September 2, 2025

In the News

Election Law Blog: The Elections Clause and Campaigns

By Richard Pildes

.....Brad Smith, former FEC Commissioner and (retired) professor of law at Capital University, has long been one of the major advocates for the view that much of campaign-finance regulation violates the First Amendment. In an amicus brief in the NRSC v. FEC case on party-coordinated expenditures, the Institute for Free Speech, which Brad founded and chairs, along with the Manhattan Institute, now takes the position that the Elections Clause, which is the source of Congress’ power to regulate campaign finance, does not permit Congress to regulate political campaigns at all, as opposed to the voting process itself.

New from the Institute for Free Speech

Report: Record Number of States Now Protect Free Speech from Frivolous Lawsuits

.....In just seven years, the number of Americans protected by strong laws against abusive litigation designed to silence speech has soared by 83%—yet at least 12 states still offer their residents no protection at all.

Those are some of the top-line findings in the new 2025 Anti-SLAPP Report Card, just released by the Institute for Free Speech.

The report reveals that state laws protecting against costly, meritless, speech-suppressing lawsuits are growing and improving nationwide, now covering 37 states plus the District of Columbia. Delaware is expected to soon become the 38^th state after its legislature unanimously passed a bill that the governor is expected to sign. The report details and rates state-by-state legal protections against “SLAPP” suits, which stands for “strategic lawsuit against public participation.”

The Courts

ABC News: Judge throws out campaign finance lawsuit between Republican rivals in Georgia governor's race

By Russ Bynum, Associated Press

.....A federal judge on Thursday threw out a lawsuit by one of Georgia's top Republican officials against his chief rival for the 2026 GOP nomination for governor that claimed the opponent had an unfair advantage in campaign fundraising.

The judge's ruling allows Republican Lt. Gov. Burt Jones to continue raising unlimited campaign funds using a special leadership committee granted to a select group of Georgia officials under a 2021 law. The suit was filed by Georgia Attorney General Chris Carr, who says the committee gives Jones an edge that violates Carr's constitutional rights to free speech and equal protection.

Reason (Volokh Conspiracy): California Law Restricting "Materially Deceptive" Election-Related Deepfakes Violates First Amendment

By Eugene Volokh

.....From today's decision by Judge John Mendez (E.D. Cal.) in Kohls v. Bonta:

Trump Administration

The Atlantic: Trump Just Made Burning the Flag a Little Easier

By David Cole

.....But in 1989, and then again in 1990, the Supreme Court ruled that outlawing flag-burning violates the First Amendment. As a young attorney with the Center for Constitutional Rights, I represented the defendants in both cases, working under the civil-rights attorney William Kunstler. Together, the two cases illustrate why punishing flag-burning is antithetical to free speech—and why Trump’s order is likely to backfire. Not only will it encourage people to burn flags in protest, as one combat veteran did in front of the White House just hours after the order was issued. It could also hand flag-burners a legal defense in the rare situation when they might otherwise be prosecuted.

USA Today: Trump's flag burning order is unconstitutional. That's not the problem.

By Dace Potas

.....On Aug. 25, President Donald Trump announced an executive order aimed at “Prosecuting Burning of the American Flag.” 

The administration really wanted us to believe that Trump was making flag burning illegal, but Trump's order doesn’t actually do that…

Instead, the order directs the attorney general to “prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country.”

It also says that if an “instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action.”

For one example, a man has already been arrested for burning a flag, under the reasoning that it is illegal to burn anything in a public park. Obviously, the administration just wants to arrest people burning flags and will look for accompanying laws to do it.

Congress

Covington (Global Policy Watch): Congress Weighs Foreign Agent Disclosure and Registration Bills

By Robert Kelner, Zachary G. Parks, Alex Langton & Samuel Klein 

.....Congress is considering several bills to broaden disclosure and registration requirements related to the regulation of foreign agents under the Foreign Agents Registration Act (“FARA”) and the Lobbying Disclosure Act (“LDA”): the Foreign Registration Obligations for Nonprofit Transparency (“FRONT”) Act (S. 2305), Disclosing Foreign Influence in Lobbying Act (S. 856 / H.R. 1883) and the Lobbying Disclosure Improvement Act (S. 865 / H.R. 1887). Additionally, multiple proposed amendments to the FY 2026 National Defense Authorization Act (NDAA) would increase certain disclosure obligations. Together, these legislative proposals indicate continued lawmaker interest in regulating foreign influence in the United States.

FTC

The Hill: FTC chair alleges Gmail uses partisan filtering

By Elizabeth Crisp

.....Federal Trade Commission (FTC) Chair Andrew Ferguson warned Gmail, the world’s largest email service, this week that it may face a federal investigation over allegations the company intentionally suppresses messages sent by Republicans.

“My understanding from recent reporting is that Gmail’s spam filters routinely block messages from reaching consumers when those messages come from Republican senders but fail to block similar messages sent by Democrats,” Ferguson wrote in a letter Thursday to Sundar Pichai, the CEO of Google parent company Alphabet.

Ferguson cautioned in the letter that inconsistencies in Gmail’s spam filtering based on politics “could lead to an FTC investigation and potential enforcement action.”

Free Expression

Wall Street Journal: Stanford’s Graduate Student Union Tries to Stifle Dissent

By Jon Hartley

.....I’m working as a teaching assistant while studying for a doctorate in economics at Stanford, but a campus union is trying to get me fired. The Stanford Graduate Workers Union wants my head on a plate because I refused to sign a membership form and pay dues. I won’t fund an organization whose values and tactics I don’t support.

Similar unions across the country are using their bargaining power not to improve working conditions but to coerce ideological conformity. This isn’t solidarity; it’s suppression. Shame on Stanford for going along with it.

Candidates and Campaigns

Election Law Blog: “Do Incumbents Still Enjoy a Financial Advantage? How Individuals Ceased to Advantage Incumbents While Corporate America Continues to Favor Them”

By Richard Pildes

.....This is an important new study from Andrew C. W. Myers, Maria Silfa, Alexander Fouirnaies,

and Andrew B. Hall.

The paper also illustrates, though it doesn’t emphasize, the role that the rise of donations from individuals — including especially small donors — contributes to polarization. Donors have different motivations. Corporate PACs mainly donate to seek access to officeholders; as a result, they tend to give to incumbents and do so with much less emphasis on ideology. Individual donors, by contrast, are ideologically motivated. I have explored the rise of individual donors and the connection to polarization in my essay, Campaign Finance and Political Polarization.

Here’s the abstract from this new empirical paper:

The States

Politico: Campaign board deepens probe into Eric Adams fundraising

By Joe Anuta

.....A New York City oversight board petitioned the Department of Justice, hired an outside investigator and issued subpoenas as part of a widening probe into Mayor Eric Adams’ campaign fundraising practices.

Those revelations came in a trove of federal court papers filed Friday that paint the clearest picture yet of the Campaign Finance Board’s independent investigation into Adams’ 2021 and 2025 mayoral runs — along with more detailed reasoning behind the board’s decision to repeatedly deny the mayor public matching funds.

Reason (Volokh Conspiracy): When Can Lawyers Be Punished for "Undignified or Discourteous" Criticism of Judges?

By Eugene Volokh

.....From Kansas Supreme Court Justice Caleb Stegall's concurrence in the judgment yesterday in In the Matter of Suzanne Valdez: