- Sequel to Driehaus case on penalizing inaccurate campaign speech: “A Final Goodbye to Ohio’s Ministry of Truth” [Ilya Shapiro, Cato; earlier here, here]
- FCC commissioner Ajit Pai: U.S. tradition of free expression slipping away [Washington Examiner]
- Québécois comedian Mike Ward is already out $100,000 in legal fees after discovering how CHRC can stand for Crushes Humor, Ruins Comedy [Gavin McInnes, The Federalist]
- 10th Circuit free speech win: Colorado can’t shackle small-group speech against ballot measure [Coalition for Secular Government v. Williams, earlier]
- New York Times goes after publisher of “War Is Beautiful” book: are picture thumbnails fair use? [Virginia Postrel, earlier]
- Constitutional? Not quite: Illinois bill would ban posting “video of a crime being committed” “with the intent to promote or condone that activity” [Eugene Volokh]
Attorneys general in California and New York are demanding that 501 (c)(3) nonprofit organizations disclose their donor lists to the state. At the recent Federalist Society National Lawyers’ Convention, that issue and others were discussed by a panel consisting of Andrew Grossman (BakerHostetler), Stephen Klein (Pillar of Law Institute), Paul S. Ryan (Campaign Legal Center), Hans von Spakovsky (Heritage Foundation), with Michigan Supreme Court Chief Justice Robert P. Young, Jr. as the moderator. From the summary:
Supporters of mandated disclosure of the source of speech (or of money used to pay for speech) claim it can provide important information to the public and the legal system. But opponents say it violates privacy rights and can also deter the sources from speaking or contributing.
This debate also applies to reporters’ confidential sources. In both situations, disclosure (of who contributed or spent, or who a confidential source was) may provide useful information to voters, prosecutors, civil litigants, judges, or jurors. In both situations, requiring disclosure of the source may deter people from contributing to controversial campaigns or organizations, or from talking to journalists. Politically, people tend to react differently to these reactions – confidentiality of contributors tends to be more supported by conservatives, while confidentiality of journalists’ sources tends to be more supported by liberals. But structurally, are these issues similar? This panel will consider both these questions together.
A playlist of all the videos from the Federalist Society convention is here.
- Those who want to protect American university life from mob intimidation, speak now or forever hold your peace [Conor Friedersdorf on Yale and Missouri incidents, Greg Lukianoff on Yale, Thom Lambert on Missouri; more on Missouri; John Samples/Cato] “Sorry, kids, the First Amendment does protect ‘hate speech'” [Michael McGough, L.A. Times]
- #ExxonKnew folks, please listen: “engaging in scientific research and public advocacy shouldn’t be crimes in a free country. Using the criminal law to shame and encumber companies that do so is a dangerous arrogation of power.” [Bloomberg View editorial, earlier here, etc.]
- Judge orders Facebook post taken down as campaign contribution improper under Colorado law; while target of enforcement was public charter school, logic of ruling could extend to entirely private entities as well [Megan Geuss, ArsTechnica]
- Did anyone really not see this coming? Hate speech laws give authorities powerful weapon with which to crack down on speech by critics and minorities [Elizabeth Nolan Brown, Reason, on Kenya]
- Cato amicus brief, Kentucky Court of Appeals: printers shouldn’t be forced to print gay-pride messages they don’t agree with [Ilya Shapiro/Cato, Eugene Volokh]
- “That’s not harassing, stalking, libeling or cyber bullying. That’s called reporting.” Florida Man offers to help with online reputation management but digs himself and client in further [Tim Cushing, TechDirt, background]
- Feminist lawprof we’ve met before attacks Internet-protecting Section 230, confusion ensues [Mike Masnick, TechDirt]
And some political liberals, though it is not clear why they should deserve that honorable name, are sad that Wisconsin officials can no longer use the law so freely to raid opponents’ homes at dawn or gag them from talking to the press [background, more; Watchdog, Milwaukee Journal Sentinel, New York Times] More: WSJ editorial, paywall, via Tim Lynch, Cato:
The Milwaukee District Attorney’s office, run by Democrat John Chisholm, sent GAB staff a spreadsheet of search terms [for rifling seized electronic archives] that included prominent national conservatives….The government snoops created ideological search concepts like “big union bosses” and “big government,” as if such phrases suggest some law-breaking intent. Recall that when the IRS targeted conservative groups for special vetting, it created a “Be On the Lookout” list of key words such as “patriot” and “tea party.”
Caleb Brown interviews Eric O’Keefe on the abusive Wisconsin John Doe prosecution of alleged unlawful campaign coordination, much covered in this space. O’Keefe says the growing scope of campaign regulation allows wider scope for the law to be used to harass and persecute outsiders and minority viewpoints, and also speculates as to why the prosecution has not been subject to more intense scrutiny in the press: “The prosecutors have cultivated relationships over a long period of time with the newspapers. Prosecutors get a lot of good stories first, like who they’re going to indict, who got arrested…so the newspapers tend to pander to prosecutors and together they have extremely powerful weapons.” Emails from the Wisconsin John Doe targets’ private accounts, for example, scooped up by prosecutors’ secret subpoenas, later surfaced in stories in the newspapers putting the targets in a bad light.
“Sen. Sanders goes one step further. He would require that nominees publicly commit to case outcomes…. Although under President Sanders’ proposal judicial impartiality in fact and in appearance will suffer, there is a bright side. If President Sanders filled a majority of seats on the Court with pre-committed Justices, lawyers before the Court could significantly reduce the time and effort expended on the argument sections of their briefs.” [Raymond McKoski, Legal Ethics Forum]
Note also that Sanders managed to find a position on Citizens United worse than Hillary Clinton’s “Banning a critical movie about me should’ve been OK.”
Lawrence Lessig claims the mantle of the insurgent 1969 Eugene McCarthy campaign. But the McCarthy campaign couldn’t have gotten off ground under Lessig’s own proposals on campaign finance, as Cato vice president John Samples points out in this new Cato video.
- Supreme Court’s sleeper case of the term, Reed v. Town of Gilbert, may greatly toughen First Amendment scrutiny of many laws [Adam Liptak, New York Times]
- Authorities to press charges against Washington Post reporter Wesley Lowery and Huffington Post reporter Ryan Reilly, arrested last year in a McDonald’s during Ferguson protests [Newsweek]
- Having said obnoxious things is grounds for exclusion from Canada. Right? [CTV] Related musings about speech that affronts us [Ken at Popehat]
- In case paralleling issues in SBA List v. Driehaus, Massachusetts high court strikes down false-campaign-speech law that enabled incumbent to inflict legal woe on critics; state’s attorney general comes off poorly in account [Ilya Shapiro and Gabriel Latner/Cato]
- Court strikes down of Idaho ag-gag law, and Prof. Volokh notes some parallels to Planned Parenthood covert filming battle;
- Update: city of Inglewood, Calif. not faring well in effort to use copyright law to keep a critic from putting video clips of its council proceedings on YouTube [Adam Steinbaugh, earlier]
- Denver digs itself deeper in charges over leafleting by jury nullification activists [Jacob Sullum, earlier]
The Wisconsin Supreme Court has struck down the notorious secret prosecution of conservative political figures in the state, the implementation of which included dawn paramilitary raids at the homes of aides to Gov. Scott Walker and leaders of private advocacy groups. Two justices on the seven-member court dissented from key elements of the ruling and one did not participate. From the court’s opinion:
The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor’s theories, rather than “assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth, 354 U.S. at 484, instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.
Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.
Last year I described the conduct of the prosecution in the case as “stunningly abusive” and wrote:
The citizens of Wisconsin must now demand a full accounting of how these raids could have happened. They should also insist on changes in state law, in particular the “John Doe” law, aimed at ensuring that nothing like them ever happens again.
In dissent, former chief justice Shirley Abrahamson writes that the constitutionality of the search methods used was not under review in the cases at hand. Well known election law academic Rick Hasen laments that the ruling endorses the version of events of Walker aides concerning the raids without a full legal airing, although (he writes) the charges of abusive conduct during the raids were “never fully verified” and are part of a set of “fears which generally do not stand up to scrutiny.” (To be clear about what was going on, the aides in question appear to have been gagged by a court order throughout, though someone on their side appears to have succeeded in eventually conveying the story to the Wall Street Journal and other outlets).
Another reaction yesterday, from a well-known advocacy shop in Washington, D.C., might be summed up as follows: “We need 500 words on the Wisconsin John Doe dismissal, but don’t mention the dawn paramilitary raids or the gag orders.” “OK, can do.”
Related: Ilya Shapiro says a petition for certiorari by former Walker aide Kelly Rindfleisch “provides an excellent vehicle for the U.S. Supreme Court to address the degree to which the Fourth Amendment requires a warrant for searching electronic data, tailored to probable cause.”
- Reason subpoena: “There’s no case here, and the Justice Department knows it.” [Kevin O’Brien, Cleveland Plain Dealer, Mike Godwin/R Street Institute, earlier]
- “Judge: Arresting Man For Criticizing Alton Selectmen Was ‘Pure Censorship'” [New Hampshire Public Radio]
- Billboard images of women “smiling for no reason” are now disallowed on grounds of sexism in Berlin’s Kreuzberg-Friedrichshain district; also, “Adult women — featured alone or not — must not be shown ‘occupied in the household with pleasure.'” [Anthony Faiola, Washington Post]
- Free speech, trademark law intersect in NAACP suit over critical parody [Paul Alan Levy]
- Without leeway for anonymous campaign speech, it’ll be hard to oust the retaliation-happy likes of Joe Arpaio [Robert Robb, Arizona Republic via Coyote]
- Legal blogger in court: “Partial Victory In Patterico’s Free Speech Case Before Ninth Circuit” [Ken at Popehat]
- European court: website liable for reader comments [ArsTechnica UK, Stanford CIS, Article 19, Delfi AS v. Estonia]