Supreme Court
American Spectator: What Are Judges to Do? Be Partisan Warriors, Sayeth the Left
By Doug Bandow
These days the Right and Left look at jurisprudence differently. They have different views of what judges are for and how they should perform their duties…
For instance, Adam Cohen, a former New York Times editorial writer, wrote an article for the Washington Post (a double dose of mainstream media!) adapted from a recent book. The article’s title: “Supreme inequality: The high court has been siding with the rich against the poor since Nixon.” …
Among Cohen’s bête noire is Buckley v. Valeo, the 1976 decision that first recognized political contributions as a form of protected speech. He might not like the ruling, but the decision makes sense. Some people aren’t able to reach millions of people by writing editorials for the Gray Lady and instead give money for other people to manage campaigns or run ads. Moreover, given government’s ability to destroy business operations and curtail personal freedoms with the stroke of pen, the ability to contribute for or against politicians is essential.
As for promoting inequality, one of the great lessons of politics is that money cannot buy elections. In the 2020 campaign, hyper-wealthy Michael Bloomberg spent nearly a billion dollars to win 55 delegates. All that money could not insulate him from Sen. Elizabeth Warren’s scorching attacks and his feeble defenses.
The Courts
Memphis Flyer: City Proposes Modifications, Clarification to Consent Decree on Police Surveillance
By Maya Smith
The city of Memphis has submitted proposed modifications to the 1978 Kendrick consent decree on police surveillance and the court is asking for public comment on the changes.
U.S. District Judge Jon McCalla ruled in October 2018 that the Memphis Police Department (MPD) violated several areas of the decree, including intercepting electronic communications, using a fake Facebook profile of “Bob Smith” to learn of activists’ activities, and failing to properly inform officers of the parameters of the 1978 ruling…
Last week, the city filed a notice to the court which included proposed modifications to the decree…
The filing only seeks to change one section of the decree. The modification would allow the MPD director to designate officers to approve investigations that might interfere with the exercise of First Amendment rights, as long as the designees receive regular training on the consent decree and the director periodically reviews the designees’ work.
The current language of the decree only allows for the MPD director to authorize such investigations.
Courthouse News: Federal Judge Asked to Toss Devin Nunes Defamation Case
By Rox Laird
Lawyers for Hearst Magazines and journalist Ryan Lizza on Friday urged an Iowa federal judge to dismiss defamation claims filed against them by California Congressman Devin Nunes and his family over an article about their family farm.
After two hours of oral argument conducted by phone, U.S. District Judge C.J. Williams, appointed by President Donald Trump, told the lawyers he would take the matter under advisement and rule later.
Nunes, a Republican representing California’s 22nd congressional district, sued Hearst and Lizza last September over a 2018 article Lizza wrote for Esquire magazine about how Nunes’ family moved its dairy farm from California to northwest Iowa. The story – headlined “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret” – suggested there was a scandal involved and that Nunes attempted to hide the Iowa move…
Hearst attorney Jonathan R. Donnellan told Judge Williams that the Esquire article “is core political speech protected by the First Amendment” because it focused on a high-profile and powerful member of Congress. Donnellan argued that Nunes’ lawsuit aims to “weaponize libel law” to attack his critics and prevent Esquire and other publications from criticizing the congressman.
Hollywood Reporter: Fox News Admits Error. It’s Now Become a Constitutional Issue.
By Eriq Gardner
The legal consequences for fessing up to error (if not going so far as to be apologetic) is coming up in court after Fox News retracted some of its reporting about the 2016 murder of Democratic National Committee staffer Seth Rich.
In a written opinion two weeks ago that has until now escaped any attention, a DC federal judge ruled that Fox News journalist Malia Zimmerman had to testify in deposition on several topics including the network’s decision to retract. On Wednesday, Fox News pushed that judge to change his mind – or at least retreat somewhat – with the warning that staying the course would “carry potentially significant consequences for Ms. Zimmerman, Fox News and other journalists beyond this specific subpoena.” …
In late March, U.S. District Court Judge Richard Leon rejected a bid to stop Zimmerman’s deposition. Following up in a written order (read here), the judge explained that she and Fox News hadn’t justified protecting her from testimony via the newsgathering privilege under the First Amendment and New York’s shield law. Leon doubted the privilege applied to the decision to retract Fox News article and her communications with Ed Butowsky [a Texas businessman with connections to the White House who allegedly pushed Fox News to publish its initial story about the Seth Rich murder] since he was “neither a journalist nor a news source.”
Filter: Top New Orleans Prosecutor Loses Immunity Over His Illegal Jail Threats
By Rory Fleming
For many years, New Orleans DA Cannizzaro sent fake, illegal subpoenas…to witnesses and crime survivors-including victims of child molestation and child pornography. He has bragged on television about jailing rape victims as material witnesses to their own rapes. When local police coerced a man to give false testimony in a murder case, Cannizzaro charged the man with a count that carried 40 years in prison.
He even charged at least six staffers at the public defender’s office with crimes for doing their jobs. “It destroyed my life in so many ways,” said Taryn Blume, a defense investigator in her mid-20s whom Cannizzaro claimed impersonated a cop (the case, handled by his own daughter, fell apart).
For the first time, it looks like Cannizzaro’s reign of terror is coming back to haunt him. The US Court of Appeals for the Fifth Circuit decided on April 21 that, when it comes to the fake subpoenas, Cannizzaro and his prosecutors are not entitled to “absolute immunity” from lawsuits, which prosecutors usually receive in the course of doing their jobs…
Cannizzaro’s use of illegal subpoenas deprived his victims of many constitutional rights. As attorney and First Amendment scholar David L. Hudson, Jr. writes, “the First Amendment not only limits the government from punishing a person for his speech, it also prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages.”
WMAR: Federal Judge gives go ahead to BPD surveillance plane program
By Ryan Dickstein
A Federal Judge in Maryland on Friday ruled that the Baltimore Police Department can proceed with its AIR pilot program.
The judge rejected a request by the ACLU and other groups, to issue a preliminary injunction to stop the plane from flying.
“Images produced by the AIR pilot program will only depict individuals as minuscule dots moving about a city landscape,” said U.S. District Court Judge, Richard Bennett. “This limited form of aerial surveillance does not constitute a search under the Fourth Amendment, nor does it burden First Amendment speech activities.” …
Following the decision, a Baltimore Police spokesman said the plane would begin flying sometime next week.
The ACLU said they would quickly appeal the decision to the Fourth Circuit U.S. Court of Appeals.
First Amendment
The Atlantic: How to Protect Civil Liberties in a Pandemic
By Conor Friedersdorf
The cries to “open up the country” don’t reflect the feelings of most Americans. A poll released Monday found that 60 percent of Americans oppose the protests, while 22 percent support them. Nor are the protesters of a like mind with some of the country’s most prominent libertarians and civil-liberties organizations.
The UCLA professor Eugene Volokh, a First Amendment expert with a reputation for valuing civil liberties, argued recently that while liberty of movement and association are hugely important, “the premise behind the liberty is that people assembling together can choose to be ‘peaceable,’ and thus physically safe for each other and for bystanders.” Conversely, COVID-19 “has the property that I can sicken or even kill you with it entirely inadvertently.” Those infected can then harm others who were not even present at the initial gathering.
“Normal conditions that justify liberty of movement”-conditions that make it consistent with the premise that we have the right to do what doesn’t physically harm others-“are regrettably not present when each of us (with no conscious choice on our parts) is potentially highly lethal to people around us,” he concluded. “However peaceable we might be in our intentions, our assembling is a physical threat. Our judgments about liberty, I think, need to reflect that.”
The Hill: Yes, you have the right to protest, but you may still be wrong to do it
By Alan Dershowitz
The right to protest is guaranteed by our First Amendment. So is the right to assemble peaceably and petition the government. But officials have the power to impose time and manner restrictions on these important rights. No one has the right to play their loudspeakers and wake up neighbors in the middle of the night, or to break into legislative assemblies to present their petitions, or to assemble on private property without any permission from the owner, or to block the entrance to a public building.
Against this background, the question arises whether the citizens who are protesting current restrictions on movement have the constitutional right to assemble in violation of these social distancing rules to slow down the spread of the coronavirus.
New York Times: Opposed to Bailouts, but in This Case Willing to Take One
By Kenneth P. Vogel and Lisa Lerer
A provision in the [$2.2 trillion bailout plan signed into law by President Trump,] which socially conservative organizations recommended to Republican lawmakers, made clear that certain nonprofit groups could apply as well…
[C]ritics argue it is not a good use of government money to prop up groups trying to influence the political debate in the middle of a presidential campaign.
They point out that such groups do not pay taxes, and as such already receive a form of subsidy from the government. And they note that some taxpaying for-profit businesses that focus on politics are unable to avail themselves of the funding because Small Business Administration regulations prohibit loans to businesses that get more than half their revenue from political or lobbying work.
“There is a complete double standard,” said Eli B. Karabell, a Republican political consultant in St. Louis who sought to apply for an $87,000 S.B.A. loan for his business, but was informed by his bank he was ineligible.
Mr. Karabell had to lay off three employees, according to a lawsuit the American Association of Political Consultants filed against the S.B.A. seeking to overturn the ban on loans to political businesses as an infringement on free speech…
While the tax code bans those groups from endorsing candidates or engaging in other partisan political activity, they are allowed to spend money advocating policy positions at the heart of political fights.
Fundraising
Wall Street Journal: As Coronavirus Spread, Online Donations to Biden, Democrats Slumped
By Chad Day, Luis Melgar and Jessica Wang
Candidates have expressed concerns that political giving is slackening, as Americans feel the economic effects of the coronavirus pandemic. Many campaigns are making fewer fundraising appeals. Donations may also be shifting from political causes to nonprofits. ActBlue said in a blog post earlier this week that charitable giving on its platform increased in the latter half of March. Some candidates, such as Sen. Bernie Sanders of Vermont, asked supporters to direct contributions to nonprofits during that period.
Online Speech Platforms
The Atlantic: Internet Speech Will Never Go Back to Normal
By Jack Goldsmith and Andrew Keane Woods
In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong. Significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with a society’s norms and values.
Candidates and Campaigns
Auburn Citizen: Dana Balter, paying candidates and how one rule could help working Americans run for Congress
By Robert Harding
Dana Balter, a Democratic candidate in New York’s 24th Congressional District, revealed to The Citizen in an interview last week that she will accept a salary for the duration of the campaign…
With her public acknowledgment, Balter hopes to raise awareness about the FEC rules and end the stigma associated with candidates receiving a salary from their committees…
“The purpose behind those rules is to recognize that campaigning for Congress is generally a full-time job and not everybody can afford to take a year or more off work, unpaid, to campaign for office,” said Adav Noti, senior director and chief of staff at the Campaign Legal Center.
Noti, who formerly worked at the FEC as associate general counsel, added: “If candidates weren’t allowed to draw a salary while campaigning, only the wealthy could run for office. That’s the rationale behind the provision.”
The States
Portland Mercury: Oregon Supreme Court Upholds Multnomah County Campaign Finance Limits
By Blair Stenvick
The Oregon Supreme Court ruled Thursday that the Multnomah County campaign donation limits approved by voters in a 2016 ballot measure are permissible under Oregon law. That means candidates for office in Multnomah County will now be limited to contributions of $500 per individual donor for each race.
Deborah Scroggin, Portland’s city elections officer, said it’s “too early to tell” how the Court’s ruling will apply to candidates on the ballot for the May 2020 election, including Mayor Ted Wheeler…
In its decision announced Thursday, the Court agreed that allowing caps on contribution limits would violate Vannatta 1-but that its decision in that previous case ought to be overruled because it had “strayed from the Court’s usual approach” in how it treats campaign contributions.
The Court’s decision to overrule Vannatta 1 and uphold the county’s new contribution limits was unanimous. But the case will be sent back to Multnomah County Circuit Court to consider one question left unanswered by the Court: whether the limits violate the First Amendment.
However, the Court noted in its decision that the First Amendment does allow for “limits on the regulation of campaign contributions,” based on previous United States Supreme Court rulings.
NJ.com: N.J. tried to ban inmates from talking to media if they are released amid coronavirus crisis
By Blake Nelson and S.P. Sullivan, NJ Advance Media
As New Jersey prepares to temporarily release some state prison inmates to stem a spike in coronavirus deaths behind bars, corrections officials threatened to throw anyone who talked to the media back in their cells, NJ Advance Media has learned.
The gag order was among more than two dozen conditions prisoners had to agree to in order to get temporary medical leave under an executive order signed by Gov. Phil Murphy this month, which sought to reduce prison populations by moving sick, elderly and other prisoners to home confinement.
Violating any term can land you back in prison, where at least 16 inmates have already died, as well as trigger “further disciplinary action,” according to the original contract.
The ban on speaking to reporters was removed only after civil liberties advocates complained to the state attorney general, according to Alexander Shalom, a lawyer with the American Civil Liberties Union of New Jersey.
A draft obtained by NJ Advance Media directed prisoners not to “engage in any public activities, meetings, discussions or demonstrations, or give interviews/opinions to the press, radio, or television media.”
The condition raised concerns among free speech advocates, especially at a time when the state’s prison system faces intense scrutiny over limited testing, a rise in deaths in custody and complaints from inmates and officers that New Jersey isn’t doing enough to quell the spread of COVID-19.
KUSI (Video): Analyzing the constitutionality of charging someone for organizing the ‘Freedom Rally” to peacefully protest
Last weekend, hundreds of people participated in a ‘Freedom Rally’ to protest the government’s stay-at-home orders.
And Wednesday, KUSI reported the woman who organized the downtown ‘Freedom Rally’ is facing arrest and possible misdemeanor charges that could result in 90 days in jail and a $1,000 fine.
The woman, Naomi Israel, says she is just exercising her First Amendment right to protest. Thursday morning, we spoke with Israel and her attorney, Mark Meuser, live on Good Morning San Diego about the incident.
Legal Analyst Dan Eaton spoke with KUSI News on the phone about the incident, and why he believes charging Israel is in violation of her First Amendment rights.
Arizona Daily Star: Tucson creates new ordinance to deter aggressive ‘First Amendment auditors’
By Carol Ann Alaimo
The Tucson City Council took action last week on a distinctly 21st century problem: people showing up at crime scenes with cellphones in hand, looking to create conflicts they can post online for profit…
The provocateurs are part of a loose network of people who call themselves “First Amendment auditors” and claim they’re protecting the public’s right to monitor government activities…
Tucson City Council members unanimously passed a new ordinance to curb such activity after viewing video of an extended verbal attack on a pair of TPD officers earlier this year.
The council created a new Class 2 misdemeanor punishable by a maximum $750 fine. It allows TPD to arrest those who refuse to stay outside crime scene boundaries while filming at police calls…
Tucson Police Chief Chris Magnus, who pushed for the new ordinance, said the problem is so pervasive it’s becoming a distraction for officers trying to carry out their duties.
“This has been happening, in some cases, on a nightly basis,” he told the council.
Magnus said TPD supports the public’s right to film police encounters, so long as it’s done from a safe distance at crime scenes that often are chaotic by nature.
Many other Arizona cities already have similar measures in place, he said.
Montrose Press: ACLU: Pandemic does not end protest rights
By Katharhynn Heidelberg
Coloradans who recently protested the state’s stay-home orders issued in response to the COVID-19 emergency appear to be on firm legal footing, even though medical experts are concerned such gatherings could further spread the virus.
“I think the right to protest is a fundamental constitutional right,” said Mark Silverstein, legal director for the Denver chapter of the American Civil Liberties Union.
“I think it would be very difficult for a prosecutor to say this protest violated a stay-at-home order and we think the stay-at-home order overrides your constitutional right to protest.”
Wisconsin Examiner: Evers takes ‘good cop’ stance on Safer at Home protest
By Erik Gunn
On the eve of a planned protest in front of the state Capitol by people flouting the state’s Safer at Home order, Gov. Tony Evers said on Thursday that he won’t ask Capitol police to intervene or arrest participants – even though they would be there without a permit.
“I celebrate the First Amendment and celebrate people’s ability to exercise it. Just keep a safe distance apart,” Evers said during a Wisconsin Department of Health Services (DHS) media briefing, in reaction to organizers’ vow to go ahead with their demonstration despite lacking a permit…
Asked later in the briefing whether Capitol police would arrest people at the demonstration for violating six-foot physical distancing limits, Evers doubled down on his portrayal of the protesters as people acting in good faith.
“We’re making the assumption that these are all good Wisconsinites that are establishing their right under the First Amendment to express their views, and we also believe that they will make sure that they’re physically distant from each other,” Evers said. “I don’t think you’ll see the Capitol police out there or other law officers out there measuring with a yardstick seeing if people are too close or too far away.”
Atlanta Progressive News: APN Editor Sues Georgia Over Right To Protest During Pandemic
By Matthew Cardinale
On Thursday, April 23, 2020, the News Editor of Atlanta Progressive News filed a lawsuit against the State of Georgia over the right to protest one’s government during the COVID-19 pandemic.
The lawsuit, Cardinale v. State of Georgia, 2020-CV-335449, was filed in Fulton County Superior Court and referred to Fulton County Superior Court Judge Emily K. Richardson.
The lawsuit alleges that Georgia Gov. Brian Kemp’s April 02, 2020 Shelter-in-Place Order violates the First Amendment to the Federal Constitution and Article I, Sec. 1, Paragraphs V and IX of the Georgia Constitution, to the extent that it does not make exceptions for individuals who wish to protest their government with reasonable social distancing…
“Democracy is an essential activity. Our voices are more important, not less important, during a Pandemic,” APN’s News Editor said in a press release distributed Thursday, April 23.
