Daily Media Links 11/8

November 8, 2021   •  By Nathan Maxwell   •  
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New from the Institute for Free Speech

Lawsuit: Ban on “Personally Directed” Criticism of School Board Members Violates the First Amendment

When Brevard Public Schools (BPS) adopted policies that many parents disagreed with, the Brevard Moms for Liberty (M4L) did what any group of Americans would do. They organized members of their community to attend public school board meetings and exercise their First Amendment rights. But instead of a fair hearing, they received a torrent of abuse and censorship.

In a lawsuit filed [Friday] morning, M4L details how the Brevard County School Board repeatedly violated their right to speak at public meetings. M4L members have been prevented from addressing specific actions or statements by Board members, prohibited from using specific words and phrases that members of the Board dislike, prevented from participating in meetings on the same terms as the Board’s allies, and threatened by Board officials with fines and penalties for speaking.

M4L is represented in the lawsuit by attorneys from the Institute for Free Speech, a nonpartisan First Amendment advocacy group that defends political speech rights, as well as David Osborne of Goldstein Law Partners, LLC.

“Banning parents from addressing school board members violates the most basic of First Amendment principles: that government cannot censor speech because it criticizes government officials,” said Institute for Free Speech Attorney Ryan Morrison. “The views and actions of board members are plainly relevant to board meetings and must be open for public discussion.” …

The case is Brevard Moms for Liberty v. Brevard Public Schools in the United States District Court, Middle District of Florida, Orlando Division. To read the complaint, click here.

Victory: Blue State Refugees Rally to Proceed in South Dakota

It’s beginning to look a lot like freedom in South Dakota. The Noem administration agreed on Friday to grant a permit to the Blue State Refugees (BSR) to rally on the Capitol grounds during a special session of the Legislature on November 8 and 9. As a result, a scheduled court hearing in the case did not take place.

Meanwhile, BSR and its members hope to successfully resolve the case so that other protests and rallies on the Capitol grounds can take place during the holiday season. The Court’s order cancelling the hearing noted that BSR has a substantial likelihood of succeeding on the merits of its lawsuit.

“The State may have a significant interest in protecting its ‘Christmas at the Capitol’ tradition. Long-held government traditions such as this serve the State’s constituents and may foster civic engagement. However, a blanket restriction prohibiting any political gathering—apart from gatherings of the Legislature itself—on State Capitol grounds for two months does not appear to be narrowly tailored to any such interests,” wrote Chief Judge Roberto A. Lange.

“I am thrilled for our members that we will be able to make our voices heard. The state claims this was all a misunderstanding, but we had no choice but to go to court. We asked for this permit again and again, and the state shut us down every time until we filed our lawsuit,” said plaintiff Luke Robertson, a member of Blue State Refugees…

The case is Blue State Refugees v. Noem. To read more, click here.


Bloomberg Government: FEC Eases Federal Contractors-Turned-Political Donors’ Path

By Kenneth P. Doyle

[I]n a move that could have a wide impact on other contractors, the FEC announced in September it had dismissed the [Campaign Legal Center’s] complaint against GEO on a 3-3 party-line vote. The FEC’s three Republican commissioners blocked staff-recommended enforcement action against a unit of GEO Group Inc., GEO Corrections Holdings…

The Republican commissioners rejected FEC precedent and said a company giving money to a super PAC doesn’t have to be “separate and distinct” from one having government contracts…

The FEC’s Oct. 20 statement provides “a road map for contractors to engage in direct political activity without liability for campaign finance violations,” said election lawyer Brett Kappel of the firm Harmon Curran…

The Republican commissioners…said they dismissed enforcement action against GEO because there was no specific regulation governing contractor contributions to super PACs. Commission staff attorneys in the Office of General Counsel instead relied on prior FEC advisory opinions involving other contractors to recommend enforcement action.

“We reject this approach,” the commissioners said. Advisory opinions “can be used only as a shield by similarly situated respondents, not as a sword to be brandished by OGC in future matters.”

The statement means restrictions apply only to corporate entities that directly hold government contracts, said [Allen] Dickerson, the FEC vice chairman.

“We’re not going to create a new rule of alter ego liability,” he said, adding that Congress could make such a rule if it wants.

Restrictions on contractors also are probably unconstitutional because super PACs aren’t formally linked to candidates, the commissioners’ statement added.

Free Speech

Reason (Volokh Conspiracy): Realtors Group Hearing “Hate Speech” “Ethics Complaint” Against Pastor-Realtor …

By Eugene Volokh

Late last year, the National Association of Realtors adopted a policy forbidding members from engaging in supposedly “harassing speech” or “hate speech” even in their private lives, entirely outside the context of real estate transactions. The Realtors are a private organization, so this isn’t a First Amendment violation, just as blacklisting of supposedly “un-American” employees in the 1950s wasn’t a First Amendment violation. But it strikes me as potentially quite dangerous, especially given that National Association of Realtors membership appears to be quite important professionally to real estate agents (more on that below).

In any event, we’re seeing now the potential scope of the policy: The Missoula Organization of Realtors (which is the Missoula County affiliate of the National Association) has concluded that a member of the public’s complaint against Montana realtor Brandon Huber “if taken as true on its face, constitutes potentially unethical conduct [under the prohibitions on ‘harassing speech’ and ‘hate speech’] and will be forwarded to the Professional Standards Committee”; Huber now faces a disciplinary hearing on Dec. 2, 2021. According to Huber’s lawsuit against the Missoula Organization of Realtors…

New York Times: Bans on Critical Race Theory Threaten Free Speech, Advocacy Group Says

By Jennifer Schuessler

In a new report released Monday, the free expression group PEN America emphasizes what it says is another threat [bills banning critical race theory] pose: to the free speech guaranteed in the First Amendment.

“These bills appear designed to chill academic and educational discussions and impose government dictates on teaching and learning,” the report says. “In short: They are educational gag orders.”

“Taken together,” it continues, “the efforts amount to a sweeping crusade for content- and viewpoint-based state censorship.”…

In an interview, Suzanne Nossel, PEN America’s executive director, said the intention wasn’t to endorse any particular curriculum or pedagogy, but to appeal to “higher principles” amid an increasingly polarized discussion.

“We’re not asking people to fall silent in terms of deliberation over how this racial reckoning is transpiring,” she said. “But the speed of the resort to censorship, without any apparent awareness of the contradictions, is part of the broader erosion of free speech in our society.” …

Erwin Chemerinsky, a First Amendment expert and the dean of the law school at the University of California, Berkeley, who previewed the report, agreed. “Whenever the government regulates speech, it has to be clear about what’s prohibited and what’s allowed,” he said. “These laws are so vague in their wording that a teacher can’t tell.”

The States

The Oregonian: Newberg teachers union sues over ‘political’ image ban in schools

By The Associated Press

The teachers union in Newberg has filed a lawsuit over a policy passed narrowly by its school board, limiting what kinds of images or signs school employees can display on campus.

The “Ensuring Safe Environments To Learn” policy bars school employees from displaying images “relating to a political, quasi-political, or controversial topic.” The lawsuit was filed Wednesday.

Oregon Public Broadcasting reports the Newberg policy has been a lightning rod for controversy, with the ACLU, Democrats in the Oregon Legislature and the State Board of Education all issuing statements against it. The policy, backed by a four-member majority of the Newberg school board, started out as a directive to remove signs and posters showing support for Black Lives Matter and LGBTQ Pride.

Nathan Maxwell


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