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PROGRAMMING NOTE: POLITICO Influence will not publish on Monday, May 31. We'll be back on our normal schedule on Tuesday, June 1.

HOW K STREET SEES THE INFRASTRUCTURE TALKS: Where do the infrastructure negotiations between President Joe Biden and Senate Republicans stand as lawmakers head home? In our view, it is only a matter of time before Democrats move to a reconciliation for infrastructure legislation, the Smith-Free Group wrote in a memo to clients this week. It might be a matter of a few days or a few weeks but the bipartisan discussions between the White House, Senate GOP and various gangs of senators are doomed to fail: the differences between the two sides are simply too great to bridge.

When the House returns, it is our expectation the Speaker will urge her committee chairs to complete work quickly on a budget resolution and other implementing legislation to have something to show for their efforts by her self-imposed July 4th deadline, the lobbying firm wrote. The challenge for Democrats will of course be the calendar. Can they pass a resolution and reconciliation bill through both Houses before the August recess? Almost certainly not. So at what point will they want to be in the process before leaving town and facing their constituents in August?

FORTINET BUILDS UP ITS PRESENCE IN WASHINGTON: Fortinet is stepping up its Washington lobbying efforts. The cybersecurity company, which retained only one lobbying firm at the start of the year, hired Subject Matter in March and brought on BGR Group and Salt Point Strategies last month, according to newly filed disclosures. Fortinet also retains Efrus Federal Advisors, which the company hired last year.

Asked what spurred the companys hiring spree, Hugh Carroll, Fortinets head of government affairs, cited the recent attacks on critical infrastructure. The FBI and Cybersecurity and Infrastructure Security Agency warned last month that hackers were likely trying to attack the company's VPNs. With the increased attention on the need to protect digital infrastructure and strengthen cybersecurity policy, Fortinet recognized an opportunity to share its established network security expertise and we are excited to be a resource to policymakers at this important juncture, Carroll said in a statement.

Good afternoon and welcome to PI. It's been a pleasure filling in for Caitlin, who will take back the PI reins on Tuesday. Thanks for reading, and special thanks to the reader who suggested a recipe for using up my leftover rhubarb stalk. Enjoy the long weekend, and send Caitlin and me your tips for next week: [emailprotected] and [emailprotected]. You can also follow us on Twitter: @theodoricmeyer and @caitlinoprysko.

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FARA FRIDAY: The Supreme Court ruled in February that heirs of Jewish art dealers who claimed theyd been forced to sell artwork in the 1930s for roughly a third of its value couldnt sue the German government in U.S. courts. Last week, several lawyers for Wiggin and Dana, which represented Germany in the case, belatedly registered as foreign agents on behalf of the German government and a German consortium of museums and archives, the Stiftung Preussischer Kulturbesitz.

Lawyers representing foreign governments in court arent required to register under the Foreign Agents Registration Act. But certain Wiggin attorneys involved in the litigation occasionally engaged in communications with news media in the United States (relating to the litigation) on behalf of the German government and SPK, the firm wrote in its registration. After further review of recent DOJ opinion letters, Wiggin now understands that its media-related activities concerning the litigation as limited as they may be could be construed by DOJ as registrable political activities, and Wiggin has therefore proceeded to register in an abundance of caution.

David Laufman, a Wiggin partner who previously oversaw the governments enforcement of FARA while working at the Justice Department, said the firm decided on its own that it should register for the work. As indicated in its filing with the Justice Department, Wiggin registered on its own initiative, not in response to any DOJ directive or determination that it had to register, he said in a statement.

FACEBOOKS PAC STARTS GIVING AGAIN BUT NOT TO REPUBLICANS WHO VOTED AGAINST CERTIFICATION: Facebook is resuming contributions through its political action committee but will not give money to any members of Congress who voted against certifying the 2020 US election, the company notified employees on Thursday, BuzzFeed News Ryan Mac and Sarah Mimms report.

In an internal announcement, Brian Rice, a public policy director at Facebook, said that the decision came after the Jan. 6 insurrection and a review of the companys contribution policies. Five days after the storming of the Capitol, Facebook said it would pause all political donations for at least three months.

As a result of our review, the FBPAC Board has decided to resume contributions, but not to any members of Congress who voted against certifying the 2020 election following the events at the Capitol on January 6, Rice said in an internal note obtained by BuzzFeed News. While a contribution to a candidate for office does not mean that we agree with every policy or position that a candidate may espouse, we believe this decision is appropriate given the unprecedented events in January.

MEANWHILE, IN FLORIDA: Two trade groups, NetChoice and the Computer and Communications Industry Association, filed a lawsuit on Thursday in federal court challenging a controversial bill that Gov. Ron DeSantis said is aimed at cracking down on social media censorship but opponents argue is an unconstitutional infringement on free speech, POLITICO Floridas Matt Dixon reports.

Americans everywhere should oppose Floridas attempt to run roughshod over the First Amendment rights of private online businesses, said Carl Szabo, vice president and general counsel of NetChoice. By weakening the First Amendment rights of some, Florida weakens the First Amendment rights of all. The bill requires social media companies to post concrete criteria they use to deplatform users, and allows the Florida Elections Commission to fine social media companies up to $250,000 for banning political candidates, among other things.

Venable has hired Tom Perez, the former Democratic National Committee chairman and Labor secretary. Hell be a partner working on legal, legislative, and regulatory matters across a broad range of subject matter areas. He doesnt plan to register as a lobbyist, according to the firm.

GOP Winning Women (Reps. Young Kim, Michelle Steel, Mara Salazar, Ashley Hinson, Marianette Miller-Meeks, Nicole Maliotakis, Stephanie Bice, Nancy Mace, Beth Van Duyne and Jaime Herrera Beutler)Ready for Battle Fund (Esther for Congress, Joy PAC)Smiley Victory Fund (Smiley for Washington Inc., Stronger Washington PAC, Washington State Republican Party)Van Duyne Kim Victory Fund (Reps. Beth Van Duyne and Young Kim)

National Obesity Prevention of America (PAC)New Mexico Freedom Fund (Leadership PAC: Rep. Yvette Herrell)Principled Veterans Fund (PV Fund) (Super PAC)The National Council for American Education (PAC)WV Senate Republican Nominee Fund 2024

Alston & Bird LLP: Provider Partners Management Services, LLCArmory Hill Advocates (formerly known as Rawlson Policy Group): Acadia Healthcare Inc.Delta Development Group, Inc.: Bedford County Development AssociationReston Strategy Group, LLC: Astrobotic Technology, Inc.Salt Point Strategies: Aurora Insight, Inc.Salt Point Strategies: Fortinet, Inc.Summit Strategies Government Affairs LLC: National Association of Development OrganizationsThe KPM Group DC LLC: Acceleron PharmaThe KPM Group DC LLC: Mannkind CorporationThe KPM Group DC LLC: Orphazyme US, Inc.The KPM Group DC LLC: Pharmaessentia CorporationThe KPM Group DC LLC: Sangamo Therapeutics, Inc

Baker & Hostetler LLP: Prime Time Commerce, LLC

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How K Street sees the infrastructure talks - Politico

Prince Harry is taking heat for calling the First Amendment bonkers in a recent podcast interview.

The Duke of Sussex made the statement on Dax Shepards Armchair Expert podcast while discussing what he called the media feeding frenzy that arose from his stay at Tyler Perrys Beverly Hills mansion, the Daily Mail reported.

Ive got so much I want to say about the First Amendment as I sort of understand it, but it is bonkers, Harry said, according to the report.

I dont want to start going down the First Amendment route because thats a huge subject and one which I dont understand because Ive only been here a short time.

But, you can find a loophole in anything. You can capitalize or exploit whats not said rather than uphold what is said, Harry reportedly said.

Harrys comments drew sharp criticism on Twitter from both Americans and Brits.

Brexit leader Nigel Farage opined: For Prince Harry to condemn the USAs First Amendment shows he has lost the plot. Soon he will not be wanted on either side of the pond.

Meanwhile, Texas Rep. Dan Crenshaw said, Well I just doubled the size of my Independence Day party.

Another commenter wrote on Twitter, Imagine being completely mystified by the idea that people have a right to speak their minds without fear of being arrested.

See the article here:
Prince Harry takes heat for calling First Amendment 'bonkers' - Page Six

On Wednesday, despite the thousands of calls, emails, and other communication from NRA Members and Second Amendment supporters, Senate Bill 5038 advanced out of the legislature and was signed into law. In response to the signing,NRA State Director Aoibheann Cline wrote:

BysigningSB 5038,Gov. Inslee yet againdisplays a blatantdisregard forthe safety and freedoms oflaw-abiding Washingtonians. The right of self-protection should never be denied whether at home, on the road, or in the public square. The NRA will continue this fight on all available fronts.

*****

Senate Bill 5038makes it a crime to openly carry, on the person or in a vehicle, a firearm or other weapon if you areat orwithin 250 feet of a permitted demonstration in a public place. Even if you leave your firearm locked in the trunk of your car, it isconsidered"open carry" under this bill andyou will be guilty of a gross misdemeanor.Despite permitting individuals to use an area for the exercise of their First Amendment rights, anti-gun legislators are banningindividuals from exercising their Second Amendment rights in the same permitted space. The Constitution was not written with gradually disappearing ink,where one right is more important than another. The Second Amendment should not be infringed upon in any capacity, especially where other Constitutional Rights are being freely and openly expressed.

Thank you to NRA Members and Second Amendment supporters who remained in constant contact with their legislators and voiced their staunch opposition to this measure. Stay-tuned to NRA-ILA for more information and updates on Second Amendment issues in the Evergreen State.

See the original post here:
Washington: Second Amendment Banned in First Amendment Spaces After the Signing of Anti-Gun Measure - NRA ILA

First Amendment

By Debra Cassens Weiss

May 12, 2021, 10:33 am CDT

Image from Shutterstock.

A federal appeals court has reversed the conviction of a white retired Air Force lieutenant colonel who used the N-word while complaining about a Black store employee who asked whether he needed any help.

If I called her a n- - - -r, would she still say good morning? the retired officer had said.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled Tuesday that Jules A. Bartows speech was protected by the First Amendment, and he could not be convicted for using abusive language.

The First Amendment allows a conviction only when language has a direct tendency to cause immediate acts of violence by the person to whom it was addressed, the appeals court said. Under the facts of the case, that fighting words exception to free speech protections did not apply, the court concluded.

Over the decades, the appeals court said, the U.S. Supreme Court has repeatedly determined that the First Amendment places considerable limits on the criminalization of speech. We must abide those limits, even if that means, as it does here, that shameful speech escapes criminal sanction.

Judge Diana Gribbon Motz, an appointee of former President Bill Clinton, wrote the unanimous opinion. Other judges on the panel were Judge Stephanie Thacker, an appointee of former President Barack Obama; and Judge A. Marvin Quattlebaum Jr., an appointee of Obama.

The court described what happened in November 2018, reconstructing the verbal exchange based on the testimony of witnesses.

Bartow was at the Quantico Marine Corps Exchange to shop for boots. A Black employee, Cathy Johnson-Felder, approached Bartow and said, Good morning. May I help you?

Bartow responded: If I had indigestion, diarrhea or a headache, would you still address me as good morning?

Johnson-Felder froze in shock but tried again.

Can I help you, sir? she asked.

Bartow replied: Im not a sirIm not a male, Im not a female, if I had a vagina, would you still call me sir?

Bartows raised voice drew the attention of a white uniformed Marine lieutenant colonel, who began a conversation with Bartow. Both men gestured at each other with pointed fingers, even as they continued to try on boots.

An onlooker, a Black man in civilian clothes, told Bartow that employees say sir or maam because they are purchasing merchandise at a military installation.

Bartow replied: If I called her a n- - - -r, would she still say good morning?

Vicki Herd, a store security officer, was called. She observed a heated conversation between Bartow and the Marine lieutenant colonel. Herd moved between the two men and then escorted Bartow out of the store. Base security officers arrested him.

The 4th Circuit said Bartows remarks were offensive and bizarre, and their meaning was difficult to discern. Bartows briefs suggested that his remarks reflected discomfort with gender labels and sex stereotypes. He argued that he used the slur because it can be just as offensive to be called the N-word as it for a transgender person to be misgendered.

The 4th Circuit noted that the N-word is pure anathema to African Americans. The epithet is so loaded with a legacy of slavery and racial hatred that it is inextricably linked with prejudice and hostility toward African Americans, the court said.

The slur would qualify as fighting words that could be prosecuted under the leading 1942 Supreme Court case defining fighting words not subject to First Amendment protection, Chaplinsky v. New Hampshire, the appeals court said.

But in the decades since the 1942 decision, the Supreme Court has imposed so many limitations on the fighting words exception that it has not since upheld a conviction under the doctrine.

Among the limitations are that the fighting words must be clearly directed at the person who hears them, and that the utterance must be likely to provoke an immediate violent reaction by the person addressed or by a reasonable person in that persons position.

In Bartows case, his series of rhetorical questions didnt provoke anyone, and the government didnt prove that it was likely to do so, the appeals court said.

The ugly racial epithet used by Bartow undoubtedly constituted extremely abusive language, the appeals court said. But because the government failed to prove (or even to offer evidence) that Bartows use of this highly offensive slur tended to cause immediate acts of violence by anyone, his conviction cannot stand.

Among the publications covering the decision are Courthouse News Service and the Associated Press.

View post:
Citing First Amendment, 4th Circuit reverses conviction for retired Air Force officer's use of N-word - ABA Journal

Everyone knows that a fundamental principle of American democracy is the First Amendment guaranteeing many freedoms to US citizens including freedom of the press and freedom of speech. It is one of those concepts that underlies our society, but is often mentioned only in passing, and rarely considered in practice. Few people even broadcasters and other media companies have cause to think about First Amendment principles in their day-to-day operations. The concepts embodied by the First Amendment are almost a given except when they are not.

In our politically polarized society, there are more and more arguments made about regulation of speech in various contexts often made without significant consideration of those First Amendment principles. On the broadcast side, we have seen Commissioner Carr react to two cases where the FCC has seemingly been called on to regulate the speech (or anticipated speech) of broadcasters. One case involved a call to deny the sale of a broadcast station allegedly based on a perceived change in the political orientation of its programming from liberal to conservative (see the Carr statement here), and another calling for the FCC to investigate a TV station in Baltimore for allegedly being too focused on investigations into a local government official (see the Carr statement here and an NAB statement also weighing in on the controversy here). While there may well be issues in each case that go beyond the question of the proposed speech of the broadcasters involved, the issue of whether the FCC can get involved in the regulation of political positions taken by broadcasters is one that is addressed both by the Communications Act and past FCC precedent.

We have written many times about how the FCC is restricted by the First Amendment and Section 326 of the Communications Act from regulating the speech of broadcasters. Section 326 states:

Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

The FCC has weighed the impact of the First Amendment and Section 326 in numerous cases and found that these principles keep it out of content regulation (with certain limited exceptions, such as indecency and obscenity). This hands-off policy has been a consistent theme through the FCCs decisions in a variety of areas. See, for instance our article last year regarding the FCCs denial of a complaint about stations airing President Trumps news conferences that allegedly contained false information that violated the broadcast hoax rule; our article here on the FCCs reluctance to get involved in assessing the truth of attacks made in political ads; our articles here and here on the FCCs policy that it does not regulate the format of broadcast stations; the FCCs decision to end enforcement of the Fairness Doctrine (see our article here); its denial of previous requests that it penalize a licensee for allegedly airing fake news reports (see our article here); and its decisions to not substitute its judgement for that of the licensee in cases where the FCC was asked to deny renewal applications based on a petitioners assessment that the programming selected by the licensee did not best serve the public interest (see our article here).

This consistent position keeps the FCC out of regulating the political speech of broadcasters. But these same issues are now being raised by both liberals and conservatives in the context of regulating online speech. We have seen calls for the regulation of Internet platforms that do not limit the speech of some individuals (see, for instance, the controversy last week around the continued ban of former President Trump on Facebook), as well as calls from others to forbid these platforms from blocking individuals, particularly where these platforms provide access to some but not all candidates for political office. Because online platforms are private companies with their own free speech rights, including the right not to be associated with certain speech of others or with hate speech, it is not necessarily the same analysis as content regulation by government actors. The First Amendment generally will not apply to the decisions of private online platforms in the same way that it does to government actors, like the FCC, which generally are barred from injecting themselves into content decisions. But there are still calls for online regulation of these platforms and we will delve into some of those arguments and their implications for the First Amendment in an article to be published in the near future.

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The First Amendment's Role in Broadcast and Online Regulation - Lexology