In the News
Star-Ledger: Restrictions on ballot slogans violate free speech
By Ryan Morrison
If you voted in the primary, you probably noticed a short slogan printed next to each candidate’s name. State law allows for these slogans, but they come with an unconstitutional catch.
The slogan laws allow candidates to use a six-word slogan on the ballot, but the slogan cannot refer to the name of any person or any New Jersey association without their consent. This violates a candidate’s free speech rights. In America, we do not have to ask permission to speak. And we do not give the government the power to decide what we can and cannot say.
That is why the Institute for Free Speech filed a lawsuit on behalf of Democratic congressional candidates Eugene Mazo and Lisa McCormick to strike down the ballot slogan laws for violating the First Amendment…
Political operatives will incorporate certain political phrases to prevent candidates from using them. For instance, Ms. McCormick wanted to use “Not Me. Us.,” as her slogan for the primary election ballot. But state officials informed her that this slogan referred to the name of a New Jersey incorporated association.
Subsequently, she tried to use “Bernie Sanders Betrayed the NJ Revolution,” but did not have authorization from Sanders. Ultimately, she used “Democrats United for Progress.”
But it should not have come to this.
Mr. Mazo’s and Ms. McCormick’s slogans were regulated because of the message they wanted to express. The U.S. Supreme Court requires these “content-based” speech regulations to pass “strict scrutiny,” the highest level of constitutional scrutiny. And New Jersey’s slogan laws, like virtually all other content-based speech regulations, cannot pass the test.
WOSU’s “All Sides with Ann Fisher”: How Dark Money Is Reshaping Politics
Hundreds of millions of dollars in so-called “dark money” have flowed into 2020 election coffers at all levels of government — with both parties taking advantage of legal means to conceal who’s donating to them.
In Ohio, federal investigators last week alleged undisclosed contributions funneled through a 501(c) 4 nonprofit was the lynchpin in a $61 million dollar bribery case brought against Ohio House Speaker Larry Householder and four others.
Coming up today on All Sides with Ann Fisher, how “dark money” is reshaping politics.
Guests:
-Michelle Ye Hee Lee, reporter, The Washington Post
-Paul Beck, professor emeritus of political science, Ohio State
-Evan Darryl Walton, professor of Ohio State’s Entrepreneurial Business Law Clinic
-Brad Smith, chairman and founder, Institute for Free Speech
ICYMI
Analysis: Judicial Ads Act Proposes Unprecedented Expansion of Speech Regulation
The Institute for Free Speech today published an analysis of the Judicial Ads Act (S.4183), a bill that would impose campaign finance regulations on speech about federal judicial nominations. The Institute’s analysis finds that this is “unprecedented and extraordinary” and, if adopted, likely unconstitutional.
“The Judicial Ads Act brings campaign finance regulation to the judicial nomination process. Courts have never sanctioned such regulation of speech outside of elections,” said Institute for Free Speech Senior Fellow Eric Wang, author of the analysis.
Under the Judicial Ads Act, any organization that spends over $50,000 in a calendar year on most forms of speech about judicial nominations will be forced to report to the Federal Election Commission. The group would be required to publicly identify any donor who gave $5,000 or more, even if the donations were made for other activities.
“[T]he sole goal of the Judicial Ads Act appears to be exposing the donors of groups supporting federal judicial nominees that the bill’s sponsors oppose for the purpose of ginning up public disfavor. This is decidedly not a legitimate justification for campaign finance reporting requirements. Indeed, it is precisely why the Supreme Court and lower courts… have recognized that such laws infringe on core First Amendment rights,” Wang’s analysis explains…
The Judicial Ads Act was referred to the Senate Judiciary Committee, where it has yet to receive a hearing. To read the analysis, click here.
The Courts
Courthouse News: New York Law Banning Courthouse Picketing Ruled Unconstitutional
By Joe Kelly
A federal judge struck down a New York law that prohibits shouting and displaying signage outside a courthouse, ruling Wednesday that it infringes the constitutional right to free speech.
The underlying case stemmed from an incident involving Michael Picard, who was picketing for jury nullification outside the Bronx County Hall of Justice in December 2017 when he was taken into custody by a court officer who insisted Picard was breaking a New York penal law by picketing for jury nullification within 200 feet of the courthouse.
The law in question partly bans disorderly, contemptuous and peace-breaching behavior in and around court proceedings. The section relevant to Picard’s case prohibits people from calling, shouting, holding or displaying placards or signs containing speech within 200 feet of a courthouse which “concerns the conduct of a trial being held in such a courthouse.” …
U.S. District Court Judge Denise Cote’s 18-page ruling succinctly sided with Picard and gave him his injunction on Wednesday, saying the law “violates the First Amendment of the U.S. Constitution because it is a content-based restriction on speech in a public forum that fails strict scrutiny.” …
Reacting to Wednesday’s decision, Eric M. Freedman, a distinguished law professor at Hofstra University, considered Cote’s findings “a completely appropriate and unsurprising application of the most basic principles of the First Amendment.”
Freedman offered that Picard’s actions are “exactly what the First Amendment is designed to protect” since “government bodies, including court bodies, are subject to criticism and advocacy about why what they are doing is wrong and should be changed.”
Washington Post: Is any protest a threat to public safety? Yes, said this small North Carolina city.
By Barry Yeoman
Civil rights activists in this former textile-manufacturing city have been sparring for weeks with elected officials over limits on protests and what constitutes free speech. In addition to [a] ban on protests at the [Confederate] monument and courthouse, Graham Mayor Jerry Peterman has also declared five states of emergency, citing the potential for “civil unrest” or “severe damage” in this city of 15,600. Most of his emergency orders imposed curfews, and one temporarily suspended all demonstration permits. “Any group(s) attempting to protest without a permit, will be in violation and subject to arrest,” the Alamance County Sheriff’s Office posted on Facebook June 26…
Earlier this month, the NAACP branch and eight individuals sued Graham and Alamance County’s top officials in U.S. District Court. The plaintiffs claim the leaders have abridged their First Amendment rights to free speech and free assembly and their Fourteenth Amendment rights to due process.
“Proximity and symbolism matter when we think about speech,” said Kristi Graunke, legal director of the American Civil Liberties Union of North Carolina, one of several groups representing the plaintiffs. “When you want to challenge white supremacy, when you want to challenge the way that the Lost Cause myth has been perpetuated by public institutions and public systems, where would you go other than the Confederate monument?” …
After the lawsuit was filed, the two sides reached an agreement on one issue. The Graham City Council repealed a 1978 ordinance requiring permits for any assembly of “two or more persons for the purpose of protesting any matter.” The ordinance also allowed police to limit gatherings on busy streets to six people.
Courthouse News: Judge Proposes ACLU Define Who Is a Journalist at Portland Protests
By Karina Brown
In a move that would define government recognition of who a journalist is, a federal judge floated the idea of requiring reporters at Portland protests to be vetted by the American Civil Liberties Union and identified by the organizations’s blue vests in order to avoid assault or arrest by federal agents.
U.S. District Judge Michael Simon said in a hearing Friday that the move might be a solution to claims from the Department of Homeland Security and the U.S. Marshals that his restraining order is unworkable because – according to the agencies – some protesters are falsely identifying themselves as press…
“We could redefine ‘journalist’ to someone who is authorized by the ACLU,” [Judge] Simon said. “The ACLU could maintain a list of who they are giving vests to and give them appropriate guidance and instructions. That way we might be able to solve the problem of somebody just putting ‘press’ on their helmet or their shirt.
Simon said this was a measure he was merely considering.
“This may or may not be a good idea,” Simon said. “Maybe we try it just for two weeks, then at the hearing preliminary injunction, you all can tell me whether there are problems with it and whether they are solvable or unsolvable.”
Oregonian: No-protest condition will be dropped for people facing federal charges in Portland demonstrations
By Maxine Bernstein
A judge-imposed condition that required about a dozen protesters arrested this month by federal officers to not participate in any public demonstrations or public assemblies while on release is expected to be dropped, prosecutors and public defenders said Wednesday.
Since early July, federal prosecutors have routinely asked judges to adopt other conditions before the defendants can be released pending trial: a curfew from either 8 or 10 p.m. until 6 a.m. and geographical limits that require them not to come within a five-block radius of the federal courthouse unless for official court business.
But U.S. Magistrate Judge John V. Acosta added the no-protest provision when a defendant balked at the proposed curfew, prohibiting the person from attending any protests, rallies or public assemblies while on release.
Another magistrate judge, Jolie A. Russo, followed suit, according to attorneys familiar with the cases.
All agree it’s unconstitutional. Oregon’s U.S. Attorney’s Office is joining with federal public defenders to ask that the condition be modified to a less restrictive one.
Nora Benavidez, a spokeswoman from PEN America, a nonprofit organization that celebrates literature and free expression, said any restrictions “forcing First Amendment-abiding protesters to sign away their right to demonstrate to be released” were “gross violations” of free speech and assembly. Her statement came in response to a ProPublica story Tuesday on the conditions imposed.
Politico: Trump sued again for blocking people on Twitter
By Matthew Choi
President Donald Trump is facing more legal woes for blocking people on Twitter despite a court order that he cannot do so.
The Knight First Amendment Institute at Columbia University filed a new lawsuit against Trump on Friday for keeping several Twitter users blocked on his @RealDonaldTrump account. The group is suing in federal court in New York – the same court that ruled in May 2018 that Trump cannot block people from using his account because he uses it to announce important policy updates. That decision was backed by a federal appeals court in July 2019, and the circuit court declined to review its decision in March.
But according to the Knight Institute’s new lawsuit, Trump has not unblocked users he had blocked before his inauguration. Users who couldn’t identify which tweet prompted Trump to block them also remain blocked, the suit said.
Trump’s team told the Knight Institute on July 20 that the president doesn’t intend to unblock those users, according to the suit. The Knight Institute’s lawsuit wants Trump to blanket unblock all users unless there are justifiable reasons to keep them blocked on an individualized basis.
“Defendants’ continued blocking of Individual Plaintiffs … violates their First Amendment rights,” the Friday lawsuit said. “It unconstitutionally restricts their rights to read or participate in the discussion occurring in the public forum of the @realDonaldTrump account.”
The lawsuit continued: “It also unconstitutionally restricts their right to access statements that Defendants are otherwise making available to the public at large, and their right to petition the government for redress of grievances.”
Right to Protest
Politico: Leaked audio: Lawyers praised ‘beauty’ of controversial protest-response tactics
By Betsy Woodruff Swan
Lawyers running a training session for officers deploying to protect besieged federal property extolled the “beauty” of a protest-response strategy that some legal experts have criticized as potentially unconstitutional, according to an audio recording obtained by POLITICO…
The audio POLITICO obtained includes an explanation from government lawyers of how to use little-known federal regulations to remove people from protests, but legal experts reacted to the training differently: Civil liberties advocates who reviewed a transcript of the audio raised concerns that the training amounts to a playbook for punishing freedom of speech and assembly…
Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers, told POLITICO that the discussion of using criminal regulations to de-escalate protests is an example of overcriminalization, which his group has long opposed. The regulations, he said, are “virtually unknowable” to regular people – and DHS appears to be weaponizing them to undermine protesters’ First Amendment rights…
And Emerson Sykes of the American Civil Liberties Union said the training appeared to be “saying the quiet part loud” by telling officers they could arrest and remove so-called troublemakers for comparatively small regulatory violations.”The idea that pushing back against authority in any way can be used as a pretext for arrest is deeply troubling,” he said.
First Amendment
Wall Street Journal: Judicial Political Mischief Averted
By The Editorial Board
Chalk up a rare victory against politicizing the judiciary. Late last week the Committee on Codes of Conduct of the U.S. Judicial Conference dropped its proposed ban on federal judges belonging to the Federalist Society, though the fact that this was even considered shows the continuing political danger.
James Duff, director of the administrative office of U.S. courts, announced the committee reversal in a memorandum to federal judges on July 30. His anodyne language belies the uproar among judges across the country. After we broke the news about the committee’s “exposure draft” in a Jan. 21 editorial, some 300 judges submitted feedback to the committee. The vast majority were opposed to the Federalist Society ban, including a March 18 letter signed by 210 judges.
“We believe the exposure draft conflicts with the Code of Conduct, misunderstands the Federalist Society, applies a double standard, and leads to troubling consequences,” the judges wrote to the committee. “The circumstances surrounding the issuance of the exposure draft also raise serious questions about the Committee’s internal procedures and transparency. We strongly urge the Committee to withdraw the exposure draft.”
The committee draft would have barred judges from joining the Federalist Society, a network of conservative and libertarian students and lawyers, but not the American Bar Association. Yet the ABA is far more active politically than is the Federalist Society, which doesn’t file amicus briefs with the Supreme Court or take positions on policy issues. The ABA takes official positions on numerous subjects, nearly always on the political left.
Media
Politico: Deleted Biden video sets off a crisis at Voice of America
By Daniel Lippman
Voice of America is weighing a suspension of four contractors who were involved in publishing a story and video that was deemed too favorable to Joe Biden’s presidential campaign, according to two people familiar with the matter.
On July 22, VOA’s Urdu service, which is targeted to Urdu-speaking audiences in Pakistan, India and around the world, posted content on its website, Facebook, Twitter and Instagram pages about an online event Biden did reaching out to Muslim Americans as he urged them to vote for him in November…
In the two-minute video, subtitled in Urdu and overlaid with music, Biden says: “Your voice is your vote, your vote is your voice. Muslim Americans’ voices matter. I’ll be a president that seeks out and incorporates and listens to the ideas and concerns of Muslim Americans on everyday issues that matter most to our communities. That will include having Muslim American voices as part of my administration.”
The footage, which also includes a brief shot of Rep. Rashida Tlaib (D-Mich.), was clipped liberally from the livestream of Emgage Action’s Million Muslim Votes virtual conference earlier this month, for which Biden provided a video. Emgage Action is a left-leaning 501c(4) group that has endorsed Biden and “seeks to mobilize American Muslims to advocate for issues that define who American Muslims are by what they stand for,” according to its website.
One of those clips included audio from a voice-over narrator. “Make no mistake people, 2020 is our year. Let’s dive into it with 20/20 vision,” the narrator says in the video. “We can see clearly that America is fighting for its very soul.”
Online Speech Platforms
CNN: Another fake Pelosi video goes viral on Facebook
By Donie O’Sullivan
Facebook’s fact-checkers on Sunday labeled as “partly false” a video that it said was manipulated to make it appear as if House Speaker Nancy Pelosi was drunk or drugged. The video had been circulating on Facebook since Thursday and by Sunday night had been viewed more than 2 million times.
A similarly false video of Pelosi went viral on Facebook in May 2019. At the time, Pelosi blasted Facebook for not removing the video. Facebook had instead applied a fact-check label to it.
Facebook did not remove the new video on Sunday either, meaning it can still be viewed on the platform but a warning label has been placed on it. Videos marked false are also promoted less by Facebook’s algorithms, the company says. Facebook said it will also send a notification to people who shared the video to flag the fact check.
That the video was viewed so many times will likely prompt renewed scrutiny of policies on misinformation…
The video was fact-checked by Facebook’s fact-checking partner Lead Stories on Sunday…
Copies of the video also circulated on YouTube. The company removed three copies of the video CNN asked about on Sunday evening for violating its policies on manipulated media, said Farshad Shadloo, a YouTube spokesperson.
Twitter also removed a version of the video on its platform that had more than 300,000 views after CNN asked about it.
The States
Tennessean: Group that wanted to call state lawmaker ‘literally Hitler’ in campaign mailer wins First Amendment case
By Adam Tamburin
A group that wanted to skewer a Tennessee state representative as “literally Hitler” in a mailer has successfully challenged a law that blocked false speech, including satire, against candidates in campaign literature.
Tennesseans for Sensible Election Laws created a mailer that lambasted Rep. Bruce Griffey, R-Paris, for proposing a new law to chemically castrate convicted sex offenders.
The mailer called the Griffey bill “the kind of thing you would see in Nazi Germany, not Tennessee.” It included bold text saying, “Bruce Griffey is LITERALLY HITLER.”
Because the mailer used false language to parody and criticize a candidate for elected office, the group faced a $50 fine and up to 30 days in jail under state law if members distributed it.
They sued to overturn the law and to win the right to produce “satirical, parodical, and hyperbolic campaign literature.”
Davidson County Chancellor Ellen Hobbs Lyle on Thursday agreed with the group, saying the law was unconstitutional because it violated the freedom of speech promised by the First Amendment.
“For emphatic and memorable communication in its campaign materials opposing candidates, the Plaintiff uses the literary device of knowingly stating a literally false statement about a candidate in the context of satire, parody and hyperbole,” Lyle wrote in her order.
ABC 6: In wake of scandal, reform bills on campaign finance appear
By Tom Bosco
Less than a full week since federal charges were filed against the Speaker of Ohio’s House and four associates, reform efforts are already underway. Two bills were announced today in which lawmakers are trying to stop the influence of so-called “dark money.” …
“Hopefully, the things we’ve seen that turned everybody’s stomach provide some added inspiration and emphasis to get this done,” said Frank LaRose, Ohio’s secretary of state.
LaRose backed a bill introduced today by State Rep. Gayle Manning (R-North Ridgeville) and State Rep. Jessica Miranda (D-Forest Park) to try and force the so-called “dark money” groups to reveal donors.
“Raise all the money you want, spend all the money you want, but when you spend it in Ohio we want to know where it came from,” LaRose said.
But State Senator Teresa Fedor (D-Toledo) doesn’t think that bill, based on one proposed 10 years ago, goes far enough.
“All it did was acknowledge that there was dark money that had been donated,” she said. “It did not disclose who it was and how much.”
Fedor said she will introduce a bill in the Senate and that she backs another bill introduced today by Rep. Bride Rose Sweeney (D-Cleveland) and Rep. Allison Russo (D-Upper Arlington).
That bill would force disclosure and close loopholes.
“The time is right to do it now,” she said. “No [more] secret money, hidden influences.”
