We’re Hiring!
Legal Director – Institute for Free Speech – Washington, DC or Virtual Office
The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. President Trump announced plans to nominate our longtime Legal Director to the Federal Election Commission, in which case he likely would be confirmed in late summer or fall.
This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity. The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.
A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.
[You can learn more about this role and apply for the position here.]
The Courts
ABA Journal: Suit claims anti-bias ethics rule infringes lawyer’s free speech rights
By Debra Cassens Weiss
A Philadelphia lawyer has filed a First Amendment challenge to Pennsylvania’s new ethics rule barring manifestations of bias or prejudice in the practice of law.
Lawyer Zachary Greenberg contends that the ethics rule will chill his speech as a lawyer for the Foundation for Individual Rights in Education, which defends due process and free speech rights of students and faculty.
Law360 and Law.com have coverage of Greenberg’s Aug. 6 lawsuit; a press release is here.
Speaking at legal events, Greenberg has endorsed due process protections for students accused of sexual misconduct, has opposed campus bans on hate speech, has defended the right of professors and students to engage in hateful speech, and has spoken in favor of allowing religious speech on campus that espouses discriminatory views.
The new ethics rule could lead to a sanction against Greenberg “if an audience member misconstrues his speech as a manifestation of bias or prejudice,” the lawsuit says.
Washington Times: Free-speech lawsuits pile up as cities put brakes on conservative street messages
By Valerie Richardson
Scott LoBaido has a message for the New York City officials who told him to remove the bright blue line he painted on Hylan Boulevard in Staten Island: See you in court.
Mr. LoBaido said Monday he will pursue legal action after the New York City Department of Transportation ordered him to remove his handiwork. He insists his pro-police message has every bit as much right to adorn the streets as the Black Lives Matter murals embraced by Mayor Bill de Blasio…
Like Mr. LoBaido, conservatives seeking to paint pro-police, pro-life and other right-tilting messages on America’s streets are running into speed bumps from local officials, even those who allow massive Black Lives Matter murals.
Michael Bekesha, senior attorney for Judicial Watch, said the legal term for that is viewpoint discrimination.
“It appears as though cities across the country have recognized street painting as a public forum,” Mr. Bekesha said. “And once a government does that, it has to make sure there are processes in place to allow all messages. Cities can’t discriminate based on viewpoint.”
New York Times: Facial Recognition Start-Up Mounts a First Amendment Defense
By Kashmir Hill
Floyd Abrams, one of the most prominent First Amendment lawyers in the country, has a new client: the facial recognition company Clearview AI.
Litigation against the start-up “has the potential of leading to a major decision about the interrelationship between privacy claims and First Amendment defenses in the 21st century,” Mr. Abrams said in a phone interview. He said the underlying legal questions could one day reach the Supreme Court.
Clearview AI has scraped billions of photos from the internet, including from platforms like LinkedIn and Instagram, and sells access to the resulting database to law enforcement agencies. When an officer uploads a photo or a video image containing a person’s face, the app tries to match the likeness and provides other photos of that person that can be found online.
To its critics, the company represents a grave new threat to privacy – making it possible for the government and corporate clients to identify nearly anyone with just a photograph. In addition to gathering pictures of people without their consent, Clearview AI’s software analyzes the images, generating a unique faceprint of each individual. Mr. Abrams will argue that what the company has done is a form of speech, protected by the Constitution.
Free Speech
Newsweek: Philadelphia Statement on Civil Discourse and Strengthening of Liberal Democracy
Freedom of expression is in crisis. Ideologues demonize opponents to block debates on important issues and to silence people with whom they disagree.
We must ask ourselves: Is this the country we want? Surely not. We want-and to be true to ourselves, we need-to be a nation in which we and our fellow citizens of many different faiths, philosophies and persuasions can speak their minds and honor their deepest convictions without fear of punishment and retaliation.
If we seek a brighter future, we must relearn a fundamental truth: Our liberty and our happiness depend upon the maintenance of a public culture in which freedom and civility coexist-where people can disagree robustly, even fiercely, yet treat each other as human beings-and, indeed, as fellow citizens-not mortal enemies…
A society that lacks comity and allows people to be shamed or intimidated into self-censorship of their ideas and considered judgments will not survive for long. As Americans, we desire a flourishing, open marketplace of ideas, knowing that it is the fairest and most effective way to separate falsehood from truth…
The American tradition of freedom of expression, complete with its attendant responsibilities, is our school for democratic citizenship. It trains us to think critically, to defend our ideas and, at the same time, to be considerate of others whose creeds and convictions differ from our own.
Right to Protest
Los Angeles Review of Books: Charlottesville Three Years Later: The First Amendment Confronts Hate and Violence
By Stephen Rohde and Nadine Strossen
Before the [Charlottesville “Unite the Right”] rallies, one federal judge ruled that, regardless of their hateful ideas, the white supremacists had a First Amendment right to proceed with their planned August 12 rally. Yet after the rallies turned out to be violent – and evidence later showed that that had been the clandestine plan all along – another federal judge ruled that the First Amendment did not preclude victims of that violence from suing the organizers for damages in a civil lawsuit.
As free speech advocates, we agree with both rulings. The First Amendment protects “the right of the people peaceably to assemble.” The two decisions underscore that the First Amendment correctly distinguishes rhetoric laced with violent overtones, which is protected, from overt action furthering a conspiracy to commit violence, which is not.
Washington Post: Charlottesville keeps happening, all over America
By Michael Signer
Charlottesville also forced many of us to question rigid First Amendment doctrines: It was a painful lesson in how they can tie the hands of local leaders trying to keep their cities safe. Four days before the rally, a Department of Homeland Security memo warned, “Domestic Terrorist Violence at Lawfully Permitted White Supremacist Rallies Likely to Continue.” The University of Virginia hospital canceled all elective surgeries, anticipating injuries from a public clash. And yet, when we tried to relocate the event from the crowded downtown, the American Civil Liberties Union sued and won.
The shock wave from Charlottesville rocked civil liberties groups like the ACLU, which announced that it would no longer represent white-supremacist groups bearing weapons. More recent court decisions, like when the Virginia Supreme Court allowed Gov. Ralph Northam (D) to ban weapons from a potentially violent Second Amendment rally, are allowing governments to take a more pragmatic approach to balancing citizens’ rights and public safety.
Media
Daily Beast: Conservative ‘News’ Site’s Secret: It’s Run by Trump’s Super PAC
By Lachlan Markay
Donald Trump’s “official” super PAC has spent more than $25 million since last year to get the president re-elected. Now it’s trying a new tactic: the group, America First Action, has launched a news website.
New York Times: A Bible Burning, a Russian News Agency and a Story Too Good to Check Out
By Matthew Rosenberg and Julian E. Barnes
For some of President Trump’s loudest cheerleaders, it was a story too good to check out: Black Lives Matters protesters in Portland, Ore., had burned a stack of Bibles, and then topped off the fire with American flags. There was even a video to prove it.
The story was a near-perfect fit for a central Trump campaign talking point – that with liberals and Democrats comes godless disorder – and it went viral among Republicans within hours of appearing earlier this month. The New York Post wrote about it, as did The Federalist, saying that the protesters had shown “their true colors.” Senator Ted Cruz, the Texas Republican, said of the protesters, “This is who they are.” Donald Trump Jr., the president’s son, tweeted that antifa had moved to “the book burning phase.”
The truth was far more mundane. A few protesters among the many thousands appear to have burned a single Bible – and possibly a second – for kindling to start a bigger fire. None of the other protesters seemed to notice or care.
Political Parties
Insider NJ: Not Alone in Thinking Stronger Political Parties Will Improve Our Politics
By Jeffrey Brindle
Since 2010…I have repeatedly expressed my longstanding concern about New Jersey’s weakened party system, the impact of McCain/Feingold reforms in undercutting parties and spurring the growth of independent groups, and the potential for parties to play a role in returning civility to politics.
Here are some of my thoughts:
“McCain/Feingold is what started the stampede toward the creation of independent, outside groups; a development that resulted in less transparency and less accountability in the area of campaign finance (2010).”
“In the years between McCain/Feingold and 2010, U.S. Supreme Court decision in Citizens United v FEC, independent spending grew over 1,000 percent . . . so in the wake of McCain/Feingold there has been a seismic shift in the electoral landscape. There has been tremendous growth in independent groups along with a rapid decline in transparency (2012).”
“But in truth the demise of the political party system represents the abdication of an important quasi-governmental institution that has proven to be a significant part of our civil society (2019)”
“Despite Americans holding a long and deep skepticism toward political parties, ironically it could be the parties that restore stability to our polarized political environment (2019).”
New York Post: Facebook removes 7M posts for false COVID-19 information
By Reuters
Facebook said Tuesday it removed 7 million posts in the second quarter for sharing false information about the novel coronavirus, including content that promoted fake preventative measures and exaggerated cures.
Candidates and Campaigns
National Review: On Kamala Harris
By Kevin D. Williamson
[Senator Kamala] Harris was a leader in the junta of Democratic state attorneys general that attempted to criminalize dissent in the matter of global warming, using her office’s investigatory powers to target and harass non-profit policy groups while she and her counterpart in New York attempted to shake down Exxon on phony fraud cases.
Until she was stopped by a federal court, Harris was laying subpoenas on organizations such as the Americans for Prosperity Foundation, a conservative-leaning group that is critical of Democratic global-warming proposals. She demanded private information that the organizations were not legally obliged to disclose, including financial information and donor lists, in order to be able to subject the supporters of right-leaning groups to legal and financial harassment. This was, as a federal judge confirmed, an obvious and unquestionable violation of the First Amendment…
This was not happening in a political vacuum. At approximately the same time, the IRS was being weaponized to harass and disadvantage right-leaning nonprofits and policy organizations, for example, leaking the confidential tax information of the National Organization for Marriage as an act of political retaliation, an offense for which the IRS was obliged to pay a settlement. (The IRS’s other abuses, as in the Lois Lerner matter, remain largely unpunished.)
[Ed. note: The Institute for Free Speech filed an amicus brief in AFPF v. Becerra in support of the petitioners. We also filed a related lawsuit challenging then-Attorney General Kamala Harris’s demand for nonprofit Schedule B information in IFS v. Becerra. Read more about that case here.]
Politico: Biden won’t rule out naming donors as envoys, despite criticism
By Nahal Toosi
[Joe Biden] has refused to rule out giving ambassadorships to big-time campaign donors and fundraisers. Instead, he’s indicated that, if he wins the presidency, he’ll continue the longstanding, bipartisan practice, which critics for decades have said smacks of corruption and damages America’s international standing.
“As a principle, I strongly disagree with the idea that, if you give money during the campaign, you’ll be rewarded with a job later,” said Michael McFaul, who served as U.S. ambassador to Russia during the Obama administration. “Most certainly at this moment in time, when morale has been incredibly eroded in the foreign service, it doesn’t send the right signal.” …
“We criticize Trump endlessly for using tools of the state for his own personal political gain at the cost of our national interest,” said Elizabeth Shackelford, a former U.S. diplomat who resigned from the foreign service in protest of Trump administration policies. “And if we’re being honest, appointing high-dollar donors to ambassadorships can only fairly be described as this type of activity. This is the time to show leadership on that front.”
The States
Politico: New Jersey Playbook
By Matt Friedman
SUPER PAC FORMED AND FUNDED BY PARTNERS AT STEINHARDT’S LAW FIRM IS TOTALLY INDEPENDENT – Ciattarelli camp to ELEC: Fine pro-Steinhardt group for failing to register in New Jersey, by POLITICO’s Matt Friedman: An independent expenditure group that appears to have been set up to boost GOP State Chairman Doug Steinhardt’s widely expected 2021 campaign for governor should face sanctions for failing to register with New Jersey’s campaign finance agency, according a lawyer for a Republican gubernatorial rival of Steinhardt’s. Mark Sheridan, counsel for Jack Ciattarelli, wrote to the New Jersey Election Law Enforcement Commission in early June requesting an investigation into the group, Lead Right New Jersey. “Lead Right New Jersey’s only purpose is to influence New Jersey elections. The Commission need look no further than the entity’s name to reach such a conclusion,” Sheridan wrote in the June 4 letter. Sheridan wrote that Lead Right New Jersey’s own press release makes “patently clear” that its “goal is to influence next year’s gubernatorial election.”
News Center Maine: Sidewalk chalk dispute sparks free speech debate in Bangor
By Sam Rogers and Gabrielle Mannino
Over the weekend, a group from the Mansion Church in Bangor wrote messages [in chalk ] in West Market and Pickering Squares as part of its Sidewalk Scripture campaign.
Many messages were believed to be hate speech towards the LGBTQ+ community, written directly under the flags of Pride…
Bangor City Solicitor Paul Nicklas says cities can either totally allow or totally deny chalk writing, “But they can’t really pick or chose the message that is allowed to be chalked there.”
Even if the messages are hateful.
But, Nicklas says, “They can also erase what they want.”
Washing away messages is exactly what Scott Hall did, leading to the dispute that got the Bangor Police Department involved…
“While both men were engaged in a protected activity – the dispute was over the washing of the chalk writings in the moment they were written,” Bangor police said. “One man suggesting he has the liberty to write the messages in chalk while the other indicated he has the right to wash the messages away. Both are seemingly correct. The issue is that the eraser was harassing the writer in the moment. That behavior continued. The police acted only on the action of harassment.”
