In the News
Education Week: Is Censuring a ‘Rogue’ School Board Member a Free Speech Violation? High Court to Decide
By Mark Walsh
The [U.S. Supreme Court] on Nov. 2 will hear arguments in Houston Community College System v. Wilson (No. 20-804), about whether a school board censure of a member for speech or conduct that violates board rules may be challenged on First Amendment free speech grounds…
The case before the Supreme Court involves David B. Wilson who was elected to the nine-member Houston Community College board of trustees in 2013 and brought “immediate and constant turmoil,” the board says in court papers…
Wilson has drawn the support of a friend-of-the-court brief signed jointly by three ideologically diverse groups: The American Civil Liberties Union, based in New York City; the Rutherford Institute, a Charlottesville, Va., religious liberty organization that often supports student religious speech; and the Institute for Free Speech, a Washington group that recently organized a federal lawsuit against a Pennsylvania school board alleging that the board censors and limits public comments at board meetings in violation of the First Amendment.
The brief argues that Wilson was not subject to a “pure censure” because his rebuke came with the tangible restrictions on his office.
“The board’s censure resolution was expressly designed not just to express disapproval, but also to impose ‘disciplinary action’ and to quash Wilson’s public criticism going forward,” the groups’ brief says. And Wilson’s public comments were “indisputably protected,” it says.
“Members of legislative bodies, no less than anyone else, enjoy basic First Amendment freedoms, and cannot be penalized for protected speech that takes place outside the chamber,” the brief says.
New from the Institute for Free Speech
Statement on Senate Vote Defeating S. 2747
The Institute for Free Speech released the following statement in response to today’s vote in the Senate turning aside S. 2747, also known as the “Freedom to Vote Act.” The bill, modeled after the failed H.R 1 and S. 1 proposals from earlier this year, contains hundreds of pages of sweeping restrictions on political speech.
“Despite its name, much of the ‘Freedom to Vote Act’ has nothing to do with voting rights. About a third of the bill proposes an assault on our First Amendment rights,” said Institute for Free Speech President David Keating. “It would be a gift to political insiders and incumbents, and a nightmare for groups of Americans trying to speak.”
2747’s proposed restrictions on speech would transform political debate in America into a bureaucratic process dominated by the establishment. The bill would impose unprecedented and constitutionally suspect regulations on speech about public policy, preventing most nonprofit organizations and experts from effectively advocating for or against legislation. It would force groups that speak about government to publicly expose the personal information of their members, discouraging groups from speaking and subjecting Americans to potential harassment for their beliefs. It would also significantly raise the cost of online advertising about legislation or social causes, removing a popular and cost-effective means of mass communication for small groups.
As political speech becomes more regulated, more dangerous, and more expensive, S. 2747 would also unleash partisan enforcement of the nation’s campaign finance laws.
ICYMI
National Review: Democrats Propose a Federal Speech Czar
By Bradley A. Smith
Deep inside the Democrats’ latest “compromise” proposal on elections and campaign finance is a new cup of poison for free speech and fair campaigns.
Of course, the sponsors bragged that they dropped some controversial provisions. One such provision altered the Federal Election Commission (FEC), which polices campaign-finance laws, from a bipartisan agency to one with a partisan majority appointed by the president.
The bill, now dubbed the Freedom to Vote Act, abandons that direct attempt to give the president a partisan majority at the FEC. But it still abolishes the principle of bipartisan approval of enforcement actions. Even worse, it rigs court review of FEC decisions against defendants.
In a sign of the bill’s hostility to free speech, the measure also proposes doubling the statute of limitations for most violations of federal campaign-finance laws to 10 years. That’s longer than the statute of limitations for the crime of attempted assassination of a member of Congress.
Congress
New York Times: Senate Republicans Block Voting Rights Bill, Leaving Its Fate in Doubt
By Carl Hulse
Republicans on Wednesday blocked action for the third time this year on legislation to bolster voting rights, leaving Democrats few options to advance the bill outside of changing the Senate filibuster rule and passing it over G.O.P. opposition.
All 50 Democrats and independents supported bringing the Freedom to Vote Act to the floor, but all 50 Republicans voted against doing so…
The tie left Democrats at least 10 votes short of the 60 needed to overcome a filibuster, and there was little evidence that any Republicans could be brought on board. (Mr. Schumer switched his vote to “no” at the last moment, enabling him under Senate rules to move to reconsider the bill at some point in the future and putting the official tally at 49 to 51.)
Senator Mitch McConnell, Republican of Kentucky and the minority leader, assailed the proposal put forward by Democrats on Wednesday, which was a compromise version of a broader voting rights measure that Republicans had blocked twice before.
“The same rotten core is all still there,” Mr. McConnell said of the new legislation. “As long as Senate Democrats remain fixated on their radical agenda, this body will continue to do the job the framers assigned it and stop terrible ideas in their tracks.” …
In light of the vote, key Democrats said they would regroup and try again to persuade Mr. Manchin and other Senate Democrats reluctant to undermine the filibuster that an overhaul of the chamber’s signature procedural tactic was the only way to protect ballot access around the country.
Fox News: Garland set to testify at House hearing with DOJ mired in controversies
By Ronn Blitzer
Attorney General Merrick Garland will testify at a House committee hearing Thursday dedicated to oversight of the Justice Department at a time when the agency is in the middle of several high-profile cases and controversies.
House Judiciary Committee ranking member Rep. Jim Jordan, R-Ohio, gave a preview of what is to come, specifically questions over Garland’s recent memo regarding federal intervention in matters of violence or intimidation targeting state and local school board members. The memo drew concerns that the federal government was overstepping by getting involved in local matters, and could be chilling free speech following incidents where parents vocally opposed policies regarding mask mandates and the teaching of critical race theory.
The Courts
NBC News: Parents in Michigan, Virginia sue DOJ over response to school board threats
By Erik Ortiz
A federal lawsuit filed Tuesday in Washington on behalf of several parents by the American Freedom Law Center, a conservative public interest law firm based in Ann Arbor, says Garland is attempting to stifle free speech when he announced this month that he is directing federal authorities to address a rise in threats against school board members and educators at public schools across the country.
Wall Street Journal: Woke at Wellesley Public Schools
By The Editorial Board
Critical race theory dominates college campuses these days, but parents are fighting its spread to K-12 education. Three Massachusetts families are suing Wellesley Public Schools over woke policies they say violate their children’s rights.
“Nearly seven decades of Supreme Court precedent have made two things clear: Public schools cannot segregate students by race, and students do not abandon their First Amendment rights at the schoolhouse gate,” says the suit filed in federal court Tuesday afternoon by the nonprofit Parents Defending Education. The suit says Wellesley Public Schools “is flouting both of these principles.” …
The Wellesley parents also take issue with the school district’s handling of so-called bias incidents, which they say penalize and chill speech. Under school policy, a bias incident can encompass “conduct, speech or expression” that “has an impact but may not involve criminal action” or demonstrates even “unconscious bias,” among other acts.
The complaint says this policy is so “unconstitutionally overbroad” that it can encompass “virtually any opinion or political belief—as well as any use of humor, satire, or parody.” Some of the plaintiff parents say their children have begun self-censoring for fear of penalty.
Free Speech
Newsweek: School Board Fights Are a Crucial Reminder: In America, We Citizens Rule
By Mark Weaver
Citizenship in a republic means we run the joint. All the suits and pantsuits on Capitol Hill and in the state capitols report directly to us.
And this is just as true for local school boards: They are elected by, and completely accountable to, the citizens in their school district.
So, when us bosses show up for a little job performance review, our employees—the school board—don’t get to set the ground rules for that discussion. We do. When you see parents making demands of their school boards, that’s not “domestic terrorism.” It’s representative democracy in action—literally.
A federal appeals court decision handed down just a few months ago squarely addresses this salient issue. The case looked at an Ohio school board policy that prohibited certain kinds of comments. The school board had prohibited anything the board considered “harassing,” “antagonistic,” or “irrelevant.” The policy also prohibited any remarks directed toward any particular elected official. And police were authorized to use force to compel these dictates and officers. In one case, police had physically ejected a man who made remarks critical of the school board’s work, though the man “spoke calmly, used measured tones, and refrained from personal attacks,” according to the court’s analysis after reviewing the video.
The court struck down the school board’s policy as a violation of First Amendment free speech rights. And since few cases ever make it to the U.S. Supreme Court, the ruling will probably stand as the last legal word on the subject.
By invalidating the heavy-handed policy, the court held that seeking to stop citizens from criticizing elected officials is illegal viewpoint discrimination.
New York Times: M.I.T.’s Choice of Lecturer Ignited Criticism. So Did Its Decision to Cancel.
By Michael Powell
The Massachusetts Institute of Technology invited the geophysicist Dorian Abbot to give a prestigious public lecture this autumn…
Then a swell of angry resistance arose. Some faculty members and graduate students argued that Dr. Abbot, a professor at the University of Chicago, had created harm by speaking out against aspects of affirmative action and diversity programs. In videos and opinion pieces, Dr. Abbot, who is white, has asserted that such programs treat “people as members of a group rather than as individuals, repeating the mistake that made possible the atrocities of the 20th century.” …
He said that his planned lecture at M.I.T. would have made no mention of his views on affirmative action. But his opponents in the sciences argued he represented an “infuriating,” “inappropriate” and oppressive choice.
On Sept. 30, M.I.T. reversed course…
“I thought scientists would not get on board with the denial-of-free-speech movement,” said Jerry Coyne, an emeritus professor of evolutionary biology at the University of Chicago. “I was absolutely wrong, 100 percent so.”
The States
The Seattle Times: González fundraising ‘reform’ tips scale in her campaign’s favor
By The Seattle Times editorial board
The mayoral campaign of Seattle City Council President M. Lorena González draws substantial benefits from a financing loophole the council passed in early 2020. González herself drew up this ordinance, which restricts business contributions to city political races for being “foreign-influenced” while giving a free hand to far-flung union interests.
This unfair setup deprives many local companies of having a role in elections that affect their commercial prospects — and their workers’ living conditions…
The ordinance González named the “Clean Campaigns Act” scare-mongered the outrage over Russian and other foreign manipulation of the 2016 presidential election into local politics. The political alchemy involved is written into Seattle city code as Ordinance 126035. It bans theoretical “corporations with significant foreign ownership” from meddling in Seattle municipal governance, a what-if menace to democracy. After conjuring this civic threat, the ordinance stretches the premise to ban “political spending by foreign-influenced business entities.”
The threshold for “foreign-influenced” is so low practically any publicly traded company can be politically neutered. If any foreign person owns 1% of a company’s stock — or if total American ownership falls below 95% — the company is too “foreign-influenced” to contribute to Seattle political campaigns. That applies no matter how local its controlling owners are, how much business it does here or how many Seattleites it employs.
Pennsylvania Capital-Star: Pa. Republicans unveil lobbying reform package to address ‘most pressing loopholes’ in law
By Marley Parish
Nine months after the top Republican in the Pennsylvania state Senate vowed to make transparency a major priority in the Legislature, lawmakers are inching toward some lobbying reform.
Four Republicans in the upper chamber introduced a package of bills [last] Wednesday that would impose new requirements for lobbyists and political consultants to avoid conflicts of interest and define the relationship between lawmakers and those who try to influence them.
