In the News
Washington Examiner: Supreme Court restores privacy in smackdown of California
By Luke Wachob
When you join with others in support of a cause, state officials don’t have a right to track you. That’s the upshot of last week’s Supreme Court ruling affirming the right to support nonprofit groups without being monitored by the state.
In an opinion likely to be recognized as a landmark case, the court struck down a California requirement that charities turn over a list of their major supporters before soliciting donations. The state failed to prove it needed the lists to enforce its tax laws or anything else.
California claimed it would keep the supporter names confidential. But a trial in the lower court revealed that the state carelessly exposed thousands of charity donor lists on a public website, a mistake that can’t be undone. Once a person’s identity and membership in a group is publicly exposed online, they are forever vulnerable to harassment and retaliation for their beliefs. Today’s unforgiving cancel culture heightens those threats.
Fortunately, the Supreme Court on Thursday reaffirmed the “vital relationship” between freedom of association and privacy. If people reasonably fear that their membership in a group will be revealed, either publicly or to powerful state officials, they will be deterred from exercising their First Amendment rights to assemble and speak out on controversial issues. Just as we vote in private booths, we have a right to join and speak in private groups…
The real takeaway should be how broadly First Amendment rights were violated before the Supreme Court stepped in.
The Hill: Supreme Court ruling opens door to more campaign finance challenges
By Karl Evers-Hillstrom
The Supreme Court’s recent donor disclosure ruling could embolden future challenges to campaign finance rules, experts say…
The ruling doesn’t apply to publicly disclosed donors or political groups. But in the majority opinion, Chief Justice John Roberts wrote that disclosure laws must be “narrowly tailored” to important government interests.
Experts say Roberts’s opinion effectively toughens the standard of review for all laws that compel disclosure, including election rules…
David Keating, president of the Institute for Free Speech, which filed its own lawsuit against California’s disclosure law, said the ruling could increase his organization’s challenges to “unreasonable” campaign finance rules.
“It definitely makes it easier for us to persuade courts that certain disclosure laws are unconstitutional,” Keating said. “With that said, laws that require disclosure of large campaign contributions to politicians, political parties, PACs … I don’t think they are in any danger from this ruling.” …
A sweeping election overhaul bill, passed by the House before being blocked by Senate Republicans, would require any group that spends $10,000 or more to influence elections to disclose its donors. Those include politically active 501(c)(4) nonprofits, which are currently permitted to keep their funding sources hidden.
Keating said the legislation, known as the For the People Act, would be met with increased scrutiny from federal courts if implemented.
“I think even before this decision, it would have been vulnerable,” Keating said, referring to the bill. “With the decision, it’s even more vulnerable.”
Georgia Voice: SCOTUS Refuses to Hear Florist Case, Agrees to Hear Other ‘Religious Freedom’ Case
By Lisa Keen
Friday’s orders list also disposed of a case similar to Americans for Prosperity v. California, that was decided Thursday. The conservative Institute for Free Speech appealed its case against California to stop disclosure of donors. The Supreme Court’s July 2 order list granted the appeal and sent the case back to the Ninth Circuit for consideration in light of the high court’s ruling in Americans for Prosperity.
Supreme Court
Wall Street Journal: A Supreme Blow to Intimidation
By Kimberley A. Strassel
Rhode Island Sen. Sheldon Whitehouse is unhappy with Thursday’s Supreme Court ruling that reins in his ability to harass political opponents. Perhaps he and his fellow intimidators should have been less brazen.
The justices celebrated the Fourth of July with one of their more important First Amendment rulings in decades. The high court’s decision in Americans for Prosperity Foundation v. Bonta strikes down an attempt by California politicians to cast what Chief Justice John Roberts called “a dragnet for sensitive donor information from tens of thousands of charities each year.” It also marked the court’s belated if crucial recognition that the 21st century requires a new approach to disclosure.
The risks of “bomb threats, protests, stalking, and physical violence,” the chief justice wrote, “seem to grow with each passing year,” giving “anyone with access to a computer” the power to compile information to destroy others. And the opinion’s references to past cases make clear the threat to donors doesn’t come only from hackers or doxxers but from government itself.
Mr. Whitehouse didn’t get a mention…but the senator can take a bow. For more than a decade, progressives have been weaponizing disclosure laws, using them to harass and intimidate political opponents.
RealClearPolitics: Donor Privacy Protects All Charitable Giving
By Lawson Bader
Since the founding of our republic, individuals have disagreed on the best approaches to solve societal challenges. But the right to support anonymously such causes has been recognized as inherently valuable only these last few decades…
Donating to charities that align with your values, promote or defend ideological truths, and encourage policy solutions to public problems is a necessary component of the U.S. marketplace of ideas. It can generate good possibilities, and squelch bad ones, thus benefiting all.
We should be celebrating those who make grants that align with their values, beliefs, and charitable giving goals—not opening them up to harm or discouraging giving. We should be grateful that decisions of privacy can be left to donors, and not to more bureaucrats.
The law should never be used as a tool to discourage charitable giving, chill freedom of association, or leave would-be donors vulnerable to unwanted solicitation, harassment or even threats to a donor’s life.
Reason (Volokh Conspiracy): The Conservatives and Liberals Swap Places on Privacy
By Josh Blackman
[In] Americans for Prosperity Foundation v. Bonta, [t]he Justices split along 6-3 ideological lines. Chief Justice Roberts wrote the majority opinion, and was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Sotomayor wrote the dissent, and was joined by Justices Breyer and Kagan.
If I read the majority correctly, most disclosure laws will be reviewed with “exacting scrutiny,” regardless of how severe the burden. There is a vigorous debate between the majority and dissent about Shelton v . Tucker (1960). Justice Sotomayor probably has the better reading of Shelton. Once again, I think the Chief quietly rewrote precedent without acknowledging his moves. Then again, with six votes, Justice Stewart’s five-decade-old 5-4 decision didn’t stand a chance. The outcome here should not be surprising.
I found noteworthy a few aspects of the case.
First, I think our society has changed in the past decade since Doe v. Reed (2010). And the Court’s shift reflected that change. Justice Sotomayor observes:
Reason (Volokh Conspiracy): Justices Thomas and Gorsuch Criticize New York Times v. Sullivan
By Eugene Volokh
In today’s dissent from denial of certiorari in Berisha v. Lawson, Justice Thomas repeated his past criticisms of New York Times v. Sullivan (see McKee v. Cosby), and Justice Gorsuch joined in; Justice Gorsuch’s opinion also cites Justice Kagan’s views on the subject from early in her academic career, which I’ll also excerpt shortly. (Back in the 1970s and 1980s, Justice White also powerfully criticized Sullivan, and drew some support from Chief Justice Burger.) I doubt there will be five votes for this position, but I thought I’d pass along the opinions. First, from Justice Thomas:
By Sam Mitchell
If you are reading the words in this post, then you understand the driving issue at the heart of the Supreme Court’s next First Amendment free speech case, City of Austin v. Reagan National Advertising of Texas, et al.
What’s at stake? The constitutionality of every sign ordinance in the country, potentially…
But do regulations restricting location and technology run afoul of the First Amendment as unconstitutional “content-based” restrictions? That’s the question now before the Court.
Free Speech
New York Times: Olympics Allows Protests, but Not During Events or on Medals Stand
By Andrew Keh
[O]n Friday, in a move reflecting the influence of a remarkable, ongoing outpouring of activism from athletes, the International Olympic Committee released new guidelines offering Olympians a chance to “express their views” on the field of play before the start of a competition, including during athlete introductions.
Under the new rules, athletes competing this month at the Summer Games in Tokyo now will theoretically be allowed to wear an article of clothing (a shirt with a slogan or a glove, for example) or make a symbolic gesture (like kneeling or raising a fist) to express their views on an issue before the start of their events.
They still will not be allowed to conduct any sort of demonstration on the field of play, on the podium during medal ceremonies, in the Olympic athletes’ village or at the opening and closing ceremonies of the Games.
It was a small but symbolically significant concession, softening the I.O.C.’s longstanding rule against protest at the Games, but it fell short of what many athletes, including many from the United States, had called for in recent months.
Online Speech Platforms
TK News by Matt Taibbi: If Private Platforms Use Government Guidelines to Police Content, is that State Censorship?
Just under three years ago, Infowars anchor Alex Jones was tossed off Facebook, Apple, YouTube, and Spotify, marking the unofficial launch of the “content moderation” era. The censorship envelope has since widened dramatically via a series of high-profile incidents: Facebook and Twitter suppressing the Hunter Biden laptop story, Donald Trump’s social media suspension, Apple and Amazon’s kneecapping of Parler, the removal of real raw footage from the January 6th riots, and others.
This week’s decision by YouTube to demonetize podcaster Bret Weinstein belongs on that list, and has a case to be put at or near the top, representing a different and perhaps more unnerving speech conundrum than those other episodes.
AP News: Twitter restricts account of expert who mocked China leader
By Nick Perry
A New Zealand academic says Twitter temporarily restricted her account after she mocked Chinese President Xi Jinping.
University of Canterbury Professor Anne-Marie Brady is an expert on China’s attempts to exert political influence around the world and has been an outspoken critic of its ruling Communist Party. Last week, she sent tweets poking fun at the party’s 100th anniversary celebrations.
She said two of those tweets were temporarily marked “unavailable” by Twitter and her account was temporarily restricted over the weekend, before it was restored on Monday.
Twitter did not say what prompted its actions.
Edward Lucas, a columnist for The Times newspaper in Britain, wrote that it probably resulted from an online campaign of complaints by Communist Party agents which would have triggered an automatic response from Twitter while it investigated.
CNN: Facebook tests prompts that ask users if they’re worried a friend is ‘becoming an extremist’
By Oliver Darcy
Some Facebook users in the United States are being served a prompt that asks if they are worried that someone they know might be becoming an extremist. Others are being notified that they may have been exposed to extremist content.
It is all part of a test the social media company is running that stems from its Redirect Initiative, which aims to combat violent extremism, Andy Stone, a Facebook spokesperson, told CNN. Screen shots of the alerts surfaced on social media Thursday.
PACs
AP News: 6 months after Capitol assault, corporate pledges fall flat
By David Klepper
As shockwaves spread across the country from the Jan. 6 insurrection at the U.S. Capitol, corporate America took a stand against the lies that powered the mob. Or so it seemed.
Dozens of big companies, citing their commitment to democracy, pledged to avoid donating money to the 147 lawmakers who objected to Congress’ certification of Joe Biden’s victory on the false grounds that voting fraud stole the election from then-President Donald Trump.
It was a striking gesture by some of the most familiar names in business but, as it turns out, it was largely an empty one.
Six months later, many of those companies have resumed funneling cash to political action committees that benefit the election efforts of lawmakers whether they objected to the election certification or not. When it comes to seeking political influence through corporate giving, business as usual is back, if it ever left.
The States
New York Times: We Disagree on a Lot of Things. Except the Danger of Anti-Critical Race Theory Laws.
By Kmele Foster, David French, Jason Stanley and Thomas Chatterton Williams
In recent weeks, Tennessee, Oklahoma, Iowa, Idaho and Texas have all passed legislation that places significant restrictions on what can be taught in public school classrooms, and in some cases, public universities, too.
Tennessee House Bill SB 0623, for example, bans any teaching that could lead an individual to “feel discomfort, guilt, anguish or another form of psychological distress solely because of the individual’s race or sex.” In addition to this vague proscription, it restricts teaching that leads to “division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class or class of people.”
Texas House Bill 3979 goes further, forbidding teaching that “slavery and racism are anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States.” …
These initiatives have been marketed as “anti-critical race theory” laws. We, the authors of this essay, have wide ideological divergences on the explicit targets of this legislation…We span the ideological spectrum: a progressive, a moderate, a libertarian and a conservative.
It is because of these differences that we here join together, as we are united in one overarching concern: the danger posed by these laws to liberal education…
Let’s not mince words about these laws. They are speech codes. They seek to change public education by banning the expression of ideas. Even if this censorship is legal in the narrow context of public primary and secondary education, it is antithetical to educating students in the culture of American free expression.
