Daily Media Links 7/24

July 26, 2020   •  By Tiffany Donnelly   •  
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Supreme Court

SCOTUSblog: Petitions of the week: Political donations, gun rights, the emoluments clause and more

By Andrew Hamm

This week we highlight cert petitions pending before the Supreme Court that ask the court to weigh in on a variety of hot-button constitutional and political issues. One petition, in Lieu v. Federal Election Commission, asks the court to decide whether federal limits on political donations can, under the First Amendment, be applied to donations to so-called “super PACs.” …

These and other petitions of the week are below the jump:

Lieu v. Federal Election Commission
Issue: Whether the federal statutory limit on contributions to political committees, 52 U.S.C. § 30116(a)(1)(C), comports with the First Amendment as applied to committees that make only independent expenditures.

Election Law Blog: Big (Quixotic?) Push to Get Supreme Court to Hold that Congress Has the Constitutional Power to Outlaw Super PACs

By Rick Hasen

The cert petition in Lieu v. FEC is designed to get the Supreme Court to address an issue addressed by the D.C. Circuit in the earlier SpeechNow case but never addressed by the Supreme Court: is it constitutional for Congress to limit contributions to political committees that make only independent expenditures (so-called super pacs)? Some heavy hitters on the cert petition, and a number of amicus briefs urging cert., including one from legal scholars and one from political scientists.

I’m extremely skeptical that the Court would take this case (because a majority would agree with the D.C. Circuit in SpeechNow was right that the limits on contributions to super PACs are unconstitutional). And if the Court took the case, I believe it would only make campaign finance law even more deregulatory.

The Courts

Courthouse News: Judge Frees Michael Cohen, Saying Remand to Prison Was Retaliatory

By Josh Russell and Adam Klasfeld

Re-releasing the president’s convicted former attorney, a federal judge ruled Thursday that the government ended Michael Cohen’s brief stint of home confinement and put him back in prison to punish him for writing a book.

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory and its retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others,” U.S. District Judge Alvin Hellerstein said during a teleconference Thursday morning…

“How can I take any other inference other than it was retaliatory,” Hellerstein mused, summarizing the terms of the government’s home-confinement agreement as telling Cohen: “You toe the line about giving up your First Amendment rights or we’ll send you to jail.”

“I’ve never seen such a clause in 21 years of being a judge,” the Clinton appointee added.

Right to Protest

NPR: DOJ Inspector General Investigating Federal Agents’ Actions In Portland And D.C.

By Bill Chappell

The Justice Department’s Office of the Inspector General has opened an investigation into allegations that DOJ personnel have improperly used force this month in Portland, Ore., as well as an inquiry into their role in responding to mass protests in Washington, D.C., since late May.

Inspector General Michael Horowitz announced the inquiry the day after federal agents tear-gassed Portland Mayor Ted Wheeler during a protest Wednesday night outside a federal courthouse.

At a broader level, the inspector general will review the way DOJ personnel have been used to respond to protests and civil unrest in both Portland and Washington over the past two months. The review will include agents’ use of force as well as tear gas and “less-lethal munitions” – a category that often includes items such as bean bag rounds and rubber bullets.

Cato: Federal Cops Without Badges, Coming Soon To a City Near You?

By Walter Olson

The federal Department of Homeland Security has sent Border Patrol agents to act as police in Portland, Oregon in recent days. By what authority? And have its agents behaved there in a way consistent with the law, the Constitution, and good police practice? I took a first look at those questions in a Monday piece at The Bulwark. Since then the situation has changed, and not for the better. [see update below – W.O.]

Free Speech

Persuasion: America’s Mission

By Garry Kasparov

Ideas are made stronger by open competition, and from its adversarial system of government to Silicon Valley, no country has made better use of this than America. If people hesitate to speak because they might be accused of being impure and unworthy, and are afraid of losing their standing or even their employment, then the stagnation of our political institutions will soon find an echo in the intellectual and moral stagnation of our society.


ProPublica: The Trump Campaign’s Legal Strategy Includes Suing a Tiny TV Station in Northern Wisconsin

By Meg Cramer and Katherine Sullivan, WNYC

This year, President Donald Trump’s reelection campaign filed defamation lawsuits against three of the country’s most prominent news outlets: The New York Times, The Washington Post and CNN. Then it filed another suit against a somewhat lower-profile news organization: northern Wisconsin’s WJFW-TV, which serves the 134th-largest market in the country.

The Trump campaign sued the station over what it claims is a false and defamatory ad WJFW aired that showed Trump downplaying the threat of the coronavirus as a line tracking new COVID-19 infections ticks up and up on the screen.

Dozens of stations ran the ad. But the Trump campaign chose to sue just NBC-affiliate WJFW, which is owned by a relatively small company that only has two other local TV stations, both in Bangor, Maine. The campaign did not initially sue the political organization that produced the ad. That group later joined the case as a defendant.

The curious lawsuit is part of a larger, aggressive and exceedingly expensive legal operation by the Trump campaign that’s the focus of our latest “Trump, Inc.” podcast.

Wall Street Journal: A Note to Readers

By The Editorial Board

We’ve been gratified this week by the outpouring of support from readers after some 280 of our Wall Street Journal colleagues signed (and someone leaked) a letter to our publisher criticizing the opinion pages. But the support has often been mixed with concern that perhaps the letter will cause us to change our principles and content. On that point, reassurance is in order…

As long as our proprietors allow us the privilege to do so, the opinion pages will continue to publish contributors who speak their minds within the tradition of vigorous, reasoned discourse. And these columns will continue to promote the principles of free people and free markets, which are more important than ever in what is a culture of growing progressive conformity and intolerance.

Online Speech Platforms

New York Times: Lawyers Demand the Military Stop Violating Free Speech on Twitch

By Kellen Browning and Taylor Lorenz

On official U.S. Army and Navy esports Twitch channels, members of the military livestream themselves playing video games such as Call of Duty, Fortnite and League of Legends for an audience of thousands. It’s an outreach and recruitment effort – and the military service members also chat with viewers about life in the armed forces.

Not everyone is looking to sign up. “what’s your favorite u.s. w4r cr1me?” Jordan Uhl asked in a chat on the Army Twitch channel on July 8, substituting numbers for letters to get around the channel’s moderation settings.

Mr. Uhl, a 32-year-old activist, then posted a Wikipedia link to a list of war crimes committed by the U.S. military. A video showed him being banned from the chat, and one of the streamers said, “have a nice time getting banned, my dude.”

Now, facing criticism from First Amendment advocacy groups who say the ban is unconstitutional, the Army said Wednesday it would pause streaming on Twitch to “review internal policies and procedures, as well as all platform-specific policies.”

Candidates and Campaigns

Business Insider: Inside the Trump campaign’s war over spam with the biggest US cellphone carriers. Billions in fines may be on the line as the president desperately tries to connect with quarantined voters.

By Tom LoBianco

President Donald Trump’s campaign is locked in a battle with the biggest US cellphone carriers over an effort to blast millions of cell users with often annoying texts coaxing them to contribute or vote.

The showdown got serious at the start of July when Trump’s team sent a blast of texts to people who hadn’t signed up for them.

A third-party firm hired to screen such messages for the major cellphone companies blocked the texts…

What followed was a convoluted sequence of legal wrangling. The cellphone companies viewed the texts as a possible violation of federal anti-robocall laws and Federal Communications Commission rules that come with hefty fines…

The Trump campaign countered that the cellphone companies were stifling its ability to reach voters. It said the texts did not violate a 1991 law, the Telephone Consumer Protection Act, which set strict limits on telemarketing and robocalling and formed the basis of anti-spamming measures ruled on by the FCC. And the campaign points to a June 25 FCC ruling, which it argued loosened the rules on what counted as spam.

“Any effort by the carriers to restrict the campaign from contacting its supporters is suppression of political speech. Plain and simple,” Tim Murtaugh, Trump’s campaign communications director, said in a statement to Insider.

The States

Prairie Public Broadcasting: Fargo lawmaker wants more ‘transparency’ from outside political groups

By Dave Thompson

A  lawmaker is proposing a measure she said would help to bring transparency to political spending.

State Rep. Karla Rose Hanson (D-Fargo) said her bill would apply to outside groups, also known as the 501-C-4 groups. She told the interim Judiciary Committee the standards would be similar to those required of candidates, political parties and political action committees, in that donors of $200 or more would be made public.

“Disclosure standards are not limiting anyone from spending money to influence the outcome of an election,” Hanson said. “It just allows us to know who is behind that specific ad.”

ABC 6: Could Householder scandal lead to dark money reforms?

By Tom Bosco

So-called “dark money” was behind the nasty campaign last year for the nuclear bailout bill, House Bill 6, and it led to the arrest of Ohio’s House Speaker and four associates. Could this scandal lead to reform when it comes to “dark money?”

Catherine Turcer of the advocacy group Common Cause recalls last year’s nasty campaign for the bill, and the fight to squash the efforts to put the issue on the ballot.

“There was so much smoke, you’re not surprised there’s fire,” she said.

She said things didn’t seem right in the campaign, but it was hard to track down exactly what that was. That’s because of the 501(c)(4) group called Generation Now that was backing TV ads and mailers. A 501(c)(4) is an IRS-sanctioned, non-profit group that does not have to reveal its donors…

“The best way to understand dark money is that its secret money,” Turcer said. “And when you have secrets you’re more likely to engage in shenanigans.” …

Turcer said she hopes reform is possible.

“When you have these epic scandals it’s an opportunity to reexamine how you got there,” she said.

Reason (Volokh Conspiracy): Laws Protecting Private Employees’ Speech and Political Activity Against Employer Retaliation: Introduction

By Eugene Volokh

Back in 2012, I published an article in the Texas Review of Law & Politics on this subject, trying to describe such laws.

I’m not sure where I stand on them as a policy matter. On one hand, they restrict private employer choice, and can often undermine private employers’ legitimate policy interests, much as other antidiscrimination laws do; I’m generally a supporter of employment-at-will as a legal rule, and am not eager to see further restrictions on that rule. On the other hand, to the extent that one is concerned about speech restrictions undermining democratic deliberation and debate, one might be as concerned by private employer retaliation as by, say, government employer retaliation or some other government-imposed restrictions.

But I thought in 2012 that it was worth describing the laws, so that people can know more about them, and more sensibly consider whether there should be more such laws or fewer. And because such matters are especially in the news these days, I thought I’d basically serialize this article on the blog over the next few weeks. Here is the Introduction; as with future posts, I have omitted most footnotes, but you can see them all here.

Philadelphia Inquirer: Canceling big parades but allowing protests is ‘unconstitutional,’ U.S. Attorney McSwain tells Kenney

By Sean Collins Walsh

Mayor Jim Kenney’s policy of prohibiting large permitted events like the Mummers Parade while allowing spontaneous protests over the police killing of George Floyd in Minneapolis is “plainly unconstitutional,” U.S. Attorney William M. McSwain told the city administration Wednesday.

“The subtext, of course, is clear: the city has seen a surge of protests inspired by the killing of George Floyd and does not want to be perceived as prohibiting those gatherings, regardless of any possible public health consequences, but has decided to prohibit other forms of protected speech,” McSwain wrote in a letter to City Solicitor Marcel Pratt. “The First Amendment, however, does not allow the city to pick and choose like that.” …

[McSwain said that some of the prohibited] events regularly include overtly political speech and criticism of public officials, which the First Amendment was designed to protect. The Mummers Parade, for instance, includes performances parodying local politicians.

Times Union: Colonie proposes law to fine ‘aggressive’ panhandlers

By Rebecca Carballo

The town of Colonie will be introducing legislation Thursday night that would allow individuals to be fined for “aggressive” panhandling…

However, there could be some First Amendment issues with the proposed law, Cameron Macdonald, Executive Director of the Government Justice Center, said.

He said the law could be seen as an infringement of free speech because it targets a specific type of speech. Many panhandlers stand at traffic signals holding signs…

“For instance, on election day you see people on a corner waving candidates signs and honking,” Macdonald said. “They are certainly singling out one type of speech.”

Tiffany Donnelly

Tiffany Donnelly


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