Supreme Court
National Review: The Solicitor General Should Tell the Supreme Court to Hear Americans for Prosperity Foundation v. Becerra
By Dan McLaughlin
The Supreme Court has the chance to decide whether a state can routinely compel nonprofits to disclose their donors. You might think that issue was settled in 1958, in NAACP v. Alabama ex rel. Patterson, which established that the First Amendment right to association required protecting the privacy of a group’s members and supporters. That right is especially important to advocacy groups that are unpopular with a state’s governing majority, as the NAACP was in Alabama in 1958.
Numerous federal circuits have agreed since then. The Ninth Circuit, however, has gone the other way in a case involving the Americans for Prosperity Foundation (a frequent target of left-wing ire and conspiracy theory for its ties to the Koch brothers) and the Thomas More Law Center, a conservative Christian legal advocacy group. AFPF and Thomas More have petitioned the Supreme Court for review. Twenty-two amicus briefs were filed asking the Court to take the case. In the Ninth Circuit, the petitioners’ position was supported by the NAACP Legal Defense and Education Fund, which retains a historic stake in this issue.
[Ed. note: The Institute for Free Speech filed an amicus brief in AFPF v. Becerra in support of the petitioners. We also filed a related lawsuit challenging then-Attorney General Kamala Harris’s demand for nonprofit Schedule B information in IFS v. Becerra. Read more about that case here.]
The Courts
Colorado Politics: Judge denies advocacy group’s attempt to suspend Colo. campaign finance enforcement
By Michael Karlik
A federal judge has denied a conservative advocacy group’s request to halt campaign finance investigations against committees that advocate for or against ballot initiatives.
Colorado law requires organizations whose major purpose is campaigning on ballot initiatives to register an issue committee if they have accepted or expended more than $200. Committees that accept or spend more than $5,000 in an election cycle must also disclose their donors and the nature of their spending. Below that amount, they are known as small-scale issue committees.
The Colorado Union of Taxpayers and the Colorado Stop the Wolf Coalition filed a federal complaint on Sept. 11 claiming the registration requirement was unconstitutional, and that the First Amendment “gives all Americans the right to speak freely on matters of public concern without obtaining government blessing or fearing government penalty.” …
CUT wrote in its federal complaint that it “plans to speak about, oppose, and support” various ballot measures, including the proposed state income tax reduction and the National Popular Vote Interstate Compact referendum. The group indicated it also “wanted” to speak about Proposition CC in 2019, but “the vagueness and uncertainty of Colorado’s campaign finance laws, the burdens of registering and reporting as an issue committee, and the potential consequences of non-compliance with the campaign finance regime deterred CUT from doing so.”
Wall Street Journal: Businessman Pleads Guilty in Probe of Giuliani Associates
By Rebecca Davis O’Brien
A Florida businessman pleaded guilty Thursday to charges that he duped potential investors in a fraud-insurance company and that he helped associates of Rudy Giuliani lie to federal election officials about a $325,000 donation to a super PAC supporting President Trump.
Congress
Politico: POLITICO Playbook PM: Pelosi details the 2021 Dem agenda
By Anna Palmer, Jake Sherman, Eli Okun, and Garrett Ross
Speaker Nancy Pelosi said this morning she is “very confident” Joe Biden will be elected president next week, and she laid out what she saw as the Democratic Party’s governing agenda come January…
“We have plenty of work to do in a Joe Biden administration,” Pelosi told reporters in the Capitol. ” … We’re going to have H.R. 1 … right off the bat, be about cleaner government so that we can reduce the role of big, dark, special-interest money that prevents us from having policies that the American people need and … have doubts that we can do unless we reduce the role of big dark money. … Of course this will be impacted by Joe Biden’s agenda — his Build America Better is similar to our Moving America Forward.”
Right to Protest
Bloomberg Law: Scabby the Rat Heads to Showdown as NLRB Weighs Protest Limits
By Ian Kullgren
The National Labor Relations Board will review the circumstances under which unions can display a massive inflatable rat at protests, despite court findings that its use is protected by the First Amendment.
Washington Post: Peaceful assembly can’t happen without the option of gun-free events
By Ian Ayres and Fredrick Vars
The Second Amendment right to bear arms cannot coexist with the First Amendment “right of the people peaceably to assemble.” The presence of counterprotesters carrying deadly weapons has had a chilling effect on the rights of others to engage in expressive association…
A simple legal change can go a long way toward accommodating both constitutional interests. States and cities should give their citizens the right to choose to assemble without firearms.
The Media
Greenwald: My Resignation From The Intercept
By Glenn Greenwald
Today I sent my intention to resign from The Intercept, the news outlet I co-founded in 2013 with Jeremy Scahill and Laura Poitras, as well as from its parent company First Look Media.
The final, precipitating cause is that The Intercept’s editors, in violation of my contractual right of editorial freedom, censored an article I wrote this week, refusing to publish it unless I remove all sections critical of Democratic presidential candidate Joe Biden, the candidate vehemently supported by all New-York-based Intercept editors involved in this effort at suppression.
Reporting by Matt Taibbi: Glenn Greenwald On His Resignation From The Intercept
By Matt Taibbi
The Intercept and many media outlets have gotten turned around by the Trump phenomenon. It’s a difficult time for reporters, with an unstable and potentially dangerous president. Some have been convinced to change the way they used to do business, to make sure they are not accused of having helped such a person get elected.
Many in the press have therefore talked themselves into the proposition that questioning things like the Trump-Russia collusion theory, or the reflexive dismissal of adverse information about politicians like Biden as foreign disinformation, can have no purpose beyond pro-Trump partisanship. In service of this, they’ve surrendered their own traditional roles as questioners and arbiters of fact, giving that power over to the same people and institutions whose poor performance, record of deception, and corruption helped inspire voters to make such a desperate choice in Trump in the first place. They’ve not only allowed intelligence community narratives to drive the press, they’ve invited it.
By Dave Levinthal
The vast majority of working journalists do not contribute money to political campaigns and committees, adhering to a decades-old industry norm that frowns on their participating in partisan politics.
But dozens of outliers – reporters, editors, photojournalists, and other newsroom professionals at outlets large and small – have contributed money to political candidates and committees during this election, according to an Insider analysis of campaign-contribution records filed with the Federal Election Commission and recent interviews with most of the journalists or their bosses. Many do not primarily cover or edit national political news, though some do.
These journalists sometimes made their political donations in violation of strict newsroom policies, and some expressed concern they’d be punished – even fired – if their supervisors found out.
After Insider’s inquiries this month, at least two news organizations, the Los Angeles Times and The Hill, confirmed that they had, even before this story’s publication, reprimanded journalists who had recently made political contributions.
Other reporters and editors took a defensive stance, arguing they had a constitutional right – newsroom policies be damned – to legally spend their own money as they pleased.
Independent Groups
ESPN: Election 2020: How sports owners hide political donations from players and fans
By Baxter Holmes
During a recent weekend gathering, an NBA owner ranted to confidants about the upcoming presidential election…
“Listen,” the owner mused, “I’m so worried about Biden’s regulations, so I’m funding as much as I can privately and confidentially to get Trump reelected. I know he’s crazy, and I hope Democrats take the House and the Senate, but then Trump can block stuff and protect us on the taxes and regulation.”
The source who was present is involved in ownership groups across leagues, and that source relayed that moment in response to a question:
Are professional sports team owners making political donations privately, in ways that not only shield their identity but shield them from backlash from their own players, staffers and fans?
The answer was a resounding yes — and it happens regularly.
Online Speech Platforms
The Federalist: Twitter Suspends U.S. Border Chief For Celebrating Wall’s Protection From Illegal Aliens
By Tristan Justice
Twitter suspended U.S. Customs and Border Protection (CBP) Commissioner Mark Morgan for a post celebrating the success of the U.S. southern border wall keeping violent criminals from reaching American communities.
According to screenshots shared exclusively with The Federalist, Twitter locked Morgan’s account Wednesday afternoon for apparently violating platform rules governing “hateful conduct” after the commissioner attempted to tweet about the wall’s benefits.
“You may not promote violence against, threaten, or harass other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease,” Twitter wrote in an email explaining the suspension. As is clear from the banned post’s text, the commissioner did not threaten anyone based on race, national origin, or anything else.
Slate: Revising the Law That Lets Platforms Moderate Content Will Silence Marginalized Voices
By Billy Easley
Queer people have a microphone on the internet that they were denied consistently for generations. The hostility and indifference from the mainstream have dialed back significantly for numerous reasons, and one of them is because the internet made it almost impossible to ignore us. It gave us a platform to speak freely, and we used it to tell our stories and our truths. If Section 230 is narrowed or revoked, that platform will remain, but it will be diminished. There are likely marginalized groups today who have not yet come to more mainstream acceptance that will be denied this same opportunity if they do not have open internet platforms that allow users to generate their own content.
But policymakers on both the right and left who are attacking Section 230 aren’t reckoning with the costs of their positions. Instead, they’ve settled it as an easy way to demonstrate legitimate frustration with social media platforms and their moderating practices.
Politico: Is Twitter Going Full Resistance? Here’s the Woman Driving the Change.
By Nancy Scola
It was a bold idea-no other major American platform had simply banned political ads-and [Twitter CEO Jack] Dorsey wasn’t immediately sold. For one thing, the company had built itself around a commitment to hosting a free-flowing public conversation. [Vijaya] Gadde-officially Twitter’s head of legal, policy and trust-pressed her case, and she had allies on the idea inside the building, including the head of Twitter’s trust and safety team. Within days Dorsey signed off on the idea, announcing a global ban on political ads on October 30, 2019, in an 11-tweet thread detailing the company’s reasoning.
For those who know the inner workings of Twitter, it was another sign of the rising influence of Gadde, the connected, liberal-leaning lawyer who has helped drive the company to more heavily regulate what users can say and post. Twitter’s new rules, from the ad ban to its deletion of controversial Covid-19 tweets, have rippled through Silicon Valley and caused huge blowback in American politics, where many-especially conservatives-now see Twitter as unfriendly territory.
Candidates and Campaigns
New York Times: In This Strange Election Year, Foreign Embassies Find Little Access to Democrats
By Lara Jakes, Mark Landler, and Jonathan Martin
Mr. Biden’s campaign, concerned over any possible perception of foreign meddling in the presidential election – or any comparison to Russian interference on President Trump’s behalf in 2016 – has ordered its high command to refuse nearly all conversations with foreign officials or members of Washington’s diplomatic corps, campaign officials said.
New York Times: To Do Politics or Not Do Politics? Tech Start-Ups Are Divided
By Erin Griffith and Nathaniel Popper
Start-ups such as the cryptocurrency company Coinbase and the audio app Clubhouse have become embroiled in a debate over how much politics should be part of the workplace…
“I have never seen another instance like this in my career,” said Bradley Tusk, a venture capitalist and political consultant. “There’s no real separation anymore, in the current political climate, between politics and everything else. It has permeated absolutely everything.” …
Katie Jacobs Stanton, who invests in start-ups through her venture capital firm, Moxxie Ventures, says founders who build companies with millions of users “really have an obligation to have a point of view and make sure their products are being used for good.”
“It’s disingenuous and it’s also the luxury of the privileged to say, ‘We don’t have a point of view,'” she added.
But others said they feared becoming a lightning rod or inflaming tensions at a hypersensitive moment during the coronavirus pandemic. Some worried that their companies could be sued by employees who might say they were discriminated against because of their political beliefs. Others said any move could be attacked by those who found the actions inauthentic or not enough.
The States
Associated Press: Wisconsin Republican Party says hackers stole $2.3 million
By Scott Bauer
Hackers have stolen $2.3 million from the Wisconsin Republican Party’s account that was being used to help reelect President Donald Trump in the key battleground state, the party’s chairman told The Associated Press on Thursday.
The party noticed the suspicious activity on Oct. 22 and contacted the FBI on Friday, said Republican Party Chairman Andrew Hitt…
Hitt said he was not aware of any other state GOP being targeted for a similar hack, but state parties were warned at the Republican National Convention this summer to be on the lookout for cyber attacks.
Reason (Volokh Conspiracy): No Recall of Councilman for Criticizing Coronavirus Shutdown Order, Says Washington S. Ct.
By Eugene Volokh
From a Washington Supreme Court unanimous opinion today in In re Recall of White (written by Justice González):
