While public policy lawyers looked at the Supreme Court of the United States’ per curiam decision today in Thompson v. Hebdon, No. 19-122. 589 U.S. ___ , Nov. 25. 2019, (Grant, Vacate and Remand Ninth Circuit decision upholding Alaska’s low campaign contribution limits),  another Free Speech case slipped by almost unnoticed. National Review, et al. v. Mann, No. 18-1451 & 18-1477, asked the Court to grant review of whether journalists and advocacy organizations can use “harsh language” to criticize those advocating differing opinions without being sued for defamation. The Court denied certiorari, but Justice Samuel Alito wrote a dissent from the denial explaining his view of the importance of the question for free speech.

Michael Mann is a scientist and professor at Penn State University who produced the “hockey stick” graph of global temperatures from the year 1050 until modern times, showing what was claimed to be a sharp rise in global temperatures over the last century.  Blogs from National Review magazine and the Competitive Enterprise Institute criticized Mann, the hockey stick graph and a Penn State investigation into Mann’s research. Mann sued for defamation, and the defendants moved to dismiss the lawsuit under a District of Columbia “anti-SLAPP” statute, which requires dismissal of a defamation claim if it is based on “an act in furtherance of the right of advocacy on issues of public interest.” Both the D.C. Superior Court and Court of Appeals refused to dismiss the claim, so the defendants asked the U.S. Supreme Court for review. On Nov. 25, 2019, the Supreme Court denied certiorari.

Justice Alito wrote a dissent to the denial of review (scroll to the end of the Order List), including both the defamation issue itself, and the need for the Court to be vigilant in protecting speech. On the question of whether juries should be allowed to decide whether highly-technical and controversial questions are factually false, Alito noted that, particularly on “a political or social issue that arouses intense feelings, selecting an impartial jury presents special difficulties.” In addition, if the alleged defamation is nationally distributed, the plaintiffs can pick a forum where the jury pool is likely to be sympathetic.

But Alito also addressed the “even more important” question of “protection of robust and uninhibited debate on important political and social issues.”

To ensure that our democracy is preserved and is permitted to flourish, this Court must closely scrutinize any restrictions on the statements that can be made on
important public policy issues. Otherwise, such restrictions can easily be used to silence the expression of unpopular views. …

In recent years, the Court has made a point of vigilantly enforcing the Free Speech Clause even when the speech at issue made no great contribution to public debate. For example, last Term, in Iancu v. Brunetti, 588 U. S. ___ (2019), we upheld the right of a manufacturer of jeans to register the trademark “F-U-C-T.” Two years before, in Matal v. Tam, 582 U. S. ___ (2017), we held that a rock group called “The Slants” had the right to register its name.

In earlier cases, the Court went even further. In United States v. Alvarez, 567 U. S. 709 (2012), the Court held that the First Amendment protected a man’s false claim that he had won the Congressional Medal of Honor. In Snyder, the successful party had viciously denigrated a deceased soldier outside a church during his funeral. 562 U. S., at 448–449. In United States v. Stevens, 559 U. S. 460, 466 (2010), the First Amendment claimant had sold videos of dog fights.

If the speech in all these cases had been held to be unprotected, our Nation’s system of self-government would not have been seriously threatened. But as I noted in Brunetti, 588 U. S., at ___ (slip op., at 1) (concurring opinion), the protection of even speech as trivial as a naughty trademark for jeans can serve an important purpose: It can demonstrate that this Court is deadly serious about protecting freedom of speech. Our decisions protecting the speech at issue in that case and the others just noted can serve as a promise that we will be vigilant when the freedom of speech and the press are most seriously implicated, that is, in cases involving disfavored speech on important political or social issues.

This is just such a case. Climate change has staked a place at the very center of this Nation’s public discourse. Politicians, journalists, academics, and ordinary Americans discuss and debate various aspects of climate change daily—its causes, extent, urgency, consequences, and the appropriate policies for addressing it. The core purpose of the constitutional protection of freedom of expression is to ensure that all opinions on such issues have a chance to be heard and considered.

Justice Alito has spoken before on the importance of free speech. Last June, he wrote the decision in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), striking down mandatory union dues because they affect members’ speech rights, which had been fore-shadowed by his 2014 opinion for the Court in Harris v. Quinn: “Compelled funding of the speech of other private speakers or groups presents the same dangers as compelled speech.” Harris v. Quinn, 134 S.Ct. 2618, 2639 (2014).

You might have noticed that we haven’t posted anything for several months. We’re still here and active, but our website and blog were attacked by massive numbers of false “comments” apparently intended to sell products such as CBD oil and the like. Literally one or two ads every minute bombarded our site. With a small all-volunteer staff, the task of simply cleaning out the fake comments was overwhelming.

So, on the advice of cybersecurity professionals, we went “dark” for a time, allowing the malicious advertising stream to wither. That appears to have been successful, so we’re back.

Sorry for the interruption.

Alan Dershowitz, a professor-emeritus at Harvard Law School, is a well-known liberal advocate for a variety of causes, defense counsel for O.J. Simpson, Mike Tyson, and others, and a strong backer of Hillary Clinton for President. Last year he became a vocal critic of the American Civil Liberties Union, saying:

The Director of the American Civil Liberties Union has now acknowledged what should have been obvious to everybody over the past several years: that the ACLU. is no longer a neutral defender of everyone’s civil liberties; it has morphed into a hyper-partisan, hard-left political advocacy group. The final nail in its coffin was the announcement that for the first time in its history the ACLU would become involved in partisan electoral politics, supporting candidates, referenda and other agenda-driven political goals. …

“The move of the ACLU to the hard-left reflects an even more dangerous and more general trend in the United States: the right is moving further right; the left is moving father left; and the center is shrinking… America has always thrived at the center and has always suffered when extremes gain power. The ACLU’s move from the neutral protector of civil liberties to a partisan advocate of hard-left politics is both a symptom and consequence of this change.”

Dershowitz has long been a fixture on Cable News Network, but apparently CNN has decided that the “new” Dershowitz is too hot for it to handle. The specific impetus? Dershowitz’s vocal defense of President Trump against the special counsel’s “collusion” inquiry led by Robert Mueller. As Dershowitz writes:

In our hyperpartisan world, in which so many people watch only media that will give them news with which they agree, CNN viewers understandably expected the Mueller report to find overwhelming evidence that President Trump colluded, conspired with and is beholden to Russia. After all, that is what they have been hearing for many months. …

During the first several months of the investigation, CNN viewers also heard my more nuanced, more centrist views. As a liberal Democrat who strongly supported Hillary Clinton, I had some credibility when I raised questions about the certainty with which other CNN guests had declared Trump guilty. I introduced constitutional analysis regarding the allegations of obstruction of justice, arguing that — regardless of Trump’s intentions — he could not be charged with obstruction based exclusively on exercising his constitutional authority under Article II. …

CNN viewers benefited from evaluating my viewpoints against those of other guests and hosts.

But then, suddenly, I was banned from CNN.

Over the past half year or so, I have never once been asked to appear on a CNN program. Initially I wondered why, and I asked some of my friends at the network. They were evasive and studiously avoided any direct answer to my question.

Then I received off-the-record information that an order had come from the very top: CNN executive Jeff Zucker didn’t want me on CNN any more. My centrist, nuanced perspective was anathema to CNN’s emerging brand as the anti-Trump network.

 

 

“The politician with the largest campaign account in Houston and Harris County — excluding self-funded mayoral candidate Tony Buzbee — has $3.6 million on hand. That exceeds the combined sums of Houston’s incumbent mayor and the Harris County judge, and all but ensures this official would be better-funded than any challenger. He has little use for it, however, because he has been dead for three years.”

From the Houston Chronicle, h/t Political Activity Law.

Despite much complaining over the fact that this makes the dead politician’s campaign account, managed by his widow, potentially a powerful player in Texas politics, there is no indication of malfeasance or failure to comply with state laws.