In the News
By Zane Sparling
In a closely watched ruling, the state’s highest court declined to extend certain free speech protections available to the media to ordinary people, batting down arguments that anyone with an internet connection and an opinion now acts as a journalist…
Free speech advocates hoped the state’s high court would seize the opportunity to change Oregon law, which currently offers separate, tougher standards to prove defamation suits against the media…
Oregon’s double standard is out of step with the law in most other states, said Lewis & Clark law professor emeritus William Funk, as well as the interpretation in federal court in Oregon, which makes no distinction between media and non-media writers…
The U.S. Supreme Court, however, hasn’t ruled definitively on the matter.
Funk joined two other Oregon law professors, the Electronic Frontier Foundation, UCLA law professor Eugene Volokh and appellate lawyer Howard Bashman in a friend of the court brief seeking to extend the “actual malice” standard to all defamation cases on topics of public concern.
Ed. note: The Institute for Free Speech joined the aforementioned amicus brief in the case.
New from the Institute for Free Speech
California Gunowner Data Leak Makes the Case (Again) for Donor Privacy
By Tiffany Donnelly
July 1 marked the one-year anniversary of the Americans for Prosperity v. Bonta ruling, the Supreme Court’s most important decision on the First Amendment right of association in over 60 years.
In the 6-3 decision, the Court held that a California rule requiring charities and other nonprofit organizations to submit an annual list of donors to state officials violated the First Amendment right to freedom of association. Organizations have the right to keep one’s memberships, affiliations, and financial support private.
Sadly, news reported shortly before the one-year anniversary last week provides a poignant reminder of the risks of donor exposure and the importance of donor privacy.
On June 28, The Reload reported that California gun owners’ personal, confidential identifying information had been exposed by the state Attorney General’s office.
Congress
Washington Post: Congress seeks IRS probe amid suspicions that audits targeted Trump foes
By Tony Romm, Lisa Rein, Josh Dawsey and Devlin Barrett
Congressional Democrats and Republicans on Thursday seethed over new reports that the IRS may have targeted President Donald Trump’s political enemies with audits, issuing shared calls — backed by the tax agency itself — for a full federal probe into the matter.
The demands arrived in response to reports that the IRS initiated detailed reviews into the tax records of James B. Comey, the former FBI director, and Andrew McCabe, a deputy who later took over the agency…
Sen. Ron Wyden (D-Ore.), the top lawmaker on the Senate Finance Committee, requested a “thorough investigation” and pledged that his panel would explore the matter. Rep. Richard E. Neal (D-Mass.), the leader of the tax-focused House Ways and Means Committee, expressed fear that the situation “reeks of political targeting.” And Rep. Kevin Brady (R-Tex.), the leading GOP lawmaker on the panel, said he would support “investigating all allegations of political targeting.” …
The agency has only two political appointees: the commissioner and the general counsel. The rest of its staff is composed of career employees. But political controversies still have dogged its work, including an incident more than a decade ago that left Republicans seething over audits targeted at conservative nonprofit groups, including those associated with the tea party.
The Courts
Helena Independent Record: Ninth Circuit decision takes issue with Montana rule defining ‘political committees’
By Sam Wilson
A federal appeals court on Wednesday sent a political practices case back to a federal court in Montana, after finding that a portion of the state’s law defining political committees is unconstitutionally vague in the case.
In a 2-1 opinion, the U.S. Court of Appeals for the Ninth Circuit stopped short of striking down the administrative rule, which governs whether political spending in Montana needs to be reported…
[W]riting for the majority in Wednesday’s decision in favor of Butcher and Bergstrom, Judge Daniel A. Bress wrote that the language describing [rule exemptions] runs counter to the due process guarantees of the Fourteenth Amendment. Bress honed in on the rule’s exemption for “volunteer services or efforts,” noting that neither Butcher nor Bergstrom were compensated by the groups they provided presentations to.
“Although we do not suggest that ‘volunteer’ is an infinitely elastic term, Butcher and Bergstrom quite reasonably maintain that they provided ‘volunteer services or efforts,’” Bress wrote, adding that “any suggestion that they were not acting in that capacity runs counter to the common understanding of those terms.”
While taking issue with the rule’s exemptions, the two-judge majority wrote that classifying all such spending as reportable would have a chilling effect on protected political speech.
Colorado Politics: 10th Circuit reinstates student’s First Amendment lawsuit over anti-Semitic ‘joke’
By Michael Karlik
A Cherry Creek High School student has credibly alleged school officials violated his First Amendment rights when they expelled him for an offensive social media post, the federal appeals court based in Denver decided on Wednesday.
The U.S. Court of Appeals for the 10th Circuit reinstated the lawsuit of a teenager identified as C.G., largely due to a U.S. Supreme Court ruling from last year limiting the authority of administrators to regulate students’ off-campus speech. Senior Judge Paul J. Kelly Jr., writing for the three-judge panel that heard C.G.’s appeal, called the two cases “materially similar.”
“C.G.’s speech would generally receive First Amendment protection because it does not constitute a true threat, fighting words, or obscenity,” he wrote in the July 6 opinion.
C.G.’s case drew substantial interest from multiple outside organizations, including the American Civil Liberties Union, the Foundation for Individual Rights in Education, and school board associations representing the six states included in the 10th Circuit. Even his supporters called C.G.’s anti-Semitic social media post “dumb,” “offensive” and “ignorant,” and the Cherry Creek School District’s backers claimed it “suggested imminent violence.”
By Dominic Patten
A year after a federal judge first found in Sacha Baron Cohen’s favor, the Who Is America? host finally achieved victory in the almost-absurd $95 million defamation battle instigated by Roy Moore.
In a unanimous vote made public Thursday morning, a trio of judges on the 2nd U.S. Circuit Court of Appeals upheld the July 2021 ruling by U.S. District Court Judge John P. Cronan.
“We have considered the Plaintiffs’ remaining arguments and conclude that they are without merit,” said the New York State judges. Siding with the acclaimed satirist against failed Alabama Senate candidate Moore, the appeals court declared that Who Is America? was “clearly comedy and that no reasonable viewer would conclude otherwise” (read it here).
Courthouse News: Maine can’t stop out-of-staters from collecting ballot petition signatures
By Thomas F. Harrison
Maine’s requirement that only people who live in the state and are registered to vote there can collect signatures for ballot initiatives likely infringes on the First Amendment, the First Circuit said Thursday in upholding a preliminary injunction.
The state law severely limits Mainers’ ability to put referenda on the ballot, given that there are apparently only six professional petition circulators in the entire state, the Boston-based appeals court said.
The statute prevents citizens who want to propose a law “from reaching into a pool of more than 250 million people of voting age to assist in the collection of signatures — and to engage in the face-to-face, interactive communication designed to bring about political change that accompanies that collection of signatures — that the Supreme Court has deemed core political speech,” Chief U.S. Circuit Judge David Barron wrote in a 63-page opinion.
The States
Albany Times-Union: Editorial: New York’s social-media misfire
By Editorial Board
New York lawmakers may disagree with how the U.S. Supreme Court is interpreting the Second Amendment, but that’s no reason to attack the First Amendment. Unfortunately, a requirement embedded in a package of new gun legislation does just that.
In an emergency session called by Gov. Kathy Hochul after the court struck down the state’s law governing concealed-carry permits, lawmakers rushed to pass sweeping legislation that, among other things, mandates that applicants for concealed-carry pistol permits turn over the details of their social media accounts.
Licensing authorities will examine those accounts to ensure applicants have not only, as the legislation puts it, “good moral character” but also “the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” …
In other words, how applicants get to exercise their Second Amendment rights may depend on how they exercised their First Amendment rights — and whether government officials approve.
But free speech isn’t free if government authorities can impose consequences even for speech that is otherwise perfectly legal. What’s more, New York’s law leaves open the troubling possibility that applicants could be denied for political speech or opinions that happen to be unpopular with licensing authorities.
