Email from The Institute for Free Speech The Latest News from the Institute for Free Speech December 2, 2025 Click here to subscribe to the Daily Media Update. This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected]. In the News NH Journal: Nashua ‘Pine Tree Flag’ Case Heads to First Circuit, Raising Major Free Speech Questions By Michael Graham .....For the second time in a month, New Hampshire liberals will be forced to defend their restrictions on speech and expression before a federal appeals court in Boston. And if history is any guide, they will find themselves facing an uphill fight. In November, it was the Bow, N.H., school district attempting to explain why banning speech about transgender issues it found hurtful was okay, even as it allowed affirming speech on the same topic. At one point the school district’s attorney compared free speech to “poison.” The court did not appear impressed. On Tuesday, that same federal appeals court will hear arguments in a closely watched free-speech case involving Nashua’s decision to reject a Pine Tree Flag application for its “Citizen Flag Pole,” a move free speech advocates say amounted to unconstitutional viewpoint discrimination. At issue is whether Nashua city officials can decide which citizen-requested flags are “worthy” of being flown on the public pole — and whether city officials effectively shut down a public forum rather than allow symbols they didn’t like. The lawsuit was filed by Nashua residents Bethany and Stephen Scaer after the city denied their request to fly the historic Pine Tree Flag to commemorate the Battle of Bunker Hill. Municipal officials rejected the application, saying the flag was “not in harmony” with Nashua’s preferred message. The Scaers say that phrase — “in harmony” — is the problem. The Buckeye Institute: Unprecedented Number of Groups (250) Across Political Spectrum Support The Buckeye Institute’s First Amendment Case .....An unprecedented 250 organizations, business groups, trade associations, public interest law firms, state attorneys general, and individuals from across the political spectrum filed amicus briefs supporting The Buckeye Institute’s position in The Buckeye Institute v. Internal Revenue Service (Buckeye v. IRS). If that number of amici (filing in favor of a single side) does not set a record in the U.S. Court of Appeals for the Sixth Circuit, someone please let us know. Perhaps ironically, given the nature of this case, there were even more people and organizations from both the left and the right who reached out to provide encouragement and cheer us on behind the scenes, but simultaneously expressed their fear about calling out the government publicly, which would require sticking their own heads up and risking retaliation… The Buckeye Institute is represented in this case by its own in-house attorneys and the Institute for Free Speech. Dentons: Political Law Playbook November 2005 .....Institute for Free Speech Defends First Amendment Rights Against IRS Donor Disclosure Law – The Institute for Free Speech filed a brief last month with the US Court of Appeals for the Sixth Circuit supporting the right of nonprofit organizations to protect their supporters’ personal privacy and asking the court to reject the IRS’ practice of unnecessarily collecting confidential donor information from charitable organizations each year. The filing in The Buckeye Institute v. Internal Revenue Service asks the appeals court to uphold a lower court’s decision requiring the IRS to meet the demanding “exacting scrutiny” standard to justify the existing disclosure regime. Under present law, the IRS annually collects the names and addresses of major donors to all 501(c)(3) nonprofits. The Institute’s brief notes that the IRS has failed to show any legitimate need for indiscriminately collecting such sensitive donor information. Yet by doing so, the IRS increases the risk that confidential donor information becomes public or misused, threatening the existence of such groups. New from the Institute for Free Speech Free Speech Arguments – Can the Government Limit Access to a Citizen Flag Pole Based on Viewpoint? (Scaer, et al. v. City of Nashua, et al.) .....Scaer, et al. v. City of Nashua, et al. argued before the U.S. Court of Appeals for the First Circuit on December 2, 2025. Argued by Institute for Free Speech Attorney Nathan Ristuccia (on behalf of Stephen and Bethany Scaer) and Steven A. Bolton (on behalf of the City of Nashua, NH). Case Background, from the Institute for Free Speech case page: Supreme Court New York Times: Supreme Court to Hear Dispute Over Anti-Abortion Center Donor Records By Abbie VanSickle .....In November 2023, New Jersey’s Attorney General sent a subpoena to a group of anti-abortion nonprofit centers demanding the names of their donors. State investigators said they were entitled to the donor lists as part of an continuing investigation into whether the group had misrepresented itself to donors and the public. The organization, First Choice Women’s Resource Centers, a collection of five centers that offer free prenatal care, sued, arguing the subpoena violated its First Amendment freedoms of speech and association. The Supreme Court will hear arguments on Tuesday in the dispute, which arose the year after justices overturned the constitutional right to abortion. Ed. note: Read our brief in support of petitioner here. ACLU: ACLU Urges Supreme Court to Protect Free Expression Online in Copyright Case .....Today, the Supreme Court will hear oral arguments in Cox v. Sony, a landmark copyright case. An amicus brief by the American Civil Liberties Union, the ACLU of Virginia, and the Center for Democracy and Technology, working with leading copyright scholars and attorneys, urges the court to limit copyright penalties imposed on internet service providers (ISPs) for alleged user behavior. The Court is reviewing a decision by the Fourth Circuit that would force ISPs to shut off Internet access for any IP address based on a copyright holder’s mere accusation that it has been used to infringe a copyright. In practice, this could shut off Internet access for entire families, businesses, hotels, airports, and libraries because of the alleged actions of one user. This kind of collective punishment has troubling implications for online speech. The Courts Bloomberg Law: Abortion ‘Reversal’ Speech Protected From NY State Regulation By Mary Anne Pazanowski .....New York Attorney General Letitia James (D) is barred from enforcing state false advertising and consumer protection laws against anti-abortion medical centers in the state that promote abortion “reversal.” A lower court correctly prohibited James from bringing an enforcement action against these plaintiffs because the First Amendment’s free-speech clause likely protects their statements about a procedure in which pregnant people take the hormone progesterone to “reverse” the effects of drugs that induce abortion, including mifepristone, the US Court of Appeals for the Second Circuit said Monday. WHYY: N.J. school board member facing ethics complaint over Facebook post asking for opinions on tax hike files lawsuit By David Matthau .....A South Jersey school board member’s social media post was intended to start a community conversation. Instead, it sparked a lawsuit about constitutional free speech rights. In April, Alloway Township school board member Gail Nazarene posted a question on her Facebook page that asked people in town their opinion on a proposed tax increase for school expenses. A fellow board member filed a complaint with the New Jersey School Ethics Commission. The complaint alleges that the Facebook posts created confusion and concern among members of the public, and conveyed the impression that Nazarene was speaking on behalf of the board without authorization. Nazarene disputed that, and said decisions about taxes should be made by the people, not just a small group of individuals... A short time later, she was told that she should not post anything on Facebook. The ethics complaint is currently pending before the commission, but Daniel Zahn, an attorney for the Foundation for Individual Rights and Expression, has filed a pre-enforcement challenge. Jonesing for Nonprofits: District Court Hears Johnson Amendment Arguments; Members of Congress Argue to Retain Prohibition Against Campaign Intervention By Darryll K. Jones .....[Last week] a Texas district court judge heard oral arguments about the proposed consent agreement regarding the Johnson Amendment. Recall that the IRS proposes to allow organized worshippers to speak for or against candidates for public office via “customary channels of communication.” The 90 minute hearing was not live streamed and media reports are sketchy. Tax Notes provides a brief summary: "The proposed consent decree is a reasonable settlement, and it contains the best reading of what’s commonly referred to as the Johnson Amendment, said Justice Department attorney Aaron Henricks, who represented the IRS in court. The proposed consent decree states that “the Johnson Amendment does not reach speech by a house of worship to its congregation, in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.” National Religious Broadcasters (NRB), one of the plaintiffs, represented by Michael P. Farris, said in court that the proposed consent decree addresses concerns about the government’s interference with church autonomy. Constitutional alarm bells should go off when the government is listening to what a pastor says from the pulpit, NRB said. The plaintiffs’ argument that the Johnson Amendment violates church autonomy is misplaced, responded Americans United for Separation of Church and State (AU), which argued during the hearing to have its intervention as a party to the litigation granted. AU, represented by Alexandra Zaretsky and Jess Zalph, rejected the consent decree’s interpretation of the Johnson Amendment. The language in the Johnson Amendment is clear, AU said, adding that it applies neutrally to all 501(c)(3) organizations based on secular criteria. The pulpit shouldn’t be free to violate the Johnson Amendment, AU suggested. The IRS said the proposed agreement is a narrow injunction on a sliver of speech not within the enforceability of the Johnson Amendment in the first place. Reason (Volokh Conspiracy): Councilman's Threatening Outside Counsel Law Firm into Firing Attorney May Violate First Amendment By Eugene Volokh .....From Monday's decision by Sixth Circuit Chief Judge Jeffrey Sutton, joined by Judge Julia Smith Gibbons, in DeLanis v. Metro. Gov't of Nashville & Davidson County: Free Expression Jonathan Turley: British Arrest Man for Posting a Picture Holding a Shotgun in the United States .....In my book, The Indispensable Right, I discuss how free speech is in a free fall in Great Britain, where officials continue to crack down on an ever-widening array of viewpoints. This week, that ignoble record worsened with the arrest of Jon Richelieu-Booth, who told the Yorkshire Post that he was arrested for posting a picture on the networking site LinkedIn of himself holding a shotgun at a friend’s homestead in Florida. West Yorkshire Police allegedly warned him about the post and told him to be “careful” about what he says online and “how it makes people feel.” They later came back and arrested Richelieu-Booth over allegedly possessing a firearm with intent to cause fear of violence, and a charge of alleged stalking over another picture of a house on his profile. He attempted to show that the photo was taken in the United States, but the police brushed him off. While the police eventually dropped the case, it dragged on for months, with multiple visits from officers. However, according to The Telegraph, Mr Richelieu-Booth has been charged with a public order offense over another social media post. The media reported that he was not informed of the contents of that picture. Read an article you think we would be interested in? Send it to Tiffany Donnelly at [email protected]. For email filters, the subject of this email will always begin with "Institute for Free Speech Media Update." 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