Supreme Court
Reason (Volokh Conspiracy): Supreme Court Protects Students’ “Political or Religious Speech” Outside School
By Eugene Volokh
In today’s Mahanoy Area School Dist. v. B.L., eight Justices (all but Justice Thomas) conclude that off-campus student speech—especially on political or religious topics, defined broadly—is generally protected from punishment by the school (at least unless it fits within an existing First Amendment protection, such as for threats of violence, or perhaps unless it involves personal insults of classmates). The Justices declined to establish this as a categorical rule; but I expect this decision to prevent punishment for such speech in the great bulk of situations.
Jonathan Turley: Supreme Court Rules 8-1 for Cheerleader in Mahanoy Case In Major Victory for Free Speech
While many of us in the free speech community hoped for a bright-line decision protecting student speech, the [Mahanoy v. B.L.] decision sharply rebuts the sweeping claims of schools (from high schools to universities) of authority to monitor and punish off-campus speech. What is striking about the language is that the Court secures near unanimous decision by limiting the reach of decision.
The Courts
New Jersey Globe: Judge says regulated industries can make independent expenditures in state elections
By David Wildstein
A federal judge rule Monday that banks and other regulated industries – including utility companies – can make independent expenditures on behalf of gubernatorial and legislative candidates but stopped short of declaring a 1911 statute that bans campaign contributions unconstitutional.
The New Jersey Bankers Association had mounted a legal challenge to the law barring campaign contributions from banks, claiming it violated their First Amendment rights.
U.S. District Court Judge Brian Martinotti found the state law unconstitutionally bans independent expenditures…
But Martinotti stayed clear of permitting banks to make direct contributions.
“A ban that only … prohibits contributions made to officials who directly regulate or deal with banks, and … applies to entities from making contributions to obtain a government contract, would open the door for direct contributions made to state legislators, thereby creating quid pro quo corruption or its appearance,” Martinotti wrote.
Reason: Man Arrested for Public Signs Wins Settlement From Sheriff’s Office and Spurs Reform
By Rikki Schlott
When Robin Hordon, 73, brought his political signs to a Fourth of July celebration at a local public park, he landed himself a night in jail—and was held at $50,000 bail. Nearly two years later, he has not only secured a hefty settlement for violations of his constitutional rights but also inspired meaningful police reform.
Hordon is an artist and activist known for displaying his homemade political signs throughout the community of Kingston, Washington. According to the local newspaper, he endeavors to inspire conversation and dubs his activism “civil informationing,” championing causes like feminism, anti-militarism, and environmentalism (as well as the occasional September 11 conspiracy theory).
In 2019, he brought some of his signs to a public outdoor Fourth of July concert at Mike Wallace Park. The largest poster measured approximately 6 feet across. One side read “Protect Democracy Vote,” and the other simply “Save Earth.”
Sun-Sentinel: Florida urges judge to reject tech industry arguments against crackdown on social media
By Jim Saunders
The [Florida] law, which is scheduled to take effect July 1, seeks to prevent large social-media companies from barring political candidates from their platforms and would require companies to publish — and apply consistently — standards about issues such as blocking users.
The industry groups NetChoice and the Computer & Communications Industry Association filed a lawsuit May 27 and are seeking the preliminary injunction, contending that the law would violate First Amendment rights and harm companies’ efforts to moderate content.
But the filing late Monday by the state’s attorneys tried to flip the First Amendment argument, contending that social-media platforms engage in censorship and violate speech rights.
“The public record is replete with instances of their arbitrary and bad faith content moderation . … Moreover, the social media behemoths’ power to silence both on their platforms and throughout society has given rise to a troubling trend where a handful of corporations control a critical chokepoint for the expression of ideas,” attorneys for the state wrote. “Such unprecedented power of censorship is especially concerning today, when most individuals use social media to obtain their news and government officials harness such mediums to reach the public. The act (the new law) seeks to rein in abuse of this power and ensure the widespread dissemination of information from a multiplicity of sources — a governmental objective of the highest order that promotes values central to the First Amendment.”
Congress
The Hill: Democrats hit wall on voting rights push
By Jordain Carney
Senate Democrats are at a stalemate over how to pass voting rights legislation after Republicans blocked a sweeping election reform bill.
Democrats insist that this week’s setback is just “day one” of the conversation, with the White House and progressives planning to ramp up efforts to get the bill passed, but the legislation is effectively stuck in the Senate for the foreseeable future.
Sen. Dick Durbin (Ill.), the No. 2 Senate Democrat, said he wasn’t sure how Democrats can get out of their current logjam.
“I don’t know yet,” Durbin said. “We’re discussing possibilities of trying to get some aspects of the voting rights back up for consideration.” …
Senate Majority Leader Charles Schumer (D-N.Y.) vowed Wednesday that the Senate isn’t done debating the issue.
“I reserve the right to bring this issue up for debate again. … [It] was the first time we tried to consider major voting rights legislation, but it won’t be the last. Democrats will explore every option available to us for reconsidering legislation on this topic. We’ll leave no stone unturned. Voting rights are too important,” Schumer said.
New York Times: Democrats and Activists Focus on the Filibuster After a Defeat on Voting Rights
By Carl Hulse and Nicholas Fandos
For Democrats, the only way to break their voting rights legislation free of Republican opposition is by changing the Senate’s filibuster rules — an institution-shaking step that so far remains out of reach. But while the filibuster is proving hard to kill, it has been wounded.
The unanimous Republican refusal to allow the Senate to open a debate sought by every Democrat on the expansive elections and ethics measure — coupled with the recent filibuster of other legislation with bipartisan support — has armed opponents with fresh evidence of how the tactic can be employed to give the minority veto power over the majority.
Democrats and activists say the increasing Republican reliance on the filibuster will only intensify calls to jettison it and potentially bring about critical mass for a rules change as Democrats remain determined to pass some form of the elections measure and other parts of their agenda opposed by Republicans.
“I think as people see them stopping more things, minds might change,” Senator Amy Klobuchar, Democrat of Minnesota and one of the chief sponsors of the voting bill, said on Wednesday.
The White House, which has been criticized for not engaging aggressively enough on voting rights, is promising more from President Biden on the issue next week, though Mr. Biden, a senator for 36 years, has not explicitly endorsed eliminating the filibuster.
Politico: Top adviser to Dem megadonor privately blasts party’s prioritization of voting rights bill
By Alex Thompson
The top political adviser to one of the Democratic Party’s biggest donors privately urged fellow Democrats last week to abandon the push around federal voting rights legislation in favor of legislative items with better chances of passage.
Dmitri Mehlhorn, a key confidant to Democratic funder Reid Hoffman, the billionaire co-founder of LinkedIn, made the case to advisers to other Democratic megadonors that the attention being placed by activists and lawmakers on the For the People Act was setting the party up for failure, according to people involved in the discussions and emails obtained by POLITICO.
Specifically, Mehlhorn said people working on the legislation…were “dragging me and my country off a cliff.” He suggested he would “counter mobilize” against their efforts to build support for the bill in and out of Congress.
Mehlhorn’s emails are perhaps the first and most vivid indication of a strategic fissure within the Democratic ranks over how much to emphasize voting rights legislation…
Mehlhorn’s views on the matter reflect a portion of the party that is second-guessing that strategy. It’s unclear how big the contingent is but it is undeniably influential.
The tough and threatening language Mehlhorn used in his emails drew backlash from some fellow donor advisers…
Some donor advisers have disagreed with Mehlhorn’s tactics but sympathized with his larger point about the future of the For The People Act. “Was he too brash? Maybe. Is he right? Many people think so,” one fellow donor adviser familiar with the internal disputes told POLITICO.
Roll Call: Whitehouse bolsters push to shine light on ‘dark money’ at Supreme Court
By Todd Ruger
Sen. Sheldon Whitehouse hasn’t been as convincing as he’d hoped in his campaign to curb conservative anonymous donors and their influence on the Supreme Court — even as that “dark money” now floods in to support the judicial nomination process his party controls.
“In terms of Democrats, we’ve fallen short on taking this seriously and communicating to the public what a hazard the dark money operation is,” Whitehouse told CQ Roll Call this month…
Whitehouse’s full argument isn’t easy to digest, and it delves deep behind the scenes of a federal court system that traditionally is a low priority for most voters…
At times, the former Rhode Island U.S. attorney and state attorney general can sound conspiratorial, such as when he testified in the House that he has found “cut-outs, front groups, false narratives, hidden funding. It has the tradecraft of a covert op.” …
Whitehouse’s prosecutorial approach and persistence have made waves in the small niche of Washington that focuses on federal courts. Among Democrats, though, Whitehouse said he sees “a slow awakening to the fact this is a serious problem.” …
A bill Whitehouse championed and Republicans opposed — which has a provision to require advocacy groups to disclose donors if they run ads around judicial nomination fights — is included in Democrats’ elections, campaign finance and ethics overhaul bill that stalled in the Senate during a procedural vote Tuesday.
Free Speech
ACLU: On the Podcast: Defending Speech We Hate
By Ines Santos
[C]ontemporary critics accuse the organization of having abandoned its defense of free speech, opting instead to solely support liberal causes. So has the ACLU lost its way? A closer look at the history of free speech legislation — and the ACLU’s role in defending it — shatters the false dichotomy between the First Amendment and civil rights. While successfully upholding the right to speak freely sometimes means defending bigots, the biggest benefactors of free speech rights tend to be the most vulnerable populations.
In this week’s episode of At Liberty, ACLU attorney and former host Emerson Sykes is joined by former ACLU Executive Director Aryeh Neier, who oversaw the organization during the Skokie trials. The two discuss European hate speech laws, the organization’s reputation over the years, and why the present-day is not the lowest point for free speech in the US.
Online Speech Platforms
Forbes: Why Facebook Rejected Some Trump PAC Fundraising Ads While Allowing Others
By Abram Brown
President Trump cannot post on Facebook. He cannot buy ads. He’s barred from the platform until at least 2023. But his PAC can do both—as long as the ads don’t include a URL to DonaldJTrump.com…
Last week, Trump’s PAC, Save America, intiated a series of adsseeking to raise money and drive attendance to an upcoming rally hosted by the former president. (The PAC already maintains an official Facebook page devoted to the president, @OfficialTeamTrump, too.) Facebook says most of those ads don’t circumvent Trump’s ban, but it did reject several ads from the PAC that included a link to the former president’s website.
It comes down to this: Facebook is trying to be a bit tougher on politicians run amok on its sites, a distinct shift from its past preference to allow all sorts of unfettered free speech. But the policy is new, evolving and being stretched uncomfortably, as is the case with these Trump PAC ads. To many users, the distinction between an ad bearing the URL and identical ones without it will be minimal. But Facebook has decided—somewhat perpexingly—to draw the line there: no URL.
The States
The Hill: Florida Gov signs law requiring students, faculty be asked to declare their political beliefs
By Joseph Guzman
Florida Gov. Ron DeSantis (R) on Tuesday signed legislation mandating public colleges and universities survey students and faculty about their beliefs in an effort to promote intellectual diversity on campuses…
Under House Bill 233, surveys would be conducted annually on campuses to assess viewpoint diversity and intellectual freedom, and determine “the extent to which competing ideas and perspectives are presented,” and whether students and faculty “feel free to express beliefs and viewpoints on campus and in the classroom.”
Ohio Capital Journal: Should Ohio candidates be able to use campaign funds on child care costs?
By Tyler Buchanan
If Ohio wants a more diverse set of political candidates, state Sen. Tina Maharath believes the campaign rules should be more favorable to busy parents.
Maharath, a Columbus Democrat, proposes the way to do that is to allow candidates to use donations to pay for child care costs while they are on the campaign trail.
Like most states, Ohio has strict campaign finance rules which prohibit candidates from using committee funds for personal expenses. Maharath’s Senate Bill 122 seeks to change that…
It is also allowed in nearly a dozen states via similar laws as SB 122 or rulings like that from the FEC. They range in size and political leaning, from New York to Utah and Arkansas.
Under SB 122, an Ohio candidate would be able to spend campaign money on child care if the costs would not otherwise be incurred if not for them running for office.
