Category Archives: Free Speech

Happy Constitution Day

Commerce Clause, Constitution, Federalism, Free Speech, Freedom of the press, History, Individual Rights, Keep and Bear Arms, Privacy, Property Rights, Religious Liberty, Reproductive Rights, Separation Of Powers, The Bill Of Rights

Constitutionalconvention

Two Hundred Twenty Two years ago in Philadelphia, the Constitution Convention in Philadelphia completed it’s work.

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it” responded Franklin.

222 years later, Mrs. Powell’s question, and Franklin’s response, remain undecided.

Do yourself a favor — read The Constitution, and then ask whether we’re still following it the way the Founders intended, and whether we’re going to be able to keep the Republic that Franklin was talking about.

Doug Mataconis
http://www.belowthebeltway.com

Supreme Court Seems Poised To Overturn Campaign Finance Precedents

Constitution, Election Law, Elections, Free Speech, Individual Rights

Based on the oral argument that occurred before the Supreme Court today, it seems pretty clear that the Court is prepared to strike down many restrictions on political advocacy that it had previously allowed:

WASHINGTON — There seemed little question after the argument in an important campaign finance case at the Supreme Court on Wednesday that the makers of a slashing political documentary about Hillary Rodham Clinton were poised to win. The only open question was how broad that victory would be.
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Elena Kagan, the solicitor general, all but said that a loss for the government would be acceptable, so long as it was on narrow grounds.

She suggested that the Citizens United, the conservative advocacy group that produced the documentary, “Hillary: The Movie,” may not be the sort of corporation to which campaign finance restrictions should apply. The group lost a lawsuit last year against the Federal Election Commission in which it had sought permission to distribute the film on a cable television service.

Theodore B. Olson, a lawyer for Citizens United, argued for a broad ruling that would reverse two precedents allowing the government to restrict the campaign speech of all sorts of corporations notwithstanding the First Amendment.

That prompted a question from Justice Sonia Sotomayor, her first as a Supreme Court justice. “Are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?” she asked Mr. Olson.

Indeed, it would not be hard for the court to rule in favor of Citizens United by interpreting or narrowing the 2002 McCain-Feingold campaign finance law, which bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election.

The law, as narrowed by a 2007 Supreme Court decision, applies to communications ”susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

The court could say, for instance, that the law was not meant to address 90-minute documentaries like the one at issue. It could say that the way Citizens United wanted to distribute the documentary, on a cable video-on-demand service, was not covered by the law. Or it could, as Ms. Kagan suggested, carve out some kinds of corporations.

Mr. Olson indicated that he was prepared to accept any sort of victory but that the court would have to confront the larger question soon enough.

Arguing on behalf of Senator Mitch McConnell of Kentucky, the Republican leader, Floyd Abrams reminded the court that it could have decided New York Times v. Sullivan, the 1964 decision that revolutionized the law of libel, on quite narrow grounds. When First Amendment rights are in danger, Mr. Abrams said, bold action is sometimes required.

Lyle Dennison agrees that at least two campaign finance precedents would seem to be in jeopardy:

If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

The Court probed deeply into Congress’ reasoning in its decades-long attempt to restrict corporate influence in campaigns for the Presidency and Congress, in a special sitting to hear a second time the case of Citizens United v. Federal Election Commission (08-205). At issue was whether the Court was ready to overturn two of its precedents — one from 1990, the other from 2003 — upholding such limitations.

From all appearances, not one of the nine Justices — including the newest Justice, Sonia Sotomayor — appeared to move away from what their positions had been expected in advance to be. In her first argument, Sotomayor fervently joined in the effort to keep any resulting decision narrow — seemingly, the minority position but one she had been assumed to hold.

Three Justices — Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — have explicitly urged the Court to overturn the two precedents that sustained congressional limits on campaign financing by corporations and labor unions. Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind.

You can listen to the full audio of today’s oral argument here.

Doug Mataconis
http://www.belowthebeltway.com

Supreme Court May Overturn Previous Rulings On Campaign Finance

Constitution, Democracy, Election Law, Elections, Free Speech, Individual Rights

Tomorrow, the Supreme Court will hear re-argument in a case that could lead to a big change in campaign finance law:

The Supreme Court’s unusual hearing Wednesday on the role corporations can play in influencing elections carries the potential not only for rewriting the nation’s campaign finance laws but also for testing the willingness of the court led by Chief Justice John G. Roberts Jr. to defy the decisions of Congress and to set aside its own precedents.

The court will consider whether the “proper disposition” of a case — pitting a conservative group’s scorching campaign film about Hillary Rodham Clinton against federal campaign finance laws — requires overturning two decisions that said government has an interest in restricting the political activities and speech of corporations.

(…)

Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.

“I don’t think people should underestimate the chief justice’s ability to look down the road,” said Washington attorney David C. Frederick, who frequently argues before the court. “I think he’s got a larger constitutional vision. He’s relatively young and looking into the future.”

(…)

Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.

“I don’t think people should underestimate the chief justice’s ability to look down the road,” said Washington attorney David C. Frederick, who frequently argues before the court. “I think he’s got a larger constitutional vision. He’s relatively young and looking into the future.”

The case, Citizens United v. Federal Election Commission, has already been heard once by the Court. However, in June, the Court took the somewhat unusual step of asking the attorneys for both sides to re-brief and re-argue to address the question of “whether the court should overturn its earlier rulings on limiting corporate and union contributions in federal elections.”

As I said at the time, this seems to indicate that there’s at least some sentiment on the Court for revisiting previous ruling and, perhaps, putting a stake into the heart of one of the most invidious pieces of legislation of the past decade.

One can only hope so, at least.

Doug Mataconis
http://www.belowthebeltway.com

Europeans Go On Strike; Americans Simply Defy

Culture, Foreign Affairs, Free Speech, Freedom of the press, Government Regulation

One of my personal bits of curiousity about the world is related to cultural “ways of thinking”. While I don’t believe that Americans are innately different than Europeans, or Chinese, or Russians, there are certainly differences in average thought borne of the different cultural histories of each place. Dale Franks at QandO recently posted about differences between Germans and Americans when faced with authority, and a new story out of Italy highlights another example of a difference:

Did you know that Italian bloggers are on strike? It’s true! Since July 14, Italy’s bloggers have been under self-imposed silence, in protest of a proposed law (called the Alfano decree) that would grant a right of reply to those who feel their reputations have been besmirched by something posted on the Web, writes the BBC.

A strike?? Oooh, I’m scared. I think that if American bloggers went on strike, our politicians and our newspapers would be dancing in the streets. The law proposed in Italy is a method for discouraging blogging, and here the Italian bloggers are playing right into their hands!

But when reading this, I was struck by something. Is a strike the only way Europeans know to respond to something like this? (French car-b-ques excepted, of course!)

I remember something similar here in the US. The FEC was considering regulations that would regulate bloggers’ opinions as campaign speech. Immediately thereafter, the response of the American blogosphere was a little different than a strike: we signed on to the Patterico Pledge:

If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues, I will not obey those rules.

The Italians say “we do not like-a this law, please a-change it.” The Americans say “you can take this law and stick it where the sun don’t shine, ‘cuz we’re not gonna obey it.” The Italians would do well to learn that refusal to obey is a little more powerful than a complaint.

Brad Warbiany
https://thelibertypapers.org/

If This Be Un-American, Make The Most Of It

Activism, Constitution, Democrats, Free Speech, Healthcare, Individual Rights, Politics

In what I can only call an extraordinarily disturbing Op-Ed in today’s USA Today, Speaker of the House Nancy Pelosi and Maryland Congressman Steny Hoyer leveled an attack against those who are protesting the Democrats’ efforts to “reform” the health care system:

However, it is now evident that an ugly campaign is underway not merely to misrepresent the health insurance reform legislation, but to disrupt public meetings and prevent members of Congress and constituents from conducting a civil dialogue. These tactics have included hanging in effigy one Democratic member of Congress in Maryland and protesters holding a sign displaying a tombstone with the name of another congressman in Texas, where protesters also shouted “Just say no!” drowning out those who wanted to hold a substantive discussion.

These disruptions are occurring because opponents are afraid not just of differing views — but of the facts themselves. Drowning out opposing views is simply un-American. Drowning out the facts is how we failed at this task for decades.

Pelosi and Hoyer — or, to put it more accurately, the staffer who wrote this drivel for Pelosi and Hoyer go on to claim that Americans strongly support health insurance reform, and more specifically support the plan currently being debated in Congress. Nothing could be further from the truth. If the protests themselves weren’t an indication of this, then all one has to do is look at the polls which show that, at best, the public is deeply divided when it comes to the specifics of HR 3200, that most Americans like the health insurance they have now, most do not agree with Pelosi’s recent characterization of insurance companies as “villains, and that a majority believes middle-class tax cuts are more important than health care reform.

The argument that there is a “consensus” on health care reform in general, or on the merits of HR 3200 specifically, is just a bald-faced lie.

Even worse then getting the facts wrong, though, is the fact that Pelosi and Hoyer have decided to characterize those who disagree with them as “un-American.” They and their supporters will, no doubt, claim that the label is only meant to apply to those who have been disruptive, however it’s worth noting that they never managed to find it necessary to say the same thing when the disruptive tactics were coming from the left, as demonstrated by this Pelosi town hall from January 2006:

Dozens of heckling, sign-toting anti-war protesters tried to take center stage at the congresswomen’s town hall forum on national security — calling for an immediate de-funding of the Iraq war and impeachment proceedings against President George Bush.

(…)

Pelosi never summoned help from police or security. She negotiated with the hecklers and at times even thanked the protesters for their advocacy and enthusiasm.

“It’s always exciting,” she told reporters after the meeting. “This is democracy in action. I’m energized by it, frankly.”

So, a town hall filled with disruptive Code Pink demonstrators is “democracy in action,” but a town hall filled with opponents of ObamaCare is Un-American. Or at least that’s how the calculus works in Nancy Pelosi’s universe.

Glenn Reynolds put it best in a piece yesterday in the Washington Examiner:

Funny how fast the worm — or maybe it’s the pitchfork — has turned. Now that we’re seeing genuine expressions of populist discontent, not put together by establishment packagers on behalf of an Officially Sanctioned Aggrieved Group, we’re suddenly hearing complaints of “mob rule” and demands for civility.

Civility is fine, but those who demand it should show it. The Obama administration — and its corps of willing supporters in the press and the punditry — has set the tone, and they are now in a poor position to complain.

Whether they like it or not — and the evidence increasingly tends toward “not” — President Obama and his handlers need to accept that this is a free country, one where expressions of popular discontent take place outside the electoral process, and always have. (Remember
Martin Luther King?)

What historians like Gordon Wood and Pauline Maier call “out-of-doors political activity” is an old American tradition, and in the past things have been far more “boisterous” than they are today.

Rather than demonizing today’s protesters, perhaps they might want to reflect on how flimflams and thuggishness have managed to squander Obama’s political capital in a few short months, and ponder what they might do to regain the trust of the millions of Americans who are no longer inclined to give the Obama administration the benefit of the doubt.

I’ve been critical over the past week of some of the more sensational of the town hall protesters tactics (see here and here specifically). I’ve denounced those like Sarah Palin, Newt Gingrich, and the folks at Americans for Prosperity who have decided that the way to fight HR 3200 is to lie about it. However, the fact that I think their tactics are wrong, or counter-productive, doesn’t mean they’re un-American, or that they should be compared to Nazis, or that they’re racist.

There’s a phrase that comes to mind, and it’s one that we should all be familiar with:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Speaker Pelosi and Congressman Hoyer should be ashamed of themselves for calling the exercise of a precious Constitutional right “Un-American.”

C/P: Below The Beltway

Doug Mataconis
http://www.belowthebeltway.com
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