New from the Institute for Free Speech
IFS Analyzes First Amendment Records of Potential Supreme Court Nominees
The Institute for Free Speech published the first in a series of analyses today reviewing the First Amendment records of President Trump’s likely nominees to the Supreme Court to fill the vacancy created by the passing of Justice Ruth Bader Ginsburg. The Institute’s research focuses on the four First Amendment rights associated with political expression: speech, press, assembly, and petition.
“The Supreme Court is essential to the protection of political speech rights. We intend to provide a thorough analysis of the potential nominees’ records in this crucial area of law,” said Institute for Free Speech President David Keating.
The Institute’s first analysis examines the record of Judge Barbara Lagoa of the United States Court of Appeals for the Eleventh Circuit. Judge Lagoa has fourteen years of experience on state and federal courts of appeal but has ruled on few First Amendment-related cases. This analysis reviews three rulings.
The Institute plans to publish additional information on the records of other potential nominees throughout the week. The analyses will be available on the Institute’s website as soon as they are completed.
To read the report on Judge Lagoa, click here. To read more about our research, click here.
The Institute for Free Speech plans to publish a series of analyses on the records of those who appear most likely to become the nominee…
We will link to all our analyses on the First Amendment records of the potential nominees below. This page will be updated regularly.
According to news reports, Judge Barbara Lagoa, currently serving on the United States Court of Appeals for the Eleventh Circuit, is on the President’s short list of nominees to fill the seat vacated by the passing of Justice Ruth Bader Ginsburg…
In reviewing Judge Lagoa’s record on First Amendment speech rights, we found eight potential cases from her time as a federal judge and eight potential cases during her service on the Florida appeals court. Five of the federal cases were unpublished opinions, meaning there was nothing of precedential value, though we discuss one of them briefly below. Four of those cases involved pro se – that is, unrepresented – litigants. The three remaining cases had no relevance to core First Amendment political speech issues.
Of the eight Florida cases, four dealt in some manner with religious freedom, an issue outside the scope of the Institute’s mission. Of the remaining four, one case dealt with a request to unseal certain judicial records, including an audio recording made in violation of state law. The appeals court was clearly bound by Florida Supreme Court precedent, so this case does not provide any useful insight on her First Amendment jurisprudence. Another case dealt with a dispute over Coral Gables’ zoning law and wasn’t relevant to the speech, press, assembly, and petition rights protected by the First Amendment. We review the remaining two cases below.
Supreme Court
SCOTUSblog: Ginsburg to lie in repose at court on Wednesday, Thursday
By Kalvis Golde
Justice Ruth Bader Ginsburg will lie in repose at the Supreme Court on Wednesday and Thursday, and she will lie in state at the Capitol on Friday.
Shortly before 9:30 a.m. on Wednesday, a brief public ceremony will occur on the front steps of the court as Ginsburg’s casket arrives, the court said in a news release. Court police officers will serve as pallbearers, carrying the casket as Ginsburg’s former clerks, serving as honorary pallbearers, line the front steps. The casket will be placed inside the Great Hall on the Lincoln Catafalque, which has been loaned by Congress for the occasion. A small private ceremony will be held in the Great Hall at 9:30, attended by Ginsburg’s family and close friends, as well as the other justices. Ginsburg’s portrait, painted by Constance P. Beaty, will be displayed in the Great Hall.
Members of the public will be able to pay their respects at an outdoor viewing from around 11 a.m. to 10 p.m. on Wednesday, and from 9 a.m. to 10 p.m. on Thursday. The casket will lie in repose under the portico atop the front steps of the court…
In a private internment ceremony, Ginsburg will be laid to rest next week at Arlington National Cemetery.
Wall Street Journal: Biden Faces Growing Democratic Calls to Expand Supreme Court
By Joshua Jamerson
Democratic presidential nominee Joe Biden faces pressure from within his party to support a restructuring of the Supreme Court if Republican lawmakers quickly replace the late Justice Ruth Bader Ginsburg.
The former vice president, over months of campaigning during his party’s primary, said he was against “court packing,” a term used to describe expanding the Supreme Court’s nine-justice makeup. “We add three justices-next time around we lose control, they add three justices,” Mr. Biden said at a primary debate last October. “We begin to lose any credibility…the court has at all.” …
Mr. Biden said Sunday during remarks in Philadelphia that he should get to fill the seat if he defeats Mr. Trump, but he didn’t say how he would respond as president if Justice Ginsburg was replaced before he entered the Oval Office. Asked whether Mr. Biden’s prior opposition to adding seats stood in the wake of Justice Ginsburg’s death, a Biden spokesman declined to answer but added that Mr. Biden in his speech said “we need to de-escalate-not escalate.”
National Review: Judge William Pryor on The Essential Scalia
By Ed Whelan
Eleventh Circuit chief judge William Pryor has an excellent review of The Essential Scalia in the new issue of National Review-and available online to NR-Plus members here. An excerpt:
As with the earlier collections [Scalia Speaks: Reflections on Law, Faith, and Life Well Lived and On Faith: Lessons from an American Believer], what makes this book so valuable and entertaining is the writer’s skill. Scalia’s rhetoric was so powerful because it was accessible and jargon-free. Consider an example from his dissenting opinion in a case about the arcane field of campaign-finance regulation, McConnell v. Federal Election Commission, in which he described the controversy this way: “Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.”
FEC
Wiley Election Law Podcast: Part One: One-on-One with the New FEC Chairman Trey Trainor
Wiley’s Lee Goodman sits down with Federal Election Commission (FEC) Chair Trey Trainor to discuss his upbringing, how he got involved in the law and politics, and what his previous experience has taught him about political participation. Stay tuned for part two of the interview, where they discuss the FEC!
DOJ
NBC News: Justice Department deems New York City, Portland and Seattle ‘anarchist jurisdictions’
By Allan Smith
The Justice Department released a list of cities Monday that it has deemed “anarchist jurisdictions” under President Donald Trump’s instructions this month to review federal funding for local governments in places where violence or vandalism has occurred during protests.
That memo directed Attorney General William Barr, in consultation with Office of Management and Budget Director Russ Vought and acting Homeland Security Secretary Chad Wolf, to identify jurisdictions “that have permitted violence and the destruction of property to persist and have refused to undertake reasonable measures to counteract these criminal activities (anarchist jurisdictions).”
On Monday, the Justice Department labeled New York City, Portland, Oregon, and Seattle as such areas. It said it was still working to identify other jurisdictions that meet the criteria outlined in Trump’s memo…
As part of its rationale for labeling the cities, the Justice Department cited city councils’ voting to cut police funding, the refusal to prosecute protesters on charges like disorderly conduct and unlawful assembly, the rejection of federal intervention, and injuries suffered by law enforcement officials during violent outbursts.
New York City Mayor Bill de Blasio, Portland Mayor Ted Wheeler and Seattle Mayor Jenny Durkan issued a joint statement calling the administration’s move “thoroughly political and unconstitutional,” adding that “the president is playing cheap political games with congressionally directed funds.”
Congress
Wall Street Journal: Questions for Senator Whitehouse
By The Editorial Board
The Supreme Court is now a central issue in the election campaign, and House Democrats are helpfully holding a hearing Tuesday on the subject. This is a chance for the Republican minority to ask Rhode Island Senator Sheldon Whitehouse about his ties to what he likes to call “dark money” and court packing.
The subject of Jerry Nadler’s Judiciary Committee hearing is “Maintaining Judicial Independence and the Rule of Law: Examining the Causes and Consequences of Court Capture.” One purpose of the hearing is to give Mr. Whitehouse, who is in the Senate minority, a chance to showcase his political campaign against the High Court.
The Senator has released reports accusing Republicans of “working hand-in-hand” with “anonymously-funded outside groups” to pack the judiciary with “far-right extremists, who then enjoy life tenure as federal judges.” He calls the current High Court “Chief Justice Roberts’ Right-Wing Rout.” His evidence is mostly innuendo and news clips. But as a House witness Mr. Whitehouse has an obligation to tell the truth, and Rep. Jim Jordan and other committee Republicans ought to find out what they can about the Whitehouse method.
They can start by asking about Arabella Advisors…
Republicans can also ask Mr. Whitehouse about his ties to Demand Justice…In 2018 it spent some $5 million opposing Brett Kavanaugh, and it’s gearing up for the next Supreme Court fight. Demand Justice wants Democrats to pack the Court “to balance out Trump’s ideologically extreme, illegitimate picks.”
When a Daily Caller reporter asked Mr. Whitehouse last year if Demand Justice and groups like it have donated to his campaign, the Senator replied, “hope so.” So has he received money from Demand Justice and other Arabella affiliates?
Business Insider: Nancy Pelosi wonders how top Facebook employees can ‘look themselves in the mirror’ because they ‘make money off poison’
By Avery Hartmans
House Speaker Nancy Pelosi blasted Facebook executives and employees as “totally disreputable” over the prevalence of posts touting the right-wing conspiracy movement QAnon.
Pelosi made these comments in an interview with Kara Swisher on the first episode of Swisher’s new podcast with The New York Times, called “Sway,” which premiered Monday…
Swisher asked Pelosi how much she holds Facebook accountable for QAnon content appearing on the site, to which Pelosi responded, “I hold them very accountable.”
Pelosi also blamed Facebook for its role in the 2016 election…
“In 2016, when the Russians interfered in our election and rubles were coming in and they had to know that these were not on the level of American sites, they said, well, we never thought to look at that. So they played that role in that election,” Pelosi said.
“I don’t know how the Facebook board of directors or their top employees can look themselves in the mirror,” she continued. “They have clearly chosen. Their business plan is to make money off of poison, and that’s the path they have chosen to go.” …
In response to misinformation on Facebook, Pelosi said she’s looking at Section 230 of the Communications Decency Act, which was signed into law in 1996…
It’s not clear whether Pelosi would support a repeal of the law – she told Swisher that any action taken would have to be handled carefully so as not to hurt smaller platforms or endanger free speech, but also ensure that Facebook is not being enabled to “just get rich at the expense of our democracy.”
Online Speech Platforms
Reuters: Trump to meet state attorneys general to discuss key U.S. tech liability shield
By David Shepardson and Nandita Bose
U.S. President Donald Trump plans to meet on Wednesday with a group of Republican state attorneys general about revising a key law that shields social media companies from liability for content posted by their users and allows them to remove lawful but objectionable posts.
“Online censorship goes far beyond the issue of free speech, it’s also one of protecting consumers and ensuring they are informed of their rights and resources to fight back under the law,” White House spokesman Judd Deere said. “State attorneys general are on the front lines of this issue and President Trump wants to hear their perspectives.”
A person briefed on the matter said Trump is expected to meet with the state attorneys general of Texas, Arizona, Utah, Louisiana, Arkansas, Mississippi, South Carolina and Missouri.
The States
Michigan Capitol Confidential: Doxxing That Causes Harm Becomes 10-Year Felony Under Michigan House Bill
By Tom Gantert
Republican State Rep. Beth Griffin has introduced a bill in the Michigan House that would make “doxxing” a crime.
House Bill 6206 says doxxing happens when a person “publishes private or identifying information about a specific individual on the internet with malicious intent.” Under the bill, a first offense would be a misdemeanor. But if the act is part of a “continued pattern of harassing or intimidating behavior,” a conviction could bring five years in prison, and 10 years if the victim dies.
Cleveland.com: Dark-money groups would have to reveal donors, spending under new Ohio House bill
By Jeremy Pelzer
Legislation seeking to erase “dark-money” political spending from Ohio was introduced Monday by Republican state lawmakers.
House Bill 762, dubbed the “Light of Day” bill, would create sweeping new requirements for corporations, unions, nonprofits, LLCs and other organizations to disclose their state-level political spending, as well as their donors. Groups that make political donations would have to create separate accounts earmarked specifically for such spending and publicly report contributors to and spending from such accounts.
Politico: ‘It’s dog-whistle base stuff’: DeSantis launches Trump-styled protest crackdown
By Matt Dixon and Arek Sarkissian
Florida Republican Gov. Ron DeSantis on Monday outlined an aggressive plan to crack down on what he calls “violent agitators” …
“If you know that a ton of bricks will rain down on you, then I think people will think twice about engaging in this type of conduct,” DeSantis said during a Tampa-area press conference.
Flanked by Republican legislative leaders and law enforcement officials, DeSantis outlined forthcoming legislation he said will create a series of new felonies for those involved in protests that turn violent or cause property damage, and threatens to cut state funding for cities that “defund the police.” …
The proposal…makes it a third-degree felony to be in a gathering of more than seven people that causes injury or damage; a third-degree felony to block traffic during a protest held without a permit; blocks state funding for cities that “defund the police,” and creates a new six-month mandatory minimum jail sentence for anyone who strikes a law enforcement officer during a “disorderly assembly.” It would also, among other things, give legal liability to a driver who is “fleeing for safety from a mob.” …
“Most of this stuff is already illegal, he is just Hell bent on silencing any voice of opposition,” incoming House Minority Leader Evan Jenne said. “We will be ready to fight” …
The ACLU of Florida quickly slammed the governor’s proposal.
“Gov. DeSantis’ proposal is undemocratic and hostile to Americans’ shared values,” said Micah Kubic, the ACLU of Florida’s executive director. “This effort has one goal: silence, criminalize, and penalize Floridians who want to see justice for Black lives lost to racialized violence and brutality at the hands of law enforcement.”
