Daily Media Links 3/25

March 25, 2019   •  By Alex Baiocco   •  
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The Courts

Politico: When Trump Blocks You on Twitter, He’s Violating the First Amendment

By Joshua Geltzer and Laurence H. Tribe

A landmark legal battle that will unfold later this month in federal court in New York represents a welcome chance for freedom of expression to triumph over falsehood. The two of us, together with other First Amendment experts, have filed a friend-of-the-court brief supporting those who sued Trump for blocking their free expression. That brief urges the court to seize this vital opportunity to vindicate our Constitution’s promise that freedom of speech will pave the path to a society built on truth, not lies.

Trump’s threats to America’s core traditions of freedom of speech and of the press have taken many forms. He repeatedly attacks the media, in language reminiscent of dictators, as “the enemy of the people.” He has also targeted particular journalists and media outlets whose coverage displeases him. Trump stripped CNN reporter Jim Acosta of his White House press credentials in retaliation for his vigorous questioning, and threatened to revoke the licenses of television stations whose reporting he dislikes. He pressured his administration to oppose the merger between AT&T and Time Warner not, many suspected, because of legitimate antitrust concerns but because of personal animus against CNN (owned by Time Warner). He reportedly sought to raise shipping rates for Amazon because of similar animus against the Washington Post (owned by Amazon’s owner, Jeff Bezos). He retaliated against American journalists he dislikes by barring them from covering his dinner with North Korean leader Kim Jong-un. And, most recently, his administration is reported to have assembled a list of journalists and lawyers to interrogate at America’s southern border…

A small subset of the president’s actions-like the rescission of Acosta’s White House press credentials-have been challenged in court, where Trump promptly lost. But most will never see the inside of a courtroom.

That makes the argument to be held in a New York federal court on March 26 especially significant.

DOJ

Washington Post: Mueller did not find the Trump campaign conspired with Russia, attorney general says

By Matt Zapotosky and Devlin Barrett

Special counsel Robert S. Mueller III did not find that Donald Trump or his campaign schemed with Russians to interfere in the 2016 presidential election, according to a summary released Sunday…

The four-page summary issued Sunday by Attorney General William P. Barr declared: “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election.” …

Mueller’s central mission has been to determine whether Russian efforts to interfere in the 2016 election were aided in any way by Americans, including people close to Trump.

Russian citizens interacted with at least 14 Trump associates during the campaign and presidential transition, according to public records and interviews…

The special counsel’s work led to criminal charges against 34 people, including six former Trump associates and advisers…

A senior Justice Department official said the special counsel has not recommended any further indictments – a revelation that buoyed Trump’s supporters, even as additional Trump-related investigations continue in other parts of the Justice Department, in Congress and in New York.

Congress

Real News Network: HR1: A Call for Campaign Finance Reform, Ethics, and Voting Rights

Rep. John Sarbanes of Maryland joins us to explore the legislation that he’s spearheading to end the involvement of dark money in politics, allow public campaign financing, and demand major ethics and voting rights reforms, and why Republicans are threatening kill it in the Senate

Trump Administration 

National Review: The Politics and Policy of Trump’s Campus Free-Speech Order

By Stanley Kurtz

Trump’s order – which I strongly support – is not the weak and largely symbolic move some claim. On the contrary, it’s a game changer.

It will take some time to become evident, but Trump’s order will shift the balance of forces on campus. Universities will now have to take loss of federal funding into account when creating speech codes, so-called free speech zones, or bias-reporting systems, or handling visiting speakers. It’s true that the new order might be enforced either lightly or assertively, and we don’t yet know how that will play out. Yet the very existence of the order sets up a dynamic that will make it harder for colleges to stifle free speech, and tougher for regulators to ignore it when they do.

The early line is that Trump’s order merely reaffirms existing law, and is thus little more than a meaningless sop to his base. After all, the order simply insists that public universities uphold the First Amendment, something they are already legally required to do. As for private universities, all they need to do is follow their own stated policies. So what has really changed?

This critique entirely misses the point. Public universities are indeed obligated to uphold the First Amendment. The problem is that they regularly ignore that charge and promulgate unconstitutional speech codes, speech zones, and bias-reporting systems anyway. There’s a cottage industry in lawsuits against public universities that violate the First Amendment, as well as against private colleges that flout their own stated free-speech principles. Plaintiffs usually win once they muster the time, money, and courage to sue, but universities quickly find roundabout ways to reinstitute the offending policies, beginning the cycle again. If colleges face a loss of federal funds, however, they just might give up on evading the First Amendment.

Real Clear Education: Trump’s Free Speech Order Could Backfire

By Heather Mac Donald

Trump’s newly-signed executive order on college free speech responds to a real and profound problem…

Yet Trump’s executive order may create as many difficulties as it would solve. The order commands 12 federal agencies, from the Department of Defense to the EPA, to ensure that academic recipients of federal largesse “promote free inquiry” or risk losing their federal grants.   Promoting free inquiry is an affirmative duty that on its face goes beyond protecting free speech. Unless we are to regard this language as boilerplate, the federal agencies will have to define what satisfies the duty to promote free inquiry and what constitutes its violation…

Some of the order’s supporters have suggested that the regulations promulgated under it will be confined to banning official speech codes and free speech zones. If so, implementation will be straightforward. But arguably the duty to promote free inquiry sweeps more broadly…

Some speech advocates are counselling a wait-and-see attitude. It is premature to assume overreach before the implementing regulations are actually drafted, they reasonably say. And it may be that the mere promulgation of the order will have a salutary norm-setting effect, without a heavy-handed enforcement effort…

University of Chicago president Robert Zimmer has warned that the executive order will give rise to its own Washington bureaucracy, one that would mirror censorious campus speech committees. The ideal solution to campus intolerance would come from non-governmental pressure…

It may be that federal regulation is the only hope for a restored academic legacy. But the history of government mission creep and bloat is not reassuring.

The States

Wheeling Intelligencer: Curb Influence of Out-of-State Spending on Elections

By State Sen. Craig Blair, R-Berkeley

Transparency and accountability are the two principles that make me proud to support Senate Bill 622, the bill recently passed by the Legislature to update our state’s campaign finance laws. In this bill, we not only reconcile West Virginia’s contribution limits with the federal contribution limits, but we strengthen disclosure requirements for candidates and PACs and improve the secretary of state’s ability to enforce our campaign finance laws and detect violations…

For 41 years, our state’s contribution limits have remained stagnant at $1,000, without any adjustment for inflation. Meanwhile, our surrounding states have modernized their campaign finance laws to allow citizens greater freedom to support candidates in the most transparent manner possible, through direct campaign contributions. Even with the individual contribution limit of $2,800 in Senate Bill 622, West Virginia’s contribution limits would still be far below those of our neighboring states and the 14th-lowest in the nation. In Ohio, the individual contribution limit is $13,292. In Pennsylvania and Virginia, there is no limit…

One of the reasons West Virginia has been such a ripe ground for big spending by super PACs and independent groups in recent decades is our outdated contribution limits. At $1,000 per person or PAC per candidate, it is easy to see why outside, third-party groups fill in the gaps in political advocacy through independent expenditures. Independent expenditures are not subject to the same limits or disclosure requirements as direct contributions, because of First Amendment protections…

Raising contribution limits does not encourage an influx of “dark money,” but rather empowers our state’s candidates, parties, and individual donors, while lessening the influence of super PACs and outside groups.

National Review: San Antonio Blatantly Violates the First Amendment to Punish Chick-fil-A for Donating to Christian Organizations

By David French

The San Antonio city council has voted to block Chick-fil-A from opening a store in its airport to punish it for donating to the Fellowship of Christian Athletes and the Salvation Army…

The council was apparently reacting to a  breathless Think Progress allegation that “in 2017, the Chick-fil-A Foundation gave more than $1.8 million to a trio of groups with a record of anti-LGBTQ discrimination.” The donations included more than $1.6 million of the FCA, $150,000 to the Salvation Army, and a small $6,000 gift to the Paul Anderson Youth Home. By Think Progress’s standard, a company is committing a terrible sin whenever it gives money to a traditional Christian ministry. After all, FCA is merely upholding traditional Christian teaching that sexual activity is reserved for a marriage between a man and a woman. The donation to the Salvation Army is apparently based on the Salvation Army’s past policies, since Think Progress admits that the Salvation Army currently has “a national policy of non-discrimination based on sexual orientation and gender identity.” …

Simply put, the government may not condition the ability to operate a business on the government’s distaste for the religious or political donations of its owners. That’s pure viewpoint discrimination, and if Chick-fil-A chooses to sue, it will not only win, but the city council’s intolerance will likely cost taxpayers hundreds of thousands (if not millions) of dollars.

There is a fundamental difference between state action against an employer based on violations of constitutionally valid state statutes – such as violations of valid nondiscrimination laws – and state action against an employer based on the employer’s constitutionally protected acts of support for individuals or causes. 

Alex Baiocco

Alex Baiocco

https://www.ifs.org/author/abaiocco/

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