New from the Institute for Free Speech
Together Apart: During Pandemic, Online Groups Are More Important Than Ever
By Tiffany Donnelly
Although the COVID-19 crisis has made “social distancing” our national mantra, the only separation we need is physical. Thanks to the internet, we can maintain our social bonds by forming, organizing, and participating in groups online. Even when we’re stuck at home, the groups we join to support shared causes continue to give us a voice in Washington and our state capitals.
Freedom of association is vital to democracy. Joining a group with like-minded Americans allows us to express and test new ideas and contribute to robust debate that advances the general welfare. Since meeting in person, while still an important right, currently poses dangerous health risks, it is now more important than ever for groups to assemble online…
The entire world is going through a tough time right now. Some things are out of our control. But as Americans, we recognize what’s in our grasp, we roll up our sleeves, and we get to work. Group associations enhance our ability to make a difference, even from the safety of our own homes.
The Courts
AZ Central: Federal judge rejects bid to allow online signature collection for Arizona ballot measures
By Andrew Oxford, Arizona Republic
A federal judge rejected a request by two ballot measure campaigns to collect petition signatures from voters online as an alternative to dispatching volunteers with clipboards during a pandemic…
U.S. District Court Judge Dominic Lanza said the Arizona Constitution requires initiative campaigns to collect signatures from supporters in person.
“Although the public has a strong interest in enacting laws through the initiative process, and although the court is loathe to take any action (or inaction) that would expose Arizonans to an increased risk of harm during these challenging times, the signature requirements (the lawsuit) seeks to displace have been a part of Arizona’s constitutional and electoral landscape for over a century,” he wrote in a 30-page order.
Policymakers, or voters using the initiative process, should change the law, not a judge in a sudden and unusual lawsuit, he added.
The state Supreme Court may still weigh in on the issue in a similar lawsuit filed by other ballot measure campaigns…
[One] campaign behind the lawsuit in federal court, Arizonans for Fair Elections, indicated it has far fewer than the roughly 237,000 signatures needed by July to qualify for the ballot. Their measure proposes automatic voter registration and tougher lobbying laws.
By Scott Shackford
A family in Oxford, Wisconsin, is suing the local sheriff’s department after a patrol sergeant threatened to arrest a teenage girl for disorderly conduct for posting on Instagram about being infected with COVID-19…
Now the Wisconsin Institute of Law and Liberty is suing Sheriff Joseph Konrath and Patrol Sergeant Cameron Klump in the U.S. District Court for the Eastern District of Wisconsin for violating [the teenager’s] First and 14th Amendment rights. Her Instagram posts are protected speech, the Institute argues, and there was nothing about her posts that violated the county’s disorderly conduct law, and even if they did, the Wisconsin Supreme Court has held that disorderly conduct statutes in the state cannot be applied to speech protected by the First Amendment…
The Sentinel reports:
Sam Hall, an attorney for the sheriff, said the teenager “caused distress and panic” among other parents by claiming she had contracted the coronavirus despite getting a negative test result.
“This case is nothing more than a 2020 version of screaming fire in a crowded theater,” he said, referring to speech that is not protected by the First Amendment.
That the sheriff’s lawyer is misusing the much-maligned “fire in a crowded theater” argument from Schenck v. United States is a huge tell that these guys don’t have a leg to stand on. It’s a bad argument, a bad precedent (it was about censoring anti-war activism), and the Supreme Court has subsequently weakened that decision and broadened our free speech protections…
Read the complaint here.
First Amendment
The Hill: It’s our right – and duty – to question those deciding America’s fate
By Douglas MacKinnon
When in the United States of America did it become objectionable, or considered outright wrong, to question the wisdom and policies of our politicians, bureaucrats and “experts”? If “we are all in this together,” as people have been declaring about the fight against COVID-19, then shouldn’t we all have a say in our collective fate? That should be the right of every American citizen, even those who disagree with states’ shelter-at-home and business closure orders.
When did it become wrong, or a crime punishable by arrest, for Americans to peacefully protest a governor’s stay-at-home order, as happened recently in Raleigh, N.C.? Evidently our right to peacefully protest has become a “non-essential activity” to be broken up by the police…
[S]ome Americans still believe they have a right to question any groupthink, on any issue, without being labeled “suspect,” “dangerous,” or “a threat.” …
As Americans, no matter our political affiliation or ideology, we have the right to question anyone who holds dominion over our fate. We should not allow a pandemic to worsen our situation by stripping us of our inalienable rights.
Washington Post: Trump’s ‘LIBERATE MICHIGAN!’ tweets incite insurrection. That’s illegal.
By Mary McCord
President Trump incited insurrection Friday against the duly elected governors of the states of Michigan, Minnesota and Virginia…
Trump tweeted, “LIBERATE MINNESOTA!” followed immediately by “LIBERATE MICHIGAN!” and then “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!” This follows Wednesday’s demonstration in Michigan, in which armed protestors surrounded the state capitol building in Lansing chanting “Lock her up!” in reference to Democratic Gov. Gretchen Whitmer, and “We will not comply,” in reference to her extension of the state’s coronavirus-related stay-at-home order…
Trump has a bully pulpit unlike an ordinary citizen. His twitter account boasts over 77 million followers, but many more see his tweets when they’re retweeted by others, posted on other social media and covered by media outlets…
That’s why we can’t write these tweets off as just hyperbole or political banter. And that’s why these tweets aren’t protected free speech. Although generally advocating for the use of force or violation of law is protected (as hard to conceive as that may be when the statements are made by someone in a position of public trust, like the president of the United States), the Supreme Court has previously articulated that where such advocacy is “inciting or producing imminent lawless action and is likely to incite or produce such action,” it loses its First Amendment protection.
Media
The Hill: Propaganda in the coronavirus era
By John Maxwell Hamilton and Kevin Kosar
The word “propaganda” has carried a dirty connotation since it became a pervasive systematic government activity, both here and abroad, during World War One. However, the word should not be considered strictly pejorative. The control of propaganda marks one of the thorniest problems of democracy, in part because it is needed. Like the deadly nightshade plant, which can promote sanity or bewitch, depending on how the potion is administered, government information can sustain democracy or undermine it.
President Wilson created the Committee on Public Information, the first and only propaganda ministry in the country, in World War One. Because of this establishment and his commanding speaking ability, he was called “the greatest propagandist known to the modern world.” …
This propaganda led people on a mass scale to take on the equivalent of social distancing and hand washing today. They enlisted, conserved fruit, bought war bonds, and donated thousands of binoculars to the Navy. The Committee on Public Information pioneered the idea of public diplomacy abroad. Its daily newspaper paved the way for the Federal Register, which makes government actions more transparent. It also had another legacy. It is often blamed for harmfully suppressing information about the Spanish flu but, in fact, it provided reports on the pandemic. President Wilson did suppress political speech and criticism by passing effective laws to allow censorship and by making unwanted comments seem traitorous.
Reporters Committee: A court ruled that Kesha’s former producer, ‘Dr. Luke,’ isn’t a ‘public figure.’ Here’s why that’s a problem.
By Courtney Douglas
In February, a New York trial court dealt a blow to pop star Kesha, ruling that the American music producer she accused of misconduct is not a “public figure.” …
The ruling could have a chilling effect on women who speak out against alleged abuse in the wake of the #MeToo movement, and it has troubling implications for journalists seeking to hold the wealthy and powerful accountable, according to a friend-of-the-court brief filed last week by a 17-member media coalition led by the Reporters Committee for Freedom of the Press.
The media coalition filed the brief with a New York appeals court, where Kesha is challenging the trial court’s decision…
“Just as much as this court’s decision could silence women who seek to speak out against alleged abuses, it undercuts journalists’ ability to hold people in power to account,” said Reporters Committee staff attorney Caitlin Vogus. “It’s vital to ensure the law protects the press from lawsuits that could otherwise chill reporting on important public figures with significant influence on our culture and society.”
Fundraising
Politico: Trump-backed online donor platform launches at state level ahead of redistricting
By Scott Bland
The GOP online donation platform endorsed by President Donald Trump is opening up to state legislative candidates and others outside federal office, hoping to drive a big financial boost for Republicans in the states ahead of the 2020 elections and next year’s redistricting.
WinRed, which launched last year, is partnering with the Republican State Leadership Committee to make the platform available to state-level GOP candidates, another step in the group’s drive to get the entire Republican Party using one system for digital fundraising. The platform offers features including one-click donating, the ability to set recurring donations and optimized fundraising pages…
“Starting now, any local mayor, statehouse candidate, statewide race, or anyone running for dogcatcher has access to the same platform and tools the president of the United States does,” said Gerrit Lansing, WinRed’s president.
Online Speech Platforms
Washington Post: Pro-gun activists using Facebook groups to push anti-quarantine protests
By Isaac Stanley-Becker and Tony Romm
A trio of far-right, pro-gun provocateurs is behind some of the largest Facebook groups calling for anti-quarantine protests around the country, offering the latest illustration that some seemingly organic demonstrations are being engineered by a network of conservative activists.
The Facebook groups target Wisconsin, Ohio, Pennsylvania and New York…
Facebook said Sunday it did not remove the groups or events partly because states have not outlawed the activity. Organizers also have called for “drive-in” protests, in keeping with recommendations that people keep a short distance between each other. In other cases, involving protests planned for states like New Jersey and California, the company has removed that content, Facebook said.
“Unless government prohibits the event during this time, we allow it to be organized on Facebook. For this same reason, events that defy government’s guidance on social distancing aren’t allowed on Facebook,” said Andy Stone, a spokesman for the company.
Candidates and Campaigns
HuffPost: Trump Campaign Secretly Paying $180,000 A Year To His Sons’ Significant Others
By S.V. Date
President Donald Trump’s campaign is secretly paying one Trump son’s wife and another one’s girlfriend $180,000 a year each through the campaign manager’s private company, according to top Republicans with knowledge of the payments.
Kimberly Guilfoyle, the girlfriend of eldest son Donald Trump Jr., and Lara Trump, wife of middle son Eric Trump, are each receiving $15,000 a month, according to two GOP sources who are informal White House advisers and who spoke on condition of anonymity.
They were unsure when the payments began but say they are being made by campaign manager Bradley Parscale through his company rather than directly by either the campaign or the party in order to avoid public reporting requirements.
“I can pay them however I want to pay them,” Parscale told HuffPost on Friday…
Critics of the arrangement, including Republicans, said the setup was designed to get around Federal Election Commission rules that require campaigns, political parties and other committees to disclose their spending in detail.
“A lot of people close to Donald Trump are getting rich off of his campaign,” said Paul Ryan, a campaign finance legal expert at the watchdog group Common Cause. “They don’t want donors to know that they’re getting rich. Because, at the end of the day, it’s donor money.”
Stuart Stevens, a top aide to 2012 GOP nominee Mitt Romney’s campaign, was even more blunt: “That’s why Parscale has the job. He’s a money launderer, not a campaign manager.”
The States
News & Observer: Group opposed to NC stay-at-home order demands protection from arrest while protesting
By Steve Wiseman and Will Doran
After the arrest of a protester at Tuesday’s rally against Gov. Roy Cooper’s pandemic-spawned executive orders, a group opposing the strict social restrictions is seeking legal protection.
Lawyers Anthony Biller and James Lawrence, Raleigh-based lawyers with the law firm Michael Best & Friedrich representing ReOpenNC, sent a letter to Cooper and Wake County Board of Commissioners Chairman Greg Ford on Friday asking for assurances they’ll be able to protest.
According to the letter, the protesters want written clarification that protests are considered essential activities and thus not subject to executive orders’ restrictions on mass gatherings…
The protest organizers are willing to stay six feet apart unless they are members of the same household, one of the requirements of Cooper’s stay-at-home order. Being declared essential would mean they couldn’t be prosecuted under the provision that bans mass gatherings of more than 10 people…
The lawyers also demand charges against 51-year-old Monica Faith Ussery, the Holly Springs woman arrested and charged with violating Cooper’s order last Tuesday, be dismissed…
Since Ussery was arrested while protesting the executive order that led to her arrest, two Republican state senators sent Cooper a letter last week asking if he intended to criminalize “the act of protesting against your executive orders.”
Washington Examiner: Protest organizer charged for violating New Jersey’s stay-at-home orders
By Emma Colton
A New Jersey woman was charged for organizing a “prohibited event” against Democratic Gov. Phil Murphy’s stay-at-home orders during the coronavirus pandemic.
Kim Pagan was charged Friday after organizing a protest outside of Trenton’s Statehouse demanding New Jersey reopen its economy so workers can get back to their jobs. Pagan was not arrested but instead was issued a summons. Violations of emergency orders carry a sentence of up to six months in prison and a $1,000 fine.
“It was a peaceful protest, and the streets were not gridlocked as seen during other protests in other states. However, officers still wrote summonses to those in their cars. There was at least one arrest. This infringement on the First Amendment will not stand. We offer our support to those fighting this,” Central Jersey Libertarians posted on its Facebook page.
Washington Post: Racine’s public corruption division will be a welcome addition to D.C. government
By Editorial Board
Several agencies exist to enforce rules against public corruption in D.C. government, but the results – and we’re being charitable here – have been mixed. The office that is supposed to enforce campaign finance laws lacks any real initiative and tends to be lenient in its treatment of violations. The ethics and government accountability board that started out with such great promise seems to have lost its vigor and sense of mission. And the U.S. attorney’s office that has the clout and authority to crack down on local corruption runs hot and cold as national and international matters compete for its attention. Good, then, that D.C. Attorney General Karl A. Racine has signaled his plans to make this issue a priority.
Mr. Racine, the District’s first elected attorney general and now in his second term, announced plans last month to create a public corruption division in his office that would target bribery, fraud, campaign violations and other forms of misuse and misappropriation of government resources.
San Antonio Express-News: State commission wants judge to banish rainbow flag
By Gilbert Garcia
Rosie Speedlin Gonzalez is a baby boomer who grew up in Brownsville…
When Gonzalez took over the County Court at Law No. 13 bench in January 2019, as the first openly gay judge elected in Bexar County, she decided to honor that cause.
Alongside the U.S. and Texas flags displayed behind her bench, she placed a rainbow flag given to her by Orgullo de San Antonio, the local LGBTQ council of the League of United Latin American Citizens.
That flag, which stands for equality, self-acceptance and pride for a group of people who have been relentlessly oppressed in this society, quickly drew the ire of Flavio Hernandez, a San Antonio criminal defense attorney.
Last April, Hernandez filed a motion to recuse Gonzalez from presiding over any case he handled. He also filed a complaint with the State Commission on Judicial Conduct over the rainbow flag.
In response, the commission issued a private warning last month to Gonzalez, stating the flag created the appearance of a partisan bias on her part. Any hint of rainbows – including her rainbow pen, rainbow mouse pad and glasses with rainbow colors on the sides – had to go.
Gonzalez plans to appeal that decision…
“Judges all over the state of Texas have a right to express their First Amendment rights. They don’t lose that right when they become elected,” said Deanna Whitley, Gonzalez’s attorney.
“Judges might have a Mothers Against Drunk Driving emblem or they might have a cross or they might have a bible or a flag with a thin blue line. There was no showing that Rosie was, in any ruling, biased in favor of or against anyone.”
Reason (Volokh Conspiracy): Five Years in Prison for Posting Facebook Videos Accusing Pastor of Sexual Misconduct
By Eugene Volokh
William Edwards was sentenced to five years in prison “for posting Facebook Live videos in which he accused a local pastor of sexual misconduct.” His conviction was under Miss. Code Ann. § 97-45-17…
In Tuesday’s Edwards v. State, the Mississippi Court of Appeals held the statute was unconstitutionally overbroad, and thus overturned Edwards’ conviction; here is the analysis, which I think is quite correct:
As written, section 97-45-17 criminalizes a substantial amount of protected speech, including core political speech. For example, “the Constitution surely protects” political “attack ads.” Nonetheless, any person responsible for such political speech would be subject to criminal prosecution under section 97-45-17. After all, the point of an attack ad is to injure the targeted candidate-to damage his or her reputation or popularity and ultimately to prevent his or her election or re-election.
By its terms, the statute also criminalizes protected speech about public figures. Nothing in the statute requires the State to prove that the defendant knowingly or recklessly posted a false message. Indeed, as noted above, the statute criminalizes even perfectly truthful speech. All that must be shown under the statute is that the speaker intended to cause some “injury” to the subject…
The statute would also criminalize the Claiborne County boycott and related “peaceful political activity” that the Supreme Court held were entitled to constitutional protection in N.A.A.C.P. v. Claiborne Hardware Co. (1982).
