rule violates the U.S. Constitution.
“It is frankly un-American to arrest someone for peacefully displaying a sign in a traditional public forum,” David L. Hudson Jr. wrote in an email…
Hordon said he is suing for two reasons: because his right to petition the government for grievances was violated and to ensure the right of free speech is secured.
“If our society cannot uphold political free speech in a public park, then our society, our government, is in trouble,” he said.
Congress
Senator Dianne Feinstein (D-Calif.) joined Senator Amy Klobuchar (D-Minn) and a group of their colleagues to urge the FEC to act quickly to complete the rulemaking process to provide clear rules concerning disclaimers on online political advertisements. The letter follows a nearly ten month period where the FEC lacked a quorum and was unable to undertake many of the agency’s key policymaking duties. Now, with the 2020 election just months away it is vital that the FEC take action to ensure that voters know who is paying for advertisements online.
“Transparency is a key feature of a healthy democracy. As our democracy has modernized, our disclosure laws have not. The FEC last revised its rules governing internet disclaimers in 2006. With online advertising playing an increasingly important role in political elections, it is critical that the FEC issue clear up-to-date guidance on disclosure rules for online ads,” the senators wrote…
In addition to Feinstein and Klobuchar, the letter is also signed by Senators Dick Durbin (D-Ill.), Patrick Leahy (D-Vt.), Tom Udall (D-N.M.), Mark Warner (D-Va.), Michael Bennet (D-Colo.), Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.), Thomas Carper (D-Del.), Mazie Hirono (D-Hawaii), Angus King (I-Maine), Ed Markey (D-Mass.), Robert Menendez (D-N.J.), Jeff Merkley (D-Ore.), Jeanne Shaheen (D-N.H.), Tina Smith (D-Minn.) and Ron Wyden (D-Ore.).
The letter can be found here and below.
The Hill: Trio of GOP lawmakers asks Zoom to clarify China ties after it suspends accounts
By Marty Johnson
A trio of GOP congressional lawmakers on Thursday wrote to Zoom, asking the web communications company to clarify its relationship with the Chinese government after the company suspended a U.S.-based activist group for organizing an event to commemorate the anniversary of the Chinese government’s crackdown on the Tiananmen Square protests in 1989.
Earlier in the week, the California-based company confirmed that it had suspended the account of the activist group Humanitarian China on June 7, a week after it had held the event on May 31…
Oregon Reps. Greg Walden (R) and Cathy McMorris Rodgers (R), both of whom are on the House Energy and Commerce Committee, wrote to Zoom’s founder and CEO Eric Yuan.
“Zoom acknowledged that it closed the account and defended this action by stating such decision was made to ‘comply with local law,'” the pair wrote. “This suggests Zoom, a U.S. company, closed the account at the direction of the Chinese government, which forbids free discussion of the 1989 Tiananmen pro-democracy movement.” …
Sen. Josh Hawley (R-Mo.) also wrote to Yuan on Thursday, delivering an ultimatum to Zoom’s chief executive.
“I reiterate today that it is time for you to pick a side: American principles and free-speech, or short-term global profits and censorship,” the freshman senator wrote.
Media
New York Times: Bret Stephens: What The Times Got Wrong
By Bret Stephens
Last week’s decision by this newspaper to disavow an Op-Ed by Senator Tom Cotton is a gift to the enemies of a free press – free in the sense of one that doesn’t quiver and cave in the face of an outrage mob. It is a violation of the principles that are supposed to sustain the profession, particularly our obligation to give readers a picture of the world as it really is.
And, as the paper dismisses distinguished journalists along with controversial opinions, it’s an invitation to intellectual cowardice.
Start with the Op-Ed itself, in which Senator Cotton, an Arkansas Republican, called on the federal government to deploy active-duty troops to American cities in the wake of looting and rioting that accompanied overwhelmingly peaceful protests…
The paper’s editors’ note said the senator’s Op-Ed didn’t meet The Times’s editorial standards. To which one might ask: Would the paper have stood by the article if Cotton had made a better case for sending in troops, with stronger legal arguments and a nicer tone? Or were the piece’s supposed flaws a pretext for achieving the politically desired result by a paper that lost its nerve in the face of a staff revolt? ….
[T]he value of Cotton’s Op-Ed doesn’t lie in its goodness or rightness. It lies in the fact that Cotton is a leading spokesman for a major current of public opinion. To suggest our readers should not have the chance to examine his opinions for themselves is to patronize them. To say they should look up his opinions elsewhere – say, his Twitter feed – is to betray our responsibility as a newspaper of record.
New York Times: Our Writers’ Responses to the Tom Cotton Op-Ed
By Kathleen Kingsbury
As a reader of this newsletter, you are likely aware of the Op-Ed we recently published from Senator Tom Cotton and the debate it has generated. If you missed my newsletter on the subject from earlier in the week, you can read it here.
Beyond issues of editorial quality, the piece raised questions about what qualifies as a subject of legitimate debate on opinion pages. “We as a news organization must air the opinion of someone like Senator Tom Cotton, but in a news article where we can check the facts, where we can push back,” our colleague at The New York Times Magazine, Nikole Hannah-Jones, said on CNN’s Reliable Sources. Others outside The Times have also used this as an opportunity to explore the role journalism should play in the age of Trump. Some are sounding alarm bells about the potential chilling effects the response to the Op-Ed may cause…
You won’t be surprised to hear we’ve spent a lot of time talking about what we stand for in Times Opinion over the past few days. Michelle Goldberg explored how Donald Trump’s presidency has undermined the traditional model of op-ed pages. Kara Swisher urged news organizations and social media companies to more deeply consider who gets to use their platforms to voice ideas. Roxane Gay, chatting with readers, called out what she saw as real errors in judgment that led to the Cotton Op-Ed being published and, ultimately, the resignation of The Times’s editorial page editor. Nick Kristof addressed this topic in his newsletter this week, and Jamelle Bouie has shared some of his thoughts on Twitter.
Reporting by Matt Taibbi: The American Press Is Destroying Itself
By Matt Taibbi
[A]mong self-described liberals, we’re watching an intellectual revolution. It feels liberating to say after years of tiptoeing around the fact, but the American left has lost its mind. It’s become a cowardly mob of upper-class social media addicts, Twitter Robespierres who move from discipline to discipline torching reputations and jobs with breathtaking casualness.
The leaders of this new movement are replacing traditional liberal beliefs about tolerance, free inquiry, and even racial harmony with ideas so toxic and unattractive that they eschew debate, moving straight to shaming, threats, and intimidation. They are counting on the guilt-ridden, self-flagellating nature of traditional American progressives, who will not stand up for themselves, and will walk to the Razor voluntarily.
They’ve conned organization after organization into empowering panels to search out thoughtcrime, and it’s established now that anything can be an offense, from a UCLA professor placed under investigation for reading Martin Luther King’s “Letter from a Birmingham Jail” out loud to a data scientist fired* from a research firm for – get this – retweeting an academic study suggesting nonviolent protests may be more politically effective than violent ones!
Now, this madness is coming for journalism. Beginning on Friday, June 5th, a series of controversies rocked the media. By my count, at least eight news organizations dealt with internal uprisings (it was likely more). Most involved groups of reporters and staffers demanding the firing or reprimand of colleagues who’d made politically “problematic” editorial or social media decisions.
The New York Times, the Intercept, Vox, the Philadelphia Inquirier, Variety, and others saw challenges to management.
Online Speech Platforms
Courthouse News: Twitter Back in Court to Urge Dismissal of Nunes Defamation Case
By Brad Kutner
Pointing to a law that shields internet platforms from legal action for content posted by third-party users, Twitter asked a Virginia judge for a second time Friday to dismiss defamation claims brought against the social media giant by Republican Congressman Devin Nunes of California.
One of six such cases filed around the country by Nunes, the dispute in Henrico County Circuit Court involves tweets by a Republican strategist and two anonymous parody accounts called “Devin Nunes’ Mom” and “Devin Nunes’ Cow.” …
Wilmer Hale partner Patrick J. Carome argued in the socially distanced courtroom that Twitter is immune from the congressman’s claims because of Section 230 of the Communications Decency Act…
“We don’t need to get into [this case] beyond Section 230 because this is right in its bullseye,” Carome said, noting Twitter played no role in the crafting of the content posted by consultant Liz Mair, @DevinCow and the since-deleted @DevinMom…
Charlottesville attorney Stephen Biss, who is representing Nunes in several defamation cases, pointed to [the] capacity for review as justification for Twitter being considered a publisher. If the company is picking and choosing what content can be posted on its site, he said, then it’s putting its fingerprints on the content…
But Henrico County Judge John Marshall…pushed back on Biss’ concerns about political bias.
“[The law] does not say you have to be neutral,” the judge said from the bench. “What if the site only allowed conservative voices?”
Right to Protest
Washington Post: Should we worship and protest during the pandemic?
By Editorial Board
Protest and worship embody the most hallowed freedoms protected by the Constitution: freedom of thought, of religion, of assembly. They are also often very public and physical endeavors, such as a political demonstration or a church service. In normal times, we barely think twice. But in the middle of a pandemic, with a spreading virus that can sicken and kill, it is vital to think clearly about how to protect these rights yet also avoid making the pandemic worse…
We know this much: The virus is relentless and indiscriminate. It doesn’t care if you are protesting racism or cheering President Trump…
Protest, worship and campaign rallies are exercises of our valued rights, and should not be carelessly discouraged or discarded. But these and other public gatherings must be measured against whether they can be held safely and to what extent they endanger the health of others.
The States
KTUU: Alaska Supreme Court rules election-reform initiative can appear on the November ballot
By Sean Maguire
The Alaska Supreme Court has unanimously ruled that an election-reform initiative can appear on the November ballot.
The lieutenant governor, following advice from the Alaska attorney general, had said that the initiative violated a rule that only one subject can appear in a single initiative. The Supreme Court disagreed, ruling that the initiative’s one subject is election reform.
Alaskans for Better Elections seeks to change how Alaskans vote. The biggest change would be implementing a ranked-choice voting system.
If the initiative passes, Alaska would also move to holding a single nonpartisan primary election that the group says will lead to a more open process. There would also be additional reporting requirements for large donations to political campaigns.
Nossaman LLP: Compliance Notes – Vol. 1, Issue 7
Maryland: The use of “bots” (automated online accounts) to influence a Maryland election by disseminating campaign materials must now be disclosed. If a person violates the disclosure requirement, (1) the State Board of Elections may seek to remove the bot and (2) the person would be subject to a fine, jail time, or both and would be ineligible to hold any public or party office for four years after the date of the offense. (Maryland House Bill 465, effective June 1, 2020.
