In the News
Cato: What’s Wrong with the Supreme Court: The Big‐Money Assault on Our Judiciary
By Ilya Shapiro
Chairman Whitehouse, Ranking Member Kennedy, and distinguished members of the Subcommittee, thank you for this opportunity to submit my thoughts on the alleged attempt to corrupt the Supreme Court through corporate influence and “big money.” …
[F]ormer Federal Election Commission chairman Bradley Smith explained that so‐called dark‐money groups — nonprofit public policy organizations, not political committees — are much less significant than they’re made out to be. Since Citizens United allowed nonprofits, labor unions, and corporations to spend on electioneering in 2010, those groups labeled as “dark money” have usually accounted for 3–5% of total campaign spending. From January 2019 through July 2020, however, that number was under 1%. FEC data shows that of the more than $6.2 billion spent on federal campaigns during that period, “dark money” only totaled about $20.8 million, which is 0.3% of the total.
Setting aside that issue of efficacy, as well as the unequal treatment and viewpoint‐based discrimination, the Judicial Ads Act threatens to complicate our already unworkable campaign‐finance law by adding special rules for independent speakers who happen to speak about judicial nominations.
The Policy Circle: Examining H.R. 1: For the People Act
The Institute for Free Speech notes the provisions in H.R. 1 “are so complex and open to so many possible interpretations that the Institute’s views may well understate the chill this legislation would impose on speech.”
The bill has also resulted in some unusual allies: the RNC and the ACLU. The ACLU told lawmakers in 2019 that it opposed the bill. The group said it supported provisions to expand voting rights but opposed campaign finance provisions that it said would limit free speech. The group told lawmakers this month that it had “significant constitutional concerns” about the legislation as proposed, which the Republican National Committee chair shared.
Supreme Court
National Review: Clarence Thomas Delivers Decisive Ruling in Religious-Free-Speech Case
By Dan McLaughlin
What could be more American than a religious-free-speech lawsuit with the name Uzuegbunam v. Preczewski? At issue in the case is state-funded Georgia Gwinnett College’s “free speech zone” policy…
There was no question here that Uzuegbunam suffered an injury traceable to Georgia Gwinnett’s actions: He was prevented from speaking about his faith in violation of core First Amendment rights. But what relief was he entitled to? He lost no money, so damages as compensation were not available. The policy was repealed, so the court couldn’t issue an injunction or a declaration to adjudicate an ongoing dispute. No court order could safeguard Uzuegbunam’s rights in the future, because he was no longer a student at the college. So he sought “nominal damages” — a judgment of just enough money that he could show the world his rights had been violated, and set a precedent to deter Georgia Gwinnett and other colleges from violating other students’ rights in such a way going forward. The alternative — dismissing such a suit every time a college gets called out and changes its policy — does less to help protect the free speech of students who may not be determined enough to take their campus administrators to court.
Congress
National Review: GOP Senators Criticize Dems on Alleged ‘Dark Money’ Double Standard
By Zachary Evans
Republican senators criticized their Democratic colleagues on the issue of “dark money” organizations at a Senate hearing on Wednesday, alleging that Democrats have no problem with dark money unless those funds go toward conservatives…
At the hearing of the Senate Subcommittee on Federal Courts, Chairman Sheldon Whitehouse (D., R.I.) implied that conservative dark-money groups like the Federalist Society hold undue influence over the U.S. Supreme Court. Whitehouse made similar allegations during the nomination hearings for Justice Amy Coney Barrett.
However, several witnesses called to the hearing by Whitehouse have connections to liberal dark-money groups…
“If you don’t like dark money, that’s one thing. If you like it, own it where you take it, but this middle ground of trying to suggest that it’s holy, it’s righteous, if it’s in support of a liberal cause — that doesn’t sit well with most people,” Senator Mike Lee (R., Utah) said during the hearing…
“It’s impossible to take Senator Sheldon Whitehouse seriously on the issue of dark money when liberal groups raise, spend and benefit from more dark money than other organizations,” Caitlin Sutherland, Executive Director of Americans for Public Trust, said in a statement on Wednesday. “As he rails against conservatives, liberal organizations such as the ACLU and NAACP are fighting in court to protect donor privacy.”
The Hill: Tillis says small-dollar giving to Democrats ‘same exact thing’ as dark money Against Critics Reversed
By John Kruzel
Sen. Thom Tillis (R-N.C.) on Wednesday said broad-based, small-dollar contributions given to Democratic candidates through online donor platforms is the “same exact thing” as political spending by well-heeled “dark money” groups who are allowed to conceal their funding sources.
During a Senate panel hearing about the influence of money over the federal judiciary, Tillis appeared to take aim at ActBlue, an app that helps Democrats and liberal groups collect individual contributions in amounts that are too small to trigger mandatory disclosure rules.
Tillis said he was open to working with Democrats on requiring more transparency from dark money groups but only if Democrats included small-dollar platforms as part of the measure, a prospect Tillis expressed doubts about.
“I don’t hear anybody on the Democratic side saying they want to get rid of those tools,” Tillis said, describing the technology with the epithet “Dem Money.”
“They simply found another way to do exactly the same thing: people providing money to candidates and influencing elections,” he said of Democrats. “They’ve just come up with a more sophisticated, broad-based policy that I doubt very seriously that they’d be willing to abandon.”
Inside Sources: Protecting a Hard-Won Right
By Rev. Dean Nelson and Phillip E. Thompson
While the circumstances surrounding the landmark Supreme Court decision of the civil rights era [NAACP v. Alabama], of course, differ greatly from today’s times, such a chilling effect on free speech is still at stake. And as the age of internet threatens to streamline the very types of intimidation tactics the Court cautioned about last century, it is as important as ever to protect against any push to create a vast virtual database capable of putting employers and neighbors a single click away from one’s private donation to, or association with, a nonprofit organization.
Scores of cautionary tales reveal the weight of this fight, including one particularly troubling example wherein African American attorney Erious Johnson Jr.’s public support for the Black Lives Matter movement on Twitter promptly put him on a government watch list of potential threats to police. That Johnson – who was digitally surveilled by the Oregon Department of Justice’s Civil Rights Division because of a pro-BLM hashtag he included in a tweet – suffered any consequence at all because he chose to broadcast his beliefs publicly is shameful in and of itself. But the sweeping provisions included in HR 1 would greatly grow the pool of those at risk for retribution to include anyone who prefers to advocate for issues about which they are passionate on an anonymous basis.
The Media
New York Times: Court Dismisses Trump Campaign’s Defamation Suit Against New York Times
By Marc Tracy
A New York State court on Tuesday dismissed a defamation lawsuit filed by the re-election campaign of Donald J. Trump against The New York Times Company, ruling that an opinion essay that argued there had been a “quid pro quo” between the candidate and Russian officials before the 2016 presidential election was protected speech.
NPR: Iowa Reporter Found Not Guilty By Jury After Arrest At Black Lives Matter Protest
By Scott Neuman
A Des Moines Register reporter has been found not guilty by an Iowa jury of failing to disperse and interfering with official acts. She was arrested by police last summer as she was covering a Black Lives Matter protest last summer.
Andrea Sahouri’s case has drawn international concerns over its implications for press freedom amid what First Amendment advocates have said is a sharp increase in recent arrests of journalists in the U.S.
Free Speech
Wall Street Journal: More Defenders of Campus Speech
By The Editorial Board
This week comes the Academic Freedom Alliance, a cross-ideological group of scholars who aim to defend faculty members’ rights to engage in unpopular speech and advocacy.
The group, announced Monday, says on its website that “our members will defend faculty members’ freedom of thought and expression in their work as researchers and writers or in their lives as citizens.” Some of the 200 members have written for these pages, such as political scientists Keith Whittington and Carol Swain and economist Luigi Zingales.
The group is also advised by litigators such as liberal First Amendment expert Floyd Abrams and the prominent conservative appellate lawyer Paul Clement. “The AFA will aid in providing legal support to faculty whose academic freedom is threatened by institutions’ or officials’ violations of constitutional, statutory, contractual, or school-based rights,” its website says.
Online Speech Platforms
Bloomberg: Parler Blocked on Apple’s App Store After Capitol Riot Review
By William Turton and Mark Gurman
Parler, the controversial conservative social media app, was denied re-entry to Apple Inc.’s App Store recently after it was kicked off the platform in the wake of the Jan. 6 Capitol riot, documents obtained by Bloomberg show…
“After having reviewed the new information, we do not believe these changes are sufficient to comply with App Store Review guidelines” Apple wrote to Parler’s chief policy officer on Feb. 25. “There is no place for hateful, racist, discriminatory content on the App Store.”
Apple included several screenshots to support the rejection. Some screenshots, reviewed by Bloomberg, show user profile pictures with swastikas and other white nationalist imagery, and user names and posts that are misogynistic, homophobic and racist.
The States
Newsweek: ‘Anti-Riot’ Measures Open a Wide Door to Censorship Against Critics Reversed
By David Voorman
Under the guise of “anti-riot” legislation, several states are considering measures ostensibly aimed at protecting public safety.
It’s an understandable pitch. Who wants to defend rioting, looting and destruction of cities and businesses? But attacking people and destroying property and businesses are already against the law.
These proposals would have more insidious effects. Laws don’t have to be called the Censorship Act of 2021 for those in power to use them to target people and ideas with which they disagree.
That’s the likely outcome if states enact “anti-riot” bills with overly broad language that make it easy for authorities to shut down First Amendment activity and arrest protesters whose ideas they don’t like. The proposals tap into legitimate concerns about real problems to justify policies that risk eroding civil liberties without enhancing public safety…
It should be deeply concerning to lawmakers who have sworn to uphold the Constitution that their legislation, wittingly or unwittingly, could be used to silence their fellow citizens.
New Mexico In Depth: Political spending transparency bill clears Senate
By Bryan Metzger
The Senate approved a bill Wednesday that would close a “loophole” in the state’s transparency laws, and would require legislators running for federal office to disclose their contributions every 10 days during the legislative session.
The loophole allows nonprofit organizations to avoid disclosing donors behind political spending if those giving the money requested in writing that their donations not be spent for political purposes, even if the group decides to use the money for politics anyway.
The amended SB 387 ultimately passed the Senate on a 35-3 vote after clearing the Senate Judiciary Committee last Friday, where State Ethics Commission Executive Director Jeremy Farris spoke in favor of the bill. The bill now heads to the House for consideration.
