In the News
Delaware Valley Journal: Lower Makefield Residents Sue Pennsbury School Board Over Breach of First Amendment Rights
By Linda Stein
Critics of the Pennsbury School Board’s [curriculum, policies, and members] say they’ve been silenced by the board, and now they’re taking that complaint to court.
The litigation was brought by the Institute for Free Speech on behalf of Lower Makefield residents Douglas Marshall, Simon Campbell, Robert Abrams, and Tim Daly. They are represented by Institute for Free Speech attorneys Alan Gura, Del Kolde, and Martha Astor, along with Michael Gottlieb of Vangrossi & Recchuiti.
“This lawsuit serves as a valuable civics lesson for America’s public school students. Pennsbury’s censorship-promoting school board is not above the law. When government officials strive to silence the First Amendment rights of American citizens, those officials can be held liable in federal court,” said Campbell, who served on the Pennsbury School Board between 2009 and 2013, in a written statement…
“Pennsbury officials are trampling on the First Amendment rights of parents and residents to speak their mind about their schools. They have cut off parents in the middle of sentences, yelled over critics to prevent them from being heard, edited remarks out of recordings of public meetings, and intimidated speakers by forcing them to publicly announce their home address,” said Gura, vice president for litigation with the Institute for Free Speech.
The Delaware Valley Journal had previously written about Pennsbury officials interrupting and silencing residents who tried to speak at school board meetings after a video featuring Campbell went viral. The Pennsbury School Board secretly edited criticism of the board out of a posted video of the meeting. After they were caught, they restored the video.
New from the Institute for Free Speech
From Russia With (No) Love: The Dangers of Vague Speech Laws
By Daniel Ortner, Pacific Legal Foundation
There is no question that calls to ban, censor, or restrict access to speech deemed either “offensive” or “hateful” are ramping up across America.
In 2019, for instance, New York City declared that the use of the (legally correct) term “illegal alien” could be considered unlawful discrimination because it is … offensive. And professors nationwide have been targeted for daring to criticize affirmative action, supporting boycotts of Israel, or speaking out on any number of other controversial topics.
The growing effort to suppress speech is, unfortunately, a bipartisan sport.
But we should be skeptical of such calls to censor even when we disagree strongly with the speech in question and find it abhorrent. Calls to block ideas because they are offensive or hateful are dangerous and invariably lead to state censorship and suppression of ideas.
In the recently published book, Counter-Terrorism Laws and Freedom of Expression, I contribute a chapter that examines one extreme, but revealing, example of the consequences stemming from an attempt to suppress purportedly offensive or harmful ideas.
In 2002, the Russian Federation enacted a law entitled “On Fighting Extremist Activity.” The law began as a national security tool to combat the rise of Islamic fundamentalism. Once in the hands of zealous prosecutors, however, the law has become a tool to ban religious literature, suppress political dissent, confiscate property, and even jail dozens of Jehovah’s Witnesses merely for continuing to belong to their faith.
Supreme Court
Inside Political Law (Covington): Considering the Broader Implications of Cruz v. FEC
By Peter Koski, Robert Lenhard, Derek Lawlor & Perrin Cooke
Late last week, the Supreme Court indicated that it intends to review a challenge by Senator Ted Cruz (R-TX) to federal limits on the use of post-election contributions to repay pre-election loans that candidates make to their own campaigns. This follows an earlier three-judge district court decision that struck down those limits as unconstitutional under the First Amendment. Although the question presented in Federal Election Commission v. Ted Cruz for Senate relates most directly to the relatively obscure rules governing the repayment of candidate loans, the case represents a continuation of the steady shift in the courts towards a less restrictive federal campaign finance system…
[I]n recent years the Supreme Court has taken an increasingly cramped view of what actually constitutes political corruption. For instance, the Supreme Court has rejected as insufficiently compelling the prevention of “generic favoritism or influence” (McConnell v. FEC) or merely seeking “influence over or access to” elected officials (Citizens United v. FEC). Most recently, in McCutcheon v. FEC, the Court struck down aggregate individual contribution limits on the grounds that those limits did “little, if anything,” to address explicit quid pro quo corruption. Cruz may be the latest example of this trend.
Indeed, a close reading of the earlier district court decision suggests that the case may have significant implications well beyond the loan-repayment rules themselves.
The Courts
Pacific Legal Foundation: When are T-shirts considered prohibited electioneering?
By Deborah La Fetra
Until last week, Texas law prohibited voters from wearing an Obama or Reagan T-shirt in polling places, even when neither past president was on a present ballot. In fact, the law prohibited voters from wearing anything that an election worker deemed “electioneering” for or against any candidate, political party, or measure—past, present, and future…
Sometimes there were ugly confrontations when election workers censored voters’ apparel. But if voters didn’t comply, they could face jail. Some voters simply left, deprived of their right to vote. Others were detained and prevented from voting until they covered or changed their clothes…
PLF filed a lawsuit in federal court to challenge the laws.
After two years of litigation, last week a federal district court judge declared Texas’ general “electioneering” laws to be unconstitutional infringements on voters’ First Amendment right to express themselves.
However, it wasn’t a win across the board. The court interpreted a different statute—intended to regulate poll worker name badges—to effectively replace the two unconstitutional statutes as a more narrowly drawn electioneering statute that prohibits apparel related to candidates, political parties, and measures only when they are on the ballot. Worse, the court held that the apparel needn’t actually mention those candidates, political parties, and measures by name—it was enough that a shirt’s message was “related” to them.
Bloomberg Law: California Freelancers Held to Worker Test, Ninth Circuit Says
By Erin Mulvaney
Freelance journalists and photographers can’t move forward with their claims that a rigid worker classification law stifles their First Amendment free speech rights, the Ninth Circuit said Wednesday.
The American Society of Journalists and Authors and the National Press Photographers Association asked the U.S. Court of Appeals for the Ninth Circuit to strike down part of a 2019 state law known as Assembly Bill 5, which codified the three-part test to determine employee status…
“Under California law, the freedom to freelance depends on the type of speech you produce: marketers, grant writers and fine artists can freelance, but journalists and videographers cannot,” said Jim Manley, attorney with the Pacific Legal Foundation, which represents the freelance groups.
The Ninth Circuit failed to apply the U.S. Supreme Court’s rulings about the “function or purpose” of speech that violates the First Amendment, he said, adding that the groups will ask the full appeals court or the Supreme Court to review the case…
The case is Am. Soc’y of Journalists and Authors, Inc. v. Bonta, 9th Cir., No. 20-55734, opinion 10/6/21.
Courier Journal: Judge orders former Kentucky Democratic Party chair Jerry Lundergan to prison
By Associated Press
A former Kentucky Democratic Party chair must report to prison next month on campaign finance charges, a federal judge ruled.
U.S. District Judge Gregory F. Van Tatenhove ordered Jerry Lundergan to go to prison on Nov. 30 after the 6th Circuit Court of Appeals upheld the 74-year-old’s conviction and rejected a motion to suspend the judgment, the Lexington Herald-Leader reported Wednesday. He was allowed to remain free while appealing…
The businessman and former state representative’s attorney, J. Guthrie True, told the Herald-Leader his client will report to prison next month but will also continue his appeal to the U.S. Supreme Court.
A court document shows that if the high court accepts his case, Lundergan will argue that applying the ban on corporate communications to him violated his First Amendment rights because he contributed to a close family member.
Reason (Volokh Conspiracy): Arkansas State Police Filtering Out of “Pig,” “Copper,” “Jerk” in Facebook Posts = Unconstitutional Viewpoint Discrimination
By Eugene Volokh
So holds Tanner v. Ziegenhorn, decided Thursday by Judge D.P. Marshall Jr. (E.D. Ark.):
. . . The slang terms “pig”, “pigs”, and “copper” can have an anti-police bent, but people are free to say those words. The First Amendment protects disrespectful language. And “jerk” has no place on any prohibited-words list, given the context of this page, the agency’s justification for having a filter, and the harmlessness of that word. Though some amount of filtering is fine in these circumstances, the State Police’s current list of specific words violates the First Amendment.
Congress
Rep. Ken Buck, R-Colo., criticized the federal government for getting involved with recent disputes during school board meetings. The National School Board Association asked the Biden administration for help as an increasing number of conservative parents are speaking out against mask requirements, saying some parents’ actions “could be the equivalent to a form of domestic terrorism and hate crimes.” …
REP. KEN BUCK: Attorney General Garland was a judge, and he should know better than to try to use the FBI for political speech…Justice is impartial…Justice should not be used to attack a group of people expressing their opinions at school board meetings, whether they’re in favor of critical race theory or whether they’re opposed to critical race theory. Whether they’re in favor of masks or vaccines or opposed. That’s political speech that needs to be protected.
When you nationalize the effort to go after people based on political speech, when you determine that one size fits all – that the FBI should be looking into these isolated incidents. This isn’t a national group that is garnering support and mobilizing people. It’s wrong. It’s wrong because we are picking sides in political disputes and the federal government should stay out of those disputes.
Online Speech Platforms
Glenn Greenwald: Democrats and Media Do Not Want to Weaken Facebook, Just Commandeer its Power to Censor
As it always does, the censorship began by targeting widely disliked figures — Milo Yiannopoulos, Alex Jones and others deemed “dangerous” — so that few complained (and those who did could be vilified as sympathizers of the early offenders). Once entrenched, the censorship net then predictably and rapidly spread inward (as it invariably does) to encompass all sorts of anti-establishment dissidents on the right, the left, and everything in between. And no matter how much it widens, the complaints that it is not enough intensify. For those with the mentality of a censor, there can never be enough repression of dissent. And this plot to escalate censorship pressures found the perfect vessel in this stunningly brave and noble Facebook heretic who emerged this week from the shadows into the glaring spotlight. She became a cudgel that Washington politicians and their media allies could use to beat Facebook into submission to their censorship demands.
Independent Groups
Rolling Stone (via Yahoo News): Will Trump Run in 2024? There’s a Reason Why He Won’t Say
By Ryan Bort
Trump very much seems like he is running for president in 2024, which according to campaign finance law should prohibit him from coordinating with super PACs like MAGAA, or his leadership PAC Save America, which together brought in north of $80 million in the first half of this year. Trump is able to coordinate with those PACs, though — and use their money to finance his travel, his campaign-style rallies, his God knows what else — because he hasn’t yet officially declared his candidacy. The former president is then, in essence, running what appears to be a shadow campaign designed to skirt campaign finance regulations while holding the still-distant race for the Republican nomination hostage…
It’s worth mentioning that what Trump is doing here is nothing new. [Nick Penniman, CEO of Issue One] notes how Jeb Bush raised tens of millions of dollars for an allied super PAC before officially declaring his candidacy in 2015. Craig Holman, government affairs lobbyist for Public Citizen, cites how Marco Rubio went on a book tour through early primary states before declaring his candidacy the same year. “The problem is the lack of contribution limits and the lack of a ban on corporate and union money,” Holman says of the financial leeway potential candidates have before they declare. “They can accept unlimited funds for their super PACs or any electioneering nonprofit group that they’ve set up. They can accept corporate money to fly out on a book tour that’s really nothing more than a campaign rally.”
“The way to look at the super PAC is as a giant slush fund for Trump to do whatever he wants with,” adds Fred Wertheimer of the reform nonprofit Democracy 21, who points to Trump’s own efforts to collect donations from foreign individuals in 2016 as an example of how easy it is to violate campaign finance law with little to no consequences. “Unlimited secret money is the most dangerous money in American politics.”
The States
Daily Camera: Boulder residents file campaign finance complaint against City Council candidate
By Deborah Swearingen
Three community members have filed a campaign finance complaint with the Boulder City Clerk’s Office against Boulder City Council candidate Steve Rosenblum.
Boulder residents Mark McIntyre, Regina Cowles and Jane Hummer filed the complaint, arguing Rosenblum exceeded the city’s expenditure limits when he sought legal assistance to research, prepare and file a lawsuit against the Boulder Progressives and a group of community members.
The lawsuit, filed last week in Boulder District Court, alleges a coordinated campaign against Rosenblum’s candidacy and a coordinated effort to block endorsements. It also alleges that websites and social media accounts were set up with Rosenblum’s likeness without his permission.
