In the News
Sioux Falls Argus Leader: Gov. Kristi Noem sued by ‘Blue State Refugees’ pushing for ban on vaccine mandates
By Joe Sneve
Gov. Kristi Noem is being sued by a group of newcomers to South Dakota, who moved here to escape burdensome COVID-19 restrictions in other states.
Blue State Refugees, an unofficial organization composed of people who recently came to the state from other parts of the United States where lockdowns and mask mandates were part of COVID-19 mitigation protocols, filed a lawsuit against the governor and her Bureau of Administration for denying a permit to demonstrate at the Capitol in Pierre next week…
The state…says it has banned all political demonstrations from the capitol grounds in November and December to accommodate the annual holiday and Christmas displays and decorations at the Capitol, according to the lawsuit…
Institute for Free Speech, a non-partisan First Amendment advocacy group based in Washington, D.C., filed a lawsuit Wednesday on behalf of Blue State Refugees and argues that Noem and several other state officials are violating the group’s First Amendment right to rally outside the Capitol at an upcoming session of the legislature…
[Vice president of litigation, Alan] Gura emphasized that the lawsuit filed by the Institute for Free Speech is based on First Amendment principles and the organization is not taking a position on COVID-19 vaccinations.
Reason (Volokh Conspiracy): No Speech for Two Months in Front of the State Capitol: We’re Decorating Trees
By Eugene Volokh
From the motion for a temporary restraining order in Blue State Refugees v. Noem, filed yesterday in the District of South Dakota by Alan Gura (Institute for Free Speech):
On November 8 and 9, 2021, Plaintiffs plan to hold a political demonstration on the South Dakota Capitol Grounds to coincide with the special legislative sessions set for those dates…. But State officials have sprung a seasonal speech prohibition to banish all demonstrations from the State capitol grounds from October 25 through January 1. The asserted reason? They are decorating the capitol building for Christmas….
The Courts
New York Times: In Florida, a Firestorm Over Silenced University Professors Grows
By Michael Wines
A decision by the University of Florida to bar three professors from testifying in a lawsuit against the administration of Gov. Ron DeSantis has ballooned into a political and public relations firestorm, one that could grow as other professors consider whether to step forward with stories of university pressure.
Since Friday, when the university’s decision was disclosed in a federal court filing, five more professors have offered accounts of being barred from testifying or ordered to omit mention of their university positions in court statements.
The body that accredits the university has opened an inquiry into whether its orders violate long-established principles of academic freedom or involve “undue political influence.” On Monday, the university’s president and provost ordered a review of its policy on conflicts of interest, the stated rationale for the decisions to silence the professors…
Despite the denials, a legion of critics continued to say that the university’s actions bore the marks of political meddling. In each of the disclosed cases, the conflict of interest that was cited as justification for limiting the professors’ freedom to speak was that they were supporting legal challenges to the DeSantis administration’s policies.
“It’s creating an environment which is putting intolerable pressure on universities and other institutions as well to comply with the political policies of this administration, for sure,” said Dr. Jeffrey L. Goldhagen, a longtime professor and administrator at the university’s College of Medicine in Jacksonville. “I don’t think there’s any questions about that.”
By Billy Binion
Priscilla Villarreal, a journalist in Laredo, Texas…was arrested [in 2017] after publishing two stories that ruffled feathers in the community: one surrounding a U.S. Border Patrol agent who committed suicide, the other which confirmed the identity of a family who had died in a fatal car crash…
But Villarreal found herself in a jail cell after breaking those two relatively benign stories concerning deaths in the community, charged with two third-degree felony counts of “misuse of official information” under Texas Penal Code § 39.06(c). That she asked for and obtained the information in typical journalistic fashion—from the Laredo Police Department (LPD) itself—didn’t matter to the cops, who zeroed in on Villarreal as the first person they would ever seek to prosecute under that Texas statute.
The charges were eventually dismissed as baseless and the law ruled unconstitutionally vague. But those officers were given qualified immunity for violating her First Amendment, Fourth Amendment, and 14th Amendment rights when they arrested and detained her, thus preventing her from holding them accountable in civil court…
Yet in a testament to the subjectivity of the decisions surrounding what should be objective liberties, the U.S. Court of Appeals for the 5th Circuit Monday rejected the lower court’s reasoning, removing qualified immunity from the cops on the bulk of Villarreal’s claims and permitting her to state her case before a jury.
“This is not just an obvious constitutional infringement—it’s hard to imagine a more textbook violation of the First Amendment,” wrote Judge James C. Ho. “If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well.”
Congress
Politico Influence: Forget infrastructure week. It’s foreign influence week.
By Caitlin Oprysko
A bipartisan group of lawmakers in both the House and Senate unveiled a bill today with the aim of standardizing FARA registrations and making filings more easily accessible — an incremental improvement that falls far short of what FARA experts recommend to modernize the World War II-era law to track foreign influence efforts in the U.S.
The Foreign Agents Registration Modernization, or FARM, Act is sponsored by Reps. Ro Khanna (D-Calif.) and Ken Buck (R-Colo.) in the House, and Sens. Sheldon Whitehouse (D-R.I.) and Cynthia Lummis (R-Wyo.) in the Senate — hardly a group in ideological alignment, and not the usual suspects in terms of authoring FARA reform proposals. Though similar bills have been introduced in recent years, including by Khanna and Buck, this is the first time the proposal has been backed by members from both parties in both chambers…
“America is in a clash of civilizations with foreign kleptocrats and criminals who use secret channels of influence,” Whitehouse told PI in a statement. “Sunlight is the best disinfectant, which is why I’m glad to join this bipartisan effort to modernize FARA and shine the light of transparency on foreign interests.” …
[Caplin & Drysdale’s Matt Sanderson, who co-chairs FARA reform task force at the American Bar Association] told PI that it was worth reading into the FARM Act’s sponsors, calling interest from different corners of the Republican conference and Democratic caucus maybe even more important than the substance of the bill, suggesting that it speaks to the “appetite for reform on both sides of the aisle,” and the foundation for potential package of other reforms, though such efforts more recently have stalled on the Hill.
Free Speech
Academe Blog: In Defense of Lars Jensen, Part 2
By John K. Wilson
But now I want to focus on the core reason why [Truckee Meadow Community College in Nevada] wants to fire [tenured math professor Lars] Jensen, in retaliation for his criticism of the TMCC administration’s plans to lower standards in its math classes.
The key aspect of the “insubordination” charge against Jensen was a dispute between his dean and Jensen at a campus Math Summit in 2020. Jensen tried to ask a question critiquing the administration’s plans. But he was cut off and his question went unanswered, so Jensen went to his office, typed out his views, printed out some copies, and then brought them back to the Math Summit, where he handed them out to faculty during a break. The dean ordered Jensen not to distribute his flyer, a clear violation of his constitutional rights.
It amazes me that I need to say this, but administrators cannot ban faculty from giving pieces of paper to each other during a break at an event. This is not a difficult issue. Incredibly, the administration argued that it can not only ban a professor at a public college from giving pieces of paper to others during a break at a public event, but can even fire the professor for this paper crime.
Online Speech Platforms
By Kali Hays, Candy Cheng, and Rob Price
An internal memo from [Facebook Chief Technology Officer Andrew] Bosworth in August 2020 and an ensuing heated debate among employees show him questioning Facebook’s hate-speech moderation and saying that the efforts may be futile because humans want more of that type of content.
“As a society we don’t have a hate speech supply problem, we have a hate speech demand problem,” Bosworth wrote. “Online platforms don’t work on the supply side because they don’t control the demand side.” …
Insider asked Facebook and Bosworth for comment this week. A company spokesperson declined to comment, other than to note the executive posted the “Demand Side Problems” memo on his personal blog in early 2021. Bosworth didn’t respond…
But he did make several recommendations in the comments section of another memo he posted internally in late 2019.
“Personally I would flip our model,” Bosworth wrote. He suggested viral content should get “a great deal more scrutiny” and nonviral content should be “far less regulated.” Virality overall should be diffused, he said, and all page content should be made “searchable and associated to a specific human with a verified ID.” He added that he wanted the algorithm refined “to ensure outrage doesn’t rule.”
The States
Open Secrets: Foreign company’s subsidiary poured millions into influencing Maine ballot referendum
By Anna Massoglia
A Maine ballot referendum to halt the construction of a $1 billion cross-border corridor of high-impact electric transmission lines from Canada attracted more than $89 million in funds through ballot campaigns, more than any other referendum in Maine’s history, OpenSecrets’ analysis of campaign finance disclosures showed.
Supporters of the corridor poured more than $63 million fighting the ballot measure, dwarfing around $26.1 million raised by ballot committees opposing the corridor and supporting the measure’s passage.
Maine voters ultimately passed the ballot measure to halt the corridor’s construction on Nov. 2.
New York Times: Stephen Sweeney, N.J. Senate President, Loses to Republican Truck Driver
By Nick Corasaniti and Tracey Tully
For nearly a decade, Stephen M. Sweeney, the second most powerful lawmaker in New Jersey, seemed truly unassailable. He boasted deep ties to the most feared political power broker in the state and unyielding support from the influential building trade unions. Four years ago, the state’s teachers’ union spent more than $5 million to unseat him. He won by 18 points.
This year, his challenger was Edward Durr, a truck driver for Raymour & Flanigan, a furniture chain, who had never before held office. His campaign video was shot on a smartphone.
Yet Mr. Sweeney, the State Senate president and a Democrat, was ousted in a shocking political upset by Mr. Durr, a Republican…
Mr. Durr told news outlets that he had spent $153 on his campaign, but financial disclosure reports indicate he spent roughly $2,200 on his race. His meager campaign included the 80-second campaign video, where he accentuated his working-class roots with an opening scene of his stepping down from his truck cab, and ending with his riding away on a motorcycle. His victory was announced on the same day Mr. Durr was on a shift driving his truck.
