Daily Media Links 7/12

July 12, 2021   •  By Tiffany Donnelly   •  
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In the News

Ventura County Star: Oxnard resident Aaron Starr challenges new state law on free speech grounds

By Megan Diskin

Oxnard resident Aaron Starr has helped mount a legal challenge to a new state law that he says burdens political speech.

The lawsuit filed June 23 in federal court revolves around a portion of Assembly Bill 5, which passed in 2019 and changed the status of some workers to employees versus independent contractors. Campaign workers going door to door collecting signatures are now classified as employees under AB 5, but workers selling household goods door to door are still classified as independent contractors, according to the suit. 

Essentially, the law violates the First Amendment because it discriminates against some speech based on its content, Starr said.

“We’re focused on the point that the way Assembly Bill 5 is written, it actually discriminates against political speech in favor of commercial speech,” Starr said. 

There has to be a compelling reason for the government to do that, he said…

Starr is a frequent critic of Oxnard government and has worked on multiple campaigns for ballot measures in the city. In these efforts, he has worked with Mobilize the Message, LLC, a Florida company that provides door-knocking and signature-gathering services. 

Last year, he tried to hire the company to help with campaigning ahead of the November 2020 election. But Starr was told the firm no longer offered services in California due to the new law, Starr said. 

Around the same time, Starr reached out to the Washington, D.C.-based Institute for Free Speech to launch a legal challenge to AB 5.

Supreme Court

Newsweek: We All Win When Donor Privacy is Protected

By Tyler Martinez

Back when Kamala Harris was attorney general of California, she did her best to invade the privacy rights of donors to nonprofit organizations. It did not matter that those very same privacy rights had protected members and supporters of the NAACP and other nonprofit groups in the 1950s, ’60s and ’70s.

Fortunately, a stunning cross-section of advocacy groups—from the ACLU on the Left to my firm, Mountain States Legal Foundation, on the Right—teamed up to fight back against Harris’ unconstitutional conduct. Conservative, liberal, progressive or libertarian—all saw the danger in California’s demand.

Even the Biden administration distanced itself from the now-vice president’s actions, arguing that the Supreme Court should send the case back to the lower courts for another round of review. Instead, however, the Court ruled 6-3 in Americans for Prosperity Foundation v. Bonta (“AFPF”) in favor of robust privacy interests, and it did so in a big way that will have a major impact on future cases.

In a free society, the government cannot keep track of what every citizen does or what groups or causes a person supports.

The Courts

Washington Post: Constitutional lawyers call Trump’s First Amendment defense against Jan. 6 lawsuits ‘spurious’

By Spencer S. Hsu

Former president Donald Trump’s claim that the First Amendment shields his conduct leading up to the Jan. 6 Capitol riot is legally “spurious” and should be rejected as a federal court considers lawsuits that allege he incited the violence, four prominent First Amendment lawyers and scholars argued Thursday.

Targeting a key defense raised by lawyers for Trump and co-defendants including Rudolph W. Giuliani and Rep. Mo Brooks (R-Ala.), the legal experts said that courts have long recognized that speech central to a crime — such as the political intimidation of voters, lawmakers and government officials — is barred and not protected by the Constitution.

In a 23-page proposed friend-of-the-court brief filed Thursday in a case brought by members of Congress and Capitol police, the legal scholars argued that courts must strike a balance between protecting freedom of political speech and preventing political intimidation.

“Granting constitutional protection to the statutorily proscribed acts of political intimidation in the guise of ‘speech’ would render the government incapable of carrying out its functions, including its core democratic function of protecting the ability of all eligible citizens to engage freely and without coercion in the democratic process, whether by voting or by supporting and advocating for candidates,” the scholars wrote.

The four signers were First Amendment lawyer Floyd Abrams, who has fought several precedent-making cases in court, Berkeley law school dean Erwin Chemerinsky, former Harvard Law School dean Martha Minow and noted constitutional scholar Laurence Tribe.

Wall Street Journal: Trump Can Win His Case Against Tech Giants

By Vivek Ramaswamy

The media has panned Donald Trump’s First Amendment lawsuits against Facebook, Twitter and YouTube: “sure to fail,” “as stupid as you’d think,” “ridiculous.” Mr. Trump’s complaint omits important precedents, facts and claims for relief, but there’s a strong case to be made that social-media censorship violates the Constitution. If his lawyers do better in court than in their initial filing, Mr. Trump can win.

It’s true that the First Amendment ordinarily applies to the government rather than private companies. But the central claim in Mr. Trump’s class-action lawsuit—that the defendants should be treated as state actors and are bound by the First Amendment when they engage in selective political censorship—has precedent to back it up. Their censorship constitutes state action because the government granted them immunity from legal liability, threatened to punish them if they allow disfavored speech, and colluded with them in choosing targets for censorship.

Reason (Volokh Conspiracy): Short Circuit: A Roundup of Recent Federal Court Decisions

By John Ross

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice…

In 2018, two years after a school shooting, Madison, Ohio school district officials vote to allow teachers to carry concealed weapons. Concerned parent attends school district meeting but is removed after the members deem his statements “personally directed,” “abusive,” and “antagonistic.” A First Amendment violation? The Sixth Circuit says yes; the gov’t can’t hold public meetings and then demand the public be nice to them.

Congress

Politico: Top Biden ally pleads with him to scrap filibuster for election reform

By Laura Barrón-López

After months of setbacks and gridlock on voting rights, one of President Joe Biden’s top allies in Congress is calling for him to support amending the Senate filibuster.

House Majority Whip Jim Clyburn (D-S.C.) told POLITICO Biden “should endorse” the idea of creating a carveout to the legislative filibuster in the Senate for legislation that applies to the Constitution. In effect, the reform would make it possible for Democrats to pass their sweeping elections reform bill and another bill reauthorizing key sections of the 1965 Voting Rights Act with just Democratic support.

It’s a sentiment the congressman says he’s shared with White House counselor Steve Ricchetti and Office of Public Engagement Director Cedric Richmond as well. “I’ve even told that to the vice president,” Clyburn said…

Clyburn’s comments are the latest attempt by senior Democrats to find a way around Republican opposition to their election reform legislation. Biden himself is set to embark on a more aggressive campaign to try and move public opinion behind those bills. He is headed to Philadelphia on Tuesday to deliver a speech on his administration’s “actions to protect the sacred, constitutional right to vote,” the White House said…

If the two voting rights bills before Congress don’t reach Biden’s desk soon, Clyburn said, “Democrats can kiss the majority goodbye.”

Candidates and Campaigns

Daily Beast: Dem Star Nina Turner Blows Pledge Not to Take Lobbyist Money

By Roger Sollenberger

The Democratic frontrunner for an open congressional seat in Ohio, Nina Turner, pledged in January that she would not accept campaign contributions from lobbyists or corporations. But weeks later, she appears to have done just that.

“I’m not taking any corporate PAC or lobbyist money,” Turner tweeted on Jan. 16. “If I’m elected, my seat will belong to the people of Ohio’s 11th district.”

According to Federal Election Commission records, however, the Turner campaign reported a March 31 donation of $1,000 from the director of Amare Public Affairs, a firm Turner founded last September as an offshoot of D.C.-based lobbying shop Mercury Public Affairs. And on Jan. 19, three days after her tweet, Turner accepted $250 from a partner at Mercury, per FEC filings.

The States

Newsweek: Mayor Defends Using Campaign Funds on Daughter’s Wedding, Argues It Doubled as Campaign Event

By Natalie Colarossi

The mayor of Romulus, Michigan, has defended using thousands of dollars in campaign funds to help pay for his daughter’s wedding by stating that it doubled as a campaign event.

Romulus Mayor LeRoy Burcroff acknowledged using $4,500 from the funds to cover the open bar at the wedding at a yacht club, according to a Friday report from local ABC News affiliate WXYZ.

Burcroff’s attorney, Daniel Wholihan, told the news outlet that the wedding was related to the campaign because many of those attending the wedding had also worked for Burcroff.

Wholihan added that while using the money for the wedding created “poor optics,” he did not believe it constituted an improper use of funds. He said that Burcroff has since repaid the expenses to his campaign, WXYZ reported.

But campaign finance experts argued that Wholihan’s definition of a campaign event was too broad.

“If the wedding of your own daughter could be a campaign event, what sort of event cannot be a campaign function?” Simon D. Schuster, the executive director of the Michigan Campaign Finance Network, told WXYZ.

The Atlantic: Critical Race Theory Is Making Both Parties Flip-Flop

By Conor Friedersdorf

Among the dozens of bills filed by Republicans to restrict how educators teach about race, perhaps none was more carefully written than the one in North Carolina. And therein lies the larger problem with such bills: The downside of even the most cautious efforts likely outweighs their benefits…

Yet North Carolina’s relatively well-written bill illuminates a flaw in all such legislation: Any prohibition broad enough to exclude pernicious dogma risks prohibiting or chilling legitimate instruction, while any bill so narrow as to avoid a chilling effect is unlikely to effect significant change. The needle is extraordinarily difficult to thread…

The activists pushing these laws ought to study the history of the academic movement they tout as their enemy: As an early generation of critical race theorists discovered in the early 1990s, when they worked to promote speech codes in higher education, policy makers will inevitably struggle to write a bill that constrains discriminatory teaching narrowly enough to avoid undue censorship and broadly enough to achieve their goals. Should this bill become law, like those bygone speech codes, the victory may prove as Pyrrhic.

Reason: Utah Woman Charged With Hate Crime for Stomping on ‘Back the Blue’ Sign

By C.J. Ciaramella

A 19-year-old Utah woman has been charged with a hate crime for allegedly stomping on a “Back the Blue” sign in front of a police officer, the Salt Lake Tribune reports.

According to an affidavit obtained by the Tribune, a Garfield County Sheriff’s deputy was conducting a traffic stop at a gas station in Panguitch, Utah, on Wednesday when he saw the woman “stomping on a ‘Back the Blue’ sign next to where the traffic stop was conducted, crumble it up in a destructive manner and throw it into a trash can all while smirking in an intimidating manner towards me.”…

Local news outlet KSL.com reports that the woman has been charged with criminal mischief with a hate crime enhancement, as well as disorderly conduct.

The incident is just the latest in a string of instances of police using hate crime statutes to retaliate against citizens for criticizing or disparaging them…

As Reason’s Robby Soave wrote, such prosecutions are “good evidence that we ought to be skeptical of hate crime laws. Although intended to protect the underprivileged from bigotry and racism, they often permit the government to quell speech that is critical of authority.”

The Hill: Bans on Native American mascots pick up after Washington Football Team name change

By Reid Wilson

State legislators are advancing measures meant to bar public schools from using Native American mascots in the wake of a spotlight cast by the Washington Football Team’s decision to drop its derogatory former name.  

Lawmakers in Colorado and Nevada last month passed bills to bar public schools from adopting Native American mascots. They followed Washington state, where lawmakers approved a similar ban earlier this year. Lawmakers in Connecticut and Massachusetts have measures pending later this year.

Tiffany Donnelly

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

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