While the victory Monday was sweet, lost in all of my celebration, and um, SWATting, there as another victory for Freedom of Expression. It was in a decision put out by the Supreme Court.
Let me give you the background. In 2010, we had the decision in Citizens United that struck down laws stating that said that corporations could not speak, for or against a candidate, within a certain number of days of an election.
Then last year in Montana, their supreme court held that a law utterly prohibiting corporate speech in elections was still constitutional. Now how, you might ask, did they manage that? Well, they explained that the situation was different for three reasons. First, they said that well, it really didn’t limit anyone’s participation in politics anyway. Oh, good, so then what is the point of this law, then?
Second, they said that the regulatory burden imposed by their law was slighter.
And then third, because corruption is so endemic to Montana that Montanans are just uniquely susceptible to corporate influence—like they are like a bunch of archetypical crazy prospectors looking for Gooooold!So they upheld their law and it was appealed all the way to the Supreme Court where it was overturned, in the case styled ultimately as American Trading Partnership, Inc. v. Bullock. It’s a long opinion, but I think it is worth cutting and pasting it in its entirety below the fold and dang is it long...
PER CURIAM.
A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” Mont. Code Ann. §13–35–227(1) (2011). The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment. 2011 MT 328, 363 Mont. 220, 271 P. 3d 1. In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation.” 558 U. S. ___, ___ (2010) (slip op., at 26) (internal quotation marks omitted). The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.
The petition for certiorari is granted. The judgment of the Supreme Court of Montana is reversed.
Ah, I lied to you. It wasn’t really that long. In fact this opinion is as close as you are likely to see the Supreme Court come to just writing an opinion that read as follows:
Reversed. Duh.
It is, as Popehat said on a different subject the other day, a benchslap.
By the way, if you want to see how selective respect for precedent can be, let’s note that Justices Ginburg, Sotomayor and Kagan all joined a dissent by Breyer which began:
In Citizens United v. Federal Election Commission, the Court concluded that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” 558 U. S. ___, ___ (2010) (slip op., at 42). I disagree with the Court’s hold-ing for the reasons expressed in Justice Stevens’ dissent in that case.
In other words, precedent, schmessedent, we still don’t like the decision in Citizen’s United and if just one of you in the majority changed your mind—or left and was replaced by someone who agrees with us—and the case would be overturned. You remember that the next time they lecture the other five on the sanctity of precedents. Apparently precedents are sacrosanct, unless they’re not.
And yes it is a victory for freedom of expression. As I argued before, the law was unconstitutional as applied to Citizens United itself, it was arbitrary in its distinction between media corporations and non-media corporations, and ultimately doomed because the goal of these regulations was to do something the Constitution forbade: to affect the shape of our debates.
And more perniciously, as I pointed out in another post, the First Amendment doesn’t just protect corporations from restrictions on their speech, but also being compelled to speak. In other words, if Citizens United came out a different way, your Wheaties Box could end up looking like this, by law:
That exchanges the danger of corporate influence, with the danger that incumbents can use corporations to metastasize into their positions, which is far more corrupting.
Citizens United was rightly decided and indeed a victory for free speech, as was its affirmation Monday.
But it’s important to remember that we were one vote away from it being overturned too. This is why we cannot afford to lose any election right now: we could lose our very freedom of speech. We could indeed lose the Constitution itself.
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Disclaimer:
I have accused some people, particularly Brett Kimberlin, of reprehensible conduct. In some cases, the conduct is even criminal. In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence against any person or any threat of such violence. This kind of conduct is not only morally wrong, but it is counter-productive.
In the particular case of Brett Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed communication. I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.
And for that matter, don’t go on his property. Don’t sneak around and try to photograph him. Frankly try not to even been within his field of vision. Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).
And do not contact his organizations, either. And most of all, leave his family alone.
The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report. And even then if he tells you to stop contacting him, obey that request. As you will see by the time I am done telling my story that this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.
And let me say something else. In my heart of hearts, I don’t believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you haven’t don’t start.
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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years. I know that claim sound fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence. If you would like to donate and help my wife and I in this time of need, please go to this donation page or use the PayPal buttons on the right. And thank you.
Follow me at Twitter @aaronworthing, mostly for snark and site updates. And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here. And you can read a little more about my novel, here.
Whenever people go on about how bad a decision CU was, I ask them why they are against the poor organizing together to speak truth to power. Because, that's another thing that deciding the other way would stop.
ReplyDeleteGreat post.
ReplyDeleteIt is amusing how canons of jurisprudence like stare decisis can simply be dropped. And you're right that this is a powerful argument for supporting the GOP nominee if you agree with freedom of association and expression.