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The Supreme Court of the United States heard oral arguments in the consolidated cases of Americans for Prosperity v. Becerra and Thomas More Law Center v. Becerraon Monday. The cases raise First Amendment challenges to aCalifornia law requiring charities to submit to the state a list of the names and addresses of their major donors to the IRS. The Courts decision has potential to affect an array of disclosure laws, and in particular, campaign finance laws or regulations against so-called dark money.

Conservative watchdog groups filed lawsuits arguing that the policy violates the First Amendment, specifically by depriving donors of their privacy in association. According to the plaintiff petitioners, California has no need to compel this sensitive donor information to serve any law-enforcement goal, and the state virtually never uses any of the information for law-enforcement purposes.

Election law expert Rick Hasen predicts that its clear that California will not win this case, and explained that there are multiple roads to such a loss.

The Ninth Circuit applied exacting scrutiny an intermediate level of legal scrutiny and sided with California; petitioners now ask SCOTUS to reverse, arguing that the case is unconstitutional on its face, and that the Court should apply a higher level of scrutiny to the analysis.

Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Samuel Alito, and Amy Coney Barrettall seemed receptive to the petitioners argument that compulsory disclosure of donor lists has some potential to chill speech.

Derek Shaffer conducted oral arguments on behalf of Americans for Prosperity, and he found a likely ally in Justice Thomas, who opened with an innocuous-sounding hypothetical before raising the specter of cancel culture.

How would it affect your analysis if the organization involved didsomething that was not controversial, such as provide free dog beds, or taking care of stray puppies or something like that? asked the justice.

Shaffer quickly responded that the justices hypothetical facts would not alter his analysis in any way, and pointed out that PETA was one of the many organizations that filed an amicus brief supporting his position in the case.

Justice Thomas continued, raising a line of questioning he would repeat each time he spoke during arguments: What does Californias law mean for donors who might be seen as contributing to a controversial charity?

In this era, there seems to be quite a bit of loose accusations about organizations for example accused of being a white supremecist organization, or racist, or homophobic and as a result become quite controversial. Do you think that sort of labeling would change your analysis? queried Thomas.

Its part of the problem, agreed Shaffer. Precisely because there is such intensity of views and such a proclivity to vilify perceived enemies in your time, it raises the stakes.

It was Justice Stephen Breyer, however, who raised the question about how the Courts decision in this case might affect campaign finance rules.

If you win in this case, it will have been because the interest of the donors in maintaining privacy of their giving to a charity outweighs the interest of the state in having a law on the books that even if it never is actually enforced frightens people into behaving properly, predicted Breyer.

But if we hold that, the elder justice continued, can we distinguish campaign finance laws where the interest is even stronger in people being able to give anonymously? Later in arguments, Breyer questioned whether this case is a stalking horse for campaign finance.

When it was time for Justice Elena Kagan to take her first turn at telephonic questioning, she and Shaffer engaged in a sharp colloquy.

Kagan asked Shaffer to assume that a very substantial number of donors in a very substantial number of charities are not concerned about disclosure, and in fact, they rather like public disclosure of their generosity. Then Kagan asked how such facts would affect the legality of the disclosure regulation. Shaffer refused to concede any potential truth to Kagans hypothetical and the two jousted until Kagan said, lets just take my facts as a given.

Justices Kagan and Sonia Sotomayor were the most skeptical, leaving open the possibility of finding that the petitioners rights were violated but still refusing to strike down the law. As Professor Hasen pointed out, both justices might only agree that the law was problematic on an as applied basis.

Justice Alito departed from the world of hypotheticals, and pressed the attorneys on Californias actual history of using the disclosed information.

Do you doubt that donors to organizations that take unpopular positions on hot-button issues have reason to fear reprisal if those donations are made public? Do you think thats a legitimate fear in our current atmosphere? Or do you think its paranoid? asked Alito.

Acting Solicitor General Elizabeth Prelogar responded that such a result is certainly possible, but that there is no indication in the record that it is a widespread issue affecting the average donor to the average charity.

Justice Kavanaugh quoted from the ACLUs amicus brief multiple times, raising the argument that a critical aspect of First Amendment protection is the right to keep association confidential. Such a focus is a possible indication that Kavanaugh would vote to strike down the law not because of the potential chilling effects related to speech, but rather, because of its effect on free association.

Justice Barretts involvement in this case has been controversial from the start, many arguing that she should have recused herself because a group related toAmericans for Prosperity spentmillions on advertisingsupporting Barretts confirmation.

As if to rehash Kagans earlier exchange with petitioners, Barrett asked Schaffer whether a law prohibiting all speech on a state university campus would be illegal even if no one complained about it. When she turned to Prelogar, Barrett pressed the attorney on the level of tailoring required in the case a likely indication that Barrett would support abandoning exacting scrutiny for the more demanding strict scrutiny.

Chief Justice John Robertstake on the case was somewhat harder to pin down, though some have suggested that Roberts will use the exacting scrutiny standard of review, only to redefine that standard in a manner so strict as to strike down most campaign finance laws.

[image via Erin Schaff/POOL/AFP via Getty Images]

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Justices Appear Poised to Strike Down California Law in Case with Potential to Allow More Dark Money in Politics - Law & Crime

NEW YORK--(BUSINESS WIRE)--FOX News Media, along with Maria Bartiromo, Judge Jeanine Pirro and former host Lou Dobbs, have all filed replies in support of their motions to dismiss the lawsuit by electronic voting company Smartmatic. The replies follow FOXs earlier motion to dismiss, which was filed on February 8th, and the additional motions filed by Ms. Bartiromo, Ms. Pirro and Mr. Dobbs on February 11th.

Kirkland & Ellis Partner Paul Clement filed the replies, which argue, Seeking to impose billions of dollars in liability for [Foxs] coverage goes beyond a chilling effect: It poses a direct threat to the reporting of newsworthy allegations on which our democracy depends. Reporting both the allegations and the denials is critical to the truth-seeking function, not an invitation for groundless lawsuits.

Referencing numerous cases in support of their arguments, the replies outline how both the First Amendment and New Yorks anti-SLAPP statute compel dismissal of Smartmatics lawsuit. As the replies explain, Smartmatics frustration stems from the fact that it became embroiled in a heated national controversy brought forth by the sitting President of the United States. But one cannot supply voting technology and expect to avoid the spotlight. Controversy comes with the territory. And it was the Presidents allegations, not the presss coverage of them, that put Smartmatic in the spotlight. Theres no dispute that those allegations were newsworthy just by virtue of being made, and the press does not lose its protection if the allegations are disproven; instead, the reporting is part of the truth-seeking process. The replies highlight the extraordinary chilling effect that allowing a lawsuit like this one to go forward would have on public debate.

The replies also explain why Smartmatic fails to adequately allege the necessary actual malice to support a defamation suit, explaining that Smartmatics effort to make up in volume what it lacks in substance comes nowhere close to bringing home to any of the FOX hosts (let along to FOX itself) the actual knowledge required to prove actual malice by clear and convincing evidence.

The Bartiromo filing reinforces these core First Amendment claims. As it notes, Smartmatic has failed to identify any case in the history of our nation in which a member of the press has been held liable for covering allegations made by a sitting president and his lawyers. Shorn of rhetoric and hyperbole, the reply explains, Smartmatics allegations against Ms. Bartiromo do not begin to withstand scrutiny. The electronic voting company identifies fewer than a dozen unique statements stemming from three broadcasts within three weeks of the election, and under both the First Amendment and Section 74, those statements are not actionable defamation as a matter of law. The reply also explains why Smartmatic comes nowhere close to satisfying the actual-malice standard imposed by the First Amendment and New York law, which is another reason all the claims against Ms. Bartiromo must be dismissed.

As the Pirro brief explains, the sole claims from Smartmatic involving Ms. Pirro rest on statements from only two segments from the program Justice with Judge Jeanine, none of which come close to actionable defamation. The Pirro reply outlines how any examination of those statements pulled from Ms. Pirros program readily confirms that they not only constitute neutral report, fair report, and/or opinion, but often did not even concern Smartmatic. In calling for the claims against Ms. Pirro to be dismissed, the reply also explains why the Smartmatic complaint falls woefully short of alleging facts that would prove by clear and convincing evidence that Pirro acted with actual malice.

The Dobbs motion again illustrates the core First Amendment problems with Smartmatics claims. Contrary to Smartmatics assertions, Mr. Dobbs was not purporting to accept the presidents allegations as true or embrace them as his own; in fact, he reminded viewers that the presidents lawyers would need to prove their claims in court and called for an investigation to find out the truth. As the reply explains, that is not defamation; it is core journalistic activity fully protected by the First Amendment. Furthermore, the reply explains why Smartmatic comes nowhere close to satisfying the actual-malice standard, as its clear Mr. Dobbs reported the presidents allegations, presented Smartmatics denials, and offered his opinion that the allegations warranted an investigation. That is not actual malice, the response illustrates, it is part of the uninhibited, robust and wide-open debate that our Constitution protects.

The responses in support of the motions to dismiss were filed by Kirkland & Ellis on behalf of FOX News Media, Maria Bartiromo, Judge Jeanine Pirro and former host Lou Dobbs.

FOX News Media operates the FOX News Channel (FNC), FOX Business Network (FBN), FOX News Digital, FOX News Audio, FOX News Books, the direct-to-consumer digital streaming services FOX Nation and FOX News International and the recently announced AVOD platform FOX Weather. Currently the number one network in all of cable, FNC has also been the most watched television news channel for 19 consecutive years, while FBN currently ranks among the top business channels on cable. Owned by FOX Corporation, FOX News Media reaches 200 million people each month.

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FOX News Media in Conjunction With Maria Bartiromo, Judge Jeanine Pirro and Lou Dobbs, File Replies in Support of Their Motions to Dismiss Smartmatic...

Nancy Costello, director of the First Amendment Law Clinic and supervisor of the McLellan Free Speech Online Library in the Michigan State University College of Law, discusses the First Amendment and freedom of speech. The First Amendment Law Clinic is the only program in the country solely dedicated to the protection of student speech and press rights.

In simple terms, what is the First Amendment and what does it do?

The First Amendment to the United States Constitution is part of the Bill of Rights and protects freedom of speech, freedom of religion, freedom of assembly, freedom of the press and the right to petition. The First Amendment is one of the most important amendments for the protection of democracy.

Nancy Costello, director of the First Amendment Law Clinic and supervisor of the McLellan Free Speech Online Library in the Michigan State University College of Law.

When was it created?

The First Amendment is part of the Bill of Rights. To protect individual rights, the framers of the U.S. Constitution added 10 amendments to the document in 1791, four years after the Constitution was ratified.

What does the First Amendment say about freedom of speech?

Generally speaking, it means that the government may not jail, fine or impose civil liability on people or organizations based on what they say or write, except in limited circumstances.

President Donald Trump recently was suspended from a number of social media platforms. Is this a violation of his First Amendment rights?

Facebook, Twitter, Instagram or any similar social media platform can censor any persons speech because they are private companies. Censorship is when an entity punishes individuals for their speech or prevents the speech from being expressed. Free speech is the ability to express ones thoughts and opinions without fear of being punished by the government.

The First Amendment protects against the government from censoring speech. None of these social media platforms are part of the government, so President Trump cannot claim his First Amendment rights have been violated.

President Trump was impeached a second time for incitement of insurrection. What is incitement speech?

Incitement speech is not protected by the First Amendment. Incitement speech is when someone encourages lawless action, and that lawless action is imminent and likely. It could be argued that Trump incited the mob violence on Jan. 6 in his summoning and assembling of supporters at the White House rally, his repeated claims that he won the election and his exhorting the crowd to go to the Capitol. Among other things, the president told the crowd, If you dont fight like hell, youre not going to have a country anymore. Not long after Trumps speech, members of the crowd converged on the U.S. Capitol, broke through doors and windows, invaded the Senate and House chambers and private offices, and had violent clashes with police resulting in deaths.

What types of speech are not protected under the First Amendment?Types of speech that arent protected include:

Does the First Amendment only protect U.S. citizens?

Theres no citizenship requirement for First Amendment protection. If you are a resident of the United States, you have freedom of speech, religion, press, assembly and petition.

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We are disappointed that the U.S. Court of Appeals for the Tenth Circuit this week dodged a critical constitutional question: whether individuals have a First Amendment right to record on-duty police officers.

EFF had filed an amicus brief in the case, Frasier v. Evans, asking the court to affirm the existence of the right to record the police in the states under the courts jurisdiction (Colorado, Oklahoma, Kansas, New Mexico, Wyoming, and Utah, and those portions of the Yellowstone National Park extending into Montana and Idaho).

Frasier had used his tablet to record Denver police officers engaging in what he believed to be excessive force: the officers repeatedly punched a suspect in the face to get drugs out of his mouth as his head bounced off the pavement, and they tripped his pregnant girlfriend. Frasier filed a First Amendment retaliation claim against the officers for detaining and questioning him, searching his tablet, and attempting to delete the video.

In addition to refusing to affirmatively recognize the First Amendment right to record the police, the Tenth Circuit held that even if such a right did exist today, the police officers who sought to intimidate Frasier could not be held liable for violating his constitutional right because they had qualified immunitythat is, because the right to record the police wasnt clearly established in the Tenth Circuit at the time of the incident in August 2014.

The court held not only that the right had not been objectively established in federal case law, but also that it was irrelevant that the officers subjectively knew the right existed based on trainings they received from their own police department. Qualified immunity is a pernicious legal doctrine that often allows culpable government actors to avoid accountability for violations of constitutional rights.

Thus, the police officers who clearly retaliated against Frasier are off the hook, even though the Denver Police Department had been training its officers since February 2007 that individuals have a First Amendment right to record them, and that each of the officers in this case had testified unequivocally that, as of August 2014, they were aware that members of the public had the right to record them.

As we wrote last year in our guide to recording police officers, [r]ecordings of police officers, whether by witnesses to an incident with officers, individuals who are themselves interacting with officers, or by members of the press, are an invaluable tool in the fight for police accountability. Often, its the video alone that leads to disciplinary action, firing, or prosecution of an officer.

This is particularly true in the murder of George Floyd by former Minneapolis police officer Derek Chauvin. Chauvins criminal trial began this week and that Chauvin is being prosecuted at all is in large part due to the brave bystanders who recorded the scene.

Notwithstanding the critical importance of recordings for police accountability, the First Amendment right to record police officers exercising their official duties in public has not been recognized by all federal jurisdictions. Federal appellate courts in the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have directly upheld this right.

We had hoped that the Tenth Circuit would join this list. Instead, the court stated, because we ultimately determine that any First Amendment right that Mr. Frasier had to record the officers was not clearly established at the time he did so, we see no reason to risk the possibility of glibly announcing new constitutional rights that will have no effect whatsoever on the case.

This statement by the court is surprisingly dismissive given the important role courts play in upholding constitutional rights. Even with the courts holding that the police officers had qualified immunity against Frasiers First Amendment claim, if the court declared that the right to record the police, in fact, exists within the Tenth Circuit, this would unequivocally help to protect the millions of Americans who live within the courts jurisdiction from police misconduct.

But the Tenth Circuit refused to do so, leaving this critical question to another case and another appellate panel.

Although the Tenth Circuit refused to recognize that the right to record the police exists as a matter of constitutional law throughout its jurisdiction, it is comforting that the Colorado Legislature passed two statutes in the wake of the Frasier case.

The first law created a statutory right for civilians to record police officers (Colo. Rev. Stat. 16-3-311). The second created a civil cause of action against police officers who interfere with an individuals lawful attempt to record an incident involving a police officer, or who destroy, damage, or seize a recording or recording device (Colo. Rev. Stat. 13-21-128).

Additionally, the Denver Police Department revised its operations manual to prohibit punching a suspect to get drugs out of his mouth (Sec. 116.06(3)(b)), and to explicitly state that civilians have a right to record the police and that officers may not infringe on this right (Sec. 107.04(3)).

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Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police - EFF

Last month, TikTok user @nas.alive asked people to answer the question: Whats one thing that is normal in your country but weird for the rest of the world? It took off. Missing among the videos of bagged milk (Canada), nose-touching (UAE), live fish dwelling in bathtubs (Slovakia), and other global oddities was a primer on the First Amendment (US).

The First Amendment of the US Constitution limits the governmentnot private entitiesfrom restricting free expression. This is why companies like Facebook and Twitter can moderate contentand also why they could suspend then-President Trumps accounts during his last weeks in office. While many Americans applauded this move as an appropriate response to the violent Capitol insurrection, unexpected critics emerged in corners of the globe where the American version of free speech is considered, well, weird.

German Chancellor Angela Merkel criticized the move as problematic, saying that lawmakers, rather than social media CEOs, should regulate speechthe exact opposite of what the First Amendment allows. Despite her rocky history with Trump, the EU leader said that his free speech right can be intervened in, but according to the law and within the framework defined by legislatorsnot according to a decision by the management of social media platforms. Frances Finance Minister also said he was shocked by the decision, which he framed as social media oligarchy regulating speech. Leaders outside of Europe criticized the move as well.

The reaction is notable not only because it reflects an ideological difference in how the regions understand free expression, but also because it occurs during a pivotal moment of change for social media companies. The EU already has placed some regulations on digital platforms, and now it is pushing to broaden those regulations through the Digital Services Act. If First Amendment principles are to survive online, Americans must engage with changes abroad.

A bedrock of American historyand, correspondingly, American constitutional legal doctrineis distrust of the government. Anyone with a basic understanding of American historyor access to Hamiltoncan see why. By contrast, Europeans predominantly understand the role of government as a safety net against corrupt private sector interests. These differences are not merely speculative: Europeans report relatively higher levels of trust in the institutions of government, while Americans trust of government has been in more or less steady decline since 1958.

This may explain why the EU allows for more robust public regulation of the private sector. Take privacy law for example: in 2018, the EU implemented the General Data Protection Regulation (GDPR), which places requirements on companies to protect European residents data. Private companies guilty of violating the GDPR, by, for example, implementing poor data security measures, face fines of up to 4% of their annual global turnover or 20 million Euros, whichever is greater.

The GDPR has had sweeping consequences on a global scale. Most US companies with a European presence have found it most efficient to apply the GDPR requirements across the board to their entire global operations. American internet users now find themselves clicking through cookie consent notices on nearly every website they visit. Scroll up on this very article and you will see a cookie banner; you can thank Europe.

By contrast, privacy laws in the US are piecemeal and industry- or information-specific. For example, HIPAA protects medical information, and the Gramm-Leach-Bliley Act applies to data held by financial institutions. Unlike the GDPR, the text of these rules focuses on data security rather than abstract principles of individuals privacy rights.

When it comes to privacy, the US approach is to keep the government out of it as much as possible. The EU approach is to ask for government enforcement. In the end, the EU approach is winning: because it is easier for digital platforms to apply a uniform set of rules across their global operations, the strictest rules become the global norm.

While the GDPR imposes privacy rules, a different regulation, the e-Commerce Directive, creates rules for intermediary service providers that host third-party content, such as social media platforms. The 2000 e-Commerce Directive is old enough to drink even in America, so in December, the European Commission proposed an update via the Digital Services Act (DSA).

The proposed DSA is much lengthier than its predecessor, but it preserves key parts of the e-Commerce Directive by providing intermediary liability protection for user-generated content and prohibiting any laws that require platforms to monitor all content.

Its primary goal is to address illegal content, and it does so by laying out due diligence obligations, with the heaviest burdens on Very Large Platforms, those that reach at least 45 million average monthly users. The obligations include systems for reporting illegal content, including use of trusted flaggers, which are entities which have demonstrated particular expertise and competence, whose reports must take priority. Very Large Platforms must take mitigating measures at the organizational level to address illegal content. The DSA also allows users to challenge takedown decisions and encourages transparency about content moderation decisions.

The DSA does not define what is illegalfor that, platforms must look to national laws. Each Member State will create an independent authority called the Digital Services Coordinator to supervise compliance in their territory. Nations that identify a violation of their laws online can use the DSA procedures to send orders to platforms notifying them of the violation.

And although the takedown procedures only apply to illegal content, there are also measures in place to address merely harmful content, such as political disinformation, hoaxes and manipulation during pandemics, harms to vulnerable groups. Very Large Platforms must conduct risk assessments of their vulnerabilities to the spread of such harmful content, and those assessments will be subject to independent audits. Platforms are also encouraged to follow preexisting codes of conduct.

The proposed DSA is similar in some ways to the GDPR. Like the GDPR, it applies to all online platforms that offer their services in the EU, even if they are based in America, and requires non-EU platforms to appoint a legal representative. It also is enforced with fines set forth by each Member State, but the fines are potentially higher, capped at 6% (rather than 4%) of the global turnover of the digital platform. In extreme cases, a court can temporarily suspend the platform.

How would the decision to remove Trumps accounts fare in a world where the DSA is law?

Because the DSA allows Member States to enforce their own national laws on any platform operating anywhere in the EU, and it imposes the heaviest burdens on Very Large Platforms which are mostly US companies like Facebookthe strictest European nations laws could apply even to uniquely American social media controversies.

Germanys controversial NetzDG law is currently one of the most speech-restrictive laws in Europe. It requires that digital platforms censor hate speech and defamatory speech, as defined by the German Criminal Code, and it gives platforms a weekand, sometimes, just a dayto remove problematic content. This is a remarkable contrast to American law when one considers that it takes months or years for American courts trained in resolving legal disputes to determine whether speech is defamatory or notand hate speech is in fact protected under the First Amendment.

Even under NetzDG, the Trump tweets that led to his Twitter suspension may not have been illegal. And while the DSA mandates removal of illegal content, it leaves the question of what to do with merely harmful content up to the platforms. So, even if the DSA is passed, the EU would not require platforms to suspend Trumps account. Nor would it prohibit such a move.

But that could quickly change, as illustrated by a recent development in Poland. In response to the deactivation of Trumps social media accounts, Polish officials announced a new draft law that would make it illegal for platforms to take similar actions. The draft law states that social media companies cannot remove content that is not expressly illegal. Although the law purports to apply only to companies operating in Poland, under the DSA, the law would apply across Europe and, practically speaking, could extend into the US.

If laws like the Polish bill are implemented alongside the DSA, American First Amendment principles could come into direct conflict with the European model of free expression. European governments would not only tell companies what they must remove, but also what they must not remove.

Ask five Americans to explain to a European why the First Amendment is worth protecting, and youll get five different answers. This is not a design flaw, nor a failure of the US education system. Rather, the reasons for the First Amendment are, and have always been, varied and up for debate.

Among the many theories for the First Amendment is the idea of the marketplace of ideas the argument that ideas should be aired freely to allow the public to compare competing ideas, and the truth will prevail. Critics of this theory point out that powerful groupslike Very Large Platformswill have outsized influence in the marketplace. Another criticism of the marketplace theory is that, after 230 years of testing, it simply hasnt proven accurate: if anything, critics say, this model of free speech elevates salacious falsehoods and buries truth.

The European regulatory framework is perhaps a direct response to the perceived failure of the marketplace of ideas. Europeans think the truth needs a boost, and that boost should come from the government. An American may counter that there is no evidence that governments are better than platforms at leveling the playing field in a way that lets truth prevail.

Another theory of the First Amendment is that, in a democracy, government must stay out of speech decisions so that citizens can learn truthful information about their elected officials. Although the DSA is primarily focused on non-political speech, such as terrorist content and child sexual abuse material, it is theoretically problematic, because the rules are set by the very legislators that are under scrutiny.

Another theory is that self-expression has inherent value. Under this theory, the fulfillment of the selfartistically, spiritually, creativelyis only possible where the government is constrained. The DSA, and even the current regulatory framework, is problematic under this theory; these laws can be misapplied in ways that stifle expression. This risk is heightened by the DSAs cross-border reach, because expressive content, such as jokes and art, can take on vastly different meanings across cultures. The New York Times has already documented several instances where satirical content was censored under existing European laws. Because the DSA may result in nation-specific laws applied globally, platforms will have the unenviable job of determining whether a joke in Denmark is a crime in France, and which countrys interpretation prevails.

The challenge for platforms going forward will be complying with these evolving and demanding European regulations. The challenge for US and EU legislators will be harmonizing their free speech principles and addressing dangerous content without Balkanizing the internet. Although both regions value the fundamental right of free expression, European leaders comments on suspending Trumps social media accounts demonstrate that the EUs vision for the internet may be in tension with US First Amendment principles in unexpected ways.

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Is There a First Amendment Right to Tweet? - JSTOR Daily