Supreme Court
Techdirt: The Supreme Court Needs To Reverse The Fifth Circuit’s Awful Ruling In The DeRay McKesson Case
By Tim Cushing
Whenever our nation’s court system resumes to normalcy, there will hopefully be another case on the Supreme Court docket that could clarify if someone who engages in protected speech can be held responsible for violent actions of someone else at the same protest.
Activist DeRay McKesson participated in a Black Lives Matter protest in Baton Rouge, Louisiana following the shooting of Alton Brown by police officers. During this protest, someone threw a chunk of concrete at a cop, injuring him. The officer — known only as “John Doe” in his filings — sued McKesson (along with the entire Black Lives Matter movement and, inexplicably, a set of Twitter hashtags).
Forbes: Rising Income Inequality Is Direct Result Of Campaign Finance Cases
By Lawrence Carrel
The massive rise in income inequality in the U.S. is directly related to campaign finance cases, such as Citizens United, being decided in favor of society’s top earners, said a constitutional scholar in his recent book.
These cases have also led to the huge increase in household and government debt, which is artificially propping up the economy’s demand curve and could have severe repercussions as the country tries to emerge from the Covid-19 economic lockdown. It could also lead to more economic downturns in the future.
Not only are campaign finance cases the driving force behind income inequality, but they also correlate with the decline of economic regulation, the rise in U.S. debt, the decline of the middle class, and huge tax cuts disproportionately going to the very wealthy, said John Attanasio, the author of “Politics and Capital: Auctioning the American Dream” in an interview with Forbes.com. Attanasio served as the dean of two law schools and was the first Fulbright lecturer to teach American constitutional law in the Soviet Union.
IRS
Idaho Statesman: IFF accused of disobeying IRS rules by encouraging Idahoans to disobey governor
By Cynthia Sewell
A complaint has been filed with the Internal Revenue Service to investigate the activities of an Idaho nonprofit organization for possible violations of federal rules under which a nonprofit must operate.
The complaint alleges Idaho Freedom Foundation, a libertarian policy group, violated nonprofit organization rules by “supporting illegal activities” and “engaging in excessive lobbying activities.”…
“[W]hat prompted me to finally file a complaint was when I saw them encouraging people to violate the governor’s stay-at-home order,” said Carrie Scheid of Idaho Falls. “Engaging in illegal activities and planning and sponsoring illegal activities are incompatible with IRS rules for charity,” she said…
Scheid alleges one way the foundation directly attempts to influence legislation is through its “Freedom Index,” which grades how each Idaho legislator’s voting record meshes with IFF’s agenda…
“The IFF uses social media to pressure Idaho legislators to vote consistent with their published scores on bills that the IFF’s either supports or opposes. The IFF then scores the legislators on how they vote and shares that information with thousands of voters through social media,” Scheid continued. “As a result of this political lobbying pressure, many Idaho legislators are reluctant to vote against IFF’s interests.”
First Amendment
FIRE: So to Speak podcast: The Constitution in the age of COVID-19 with Professor Josh Blackman
By Nico Perrino
With much of the country under stay-at-home orders due to COVID-19, what do these orders mean for the five freedoms of the First Amendment?
On today’s episode of So to Speak: The Free Speech Podcast, constitutional law expert Josh Blackman will help us break it all down. Blackman is a professor of law at the South Texas College of Law in Houston and the author of three books, including his recently co-authored book with Professor Randy E. Barnett, “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.”
Online Speech Platforms
YouTube Blog: Expanding fact checks on YouTube to the United States
[W]e’re continuing to improve the news experience on YouTube, including raising up authoritative sources of information across the site. Today, we’re continuing this work by expanding our fact check information panels – which we launched in Brazil and India last year – to the United States.
The fact check feature expands upon the other ways we raise and connect people with authoritative sources. For example, our Breaking News and Top News shelves help our viewers find information from authoritative sources both on their YouTube homepage and when searching for news topics. In 2018, we introduced information panels that help surface a wide array of contextual information, from links to sources like Encyclopedia Britannica and Wikipedia for topics prone to longstanding misinformation (e.g. “flat earth” theories), or more recently, linking to the WHO, CDC or local health authorities for videos and searches related to COVID-19. We’re now using these panels to help address an additional challenge: Misinformation that comes up quickly as part of a fast-moving news cycle, where unfounded claims and uncertainty about facts are common. (For example, a false report that COVID-19 is a bio-weapon.) Our fact check information panels provide fresh context in these situations by highlighting relevant, third-party fact-checked articles above search results for relevant queries, so that our viewers can make their own informed decision about claims made in the news.
Wall Street Journal: An Experimental Ultraviolet Light Treatment for Covid-19 Takes Political Heat
By Josh Disbrow
On April 20, [the pharmaceutical company I run] put out a press release titled “Aytu BioScience Signs Exclusive Global License with Cedars-Sinai for Potential Coronavirus Treatment.” The treatment is called Healight, and it was developed by research physicians at the hospital’s Medically Associated Science and Technology Program. The technology, which has been in development since 2016, uses ultraviolet light as an antimicrobial and is a promising potential treatment for Covid-19.
Aytu and Cedars-Sinai have engaged with the Food and Drug Administration to pursue a rapid path to human use through an Emergency Use Authorization…
My team and I knew the president’s recent comments could trigger a backlash against the idea of UV light as a treatment, which might hinder our ability to get the word out. We decided to create a YouTube account, upload a video animation we had created, and tweet it out. It received some 50,000 views in 24 hours.
Then YouTube took it down. So did Vimeo. Twitter suspended our account. The narrative changed from whether UV light can be used to treat Covid-19 to “Aytu is being censored.” …
Technologies like Healight, which if borne out through clinical studies may represent a viable way to kill coronaviruses, aren’t provided the clear-headed consideration they deserve but are instead flushed into the political mosh-pit of “us vs. them.”
Twitter, YouTube and Vimeo are under enormous pressure from political activists. They also need to ensure that information on their platforms is safe and accurate. That’s exactly why Aytu decided to post videos and tweet about Healight.
Wall Street Journal: How My Joke on Twitter Became a Federal Case
By Ben Domenech
I’m under federal investigation for making a joke on Twitter.
In June 2019, employees at the left-liberal Vox Media Inc. walked off the job demanding a new collective bargaining agreement. As the publisher of a conservative website, the Federalist, I found the clash ironic. I tweeted: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”
Although Twitter leftists were enraged, my employees were amused. They joked about selling branded salt-shakers and writing sympathetic vignettes about union rebels from Federalist salt mines.
Then things took an unfunny turn. The National Labor Relations Board informed me that the leftist writer Matt Bruenig had filed a formal complaint about my tweet. He withdrew it, but Joel Fleming, a Massachusetts lawyer, filed another.
Mr. Fleming alleged I had violated Section 8(a)(1) of the Wagner Act, which states that “it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7”-namely the rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Candidates and Campaigns
Washington Post: Thousands of candidates reinventing politics on the fly for the age of pandemic
By Michael Scherer
While much of the attention has focused on former vice president Joe Biden, the presumptive Democratic presidential nominee, hunkering down in his Delaware basement to record his podcast, or President Trump seeking to monopolize the evening television airwaves, covid-19 has swiftly transformed all corners of the political universe.
Local candidates and name-brand leaders alike have been forced to abandon rallies, community centers and campaign offices…
Entire organizations have pivoted to meet the moment. Senior Republican officials, who have hundreds of Zoom meetups scheduled at any moment, boast of field organizers delivering groceries for homebound turnout targets. The Florida Democratic Party calls its 6 p.m. virtual phone banks “wine downs,” encouraging drinking and conversation in an effort to make the events more social.
That’s created a campaign like no other.
ProMarket: How Barack Obama Spurred the End of America’s Public Presidential Election Funding System
By Julia Cagé
Through 2004, all candidates in the general presidential election opted for public funding and reimbursement of their campaign expenses. Then, in 2008, Barack Obama became the first to give up this public funding, so that he could spend more than the limit of $84.1 million (which his opponent, John McCain, adhered to). Obama’s decision in 2008 marked the beginning of the end for the public funding of democracy in the United States, and since 2012 all candidates in the general presidential election have systematically rejected public funding. To repeat: their aim in doing this has been to avoid any constraints on the total amount they can spend.
The States
The Atlantic: States Are Using the Pandemic to Roll Back Americans’ Rights
By Ronald J. Krotoszynski, Jr.
Last month, Kentucky, South Dakota, and West Virginia all adopted statutes that criminalize protests of fossil-fuel development and also enable energy companies to seek damages from protest organizers. The newly enacted laws designate “natural gas or petroleum pipelines” as “key infrastructure assets” and criminalize “tampering with, impeding, or inhibiting operations of a key infrastructure asset.” The Kentucky law, passed by a GOP-controlled legislature and signed into law by the state’s Democratic governor, Andy Beshear, provides both criminal and civil penalties for anyone who damages property or for any person or organization that “directs or causes a person to violate” the law.
West Virginia’s new law is substantially similar. The West Virginia Critical Infrastructure Protection Act threatens environmental protesters with both fines and criminal sanctions. At a state legislative committee’s public hearing on the bill, Reverend Jim Lewis, an Episcopal minister, correctly observed, “This bill is designed to chill protesters.” Like Kentucky’s new law, the West Virginia statute makes “conspiring” to cause or inciting trespass or damage to fossil-fuel facilities a legal basis for imposing civil and criminal liability on protest organizers (including mainstream public-interest organizations). Accordingly, this law, like Kentucky’s, will have a profound chilling effect on perfectly lawful speech.
Portland Mercury: Portland Will Begin Enforcing Voter-Approved Campaign Contribution Limits
By Alex Zielinski
The City of Portland will start enforcing a policy that limits campaign donations in city elections-nearly one and a half years after Portland voters approved it.
On April 23, the Oregon Supreme Court reversed a lower court’s decision that Multnomah County’s policy capping individual donations for county campaigns at $500 was unconstitutional. That Multnomah County policy had not been enforced since it was approved by county voters in 2016, as it faced an immediate legal challenge from monied lobbyist groups. However, that didn’t stop Portland voters from passing a nearly identical rule for its city elections in 2018. The idea was to have a city policy ready to enact (or, if things went poorly, revoke) as soon the courts made a decision on the Multnomah County policy.
That plan is now playing out.
Portland’s elections office announced Tuesday that, because of the Supreme Court’s decision, the city would begin enforcing its campaign finance rule on Monday, May 4.
The policy explicitly caps campaign donations by individuals or Political Action Committees (PAC) at $500 per election. Starting next week, these new limitations will apply to all three Portland City Council races and campaigns for the Mayor of Portland. Candidates who violate the new donation limits will fines of up to $3,000 per violation.
Wall Street Journal: You Must Wear a Mask-or You May Not
By Randy Maniloff
Georgia’s Gov. Brian Kemp signed an order suspending his state’s 1951 law that makes it a misdemeanor to wear, on public property, “a mask, hood, or device by which any portion of the face is so hidden” that it conceals one’s identity. The law has a few exceptions, including Halloween costumes and masquerade balls…
Virginia’s 1950 antimask law is similar to Georgia’s but comes with an impressively farsighted exception for a declaration of a state of emergency “in response to a public health emergency.”
Some antimask laws, including Georgia’s and Virginia’s, were enacted to prevent members of the Ku Klux Klan from concealing their identities. In State v. Miller (1990), a Klansman unsuccessfully challenged the statute on First Amendment grounds. The Georgia Supreme Court held that the statute passes constitutional muster when applied against a citizen who knows, or should know, that the mask “gives rise to a reasonable apprehension of intimidation, threats or impending violence.”
In 1999, a federal district court ordered New York to allow masked Klansmen to rally near City Hall. The Second U.S. Circuit Court of Appeals partly reversed, holding that the state’s antimask law could be enforced, and the Klansmen held a bare-faced rally.
