New from the Institute for Free Speech
Americans for Prosperity Foundation v. Bonta: Questions and Answers
By Brad Smith
The U.S. Supreme Court recently ruled that California could not constitutionally require charities and other nonprofit organizations to submit an annual list of donors to state officials as a pre-condition for lawfully soliciting contributions in the state. The case, known as Americans for Prosperity Foundation v. Bonta (“AFPF”), was decided on July 1, 2021 and should have a substantial, positive impact on the rights of Americans to keep their memberships and financial support for causes and organizations private.
This short primer [PDF] answers some of the more common questions about the decision, its immediate impact on nonprofits, and possible consequences going forward, including the constitutionality of other state and federal laws mandating disclosure of members and donors to nonprofits.
Amicus Brief: Cato Institute v. Securities and Exchange Commission
The Cato Institute is challenging the constitutionality of the SEC’s Gag Regulation. Cato alleges that the SEC “uses its extraordinary leverage in civil litigation to extract from settling defendants a promise to never tell their side of the story.”
Cato wants to write a book and host a public discussion with and about individuals who “have settled enforcement actions with the SEC” and who “would like to speak publicly” about the Commission’s allegations. Cato cannot engage in this speech, however, because the settling defendants “are prohibited from [speaking publicly] because of gag orders” that they agreed to pursuant to the Gag Regulation.
The Institute filed its amicus brief in support of Cato. A panel of the D.C. Circuit Court of Appeals ruled against Cato, arguing that they did not have a “redressable injury.” Our brief explains why this ruling was in error, as a matter of law and fact.
Supreme Court
New York Times: Are Censures of Politicians a Form of Free Speech or a Threat to It?
By Adam Liptak
Censures, which are formal reprimands and a kind of punishment, seem to be on the rise in these divisive times. The Supreme Court will hear arguments this fall on whether the First Amendment has anything to say about when elected bodies can impose them on their members.
The justices will have to decide whether censures condemning politicians’ statements are a threat to free speech that chills expression or a form of free speech responding to one set of views with another.
The case before the justices was brought by David Wilson, a former elected trustee of the Houston Community College System and an energetic critic of its work. In addition to airing his concerns in interviews and on a website, Mr. Wilson sued the system’s board, orchestrated robocalls and hired private investigators to look into whether another trustee had lied about where she lived…
“The board finds that Mr. Wilson’s conduct was not only inappropriate, but reprehensible, and such conduct warrants disciplinary action,” the resolution said.
He sued, saying the punishment violated the First Amendment.
The Courts
OPB: Multnomah County judge rules campaign contribution limits constitutional
By Sam Stites
Campaign contribution limits passed by Multnomah County voters are now able to be enforced in local elections, following a ruling issued this week.
On Monday, Judge Eric J. Bloch of Multnomah County Circuit Court ruled that campaign contribution limits do not violate free speech protected by the First Amendment.
The ruling puts an end to a lengthy back-and-forth over a $500 limit on individual campaign donations widely approved by Multnomah County voters in 2016 along with spending limits and requirements that candidates disclose their contributions in political ads.
Bloch’s opinion reverses a ruling he issued in 2018 that struck down the contribution cap, limits on campaign spending and disclosure requirements for candidates, saying that they violated the state’s expansive free-speech protections.
South Florida Sun-Sentinel: Federal judge tangles with lawyers over anti-riot law pushed by DeSantis
By Dara Kam, News Service of Florida
[Chief U.S. District Judge Mark Walker] tangled Monday with lawyers for the state over a controversial law, one of Gov. Ron DeSantis’ top legislative priorities, that toughens penalties and creates new crimes for protests that turn violent…
Plaintiffs’ lawyers argue, in part, that the measure known as HB 1 puts peaceful protesters at risk of being arrested at rallies that turn violent, even if they don’t participate in any wrongdoing…
But Nicholas Meros, a deputy general counsel for DeSantis, said the plaintiffs “have shown no concrete evidence of such chilling” and thus lack standing to challenge the law…
Even so, Walker grilled Meros about prior court decisions establishing that plaintiffs can seek “pre-enforcement” actions in legal challenges involving First Amendment rights.
“For pre-enforcement action in this case, they’d have to have affidavits or declarations that would say, ‘We plan on protesting in X city, and we have a reason to believe that the Proud Boys are going to show up as counterprotesters and turn it violent … for them to have standing?’” Walker asked.
“To an extent, yes sir, they would. They would have to show that they were having protests on these days and they have canceled these protests because of HB 1. They would also have to show what specifically about HB 1 is actually chilling them,” Meros said.
WZTV: Tennessee alderwoman sues state for right to be labeled a Republican in city elections
By Adrian Mojica
A Tennessee alderman is suing the state for the right to be partisan in non-partisan elections…
[The] lawsuit was filed earlier this month by Jenna Amacher, a Tullahoma alderman who ran in the city’s non-partisan election and won a seat.
According to the lawsuit filed in the Middle District of Tennessee against the state and Secretary of State Tre Hargett, the suit states Amacher is a Republican who has previously run for other offices as such. However, Amacher still wants the right to run as a Republican when up for re-election as alderman.
Amacher claims the Tennessee code which calls for municipal elections to be nonpartisan violates political speech, her 1st and 14th Amendment rights, and hinders voters from learning about the candidates.
The suit states “Barring political parties from endorsing and opposing candidates not only burdens their freedom of speech but also infringes upon their freedom of association. It is well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments.”
FEC
Axios: “Perfect storm” blocks Trump-era FEC probes
By Lachlan Markay
The [Federal Election Commission] is clearing out a backlog of Trump-related cases. One of them, officially tossed last month, shows how the nation’s top political money regulator has been hobbled.
- The case stemmed from a December 2015 complaint lodged by a pro-Jeb Bush super PAC.
- It alleged that a pair of Trump Organization employees, Michael Cohen and Alan Garten, had illegally used corporate resources to support Trump’s presidential campaign.
- “The record supports these allegations,” declared two of the FEC’s Democratic commissioners in a statement on Wednesday…
What they’re saying: “The commission found itself in the middle of a perfect storm of unique and unfortunate circumstances that prevented it from moving forward in this case,” the two Democrats, FEC chair Shana Broussard and commissioner Ellen Weintraub, wrote this week.
- “[A]t the time the commission was finally able to consider and vote on this matter, we were ultimately left with no meaningful enforcement options.”
Free Speech
Reason (Volokh Conspiracy): Adam Candeub & Eugene Volokh, “Interpreting 47 U.S.C. § 230(c)(2)”
By Eugene Volokh
Still more from the free speech and social media platforms symposium in the first issue of our Journal of Free Speech Law; you can read the whole article (by Michigan State law professor Adam Candeub and me) here, but here’s the abstract:
Section 230(c)(2) immunizes platforms’ decisions to block material that they “consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The ejusdem generis interpretive canon suggests that “otherwise objectionable” should be read “to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”
In this instance, the similarity is that all those words refer to material that was traditionally viewed as regulable in electronic communications media—and was indeed regulated by the Communications Decency Act of 1996, as part of which § 230 was enacted. And restrictions on speech on “the basis of its political or religious content” were not viewed as generally permissible, even in electronic communications.
The States
Associated Press: Prohibitions on release of donor info heads to NC governor
North Carolina Republican legislators finalized on Wednesday prohibitions on the public disclosure of contributors to nonprofits, saying they’ll protect rights of free speech and free association.
By a 25-19 vote, the Senate accepted the House changes last week to the measure, which now heads to Democratic Gov. Roy Cooper. He must decide whether to veto the measure or let it become law.
The bill says the names of donors to North Carolina-based nonprofits can’t be disclosed publicly by the group without a donor’s written permission. And it states a donor’s identifying information isn’t a public record when held by a state or local government agency. A government worker who uses or discloses it could face a misdemeanor…
Bill supporters said people can be harassed for the groups to which they give. A recent U.S. Supreme Court decision found unconstitutional California’s policy to collect the names and addresses of top donors to charities.
