Daily Media Links 7/21

July 21, 2022   •  By Tiffany Donnelly   •  
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In the News

Bucks County Courier Times: Pennsbury settles free speech lawsuit. What it could mean to other districts

By Peg Quann

The impact of a lawsuit the Pennsbury School Board settled last week with four district residents over their right to comment at board meetings could reach far beyond Bucks County.

The ruling is “a wake-up call for school boards across America. Parents and speakers have a First Amendment right to criticize school policies and officials at public meetings,” said Alan Gura, vice president for litigation at the Institute for Free Speech in Washington, D.C.

The nonprofit organization represented Lower Makefield residents Douglas Marshall, Robert Abrams, Simon Campbell and Tim Daly in their lawsuit filed in October seeking to prevent the Pennsbury board from using provisions in its policy code to deny their right to comment on a variety of issues, including the school district budget and its equity in education initiative.

“Public speech at school board meetings is in fact protected by the First Amendment,” wrote Judge Gene Ellen Pratter of the U.S. District Court for the Eastern District of Pennsylvania, who heard the case and issued a preliminary injunction stopping the district from enforcing regulations which the court found prohibited free speech, as well as a requirement that speakers state their home address.

The injunction led to the settlement agreement that the school board unanimously approved at its July 14 meeting.

U.S. Senator Cindy Hyde-Smith: Hyde-Smith Says Dem. Donor Disclosure Bill is Unconstitutional

Under questioning from Hyde-Smith, David Keating, president of the Institute for Free Speech, focused on the detrimental effects the disclosure requirements in S.443 would have on groups trying to petition the government.

“We would see a real atrophy of national organizations being able to influence policy,” Keating said. “I really fear that if this bill becomes law, over time, over decades, it will make it really difficult for minority viewpoints to appeal to our fellow Americans, ‘Rethink things. We need to make these changes nationally.’”

Keating described the bill as being “the first ever legislation to require disclosure for grassroots lobbying efforts,” which could cause self-censorship by groups not willing to meet legal and compliance costs associated with disclosure requirements.

“These legal and compliance costs will force many smaller groups to self-censor. It will definitely increase the costs of criticizing the government,” Keating said in his opening statement. “Let’s keep in mind the purpose of disclosure is to allow citizens to monitor the government. That is why we have disclosure of contributions to candidates and political parties controlled by the candidates. It is not to allow the government to monitor the political activity of its citizens.”

Ed. note: Read David Keating’s full written testimony on the DISCLOSE Act here or here (PDF).

E-Pluribus:  July 20, 2022

By Jeryl Bier

[Y]esterday, there was a Senate Rules Committee hearing on The DISCLOSE Act, a bill that many free speech advocates, including the ACLU, find concerning for its potential to chill speech by exposing donors to issue groups. The Institute for Free Speech’s Luke Wachob has a short thread on the hearing:

New Jersey Monitor: Lawmakers take aim at lawsuits that quash public participation

By Dana DiFilippo

A bill by Assemblyman Paul Moriarty (D-Gloucester) would give judges more power to dismiss lawsuits known as “SLAPPs,” short for strategic lawsuits against public participation…

Thirty-two states and the District of Columbia have anti-SLAPP laws on the books, according to the Institute for Free Speech. New Jersey does not, prompting the institute in February to give the Garden State an ‘F’ on its national report card examining states’ anti-SLAPP protections…

A few other lawmakers joined Moriarty’s cause recently. Assemblyman Raj Mukherji (D-Hudson) and Sen. Joseph Lagana (D-Bergen) introduced a similar bill last month modeled after the Uniform Public Expression Protection Act proposed by the nonprofit Uniform Law Commission in 2020. That organization of state commissioners recommends and drafts model state legislation.

Ed. note: Read our full 50-state Anti-SLAPP Report Card here. Read “An Open Letter in Support of the Uniform Law Commission’s Uniform Public Expression Protection Act”, co-signed by 28 organizations including the Institute for Free Speech, here.

New from the Institute for Free Speech

Important First Amendment Supreme Court Decision Cruises Under the Radar

By Barnaby Zall, Public Policy Legal Institute

Every spring, bold, controversial Supreme Court decisions splash across news media, obscuring more subtle, but important, decisions that don’t get the same attention. Federal Election Commission v. Ted Cruz for Senate, No. 21-12, 596 U.S., 142 S.Ct. 1638 (May 16, 2022), was one of those important, but not highly publicized, First Amendment decisions. Its importance came from signaling to lower courts and legislators that the Court meant what it said in earlier cases protecting free expression, rather than from its direct result: the substantive invalidation of a limit on post-election campaign contributions that harmed challengers and new candidates.

FEC v. Cruz’s most important signal may be the current Court’s six-vote majority support for First Amendment protections for political speech, sending a strong message that legislators and lower courts should not play fast and loose with constitutional limits on government regulation of political expression: “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” FEC v. Cruz, slip op., at 16, quoting, McCutcheon v. FEC, 572 U.S. 185, 209 (2014).

In particular, the decision buttressed recent Court decisions requiring legislators and regulatory agencies to have solid evidence of problems they claim as justification for regulation rather than speculating about possible problems: “We have ‘never accepted mere conjecture as adequate to carry a First Amendment burden.’” (FEC v. Cruz, slip op., at 15, quoting McCutcheon, 572 U.S. at 210). Friend of the court briefs from the Institute for Free Speech (pp. 4-5, 7-8, 11) and other organizations (e.g., Public Policy Legal Institute (pp. 19-23)) had asked the Court to issue such a reinforcing message, citing McCutcheon and other cases.


U.S. Senator Bill Hagerty: Hagerty Delivers Opening Statement At Rules Committee Hearing on the DISCLOSE Act

First, this bill would require virtually any entity that engages in political speech, including non-profits, to publicly disclose the names and addresses of its significant contributors. This is a thinly veiled attempt to send the message that, if you support an organization that happens to support causes with which some disagree, you become a target for criticism, harassment, and intimidation—even if your support has nothing to do with the organization’s position on a certain issue. It would fuel new frontiers of cancel culture and personalization of politics.

This tactic is not new. In 1957, in unanimously striking down an attempt to compel the NAACP to disclose its members, the Supreme Court stated that government-compelled disclosure of group affiliation violates the First Amendment. The Court recognized the “vital relationship between freedom to associate and privacy in one’s associations.”

Just last year, the Supreme Court reaffirmed this principle by holding that California’s attempt to compel non-profits to disclose donor names and addresses was unconstitutional. Noting that advocacy groups from the ACLU to Americans for Prosperity opposed California’s compelled-disclosure requirement, the Court found that it chilled speech and created a real risk of threats, violence, and harassment.

The Courts

New York Times: Democratic Group Sues the Federal Election Commission Over Trump’s 2024 Hinting

By Maggie Haberman

A Democratic super PAC filed a lawsuit against the Federal Election Commission on Wednesday, seeking to force officials to take action against Donald J. Trump for all but running for president in 2024 without having declared himself a candidate.

The suit comes more than four months after the group, American Bridge, lodged a complaint with the F.E.C. against Mr. Trump. The complaint argues that he has been behaving like a 2024 presidential candidate while avoiding the oversight of the commission by not filing a statement of candidacy.

The College Fix: Professor’s lawsuit demands free speech rights in ‘battle for the soul of the university’

By Alex McKenna

[Professor Stuart] Reges filed a lawsuit last week against his employer, the University of Washington, after administrators punished him for his controversial land acknowledgment statement. He accuses administrators of retaliating against him for protected political speech.

A computer science professor, Reges had inserted his own spin on a land acknowledgement statement UW recommended every professor put on their syllabi.

UW’s suggestion: “The University of Washington acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquamish, Tulalip and Muckleshoot nations.”

Instead, Reges put: “I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.”

The university initiated an investigative hearing over the matter, ordered the removal of the clause from the syllabus, and opened a new section of the class at the same time as Reges’ class for offended students.

Candidates and Campaigns

Cleveland.com: Ohio Senate candidate J.D. Vance makes about face on accepting corporate PAC money

By Andrew J. Tobias

While running in the Republican primary race for U.S. Senate earlier this year, J.D. Vance flatly said he would not accept any contributions from corporate PACs.

But a campaign finance report Vance’s campaign filed on Friday shows that Vance, since winning the Republican Senate nomination in May, has accepted tens of thousands of dollars from corporate PACs in the energy, insurance and real-estate industries.

The City: De Blasio Gave Up on Running for Congress — But He Can Use Money He Raised to Pay Off His Old Debts

By Greg B. Smith and Yoav Gonen

Twice in the last eight months former Mayor Bill de Blasio has publicly flirted with a run for office, first openly talking about his desire to be elected governor and then launching a run for Congress.

Twice he’s bowed out after just a few weeks.

Some might see that as a political debacle, but between those two failed candidacies, de Blasio has succeeded in raising a bundle of cash with nearly $700,000 that he gets to keep.

What he will do with all that money depends on a complicated and murky set of campaign finance rules and regulations.

The States

Insider NJ: ELEC: Big Six Committees Post Below Average in Federal Year

With no state elections this year, the so-called “Big Six” fund-raising committees reached the year’s midpoint with slightly below average fund-raising and spending…

[ELEC Executive Director Jeff] Brindle said both parties would benefit from enactment of the pending “Elections Transparency Act”(S-2866/A4372). After being voted out unanimously and with bipartisan support by two state Senate Committees and an Assembly committee, the bill stalled before the Legislature recessed June 29.

Following ELEC recommendations, the bill would increase contribution limits on party committees including the Big Six and require disclosure by special interest groups that spend independently of candidates and parties. “Unlike parties and candidates, these independent groups face no contribution limits and have far eclipsed spending by party committees during the past decade,” Brindle said.

“Our existing outdated statute enables them to hide their contributions though New Jersey has been lucky that many have voluntarily disclosed their donors,” said Brindle. “We cannot continue to rely on this good will. Political strategies change and much of this money could suddenly turn dark. That is exactly what is happening in federal campaigns.”

“I remain hopeful that the Legislature will enact the reform bill this fall,” he said.

Tiffany Donnelly

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