New from the Institute for Free Speech
Amicus: Pulliam et al. v. Austin et al. (District Court, Travis County, TX)
Case Summary:
At issue in this case is whether the Texas Citizen Participation Act (“TCPA”) violates a plaintiff’s right under the First Amendment’s Petition Clause to access the courts for “redress of grievances.” Because of the high costs of defending oneself from a lawsuit, parties have found that even frivolous lawsuits can be a potent tool in silencing their critics. Legislatures have passed anti-SLAPP laws to protect defendants where suits are baseless, because using a court’s power to silence a critic in a baseless case would violates the critic’s First Amendment rights to freedom of speech and association. But applying such laws in non-baseless cases-especially when ambiguous language would extend the law’s scope beyond legislative intent, beyond core political speech and association-would violate a critic’s rights under the Petition Clause. Such is the case here.
The Institute filed an amicus brief urging the court to limit the TCPA under the First Amendment to situations where a suit is both baseless and brought solely to silence critics with the costs of litigation. It also argued that the precision of regulation required in the First Amendment context requires limiting interpretations of the TCPA, to suits that directly attack freedom of association. The TCPA should not apply here, where Plaintiffs’ challenge-that giving leave to union officials violates the Texas Constitution’s gift clause-only tangentially touches on defendants’ association rights.
Read the Full Amicus Brief Here.
Supreme Court
SCOTUSblog: Argument analysis: No clear resolution on whether First Amendment applies to public-access channels
By Amy Howe
The Supreme Court heard oral argument [yesterday] in a case involving whether a private nonprofit corporation that runs a public-access TV channel is a “state actor,” who can be sued for violations of the First Amendment. After roughly an hour of debate, there was no clear winner in the case: The justices who spoke appeared to be divided, and two justices – Clarence Thomas and Neil Gorsuch – asked no questions at all.
The events leading up to today’s case began back in 2012, when DeeDee Halleck, an award-winning public-access producer, and Jesus Melendez, a poet and playwright, made a 25-minute video that was critical of Manhattan Community Access Corporation, known as “MNN,” which operates the public-access TV channels in Manhattan. MNN aired the video once but then banned it from the air, pointing to what it described as threatening language from Melendez in the video. Halleck was prohibited from submitting content to MNN for a year, while Melendez was banned from MNN for life.
Halleck and Melendez sued MNN and its employees, claiming a violation of their First Amendment rights. The First Amendment generally applies only to the government, not to private corporations like MNN. However, private actors can be held liable for violating the First Amendment when they are acting on behalf of the government or doing something that the government would normally do.
The U.S. Court of Appeals for the 2nd Circuit agreed with Halleck and Melendez that the First Amendment applies to MNN and allowed their lawsuit to go forward. In its view, MNN’s public-access channels are public forums – places like streets and parks, where members of the public can speak freely, and where speech is protected by the First Amendment. The court of appeals also reasoned that MNN is a state actor, because the local government chose the company to operate public-access channels on the borough’s cable system. MNN appealed to the Supreme Court, which agreed last fall to take up the case.
By Tucker Higgins
The justices of the U.S. Supreme Court on Monday heard arguments in a First Amendment case that experts have said could have ramifications for how the nation’s largest social media companies are permitted to moderate the content on their platforms.
But the justices’ questions during oral argument revealed a reluctance to enter into that fraught arena. This suggests the future ruling on the matter will hew narrowly to questions specific to the facts of the case, which involved not social media but public-access television channels in New York.
In particular, Justices Brett Kavanaugh and Stephen Breyer, who sit on opposite ends of the ideological spectrum, expressed unease with the notion that the First Amendment could apply to private companies operating private property, such as Twitter and YouTube.
And the other justices, led by Chief Justice John Roberts, largely homed in on extremely narrow questions of fact that suggested the court was not gearing up for a large revision of its existing precedent.
“Nothing about today’s hearing suggested that Twitter is in danger of being found to be a state actor any time soon,” said Jeffrey Robbins, a partner at Saul Ewing Arnstein & Lehr and a former assistant U.S. attorney for the District of Massachusetts…
“I think that the court sees this as a narrow case,” said Paul Hughes, who represented the respondents, in an interview with CNBC following oral arguments. “I don’t anticipate a broad ruling coming out of this case that would affect social media or internet companies.”
The Courts
FIRE: FAN 201.2 Robert Corn-Revere, “Can the President Treat the Press as the Enemy of the People?”
By Ronald K.L. Collins
On October 16, 2018, PEN America, an association of writers and other literary and media professionals, filed suit against President Donald Trump. The suit challenged his persistent use of threats and retaliatory acts against the press as a violation of the First Amendment. An amended complaint in that action was filed on January 18, 2019 in the U.S. District Court for the Southern District of New York.
In the essay below, Robert Corn-Revere, a partner and Davis Wright Tremaine LLP, outlines a history of presidential and other official actions that were hostile to First Amendment freedoms. In a follow-up essay (Part II), he sets forth the First Amendment case against President Trump’s threats and retaliatory acts. Mr. Corn-Revere and others at DWT recently joined lawyers from The Protect Democracy Project, Inc. and the Media Freedom and Information Access Clinic of the Floyd Abrams Institute for Freedom of Expression in representing PEN America in this case.
Congress
Office of U.S. Senate Majority Leader Mitch McConnell: H.R.1 or The Democrat Politician Protection Act (Video)
H.R.1. is a blatant power grab to give Washington bureaucrats control over what American citizens can say about politics, how we can say it, and how we cast our ballots.
Wall Street Journal: Cohen to Testify That Trump Engaged in Criminal Conduct While in Office
By Rebecca Ballhaus and Warren P. Strobel
Michael Cohen, Donald Trump’s former lawyer, will for the first time publicly accuse the president of criminal conduct while in office related to a hush-money payment to a porn star, a person familiar with his planned testimony before Congress said…
[F]ederal prosecutors investigated Mr. Cohen’s activities, raided his home, hotel room and office, and began probing the business practices of the Trump Organization, including whether it committed campaign-finance violations. The Trump Organization investigation, spearheaded by the U.S. attorney’s office in Manhattan, is continuing, people familiar with the matter said…
In August Mr. Cohen implicated the president in two federal crimes when he told prosecutors Mr. Trump directed hush-money payments during the 2016 campaign to Ms. Clifford and to former Playboy model Karen McDougal, who alleged she had an affair with Mr. Trump.
The person familiar with Mr. Cohen’s anticipated testimony said Mr. Cohen would provide “evidence of criminal conduct since Mr. Trump became president,” but other than saying it involved the Clifford payment, wouldn’t offer more specifics before Wednesday’s House hearing…
Mr. Cohen will give his most detailed public account to date of Mr. Trump’s alleged direction of the hush payments, as well as how Mr. Trump was involved in efforts to conceal them from the public weeks before the 2016 election, according to the person…
In addition to his testimony Wednesday before the House Oversight Committee, Mr. Cohen is also speaking privately to two other panels. On Tuesday morning, he was set to meet with the Senate Intelligence Committee, and on Thursday he will speak before the House Intelligence Committee.
FEC
Mother Jones: The New Chief Campaign Finance Regulator Has a Plan to Make Her Agency Matter for the First Time in Years
By Nihal Krishan
Ellen Weintraub, the sole Democratic commissioner on the Federal Election Commission, just became chairwoman of the agency in January and she’s already trying to shake things up at her “dysfunctional” agency. The FEC chairmanship, which rotates among the commissioners each year, is mostly a ceremonial role among equal commissioners, with minimal power besides the bully pulpit, but Weintraub is coming up with novel solutions to force action at the agency charged with overseeing campaign finance.
Weintraub, who last chaired the agency in 2013, recently announced that she is going to take the drastic step of not allowing FEC lawyers to defend the government when the FEC has been sued for not enforcing the law, effectively an effort to sabotage her own agency. She has become increasingly frustrated by the FEC’s gridlock and lack of enforcement of campaign finance law, which she feels has led to less disclosure, less transparency, and more dark money within the campaign finance system.
The new FEC chief recently sat down with Mother Jones to talk about the potential ways dark money could become a vehicle for foreign influence in elections, the impact of Citizens United and how she plans to respond to it within the FEC, and whether the FEC should be restructured all together.
Candidates and Campaigns
Politico: Warren creates purity test unseen in modern presidential politics
By Natasha Korecki and Maggie Severns
The subject line of an email from Warren to supporters on Monday seemed to forecast fundraising disappointment: “This decision will ensure I’m outraised in this race.”
Warren already has $12 million in the bank, the amount left over from her Senate campaign run, giving her flexibility to build a nationwide infrastructure. Opposing campaigns privately point out that she raised that money with the help of big donors and the tactics she’s shunning moving forward…
Moneyed donors are unlikely to be completely shut out from Warren’s campaign. Her new rules would not preclude her from holding fundraising events with low-dollar entry fees. And Warren’s restrictions wouldn’t prohibit her finance team from calling big donors to ask for money…
Notably, the policy would be loosened if she advances to the general election. In an email to supporters, she alluded to changing course against Republicans.
“By then we’ll be up against a Republican machine that will be hell-bent on keeping the White House,” she wrote. “They will have PACs and Super PACs and too many special interest groups to count, and we will do what is necessary to match them financially. That means investing – starting now – in each and every one of our state parties, and in our national party too.” …
In conversations with Politico, aides to multiple competing candidates said the Warren campaign was likely maneuvering to shield itself from low fundraising numbers after its launch, and pointed out there were potential holes in Warren’s policy that would still allow her to raise money from large donors…
“It’s blatant expectations-lowering” around Warren’s fundraising, said one aide on a Democratic presidential campaign. “If this is a values-driven decision, to then say she’ll revert back to taking big money during the general election feels odd.”
The States
Idaho Press-Tribune: Sunshine bill on electioneering stalls in committee, amid nonprofits’ concerns over ‘donor privacy’
By Savannah Cardon
The bill, recommended by a bipartisan interim committee, includes new rules for electioneering communications, lengthening the reporting time and setting a standard for donations that must be reported based on the amount given. The committee voted unanimously to hold the bill at the request of its sponsor, the panel’s chair, Sen. Patti Anne Lodge, R-Huston…
Several nonprofits, including the American Civil Liberties Union of Idaho, Right to Life of Idaho and the Idaho Freedom Foundation, expressed concern with the bill’s language being “overly broad,” and how it might affect individual donor privacy.
The bill’s broad definition of electioneering communication, Amy Little, president and CEO for Idaho Nonprofit Center said, could lead a nonprofit to have to disclose their complete donor list to the public. She said this could cause donors to pull their funding, affecting many local nonprofits.
Little gave an example of a Catholic woman, who is a breast cancer survivor and donates to Planned Parenthood each year to fund mammograms for women who can’t afford them.
“She prefers to keep that donation private because of the repercussions within her own church,” Little said. “We know that Planned Parenthood participates in electioneering communication as defined by this piece of legislation. … That individual may choose not to make that donation because then suddenly her gift is public.” …
Though Lodge said she “thoroughly understood” the nonprofits’ concerns, she also encourages them to create a PAC, or political action committee, which could alleviate the problem of disclosing individual donors’ addresses and other personal information.
East Bay Times: California keeps a secret list of criminal cops, but says you can’t have it
By Robert Lewis and Jason Paladino
Thousands of California law enforcement officers have been convicted of a crime in the past decade, according to records released by a public agency that sets standards for officers in the Golden State.
The revelations are alarming, but the state’s top cop says Californians don’t have a right to see them. In fact, Attorney General Xavier Becerra warned two Berkeley-based reporters that simply possessing this never-before-publicly-released list of convicted cops is a violation of the law.
The California Commission on Peace Officer Standards and Training – known as POST – provided the information last month in response to routine Public Records Act requests from reporters for the Investigative Reporting Program at UC Berkeley and its production arm, Investigative Studios.
But when Becerra’s office learned about the disclosure, it threatened the reporters with legal action unless they destroyed the records, insisting they are confidential under state law and were released inadvertently. The two journalism organizations have rejected Becerra’s demands.
“It’s disheartening and ominous that the highest law enforcement officer in the state is threatening legal action over something the First Amendment makes clear can’t give rise to criminal action against a reporter,” said David Snyder, executive director of the First Amendment Coalition, a San Rafael-based nonprofit that advocates for free speech and open records.
Washington Post: Arkansas grapples with ethics cleanup amid federal probes
By Andrew Demillo, AP
Since January 2017, seven current or former state lawmakers – none of whom are still in the Legislature – have been ensnared in corruption investigations – most in a probe that looked at state money that was going to nonprofits…
At the center of that investigation was Rusty Cranford, a prolific lobbyist…
One of the people he said he bribed was former Republican state Sen. Jon Woods, who co-sponsored a successful 2014 constitutional amendment that banned lawmakers from accepting lobbyist gifts and prohibited corporations from contributing to political candidates in the state. Woods was convicted in the bribery case and is serving an 18-year prison sentence. He is appealing his conviction…
All of those investigations were conducted at the federal level, leaving Arkansas leaders pushing for better safeguards at the state level, even if they acknowledge that such reforms wouldn’t necessarily have prevented the recent crimes alleged to have occurred.
“Those are not gray areas. Those are black and white areas,” Republican Gov. Asa Hutchinson said last month. “You don’t need new laws to prohibit it because it was a clear violation of the law. … Those are matters of integrity and it’s not a matter of legislation.” …
Legislative leaders in February unveiled a package of ethics bills aimed at cleaning up the Capitol’s image, including increasing the maximum fines the state’s Ethics Commission can levy and making personal use of campaign funds a felony rather than a misdemeanor…
“We can pass all the ethics legislation in the world, but someone who is intent on gaming the system (is) going to find a way around it,” Ingram said. “But we can put some teeth in some things, point out some practices that are taking place.”
