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It is no stretch to suggest that the upcoming midterm elections will be a hotbed of political activity across all spectrums. Each election cycle presents exciting opportunities for institutions of higher education (IHEs) and their students to become more civically engaged at the local, state, and federal levels. Whether by providing access to candidates and encouraging students to learn about their policy positions, or allowing students to organize voter registration drives, the college campus often provides a stage for election activity. Similarly, employees often seize upon the politically charged climate to make political statements, support candidates, or publish formal or informal writings. It can be difficult to detangle the web of laws and regulations that apply to political activity on campus. The following are some general rules that IHEs should keep in mind when addressing political activity on campus.

It is important for educational institutions to be aware of and comply with the various tax and campaign finance laws that regulate the electoral space. For example, nonprofit IHEs exempt from taxation under Section 501(c)(3) must be careful to ensure their activities are done in a way that is consistent with the requirements of their tax-exempt status. In particular, 501(c)(3) organizations are prohibited from supporting or opposing candidates for elective office and may not engage in so-called campaign intervention; they also cannot make contributions to political campaigns, run ads that support or oppose candidates, or participate in any biased activity.

Candidate debates and forums, which are routinely held on IHE campuses, are often some of the most high-profile events of each election cycle. However, these events must be carefully organized to ensure compliance with the 501(c)(3) restrictions on campaign intervention.

The IRS has provided guidance clarifying that candidate forums and debates hosted by 501(c)(3) organizations, such as IHEs, are permitted as long as they are fair and impartial and do not favor one candidate over another. In the context of candidate debates and forums, the IRS will consider a number of factors in determining whether a hosting institution has engaged in impermissible campaign intervention, including whether candidate questions are presented in a fair and nonbiased way, whether forum or debate topics cover a broad range of public issues, and whether candidates are given equal time or opportunity to present their views.

Indeed, it is imperative that IHEs treat all candidates and issues fairly and impartially during forums and debates, and that the goal of hosting these events is to educate and inform voters.

The IRS has also provided some additional guardrails for hosting candidates on IHE campuses beyond the context of debates and forums. When a candidate is invited to speak, the IHE should ensure that such appearances are organized in a way to avoid even the appearance of campaign intervention. For example, once an IHE invites one candidate to speak, all candidates in a particular race should be given an equal opportunity to speak. The IHE should also take care not to make any comments that imply endorsement of a candidate or group of candidates and should be especially careful to avoid hosting fundraising events for candidates.

College students play a significant role in voter registration efforts nationwide, and these efforts often center around the campuses the students call home. Organizers, including student organizations or the IHE itself, should make sure they understand a few key considerations of state laws that regulate voter registration to make sure they are prepared to put on a successful voter registration drive, such as:

And, as in other on-campus candidate events, it is important that student voter registration drives are done in a nonpartisan and nonbiased way that would not impact or jeopardize an IHE's tax-exempt status.

Employees at public IHEs who engage in political speech during this midterm season may be protected by the First Amendment. Specifically, in a benchmark ruling, Pickering v. Bd of Ed. of Tp. High Sch. Dist. 205, Will County, Illinois, 391 U.S. 563 (1968), the United States Supreme Court stated that a public employee's speech is protected where (i) the employee speaks as a member of the general public, outside of the employment context; (ii) the employee speaks on a matter of public concern; (iii) the employee's speech does not constitute defamation; and (iv) the employee's speech does not interfere with their job performance.

While this test provides broad protections for public employees, public IHEs can implement some guidelines to ensure that employees do not, in fact, appear to be speaking within the scope of their employment. For example, public IHEs can limit employees' ability to use official letterhead, don the IHE's insignia, use their school email, or reference their official university titles when engaging in political speech. Similarly, in some states, public IHEs can prohibit the donning by employees of political buttons or clothing during their work-related activities.

While the First Amendment does not provide the same coverage for private employees, other federal laws may apply. Employeesunionized or notmay be covered by the National Labor Relations Act (NLRA) if they engage in certain protected "concerted activities" executed for the purpose of "mutual aid or protection." Put simply, as long as the speech or activity relates to the terms and conditions of employment of the employee and is made or acted upon to evoke the involvement of others, it may be protected by the NLRA. Speech that is purely political in nature and without a nexus to working conditions, however, is not protected under the NLRA. Additionally, "concerted activity" will not be protected under the NLRA where such activity is egregiously offensive, knowingly and maliciously false, discriminatory, or otherwise illegal.

The NLRA not only covers the content of employees' speech and activity, but also how and when employees may engage in same. Should an employee's concerted activity involve solicitation in support of a candidate or cause, the employer can prohibit that activity during working hours only. Likewise, should an employee's protected activity involve distribution of campaign materials, the employer may prohibit that activity during working hours and in working areas, regardless of whether this is done during working hours or not. "Working areas" are considered all areas where work is actually performed, and does not include cafeterias, restrooms, etc.

On the state and local levels, many states and localities have adopted similar protections that may impact a private IHE's ability to regulate the political speech of its employees. For example, Connecticut General Statutes 31-51q adopts the free speech protections of the First Amendment and applies them to private employees who speak on issues of public concern, where the political speech does not substantially or materially interfere with the employee's job performance or relationship with their employer. This statute has been interpreted to generally apply to speech regarding any matter of political, social, or other concern to the community. New York Labor Law 201-D prohibits employers from discriminating against employees for any "political activities" performed outside of working hours, off of the employer's premises, and without use of the employer's equipment or other property, provided such activities are otherwise legal. However, the statute narrowly defines "political activities" to mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party, or political advocacy group. Notably, it does not cover all political speech.

In addition to the aforementioned legal considerations, IHEs must also consider how their employee policies apply to employees' political speech and activity. Some IHEs may want to encourage employees' active political engagement, but they should be mindful that there are likely many employee conduct policies that may be implicated by such activities, including, but not limited to, policies on anti-harassment and anti-discrimination, use of electronic media, attendance/leaves of absence, conflicts of interest, and use of IHE property.

As midterm elections near, campaign and political activity will undoubtedly increase on campus. In anticipation of this heightened activity, IHEs should prepare by refamiliarizing themselves with applicable federal, state, and local laws, and reexamine any applicable collective bargaining agreements to ensure that they are aware of how to comply with any bargained-for obligations. Additionally, IHEs should review any employee handbooks or official policies and retrain their employees on their rights and the IHE's rights as the employer. IHEs may want to consider establishing policies that govern political activity on campus, to clearly lay out the ground rules for students and employees alike. These policies should clearly define (i) the individuals to whom they apply; (ii) the type of political activity and political speech covered; and (iii) what conduct is or is not acceptable.

* The authors of this article thank Alex Clementi, law clerk, for his assistance in its preparation.

Originally posted here:
Time to Rock the Vote? How Institutions of Higher Education Should Prepare for Supercharged Midterm Elections - JD Supra

[co-author: Jorden Johnson]

On March 21, 2022, the U.S. Securities and Exchange Commission (SEC) released its much-anticipated proposed rule titled "The Enhancement and Standardization of Climate-Related Disclosures for Investors." The proposed enhanced disclosure requirements draw from groups dedicated to developing effective climate-related disclosures, including the Task Force on Climate-Related Financial Disclosures and the Greenhouse Gas Protocol. SEC Chair Gary Gensler believes the enhanced disclosure requirements will provide consistent, comparable, and reliable climate-risk information to investors. Environmentally-focused investors appear to agree that the rule, if finalized, will provide much needed guidance, but not everyone is convinced.

Ready or not, the SEC's proposed rule may well be finalized this year and, if so, would begin applying to certain filings as soon as FY 2023. In this alert, we answer some commonly asked questions regarding disclosure requirements the proposed rule would add, the SEC's authority to require climate disclosures, and the potential impact of the disclosure requirements.

Charged with protecting investors and maintaining investor confidence, the SEC's existing regulatory framework requires that public companies, broker-dealers, and certain company insiders disclose "material" information, or information that a "reasonable shareholder" would likely consider important.1

In 2010, the SEC issued guidance on pertinent non-financial disclosure rules that required some disclosures related to climate change, including the disclosure of material effects of compliance with federal, state, and local provisions regulating the discharge of materials into the environment and environmental litigation. The SEC noted then that, depending on the facts and circumstances of a particular registrant, certain items may require disclosures regarding the impact of climate change.

The newly proposed rule clarifies that a registrant would be required to disclose the following:

Further, if the registrant has publicly set climate-related targets or goals, the registrant must disclose information about:

When responding to any of the proposed rules' provisions concerning governance, strategy, and risk management, a registrant may also disclose information concerning any identified climate-related opportunities. A registrant that qualifies as a "large accelerated filer" or "accelerated filer" will also be required to obtain a third-party attestation report on its Scope 1 and 2 emissions disclosures.

Major legislation that provides the framework for the SEC's oversight of the securities markets includes the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the Jumpstart Our Business Startups Act. SEC Chair Gensler maintains that the proposed rule lies within the scope of the SEC's authority to regulate the information material to investors, while critics of the SEC's proposed rule, including SEC Commissioner Hester Peirce, argue that the rule exceeds the authority of SEC. Two of the most likely legal challenges to the proposed rule pertain to (a) the materiality standard and (b) the First Amendment.

Regarding materiality, in TSC Industries v. Northway2, the Supreme Court explained that, under the Securities Exchange Act of 1934, information is only material to investors, and therefore requiring disclosure, if there is a "substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information available." Some law professors and scholars have noted that, while climate-related disclosures may be material to some investors, the disclosures may be completely irrelevant to others. This may lead companies to challenge the proposed rule as requiring immaterial disclosures.

As for the First Amendment, the Supreme Court has closely scrutinized disclosure requirements in several cases and has explained that there must be a substantial relationship between the government interest and the information required to be disclosed such that the strength of the government interest reflects the seriousness of the burden on First Amendment rights.3 And so, certain law professors, among other critics of the proposed rule, have suggested that the government interest does not reflect the burden on First Amendment rights since the proposal is not limited to materials that interest all investors. It is therefore likely the SEC will face challenges on the basis of the registrants' First Amendment rights.

If adopted as proposed, public companies will have to present much more detailed disclosures regarding climate-related matters in their SEC filings, including in their financial statements. Many larger public companies have already been disclosing these matters, albeit perhaps not at the level of detail contemplated in the SEC's proposed rule. These larger companies should further refine their reporting processes and controls so that they are in a position to effectively compile and present the climate-related information in a manner subject to attestation by third parties. Smaller companies should also begin assessing their reporting processes as they relate to climate-related matters so the companies will be prepared to comply with the proposed new disclosure requirements. Form 10-K and proxy season is already a busy time for companies, and it looks like aggregating detailed, climate-related information could now be a substantial part of that busy season.

As far as timing is concerned, Large Accelerated Filers will have until FY 2023 (for their Form 10-K filed in 2024) to comply with all proposed disclosures, including Scope 1 and Scope 2 GHG emissions metrics and until FY 2024 (for their Form 10-K filed in 2025) to comply with Scope 3 metrics. Accelerated Filers and Non-Accelerated Filers will have until FY 2024 (for their Form 10-K filed in 2025) to comply with all proposed disclosures including Scope 1 and Scope 2 GHG emission metrics and until FY 2025 (for their Form 10-K filed in 2026) to comply with Scope 3 metrics. Smaller Reporting Companies will have until FY 2025 (for their Form 10-K filed in 2026) to comply with all proposed disclosures including Scope 1 and Scope 2 GHG emission metrics and are exempt from complying with Scope 3 requirements. There is also a transition period for the attestation requirements. Large Accelerated Filers and Accelerated Filers will have to provide third-party attestation at a limited assurance level for fiscal years 2 and 3 after the Scope 1 and Scope 2 GHG emissions compliance date and at a reasonable assurance level for fiscal years 4 and beyond after the Scope 1 and Scope 2 GHG emissions compliance date.

1 TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976).

2 426 U.S. at 448.

3 See, e.g., Natl Assn of Mfrs. v. Taylor, 582 F.3d 1, 9 (D.C. Cir. 2009).

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FAQ: The SEC's Proposed Rule on the Enhancement and Standardization of Climate Related-Disclosures - JD Supra

JACKSON, Wyo. (AP) Grand Teton National Park is reversing its plan to require portrait photographers to obtain a permit to take wedding pictures during the upcoming tourist season after hearing complaints from photographers and First Amendment attorneys.

Earlier this year, the park announced it would require wedding photographers who take pictures at six designated wedding sites to obtain permits and remit at least 3% of their earnings to the park. Smaller weddings and elopements not held at those designated spots would not be allowed a paid photographer.

Media, nature and professional photographers complained, noting that federal law says the park service cannot require a permit for still photography if it happens where the public is generally allowed.

The park policy is essentially reverting to the way it was, Grand Teton Chief of Staff Jeremy Barnum told the Jackson Hole News & Guide.

Park regulations still limit wedding parties of 12 or more people to the six designated sites. The park will issue up to 330 wedding permits for those areas. Smaller parties can get permits for backcountry areas. All parties can have paid wedding photographers.

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Grand Teton reverses plan to require photographer permits - East Idaho News

The Supreme Court has struck down laws that have restricted offensive speech, such as the wearing of swastikas in Village of Skokie v. National Socialist Party of America. But in Virginia v. Black, the Supreme Court declined to rule that cross-burning was protected expressive speech under the First Amendment when such an activity was intended to intimidate, reasoning that sometimes it can constitute a "true threat." (Photo of Ku Klux Klansmen and women at a cross lighting in 2005 via Wikimedia Commons, CC BY-SA 3.0)

The term hate speech is generally agreed to mean abusive language specifically attacking a person or persons because of their race, color, religion, ethnic group, gender, or sexual orientation. Although the First Amendment still protects much hate speech, there has been substantial debate on the subject in the past two decades among lawmakers, jurists, and legal scholars.

The scholarly debate concerning the regulation of hate speech flared in the late 1980s, primarily focusing on campus speech codes, pitting those who view regulation of hate speech as a necessary step toward social equality against those who see hate speech regulations as abridgements of the fundamental right of free speech.

The traditional liberal position is that speech must be valued as one of the most important elements of a democratic society. Traditional scholars see speech as a fundamental tool for self-realization and social growth and believe that the remedy for troublesome speech is more speech, not more government regulation of speech. For example, liberal theorist Nadine Strossen, relying to some degree on John Stuart Mills connection between speech and the search for truth, argues that restricting hate speech will mask hatred among groups rather than dissipate it.

Proponents of hate speech regulation usually do so from the perspective of critical race theory, believing that legal decisions are based on preserving the interests of the powerful, and see no value in protecting bias-motivated speech against certain already oppressed groups. They question the necessity and logic of protecting speech that not only has no social value but is also socially and psychologically damaging to minority groups. These proponents of the regulation of hate speech suggest a new balance between free speech and social equality.

For example, Mari Matsuda, a law professor at Georgetown University, has advocated creating a legal doctrine defining proscribable hate speech from a basis in cases where the message is one of racial inferiority, the message is directed against a historically oppressed group, and the message tends to persecute or is otherwise hateful and degrading.

The Illinois Supreme Court reviewed the question of restricting a Nazi rally in Village of Skokie v. National Socialist Party of America (1978). The court, relying heavily on a U.S. Supreme Court case, Cohen v. California (1971), raised the slippery slope argument, contending that restricting the wearing of a swastika would lead to an endless number ofrestrictions on all sorts of offensive speech. Adhering to the content neutrality principle, the court ruled that the government could not base rules on the feelings of the most squeamish among us and that the wearing of swastikas was a matter of taste and style.

In R.A.V. v. St. Paul (1992) the Supreme Court appeared to close the door on hate speech regulations. The case involved a city ordinance in St. Paul, Minnesota, prohibiting bias-motivated disorderly conduct against others on the basis of race, color, creed, religion, or gender. The Court struck down the ordinance, finding it to be unconstitutional on its face because it was viewpoint discriminatory.

The Court reviewed whether hate speech as defined in the ordinance fit into the fighting words category. This category, first established in Chaplinsky v. New Hampshire (1942), was defined as such words, as ordinary men know, are likely to cause a fight. The Court in R.A.V. found that the ordinance had removed specific hateful speech from the category of fighting words because, by specifying the exact types of speech to be prohibited, the restriction was no longer content neutral.

More than a decade later, the Supreme Court again ruled on a hate speech case. Virginia v. Black (2003) concerned the constitutionality of a Virginia statute that made it unlawful to burn a cross with the intent of intimidating any person or group of persons. Many scholars have argued that the Courts opinion in Black is completely opposite from its ruling in R.A.V.

Relying on the history of the use of cross burnings to intimidate African Americans, the plurality found that R.A.V. did not mean the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech. The Court did accept the idea that some individuals might burn crosses for reasons other than intimidation.

Current case law and research concerning hate speech has shifted focus toward hate speech on the Internet. The Internet brings with it a myriad of new problems for the First Amendment, including how to determine what level of scrutiny to apply and how to react to existing restrictions on hate speech by much of the international community.

This article was originally published in 2009 and updated in 2017. Chris Demaske is an associate professor of communication at the University of Washington Tacoma. Her research explores issues of power associated with free speech and free press and has covered topics including hate speech, academic freedom, and Internet pornography.

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Hate Speech | The First Amendment Encyclopedia

As we wrap up Sunshine Week, an annual recognition of the importance of open government, I cannot help but reflect on our imperfect union and that the free flow of fact-based news continues to hit roadblocks in this age of misdirection and disinformation. Fake news, if you will.

But whatever obstacles we encounter in the United States serve as warnings to what we could face if they are left unchecked. U.S. press operations have pulled out of Russia after journalists covering the invasion of Ukraine were threatened, leaving only government-regulated propaganda.

The former American Society of News Editors (now the News Leaders Association) launched Sunshine Week in 2005 as a national initiative to promote a dialogue about the importance of open government and freedom of information. The week-long celebration is held every March to coincide with the March 16 birthday of James Madison, the father of the U.S. Constitution and a key advocate of the Bill of Rights.

The First Amendment provides us with great protection from government interference for what we say and write, particularly on political issues or matters of public interest. We should remember that the nations founders created those protections to allow for what the U.S. Supreme Court has called robust and vigorous debate. In 2002, Justice Anthony Kennedy wrote, The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

These days, as we witness what it means to be silenced and without recourse, we should think about those wordsand why the founders and the nation ratified the First Amendments five freedoms during a period of great division and debate not unlike that of today. Unfettered flow of information and access to government is for each of us, not just members of the press, which led to a timely discussion this week on that very topic.

Last October, Indiana Attorney General Todd Rokita banned Abdul-Hakim Shabazz from covering his press conferences, saying he wasnt an actual journalist. The ACLU in February filed a lawsuit claiming Rokitas office violated Shabazzs First Amendment rights. Rokita later denied Shabazzs open-records request asking for an explanation from Rokita as to why he was banned. Just this month, Rokita filed a motion to dismiss the lawsuit.

Shabazz is editor and publisher of IndyPolitics.org, a well-established digital news source for politics in Indiana. He was joined in a panel discussion at Ball State University this week by The Indianapolis Stars Statehouse reporter, Kaitlin Lange, as well as Steve Key, executive director and general counsel of the Hoosier State Press Association, and Amelia Dieter McClure, HSPAs incoming executive director. The event, sponsored by the College of Communication, Information and Media, featured the question: Who is a journalist and why it matters.

Our rights, including the right to free speech, dont exist if theyre not defended. And defending basic freedomseven when a group besides our own is in the crosshairsbenefits everyone by making sure the protections of our basic rights remain strong.

__________

Metzger is an associate lecturer at the School of Journalism and Strategic Communication, and former president and publisher of The Star Press and executive editor for digital at The Indianapolis Star.

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Juli Metzger: First Amendment is about more than journalism - Indianapolis Business Journal