In the News
New Jersey Globe: Mazo, McCormick file suit over slogans
By Nikita Biryukov
Two House challengers filed a lawsuit against Secretary of State Tahesha Way and a handful of county clerks over statutes requiring candidates to get permission from individuals or incorporated entities to named in campaign slogans.
Rutgers University Law professor Eugene Mazo, who is running against Rep. Donald Payne, Jr. (D-Newark) in New Jersey’s 10th district, filed the suit against way after being told they could not use slogans that referred to people or organizations without the named entity’s permission.
Also on the lawsuit is shadowy perennial candidate McCormick attempted to run under the slogans “Not Me, Us” and “Bernie Sanders betrayed the NJ revolution” but was waylaid because she had not received permission from Sanders or the owners of the other slogan…
The two longshot candidates claim the slogan restrictions violate the first amendment by limiting speech on the basis of content…
Mazo and McCormick filed their suit in the U.S. District Court of New Jersey’s Newark Division.
New from the Institute for Free Speech
Candidates Sue New Jersey Over Restrictions on Campaign Slogans
Two candidates for Congress in New Jersey today asked a federal court to declare the state’s restrictions on campaign slogans unconstitutional. The Institute for Free Speech is representing the candidates, Eugene Mazo and Lisa McCormick, in the First Amendment challenge.
“New Jersey’s regulation of campaign slogans is one of the country’s most blatant violations of candidates’ right to free speech. The state effectively allows groups to register slogans just to prevent candidates from using them. Campaigns must be allowed to speak to voters in their own words and with their own slogans,” said Institute for Free Speech Attorney Ryan Morrison.
New Jersey law allows candidates in primary elections for Congress to include a slogan of up to six words next to their name on the ballot. The law, however, prohibits slogans from naming or referring to any other person or any incorporated entity in New Jersey, unless the candidate receives their permission. This has fueled a competition in the state to incorporate entities in order to own the rights to their names for ballot slogans and exclude others from using them…
Candidates have the right to use the rhetoric and language of their choice in their slogans. Yet New Jersey’s law allows anyone to claim ownership of a slogan simply by incorporating an entity under that name. This system is unwise and unconstitutional.
The case is Mazo and McCormick v. Way, et al.
Supreme Court
USA Today: Supreme Court upholds law banning cellphone robocalls
By Richard Wolf
The Supreme Court on Monday upheld a nearly 30-year-old ban on automated calls to cellphones despite concerns that it violates the First Amendment.
To fix that constitutional problem, the justices ruled that a recent exception to the law allowing robocalls to people who owe the government money must be eliminated. The decision was written by Associate Justice Brett Kavanaugh, with many justices agreeing only in part.
The ruling brought to a close an unusual case in which neither side sought what the court deemed the most acceptable result. Political consultants and pollsters wanted the original law declared unconstitutional, while the government wanted both the ban and the government-debt exception upheld.
Instead, as Associate Justice Neil Gorsuch quipped during oral argument in May, the result was “the irony of a First Amendment challenge leading to the suppression of more speech as a remedy.” He was the only justice to dissent from the entire judgment.
Still, that seemed preferable in the end to tossing out a popular law protecting cellphones from unwanted calls.
“Americans passionately disagree about many things. But they are largely united in their disdain for robocalls,” Kavanaugh wrote. By severing the exception for government debt because it made the ban unconstitutional, he said, “plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.”
[Ed. note: The Institute for Free Speech filed an amicus brief in support of respondents in the case, Barr v. American Association of Political Consultants.]
Washington Examiner: Brett Kavanaugh declines request from Illinois Republicans to permit large political rallies amid coronavirus
By Anthony Leonardi
Supreme Court Justice Brett Kavanaugh rejected an application from Illinois Republicans challenging the governor’s ban on political activity during the coronavirus pandemic.
Kavanaugh, a conservative member of the high court, declined the emergency request (which was placed to him by geography alone) that complained that Illinois Gov. J.B. Pritzker, a Democrat, allowed religious gatherings and protests but not political rallies or gatherings beyond 50 people…
“For now, the Northwest Side GOP Club will respect Justice Kavanaugh’s denial of an emergency injunction,” Matt Podgorski, the chairman of the Northwest Side GOP Club, one of the plaintiffs in the case, told the Washington Examiner.
“Our case and our plea are very straightforward. The governor of Illinois is arbitrarily picking and choosing which parts of the First Amendment he wants to protect and which he wants to violate,” Podgorski added. “His executive order denies the Northwest Side GOP Club of both our 1st Amendment rights of freedom of assembly and freedom of (political) speech in the form of political activity and our 14th Amendment rights of equal protection under the law.”
The Courts
Reason (Volokh Conspiracy): Cities Can Accept Some Monuments for Parks-or Messages Painted on Streets-Without Having to Accept Others
By Eugene Volokh
Washington Times (Stephen Dinan) reports, about this Complaint:
Judicial Watch went to court Wednesday demanding access to paint the streets of Washington with its own political message after the city wrote “Black Lives Matter” on one street and allowed protesters to paint “Defund the Police” next to it.
The conservative group said the city has effectively turned its roadways into a public forum, and so it must allow those with differing viewpoints than BLM protesters to have the same access, or else it’s violating the First Amendment.
Judicial Watch said it wants to paint its own motto, “Because No One is Above the Law.”
I think this claim is foreclosed, though, by Pleasant Grove City v. Summum (2009). In Summum, the Court recognized that a city is free to put up certain monuments in its parks-and to accept selected monuments from private groups-without having to put up or accept other monuments. Such monuments are government speech, the Court held, and the government is free to discriminate based on viewpoint in choosing what messages to affirmatively promote this way:
A government entity has the right to “speak for itself.” “[I]t is entitled to say what it wishes,” and to select the views that it wants to express…
That’s true of all viewpoints that the government chooses to express, however controversial or uncontroversial. And it’s true even when the government accepts privately provided monuments…
Now when it comes to private speech that merely uses the streets, sidewalks, or parks (rather than seeking to erect permanent or semipermanent structures there), the government must indeed allow all viewpoints and indeed speech of all kinds of content (setting aside the traditionally recognized exceptions, such as true threats).
Durham Herald-Sun: ACLU, civil rights groups sue Alamance County town for protest ban in statue fight
By Tammy Grubb
A lawsuit filed Thursday says the city of Graham has violated the First Amendment by preventing even a single person from protesting downtown without a permit and also by limiting how groups can protest with a permit.
“The Ordinance unconstitutionally blocks two or more people who wish to protest – and even single individuals who seek to march while carrying a sign – in Graham from doing so without a permit, subjects those seeking a permit to vague and, in effect, content- and viewpoint-based standards, and severely restricts the size and conduct of protests for which a permit is obtained,” the lawsuit states.
The ACLU and the ACLU of North Carolina joined the Lawyers’ Committee for Civil Rights Under Law and the Lockamy Law Firm to file the lawsuit in U.S. District Court in Greensboro on behalf of the Alamance NAACP and eight people.
The groups also are seeking a temporary restraining order against the city until a judge can hear arguments for why the local protest rules are unconstitutional, a news release said. Lawyers’ Committee attorney Elizabeth Haddix said a hearing is scheduled for Monday.
“Peace and justice should belong to everyone, everywhere and all the time,” Barrett Brown, president of the Alamance NAACP, said in the release. “The city’s permit requirement and periodic protest ban violate our most fundamental rights to peacefully assemble and petition our government for redress.” …
[The ordinance] gives the government “sweeping discretion to suppress speech based on its content – including on the basis of how listeners are likely to respond,” the ACLU said.
Reason: Lawsuit Against ‘Shitty Media Men’ List Creator Can Proceed, Judge Says
By Elizabeth Nolan Brown
A case against the creator of the “Shitty Media Men” list can move forward, per a federal judge’s ruling this week in a lawsuit brought by one of the men named on the list. The next step in the case will involve an interesting dilemma involving the controversial federal law known as Section 230.
The lawsuit-brought by writer and director Stephen Elliott, best known for The Adderall Diaries-alleges that “Shitty Media Men” spreadsheet creator Moira Donegan and 30 “Janes Does” who contributed to the sheet are guilty of defamation due to claims made about him.
In 2017, Donegan created a Google spreadsheet where users could anonymously create reports about “shitty” men who they accused of behaviors ranging from rude comments to rape. The list circulated privately among a group of (largely) New York-based media women until word got out to the wider media industry. Eventually, the spreadsheet was covered in the press. On Elliott’s entry, it said “rape accusations, sexual harassment, coercion.”
Federal Judge LaShann DeArcy Hall decided Monday to allow Elliott’s case against Donegan to proceed, overruling her motion to dismiss.
The issue at stake this round was whether Elliott is a public figure…
Next up: figuring out what Section 230 of the Communications Decency Act has to say about all this. The judge asked both Elliott and Donegan to “proceed without delay to narrowly tailored discovery to address factual issues related to Defendant’s CDA immunity defense.” …
Donegan argues that Section 230 applies here because she, as the creator of the list, is the provider of an “interactive computer service” and should not be held legally liable for potentially defamatory shitty-men allegations made by others.
Online Speech Platforms
Wall Street Journal: Facebook, Twitter, Google Face Free-Speech Test in Hong Kong
By Newley Purnell and Eva Xiao
U.S. technology titans face a looming test of their free-speech credentials in Hong Kong as China’s new national-security law for the city demands local authorities take measures to supervise and regulate its uncensored internet.
Facebook Inc. and its Instagram service, Twitter Inc. and YouTube, a unit of Alphabet Inc.’s Google, operate freely in the city even as they have been shut out or opted out of the mainland’s tightly controlled internet, which uses the “Great Firewall” to censor information.
In Hong Kong many citizens have grown accustomed to freely using their accounts to speak out on political matters, voice support for antigovernment protests, and register their anger at China’s increasing sway over the city.
Now the U.S. tech companies face a high-wire act, analysts say, if authorities here ask them to delete user accounts or their content. Refusal could invite Beijing’s scrutiny and potentially put them at risk of legal action under the new national-security law. Complying would alienate longtime users in the city, some of whom continue to speak out on their platforms, and leave the companies open to criticism from politicians in the U.S. or U.K…
Among provisions in the law, which came into effect Tuesday, is a mandate that Hong Kong authorities “strengthen supervision” and regulation over the internet. In China, that language from Beijing typically means restricting political speech…
The national-security law appears to have already triggered a wave of self-censorship as fears rise over the punitive scope of the new rules. Days before the law was passed, a number of social-media users deleted their accounts or wiped them of protest-related content.
Candidates and Campaigns
NBC News: Trump erodes America’s foundation. This Fourth of July, I pledge to rebuild it.
By Joe Biden
Every day, [President Donald Trump] finds new ways to tarnish and dismantle our democracy – from baseless attacks on our voting rights to the use of military force against Americans protesting peacefully for racial justice. He has systematically gone after the guardrails of our democracy: the free press, the courts, and our fundamental belief that no one in America – not even the president – is above the law…
Democracy, after all, is more than just the foundation of our society – it is the wellspring of our power. It is the defining American quality, the one which sustains our moral authority to keep the peace, drive progress, and marshal nations to work together to take on global threats. Rebuilding and expanding our democracy are essential to the long-term vitality of our nation. That’s why, as president, I will take immediate action to reverse the damage Donald Trump has done to our core democratic rights and institutions…
I will pursue new laws to safeguard our elections from malicious foreign actors. And I will seek to root out once and for all the corrupting influence of dark money by calling for a constitutional amendment to eliminate private dollars from federal elections.
The States
Spokesman-Review: Superintendent candidate’s voter guide sentence about sex education is false, court says
By Laurel Demkovich
A Thurston County Superior Court judge ruled last week that a sentence in candidate Maia Espinoza’s voter pamphlet statement regarding incumbent Superintendent for Public Instruction Chris Reykdal’s support for comprehensive sexual health education was defamatory and should be deleted…
State law allows candidates to submit petitions to the Thurston County Superior Court if they believe a statement in another candidate’s voter pamphlet is false or defamatory. The Secretary of State’s office has three days from when candidates submit their statements to notify a candidate that they have been mentioned in a voter pamphlet statement…
Espinoza argued the court’s decision infringes on her political speech, which is often a heavily protected form of free speech.
“It doesn’t feel right to be silenced by a well-connected politician,” she said.
However, Reykdal pointed to the Washington law that allows candidates to file a suit if they believe another candidate wrote a false or defamatory statement against them in their voter pamphlet. The pamphlet is a taxpayer-funded document that is meant to give truthful information to voters, he said.
“It has a higher expectation for truth and integrity, Reykdal said, “and the court’s clearly found this lacked truth and integrity.”
Espinoza said Reykdal’s support for this curriculum is something voters need to know, especially as Referendum 90 is voted on in November.
