The Liberty Papers

Did anyone else see this during the Eagles/Saints game…the camera was put on a woman wearing a shirt that said “F*** the Eagles.” The Volokh Conspiracy is wondering if the FCC is going to jump on this they way the did the Janet Jackson episode from the Super Bowl a couple of years ago:

Now I’m no expert on indecency law, but if Janet Jackson’s wardrobe malfunction was an issue, wouldn’t this be as well? [to be clear, I’m not defending the FCC’s standards. I’m just wondering about the consistency of their application.]

On Tuesday, the United States Supreme Court heard oral argument in a case involving the teachers union for the State of Washington and its challenge to a law that required the union to return money to union members who didn’t want their dues used for political purposes unrelated to collective bargaining.

The Washington Supreme Court struck down the law, but from the reports of the argument, it looks like the Supreme Court is inclined to uphold it:

WASHINGTON — Supreme Court justices indicated Wednesday they are inclined to uphold a Washington state law restricting unions from using workers’ fees for political activities.

The case involves a few thousand teachers and other education employees who are in the bargaining unit and thus represented by the more than 70,000-member Washington Education Association _ but who have chosen not to join the union.

Workers can’t be forced to join or pay for the union’s political activism, the court has ruled, but they can be charged a fee for labor negotiations that affect them.

The fees average $700 a year, union president Charles Hasse said. About 75 percent of the total goes to the costs of collective bargaining. Of the remaining 25 percent, just $10 to $25 a year is covered by the state law that the union has challenged.

The narrow issue before the justices is whether, as Washington law prescribed, employees must opt in, or affirmatively consent, to having some of their money used in election campaigns.

The Washington Supreme Court struck down the law, saying the union’s offer to reduce fees for any nonmember who registers an objection to the political spending was sufficient. The state court said the restriction was an impermissible burden on the union’s constitutional rights.

But several justices said Wednesday that the law did not strike them as burdensome.

“States have considerable discretion in determining how to protect First Amendment constitutional rights. It seems to me Washington acted quite properly,” Justice Anthony Kennedy said, reflecting a view seemingly shared by at least five other justices.

(…)

Justice Samuel Alito was the most aggressive questioner in this area. “Why should the First Amendment permit anything other than an opt-in scheme?” Alito asked.

Excellent question Justice Alito. A defeat for the union here would be a clear victory for the free speech rights of union members everywhere who are required to be part of a union but who object to seeing their union dues used to fund political activities that they disagree with.

Related Post:

Teacher’s Unions: Enemies Of Free Speech

In a little-noticed ruling released shortly before Christmas, the Federal Election Commission ruled against a NASCAR driver who put a Bush-Cheney sticker on his racing car during the 2004 campaign:

The FEC’s findings were interesting indeed. It determined that Shelmerdine’s efforts to draw attention to his under-financed team through the use of a Bush decal was not exempt under the “commercial exemption,” even though Michael Moore’s making a Bush-bashing movie and showing it throughout the country was entirely exempt because Moore was just trying to make a buck. The Commission’s General Counsel, and at least two commissioners, determined that the value to the Bush campaign was not what Shelmerdine actually spent, or what the Bush campaign would have spent, or what anyone else would have spent to run that ad; but rather, was the value that some other person would have spent on some other occasion to run some other ad for some other product on Shelmerdine’s car.

Poor Shelmerdine promised that he had nothing to do with politics and never would again – why, to read his affidavit submitted to the FEC, there’s no more apolitical wastrel anywhere than Kirk Shelmerdine (We wouldn’t want our government actually encouraging people to be involved in politics, would we?) – but the General Counsel still wanted to fine him. Cooler heads prevailed at the FEC, but barely – it appears only on a 3-2 vote that the Commission decided not to fine poor Shelmerdine, but merely to have the federal government “admonish” him for this act of raw, unregulated political participation.

Admonish him for exercising his First Amendment rights. That is what campaign finance law has become, thanks in part to such illustrious persons as Senator John McCain.

Mark Tapscott sums it up best and points out the real danger of a decision like this:

What is the difference between Kirk Shelmerdine’s race car as his equipment for making a living and the pickup truck driven by the plumber or housing contractor?

The contractor with a Kerry-Edwards or Bush-Cheney bumper sticker on his back bumper and driving down I-95 or just about any other public road in America will be seen by far more people than Shelmerdine’s “field filler” race car at four NASCAR events.

It’s the same “independent expenditure,” but it has more impact than the Shelmerdine sticker, so what’s to keep Congress from next directing the FEC to “admonish” every contractor, plumber, electrician, etc. etc. in America to get those bumper stickers off their pickups?

The Shelmerdine case is not merely “simply silly,” as argued today by The Washington Post editorial page. It is indicative of the ongoing destruction of history’s greatest bulwark for the right of every individual to think, say, believe and associate as he or she chooses, without having to get prior permission from bureaucrats or politicians.

There some points in history where one simply has to say: Stop, no more. This is certainly one of them. If the FEC can “admonish” someone for putting a stick on their car, then how far away are we from the day when it can regulate the size of the campaign sign you can put in your own front yard ?

In Sunday’s Washington Post, George Will writes about a case that may yet begin to challenge the tangled web that is campaign finance regulation:

A three-judge federal court recently tugged a thread that may begin the unraveling of the fabric of murky laws and regulations that traduce the First Amendment by suppressing political speech. Divided 2 to 1, the court held — unremarkably, you might think — that issue advocacy ads can run during an election campaign, when they matter most. This decision will strike zealous (there is no other kind) advocates of ever-tighter regulation of political speech (campaign finance “reformers”) as ominous. Why? Because it partially emancipates millions of Americans who incorporate thousands of groups to advocate their causes, groups such as the American Civil Liberties Union and the National Rifle Association.

And Wisconsin Right to Life. It is another organization by which people assemble (see the First Amendment) to speak (see it again) in order to seek redress of grievances (the amendment, one more time). In 2004 Wisconsin Right to Life was distressed because Wisconsin’s senators, Russ Feingold and Herb Kohl, were helping to block confirmation votes on some of President Bush’s judicial nominees. It wanted to run ads urging people to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.”

How dare these people exercise their First Amendment rights. And it is the McCain-Feingold’s law assault on freedom of speech that becomes apparent in the opinion of the dissent judge in the case that Will writes about:

The dissenting judge wanted to examine the “intent” of the ads by examining their “context,” looking for clues as to whether the group hoped to not only advocate an issue but influence an election. Imagine: Judges scouring the political landscape, searching for evidence (people’s past opinions or associations; e-mails and other communications) that would empower them to rule that grass-roots lobbying about an issue is “really” the functional equivalent of electioneering (express advocacy).

Such a process would necessarily be so protracted that no challenged ad could be authorized in time for an election. Besides, Bob Bauer, a Democratic campaign lawyer, rightly warns that the prospect of such inquiries should “make a sensible citizen’s blood run cold.” An uncircumscribed inquiry into “intent” would become “an intrusive process” in which an organization’s internal communications would be subpoenaed and political operatives and consultants would be “put under oath and questioned about what they meant and intended and thought.”

In other words, a process into which no judge should be involved to begin with. The Supreme Court made it’s first mistake when it upheld McCain-Feingold to begin with. Hopefully, it will use this case, and others like it coming down the pike, to correct such an obvious mistake.