The Other Victory For Freedom of Expression Last Monday

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!

Personally, if I lived in Montana, I would be offended.

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...

Proof That Hollywood’s Anti-War Propaganda Has Claimed Lives

This isn’t a call for censorship, but for responsibility.  You see about a year ago, an Islamofascist idiot killed two of our airmen, and two Americans helped to apprehend their killer and there have been developments in the case:

Germany's government presented the nation's highest civilian award Monday to two Americans who helped apprehend an Islamic extremist after he attacked a U.S. Air Force bus last year and killed two airmen.

Interior Minister Hans-Peter Friedrich awarded the Federal Cross of Merit to U.S. Air Force Staff Sgt. Trevor Brewer and civilian airport employee Lamar Conner, both of whom chased the suspect until police could apprehend him, saying their deeds "were an example for all of us."

Arid Uka, a 21-year-old Kosovo Albanian, is currently on trial for the March 2 slayings and has admitted to the charges. He faces up to life in prison, and a verdict and sentence are expected Thursday.

And what motivated the attacks?  Well, let’s hear from the Islamofascist himself:

Uka gave a teary confession as his Frankfurt state court trial opened in August, saying that the night before the attack he had seen a video on Facebook that purported to show American soldiers raping a teenage Muslim girl. It turned out to be a scene from the 2007 Brian De Palma anti-war film "Redacted," taken out of context.

Uka told the court the video prompted him to do anything possible to prevent American soldiers from going to Afghanistan.

Well, I Think McGovern is Wrong

Update: Welcome Campaign Spot readers to the “Blog That Cannot be Named.”  (Geraghty’s description made me immediately think of Harry Potter, proving what a nerd I am.)

Enjoy your stay.  Check out the main page for various campaign-related issues and other random commentary.  For instance Jerry Brown apparently isn’t a very good attorney general—you know, if you think that attorneys general should actually know the laws they are suppose to enforce.  I also poke a hole in the claim that Christine O’Donnell created a false internet resume, here and here—which might be shuffling deck chairs on the Titanic, but oh well.  And Gerry Connolly (D-unce), running for reelection here in Northern Virginia, confesses he is not doing his job and indeed doesn’t know how to do his job.  Oh, and sixteen arguments why sex is healthy for you.  Okay, now we know what everyone will click on.


Also, watch Patterico; I may be guest blogging very soon, and even if not, they often have useful stuff.

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Update: The story gets weirder.  He actually has two explanations.  The first was during the debate and that time he denied saying it, but instead claimed he said that he was saying “my friend’s” interpretation of the constitution was wrong.  I guess the charitable way to interpret it is he misspoke and literally thought he said what he meant to say, rather than what he did say.  Interesting.  But then we have the previously reported he claimed he meant to say the court was wrong.  I decided to look a little deeper and it appears to come from a blog post on the official site written by “Scottzoback” which is obviously not the candidate himself.  Of course the statement is written in the first person but who’s to say where it really came from?

Last night, Rep. Jim McGovern (D) debated Marty Lamb (R) and in the middle of it he says this, which according to Real Clear Politics was in response to a question about Citizen’s United:

We have a lousy Supreme Court decision that has opened the floodgates, and so we have to deal within the realm of constitutionality. And a lot of the campaign finance bills that we have passed have been declared unconstitutional by the Supreme Court. I think the Constitution is wrong. I don’t think that money is the same thing as human beings[.]

(emphasis added.)  In the video, you can also hear him say after that he doesn’t believe that money is speech, and that corporations should not have the same right to speak as people.  Now Jim Geraghty is absolutely right to say it is not as per se bad as Phil Hare saying famously he doesn’t care about the constitution.  This is because congresspersons take an oath to uphold the constitution, even if they disagree with it.  So when Hare says he doesn’t care about it, he is saying he doesn’t care about keeping that oath.

But what McGovern said was still pretty bad, because he is not merely disagreeing in general, but specifically about the freedom of expression.  Freedom of expression goes directly to the heart of whether this is a republic or not.  A nation that has no freedom of expression is not a republic or a democracy, even if you have the right to vote.  I mean the syllogism is pretty direct.  The right to make a choice implies the right to make an informed choice.  The right to make an informed choice requires me to hear lots of information regarding that choice.  That means in terms of speech, that people and yes, even corporations, must feel free to express themselves so that you can get the maximum amount of information about that choice, so you can make an informed choice.  Thus the right to choose between two candidates is meaningless without the right to speak freely about them.

So disagreeing with the constitution is not per se bad, but disagreeing with free expression is.  Put simply, the right to debate should not be up for debate.

Sebelius Turns on the Chilling Effect

Today my advice to any person in the health care industry is something I never thought I would say in a free republic.  If you value your business, you might consider shutting up.  As you know, I am corporate counsel for a health care company.  People who understand the business know that this is going to be a disaster—doubly so if the mandate is struck down, but not the rest of the law.

But Sebelius recently put out a warning:

It has come to my attention that several health insurer carriers are sending letters to their enrollees falsely blaming premium increases for 2011 on the patient protections in the Affordable Care Act.  I urge you to inform your members that there will be zero tolerance for this type of misinformation and unjustified rate increases.

And by zero tolerance, the WSJ explains, she means that she will lock you out of the insurance exchanges when they become the only monopoly in charge.

Oh, but don’t worry, the liberals will tell you, she will only apply that to people who are engaged in misinformation and unjustified rate increases.  But in First Amendment law, we have what is called the Chilling Effect.  It is the idea that those who speak do not want to fear even getting close to the line between permissible and impermissible expression.  It is the idea that some will be silent not because they wish to engage in unprotected speech, but because they are afraid their protected speech will be mistaken for the unprotected kind.  How far would you go, if you are afraid of losing your business?

Anyway, Ms. Sebelius, I will point out that before you can jackboot any insurance company out of business that if your monstrosity of a law survives judicial review (highly unlikely), you will discover that the courts will not let you do that sort of thing without due process of law.

But there is no better illustration of the principle, after Citizen’s United, that corporate speech must be protected speech, too.  We must stop treating it as second class.

There is no better argument before the Supreme Court that this monstrosity must be struck down.

And there is no better illustration of the observation of Gerald Ford: “A government big enough to give you everything you want is a government big enough to take from you everything you have.”

Calling Bullshit on Ted Olson

In defending the recent ruling that apparently gay marriage is in the Fourteenth Amendment, and no one apparently discovered that for the first 142 years of its existance, former Solicitor General Ted Olson made the idiot comparison between freedom of speech and gay marriage:

Well, would you like your right to free speech, would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do?  These are fundament constitutional rights.  The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak.  It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights. Yes, it’s encouraging that many states are moving towards equality on the basis of sexual orientation, and I’m very, very pleased about that. … We can’t wait for the voters to decide that that immeasurable harm, that is unconstitutional, must be eliminated.

First, every time someone says that it’s a throw-something-at-the-screen moment.  I am sick and tired of morons like Olson equating what is not reasonably in the constitution with what is obviously in the constitution.  Olson has made a great argument for amending the constitution, not making crap up in it.  The reason why the first amendment is not up for a simple majority vote is because someone has put it in the constitution. The claim that excluding gay people from marriage is unconstitutional doesn’t pass the laugh test.

Second, its funny you should stay that, Teddy boy, because do you remember a little case called McConnell v. the FEC?  In that case they made a facial challenge to McCain-Feingold on the theory that it suppresses freedom of expression.  A few years later the Supreme Court said the same law was unconstitutional precisely because it had that effect.  And guess who was on the side of the FEC and greater restrictions of expression in McConnel?  Then Solicitor General Theodore Olson.  As in you, dickhead.  You personally argued that congress could vote away our freedom of expression.  Indeed, if your arguments were accepted, Fox News, and indeed every news corporation would have been subject to direct federal regulation if congress only decided to do it.

So basically he tried to justify a ruling not supported by the constitution by citing a principle actually written in the constitution that he personally worked to subvert.

What a complete pile of bullshit.

(Source for quote, with slight correction.)

More on the Unconstitutionality of McCain-Fiengold

Why exactly should the law allow this, but not Hillary: The Movie?

Freedom of Speech in Mexico

There is an interesting, little known fact about Mexican law.  The AFP explains that:

Under Mexican law, permission is required for the use of patriotic symbols such as the flag or national anthem. Violators face fines of up to 5,000 dollars.

And of course this rule has been applied neutrally, right?  Well, maybe not:

MTV cancelled the Mexican broadcast of an episode of the "South Park" cartoon featuring President Felipe Calderon because it lacked permission to show the Mexican flag, a spokesman said Wednesday.

I am sure the fact that they couldn’t get permission to show the flag had nothing to do with the fact that they were mocking the President.

Ah, but hey liberals.  None of this is a problem.  You see MTV is owned by Viacom, which is a corporation, so this is the suppression of corporate speech, so everything is okay, right?  Right?

Or are we going to recognize that declaring that no corporation has free speech rights is kind of, you know, dangerous?

Quote of the Day

“It is my belief that there are ‘absolutes’ in the Bill of Rights and they were put there on purpose by men who knew what words meant and meant their prohibitions to be absolutes....[The First Amendment] provides, in simple words, that ‘Congress make no law…abridging the freedom of speech or the press.  I read ‘no law abridging” to mean ‘no law abridging.’”

—Supreme Court Justice Hugo L. Black

(hat tip Lanny Davis, of all people)

GMTA: The Clarence Thomas Edition

Now we hear from Justice Thomas himself on the rulings.  Of course his arguments are brilliant, because he essentially agrees with me.  Still it is an interesting discussion.  The most interesting point is he noted the history of the Tillman Act, banning direct campaign contributions to candidates by corporations, the law that Barrack Obama himself defended:

“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”

Two Good Posts at the Volokh Conspiracy Today on Citizens United (Updated)

Sorry if I am making this blog all-citizens-united-all-the-time, but Volokh’s blog is decidedly libertarian (which is defined by some wags as “a Republican who smokes pot”) so of course they are thrilled with the decision.  But hey, if all they are doing is say, “Yay for us!” I wouldn’t bother to pass it on to you.  But this kind of illuminates the issue.

For one thing, did you know that many states already allowed corporations to speak freely about elections before Citizens United?  One is Maryland, or as we call it across the river in Virginia, “The People’s Republic of Maryland.”  It’s not exactly a red state is all I am saying.  So even the Democrats' unconstitutional argument that we should suppress that speech because they will lose elections fails, because clearly it doesn’t hurt them that much.

A Lightweight and a Heavyweight Denounces Citizens United

It’s interesting.  The universal liberal condemnation of Citizens United marches forward, unswayed by massive ignorance about the decision.  Trolling around, I found two more critiques of the decision, one at Concurring Opinions, a left leaning blog of egghead professors. And I mean that in a good way.  I mean, I profoundly disagree, but it’s about as far from shooting fish in a barrel as you can get, without these people being right about everything.

And then you have E.J. Dionne Jr. at the Washington Post.

Let’s start with Concurring opinions, where Michael Kang gives his critique of Citizens United.

Burying the Bullshit Meter’s Needle (or “Fisking Barbara Streisand on Citizens United”)

Or maybe I could call this, “Shooting Fish in a Barrel.”

That’s right folks, Barbara Streisand has written at the Huffington Post.  Admittedly making fun of her is a bit too easy, but really too much fun to miss out.

So he were go:

Barbra Streisand

Posted: January 28, 2010 03:13 PM

Okay, first, do you believe that Babs wrote a word of this?  Yeah, me neither.  Certainly she has had a history of “blogging” by asking an assistant to speak out in her name.  So let’s instead treat her comments as sort of the comments of the business organization headed by Ms. Streisand.  Let’s call that “Babs, Inc.”

“Simply Not True” (Or “Fisking the State of the Union”)

“Simply not true” is supposedly what Justice Samuel Alito mouthed when Barrack Obama’s State of the Union speech turned to the Citizens United litigation.  You can find my opinion on the case here.  I’ll tell the truth, I can’t read lips to save my life, but I figured it was a good enough title for my fisking.  I mean I have to say I was more than a little taken aback by the rank dishonesty the president engaged in.  I mean Bill Clinton was more honest than him, if you can believe that.  And the intellectual blind spots the president had.  Yike.

I think the other thing that struck me was that Obama was really really loose in that speech.  I mean I felt like this was his “game day with the boys” voice, rather than him being president.  In most contexts, I would have found that charming.  In fact, to some degree I was charmed.  But...  it wasn’t particularly presidential.  His “law professor mode” is pretty presidential and frankly he should have stuck to that.

Now I am going to base this on the transcript here.  I don’t think it captured every word, I think it leans more toward his planned remarks.  But its what I have to work with, because its not like I am a court reporter in my spare time.

So let’s read through this together, shall we?

Calling Bullshit on Chemerinsky (or “Fisking a Law School Dean”)

Erwin Chemerinsky is a constitutional law professor and the Dean of the University of California Irvine School of Law. And you know, I have been exposed to his teachings twice. First, I purchased a bunch of tapes on the first year curriculum to give me a running start and then if memory serves he was in the Barbri course to help me prepare for the bar exam. Up until now, I considered him liberal, but basically fair.

But his op-ed on Citizens United is crap.

Of course you can read my argument on the subject, here. Or just scroll down, you lazy bastard!

So let’s start reading together, shall we?

The Supreme Court's 5-4 decision holding that corporations and unions can spend unlimited amounts of money in election campaigns...

Okay stop right there. This is dishonest. The FEC told Citizens United that it could not purchase advertising. So to frame this as being about spending, without noticing that the spending purchases speech is dishonest.

I mean imagine if we passed a law stating that the New York Times was forbidden from buying paper or ink. Would that be a restriction on commerce? Or would that be a restriction on the freedom of the press?

This isn’t a restriction merely on expenditures. This is a restriction on expression. Remember that.

Freedom of Expression is for Everyone (Even Those You Don't Like)

On January 23, the New York Times denounced the Supreme Court's ruling in Citizens United v. F.E.C., stating that “the court[] ... has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials.” In a twist worthy of Monty Python and the Life of Brian, this editorial was unsigned, representing the voice of the New York Times Co., itself a corporation. It amounted to “this corporation says that no corporation has a right to free expression.”

Next I suppose the entire staff will gather together and chant, in unison, “we are all individuals.”

Sorely missing from most critiques of the case are the facts, probably because they are devastating to their argument. Citizens United made a movie called Hillary: The Movie, allegedly a 90 minute infomercial against Hillary Clinton, who was then seeking to become president. Citizens wanted to advertise for its movie, but the FEC stated that it could not, because they held that the advertisements were tantamount to electioneering by urging against the election of a candidate, and as a corporation Citizens was forbidden from electioneering close to elections.