Supreme Court

Washington Post: Trump announces Judge Amy Coney Barrett is his pick for the Supreme Court

By Seung Min Kim and Colby Itkowitz

President Trump announced Saturday that he would nominate federal appeals court judge Amy Coney Barrett to fill the Supreme Court vacancy left by the recent death of Justice Ruth Bader Ginsburg, setting up a bitter confirmation fight in the final weeks of the presidential campaign.

In a Rose Garden ceremony, Trump called Barrett “one of our nation’s most brilliant and gifted legal minds,” saying “she is a woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution.” …

Democratic presidential candidate Joe Biden criticized Barrett for her opposition to the Affordable Care Act, saying in a statement, “The United States Constitution was designed to give the voters one chance to have their voice heard on who serves on the Court. That moment is now and their voice should be heard. The Senate should not act on this vacancy until after the American people select their next president and the next Congress.”

Wall Street Journal: The Importance of Amy Coney Barrett

By The Editorial Board

President Trump’s nomination of Amy Coney Barrett for the Supreme Court is a highlight of his Presidency and perhaps a hinge moment for the judiciary. Judge Barrett’s record and intellect suggest she can join Mr. Trump’s other appointees in reviving core constitutional principles in American law and life.

If this sounds like a tall order for one Justice, we do not mean to suggest this is her job alone. She is the latest example of a new generation of originalist judges whom Mr. Trump and the GOP Senate have elevated to the federal bench. The numbers-three Justices and 53 appellate-court judges-are crucial, but more important is how they approach the law. With rare exceptions, they think of themselves as protectors of the proper constitutional order, not as a third policy-making alternative to the political branches.

The Courts

Washington Post: Judge blocks TikTok ban in second ruling against Trump’s efforts to curb popular Chinese services

By Rachel Lerman

TikTok received a reprieve of its ban from U.S. app stores on Sunday after a federal judge in Washington granted a preliminary injunction blocking an order from President Trump.

It was the second setback for the Trump administration in its effort to curb U.S. residents’ access to popular Chinese mobile apps. Last weekend, a federal magistrate in San Francisco cited First Amendment issues in blocking a proposed ban of the WeChat app.

U.S. District Judge Carl J. Nichols, who was appointed to the bench by Trump in 2019, was not expected to make public his full ruling until Monday. He filed his decision publicly, but his full reasoning was filed separately as a sealed document.

Bloomberg Law: Puerto Rico Law Limiting Campaigns on Statehood Blocked by Judge

By Jacklyn Wille

Puerto Rico election officials can’t enforce portions of a new law regulating the campaign over an upcoming referendum on statehood for the commonwealth, after a federal judge agreed that they were unconstitutional.

The law, which limits how groups can campaign on the referendum and imposes criminal liability, is unconstitutionally vague, violates free speech rights, and interferes with access to the federal courts, Judge Francisco A. Besosa of the U.S. District Court for the District of Puerto Rico ruled Thursday. He permanently enjoined Puerto Rico election officials from enforcing key provisions, including campaign finance rules and restrictions on which groups can…

FBI

Wall Street Journal: The FBI’s Bad Intelligence

By The Editorial Board

It was worse than we thought. We’re referring to the FBI’s 2016 investigation into the Trump campaign and Russia, as new documents this week reveal.

Senate Judiciary Chairman Lindsey Graham on Thursday released newly declassified FBI documents that contain this stunner: The bureau relied on a suspected Russian agent for the information it used to obtain a secret surveillance warrant against former Trump adviser Carter Page.

Four years into accusations about Russia-Trump collusion, we finally learn that Russia’s main conduit for disinformation may have been America’s FBI. Vladimir Putin must be howling with laughter…

In related news Thursday, the Justice Department disclosed more FBI text messages and notes in the tainted Michael Flynn case. These also reflect horribly on the James Comey-era FBI…

“[W]hat’s the word on how [Obama’s] briefing went?” asks one agent. “Don’t know, but people here are scrambling for info to support certain things and it’s a mad house.” A few days later, an FBI employee reports that they “all went and purchased professional liability insurance” over concerns about DOJ/FBI leaks and that “the new AG might have some questions.” 

Congress

Politico: Senate Dems ready tactics to muck up Supreme Court confirmation

By Andrew Desiderio

Senate Democrats can’t stop Mitch McConnell from confirming a new Supreme Court justice, but they are already planning to make it as painful as possible.

Senate Minority Leader Chuck Schumer has his caucus on board with an effort to disrupt and obstruct Senate Republicans, using a wide range of procedural tools to try to make it difficult for the Senate majority leader.

Interviews with more than a dozen Democratic senators revealed broad support for disrupting the Supreme Court confirmation process, even if the strategy yields some collateral damage…

Here’s what Senate Democrats have in their toolkit:

Politico: Pelosi begins mustering Democrats for possible House decision on presidency

By John Bresnahan, Kyle Cheney, and Heather Caygle

Speaker Nancy Pelosi has begun mobilizing Democrats for the possibility that neither Joe Biden nor President Donald Trump will win an outright Electoral College victory, a once-in-a-century phenomenon that would send the fate of the presidency to the House of Representatives to decide.

Under that scenario, which hasn’t happened since 1876, every state’s delegation gets a single vote. Who receives that vote is determined by an internal tally of each lawmaker in the delegation. This means the presidency may not be decided by the party that controls the House itself but by the one that controls more state delegations in the chamber. And right now, Republicans control 26 delegations to Democrats’ 22, with Pennsylvania tied and Michigan a 7-6 plurality for Democrats, with a 14th seat held by independent Justin Amash…

Pelosi, in a Sunday letter to House Democrats, urged them to consider whether the House might be pulled into deciding who is president when determining where to focus resources on winning seats in November. 

The Hill: Florida Democrat asks FBI to investigate anti-Semitic, racist disinformation

By Rafael Bernal

Rep. Debbie Mucarsel-Powell (D-Fla.) on Wednesday asked FBI Director Christopher Wray to investigate the origin of a series of social media posts and mainstream media publications in South Florida with anti-Semitic and racist messages.

Mucarsel-Powell, who was joined by Congressional Hispanic Caucus Chairman Joaquin Castro (D-Texas) in her letter, expressed concern about a surge in “false or misleading information” on social media among Latino circles in the region but pointed her worries toward mainstream media pickups of that information.

The Media

Washington Post: ‘Help me!’ Lindsey Graham begs Fox News viewers in unusual plea for campaign cash

By Paul Farhi

In a pair of interviews on the network on Thursday, [Sen. Lindsey] Graham pleaded with Fox viewers for campaign cash…

Fox “had no knowledge that he would solicit donations on air,” the network said in a statement.

As a general matter, news organizations are broadly exempt from federal campaign finance regulations that prohibit candidates from soliciting funds during TV interviews without a series of disclosures and disclaimers, said Brett Kappel, a Washington lawyer who specializes in campaign-finance, lobbying and government-ethics laws.

The Federal Election Commission has never sanctioned – or even warned – a major media outlet for not having the required disclaimers during a broadcast interview in which a candidate solicited funds, he said.

But any complaint about the lack of disclaimers would implicate both the candidate and the station that broadcasts the solicitation, Kappel said: “Running solicitations without disclaimers would raise the issue of whether [Fox] crossed the line from a protected press entity and became a corporate contributor to Graham’s campaign.” While the likelihood of enforcement action is low, “it would be an issue [Fox] wouldn’t want to have to address.”

Online Speech Platforms

Axios: Google to block election ads after Election Day

By Sara Fischer

Google informed its advertisers Friday that it will broadly block election ads after polls close Nov. 3, according to an email obtained by Axios.

Big Tech platforms have been under pressure to address how their ad policies will handle conflicts over the presidential election’s outcome…

In the email, Google says that advertisers will not be able to run ads “referencing candidates, the election, or its outcome, given that an unprecedented amount of votes will be counted after election day this year.” …

The ban will target ads that are explicitly election-related, as well as any other types of ads that reference federal or state elections within the ad, or ads that run based on targeting election-related search queries, including on candidates or officeholders…

A source familiar with the policy says that the company will consider a number of different factors before lifting the ban, like how long it takes for all the ballots to be counted and whether or not there are major protests in light of the outcome.

Politico: Why the right wing has a massive advantage on Facebook

By Alex Thompson

Throughout 2020, Democrats have denounced Facebook with growing ferocity as a “right wing echo chamber” with a “conservative bias” that’s giving an edge to Donald Trump in November.

But Facebook says there’s a reason why right-wing figures are driving more engagement. It’s not that its algorithm favors conservatives – the company has long maintained that its platform is neutral. Instead, the right is better at connecting with people on a visceral level, the company says.

“Right-wing populism is always more engaging,” a Facebook executive said in a recent interview with POLITICO reporters, when pressed why the pages of conservatives drive such high interactions. The person said the content speaks to “an incredibly strong, primitive emotion” by touching on such topics as “nation, protection, the other, anger, fear.”

“That was there in the [19]30’s. That’s not invented by social media – you just see those reflexes mirrored in social media, they’re not created by social media,” the executive added…

“Facebook’s platform is a mirror alright – a fun house mirror,” [Biden] campaign spokesperson Bill Russo said. “One that has twisted and distorted our world and our politics into something barely recognizable, where conspiracy theories and disinformation run rampant. This is not a feature of our society that we must simply accept. It is a choice to create an algorithm that feeds the distrust and polarization that are tearing us apart.”

RealClearPolitics: How Social Media Platforms Are Narrowing the First Amendment

By Kalev Leetaru

The First Amendment forms the bedrock of American democracy. Its protections against government censorship make possible the shared societal debates that have ushered many once-heretical ideas into the mainstream. Yet, as our national debates increasingly occur within the private walls of social media platforms, those companies, exempt from First Amendment restraints, have embraced their newfound role of national censor. As part of this process, fact-checkers are expanding their reach to questions for which there are no clear answers, adding new categories of assessment such as “missing context” to their rulings.

These shifting dynamics prompt a fundamental question: What does it mean for democracy when the First Amendment is continually narrowed by private companies stepping in to act as the censors that the government can’t be?

Candidates and Campaigns

Wiley’s Election Law News: Biden Platform Proposes Major Changes to Government Ethics and Lobbying Regulation

By Robert L. Walker and Hannah J. Miller

The Biden campaign is proposing significant, broad changes to the current lobbying registration and disclosure scheme. If elected, Biden promises to propose legislation to require:

• Elected officials to disclose monthly all meetings and communications with any lobbyist or special interest trying to influence the passage or defeat of a specific bill;
• Members of Congress to disclose any legislative language or bill text submitted by any lobbying party;
• Executive branch officials to disclose any regulatory text submitted by any outside entity;
• Members of Congress and senior Executive branch officials to develop and disclose any access policies governing requests for appointments.

Biden also proposes legislation to “lower the threshold for when those seeking to influence government must register as ‘lobbyists’. . . .” This would include a requirement to register as a lobbyist for “anyone who earns more than $1,000 annually to be involved in developing or overseeing a lobbying strategy.” 

The States

GoErie.com: Oil City man files lawsuit over removal of anti-Trump sign

By Matthew Rink

A Venango County man claims in a lawsuit filed Friday that the city violated his First Amendment rights by forcing him to remove multiple anti-Donald Trump political yard signs that contained phrases like “(Expletive) Trump” and “If you like Trump (expletive) you too.”

William E. Healy filed the lawsuit in the Western District Court of Pennsylvania against the city, stating that in early September Oil City’s chief of police called him after receiving complaints about the signs. The police chief told Healy’s lawyer, Michael Hadley, that he considered the 18-inch by 24-inch signs to be an act of disorderly conduct.

In the lawsuit, Hadley contends that his client’s First and 14th Amendment rights were “chilled” by the threat of criminal prosecution “and thus suffers irreparable harm which is continuing and ongoing.”

Hadley cites both federal and state case law that has found the use of the expletive that appears on his sign does not constitute obscene language and therefore is considered protected free speech.