The Courts
Politico: Judge: No ‘speck’ of proof in Palin’s libel case against NYT
By Associated Press
The judge who presided over Sarah Palin’s libel case against The New York Times denied her request Tuesday for a new trial, saying she failed to introduce “even a speck” of evidence necessary to prove actual malice by the newspaper.
U.S. District Judge Jed Rakoff made the assertion in a written decision as he rejected post-trial claims from Palin’s lawyers.
Congress
The Hill: To protect democracy from dark-money influence, we need the DISCLOSE Act
By Michael Sozan
With free and fair elections under ongoing attack, the U.S. Senate must pass the long-stalled Disclose Act in the coming weeks — to shine a bright light on the secret, “dark money” that underlies our toxic political system.
Free Expression
Reason (Volokh Conspiracy): Johnny Depp, Amber Heard, Libel, and Chilling Effects
By Eugene Volokh
Perhaps Justices Goldberg, Douglas, and Black were right, and libel law should be categorically rejected (at least for speech on matters of public concern). But that’s not the path our legal system has taken; even as it has cut back sharply on libel liability in many situations, it has accepted the core of liability for knowing or reckless lies that damage particular people’s reputations, notwithstanding the chilling effect even such reduced liability can cause.
Candidates and Campaigns
The Dispatch: It’s Voters, Not Lobbyists, Who Shape the GOP Gun Agenda
By Jonah Goldberg
This gets the political reality backward: the “gun lobby” is the tail, not the dog. Indeed, the NRA is a hot mess, and has probably never been weaker. It’s even tried to declare bankruptcy. Whatever you think of its policies, the GOP is not captured by puppet-masters who have its “balls in a money clip,” in Jimmy Kimmel’s colorful phrase. Republicans are following the will of their voters, or at least the voters who reliably turn out and vote on gun issues, particularly in primaries…
Compare the way the media talks about abortion rights vs. gun rights. Planned Parenthood and similar groups give at least as much to Democrats, but the only people who regularly use the phrase “abortion lobby” are abortion rights foes. Supporters and the press frame their position as ones of heartfelt conviction that reflects the views of Democratic voters or even women generally.
To the extent groups like the NRA and Planned Parenthood influence politics, it’s by informing, galvanizing, and representing voters—not by bribing politicians.
Online Speech Platforms
Election Law Blog: “Democracies in the Age of Fragmentation”
By Richard Pildes
I’ve posted this new essay, which is coming out in the California Law Review, on SSRN. Here’s the abstract:
Democracies throughout the West are unable to marshal wide-enough support to deliver effective government. The communications revolution is one reason why, and we have not yet fully grasped the profound challenge social media poses to democracies. Even if the problems of disinformation, misinformation, incitement, and the like could somehow be solved, that challenge would remain.
The political turbulence social media has fueled takes many different forms, which this essay chronicles. In the United States, it has enabled the rise of independent, free-agent politicians, who party leaders cannot corral to generate a unified party agenda. The internet has also spawned the rise of small donors, one effect of which is to fuel the extremes of the parties. In Europe, social media has led to the sudden emergence of digital “pop-up” parties that have dramatically disrupted politics, such as the Brexit Party in the UK and the Five Star Party in Italy. The communications revolution has also facilitated the rise of spontaneous, non-organized groups that have completely roiled politics, such as the Indignados in Spain or the Yellow Vests in France.
Independent Groups
Willamette Week: Three Political Action Committees Supporting Democratic Candidate Carrick Flynn Are All Backed by a Crypto Billionaire
By Rachel Monahan
In honor of Asian American and Pacific Islander Heritage month, NBC News published a story last week on a new national super PAC with a mission to support Asian Americans in politics.
But so far that super PAC, Justice Unites Us, has made just one independent expenditure—$846,000—to support a white man, Carrick Flynn, who tried and failed to win the Democratic nomination for Oregon’s 6th Congressional District.
Because of federal reporting rules, Justice Unites Us reported its expenditure in April but did not have to report the source of the funds until after the primary. Perhaps unsurprisingly, that donor turned out to be Protect Our Future, the super PAC formed by cryptocurrency billionaire Sam Bankman-Fried.
That group spent $11.4 million on Flynn’s behalf, setting the record for most money spent by a single PAC for a candidate in a House primary.
State Rep. Andrea Salinas (D-Lake Oswego) won that race.
Bankman-Fried told a Pushkin Industries podcast last week he might spend $1 billion on 2024 federal races, which would be another record for a single donor in a single election cycle…
This latest revelation means that all three PACs who backed Flynn are connected to Bankman-Fried…
The States
Daily Beast: Why Johnny Depp’s Decision to Sue Amber Heard in Virginia Paid Off
By Adam Manno
Anti-SLAPP (strategic lawsuit against public participation) laws are supposed to stop rich and powerful people from burdening courts and defendants with meritless lawsuits.
Robert Sack, a senior judge at the United States Court of Appeals for the Second Circuit, says anti-SLAPP laws have become “a big deal” in defamation cases.
“You want to find a jurisdiction which will A, hold on to the case, and B, that doesn’t have an anti-SLAPP statute,” he told The Daily Beast.
Virginia’s anti-SLAPP laws are far weaker than California’s, which allow those accused of defamation to file a motion to dismiss the case before it even gets to trial…
It’s not clear that a California judge would’ve tossed Depp’s case, and Sack says there are a few reasons why so many defamation cases happen in Virginia, including robust interstate commerce and its proximity to Washington, D.C.
Still, anti-SLAPP laws are something to consider.
“One reason being because they’re so strong and they differ so much from state to state,” he said. “So the fact that it’s very strong and can and does differ from state to state makes it a very good ground for a lot of recent litigation,” he explained, citing Rep. Devin Nunes of California, who chose Virginia as the jurisdiction for multiple defamation lawsuits against newspaper publisher McClatchy, GOP strategist Liz Mair, and Twitter.
[Ed. note: Read our anti-SLAPP report, a 50-state report card evaluating the anti-SLAPP laws in each state, here.]
3TV/CBS 5: New Arizona law targets frivolous libel suits
By Morgan Loew
A new Arizona law may make it easier for the targets of frivolous libel lawsuits to have those lawsuits thrown out of court. Gov. Doug Ducey signed HB 2722 into law on Friday. It is a version of what’s called an “anti-SLAPP” law. SLAPP stands for strategic lawsuit against public participation. “The purpose of this bill is to make sure that nobody who exercises their First Amendment rights should be sued simply because they’re doing that,” said the bill’s sponsor, Rep. Ben Toma, a Republican from northwest Phoenix.
