The Courts
Washington Free Beacon: Court Overrules School District That Banned Father Who Exposed Obscene Library Books
By Elizabeth Troutman
A federal judge on Wednesday overruled a Maine school district that banned a parent from school property after he exposed library books promoting transgenderism and pornography…
Marc Randazza, the First Amendment lawyer who represents McBreairty, said that while the Maine father can return to school board meetings, other parents could still run afoul of the school board’s vague speech policies, which prohibit “vulgarity,” “gossip,” and “irrelevance.” The judge ruled McBreairty’s remarks were not obscenities, as they made a “political or philosophical” point, meaning the ban against him was “unreasonable.” Randazza said a court should rule that the speech policy is unconstitutional.
“There’s a policy against criticizing any school employees or officials,” Randazza said. “Now you can go there and say nice things about him, but you can’t criticize him. Tell me how in the heck that passes the First Amendment muster.”
Randazza cited a similar case where residents sued the Pennsbury School District in Pennsylvania for violating their First Amendment rights and settled for $300,000.
Ed. note: Read more about our recent victory in the Pennsbury case here.
Reason (Volokh Conspiracy): Incumbents’ Political Campaign Facebook Pages Aren’t Public Fora,
By Eugene Volokh
From Kallinen v. Newman, decided yesterday by Chief Judge Lee Rosenthal (S.D. Tex.) (consistently, I think, with other such recent cases, and I believe on balance correctly):
FEC
Inside Political Law (Covington): Picking Battles: The FEC and the Constitution
By Robert Lenhard and Zachary G. Parks
The FEC continues to pursue enforcement penalties in several categories of cases where there is almost no chance that a majority of the Supreme Court would find the statute constitutional. This resembles a sort of regulatory Russian Roulette, where the agency pursues enforcement actions until it finds a respondent that is willing to fully litigate the constitutional issues, mostly likely in a case with plaintiff-friendly facts. The risk for the agency is that when one of these cases eventually comes before the Supreme Court, the justices may use a hammer, rather than a scalpel, in striking down the law.
In two areas in particular, the FEC should exercise its prosecutorial discretion to decline to pursue cases based on statutes and regulations of dubious constitutionality.
Free Expression
*Some Assembly Required: What is the Right of Assembly?
By John Inazu
The modern Supreme Court has come close to remedying its earlier error conflating assembly with petition. Last year, the Court decided Americans for Prosperity v. Bonta, an important case involving disclosure of membership lists of private organizations. During the oral argument, three Justices inquired about the right of assembly. Questioning the lawyer for the petitioners, Justice Kavanaugh asked:
“Do you agree on the text of the First Amendment that the freedom to peaceably assemble is distinct from the freedom to petition the government for a redress of grievances?”
Justice Barrett followed later with a related question about the right of assembly, and Justice Kagan also referenced an amicus brief arguing that the Court consider the assembly implications in this case. Unfortunately, the Court’s opinion in Bonta failed to acknowledge the importance of assembly or correct its earlier error in Presser. Justice Thomas’s concurrence, however, noted that “the text and history of the Assembly Clause suggest that the right to assemble includes the right to associate anonymously.”
In future cases, it will be important for the Court to clarify the importance and scope of the right of assembly. As I wrote in a 2019 Atlantic article:
The Guardian: One in five US adults condone ‘justified’ political violence, mega-survey finds
By Ed Pilkington
One in five adults in the United States, equivalent to about 50 million people, believe that political violence is justified at least in some circumstances, a new mega-survey has found.
A team of medical and public health scientists at the University of California, Davis enlisted the opinions of almost 9,000 people across the country to explore how far willingness to engage in political violence now goes.
They discovered that mistrust and alienation from democratic institutions have reached such a peak that substantial minorities of the American people now endorse violence as a means towards political ends. “The prospect of large-scale violence in the near future is entirely plausible,” the scientists warn…
Most alarmingly, 7.1% said that they would be willing to kill a person to advance an important political goal. The UC Davis team points out that, extrapolated to US society at large, that is the equivalent of 18 million Americans.
The study, Views of American Democracy and Society and Support for Political Violence, was led by Garen Wintemute, Sonia Robinson and Andrew Crawford and has been published on the preprint server MedRxiv.
Online Speech Platforms
The Hill: Reporter: Facebook using ex-CIA to decide misinformation policy is ‘very, very worrying’
By Brad Dress
An investigative reporter for MintPress News on Monday said it was “very worrying” that Facebook is employing former CIA agents to moderate misinformation policies on the social media platform.
Alan MacLeod, who published a piece last week about ex-CIA agents working at Facebook, told Hill.TV the decision to employ them to moderate content was worrying because the CIA has a “long history of infiltrating media organizations.”
“The CIA has a terrible track record from everything from organizing coups to running black sites all over the world to even just planting a load of false information into the public domain to suit their own agenda,” MacLeod said. “We are now relying on these people to tell us what’s fact and fiction and to sort truth and fiction from falsehood online.”.
Reason: Republicans and Democrats Battle To Control What Google Shows People Seeking Pregnancy Help
By Elizabeth Nolan Brown
Google can’t win when it comes to ads for crisis pregnancy centers. Democrats in Congress have been pressuring Google to “limit the appearance” of ads and websites for these businesses, which exist to persuade pregnant women not to abort and aren’t always truthful about their nonneutral viewpoint or abortion realities. Now, Republicans are threatening to take action against Google if it gives in.
“Complying with these demands would constitute a grave assault on the principle of free speech,” a group of 17 Republican attorneys general wrote in a letter to Google CEO Sundar Pichai this week. “Suppressing pro-life and pro-mother voices at the urging of government officials would violate the most fundamental tenet of the American marketplace of ideas.”
They’re not wrong. It’s one thing to suggest that crisis pregnancy centers should be held accountable if they’re breaking the law in some way. It’s quite another for federal lawmakers to pressure a private company to suppress information about crisis pregnancy centers. That smacks of unconstitutional censorship.
The States
Washington Post: South Carolina bill outlaws websites that tell how to get an abortion
By Cat Zakrzewski
Shortly after the Supreme Court ruling that overturned the right to abortion in June, South Carolina state senators introduced legislation that would make it illegal to “aid, abet or conspire with someone” to obtain an abortion.
The bill aims to block more than abortion: Provisions would outlaw providing information over the internet or phone about how to obtain an abortion. It would also make it illegal to host a website or “[provide] an internet service” with information that is “reasonably likely to be used for an abortion” and directed at pregnant people in the state.
Legal scholars say the proposal is likely a harbinger of other state measures, which may restrict communication and speech as they seek to curtail abortion. The June proposal, S. 1373, is modeled off a blueprint created by the National Right to Life Committee (NRLC), an antiabortion group, and designed to be replicated by lawmakers across the country.
Wiley: Connecticut Bans Corporate Meetings about Politics
By D. Mark Renaud and Christopher J. White
Effective as of July 1, 2022, Connecticut law purports to grant an employee a statutory cause of action against his or her employer if the employer “subjects or threatens to subject any employee to discipline or discharge” because the employee refuses to “attend an employer sponsored meeting … the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters” or refuses to “listen to speech or view communications, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.” Conn. Gen. Stat. § 31-51q, as amended by S. B. 163 (2022). The new law, Senate Bill 163, defines both “political matters” and “[r]eligious matters” expansively, covering “all matters relating to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political civic, community, fraternal or labor organization” and “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.”
