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Thomas Mitchell
An irrefutable right correctly restored
Updated: Apr. 10, 2012 | 10:44 a.m.
It was either the end of democracy as we know it, or the restoration of it.
That summarizes the reaction to Thursday's Supreme Court ruling in the case of "Hillary: The Movie," in which the court overturned aspects of previous opinions allowing Congress to place limits on how much and when corporations and unions could spend money to advocate for or against political issues or candidates.
Specifically, the court held the McCain-Feingold Act was unconstitutional in prohibiting a group calling itself Citizens United from showing an anti-Hillary Clinton documentary in the final days before the 2008 Democratic presidential primaries.
Predictably, The New York Times on Friday lamented the ruling.
"The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights ..." Times editorialists proclaimed. "It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans ..."
Odd, I thought The New York Times was a corporation. Oh, that's right, McCain-Feingold exempts news media corporations.
The Wall Street Journal editorialists on the same day pointed out the hypocrisy of the Times argument.
"The Court's opinion is especially effective in dismantling McCain-Feingold's arbitrary exemption for media corporations," the Journal editorial points out. "Thus a corporation that owns a newspaper -- News Corp. or The New York Times -- retains its First Amendment right to speak freely. 'At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue,' wrote Justice (Anthony) Kennedy. 'This differential treatment cannot be squared with the First Amendment.'"
There is no rationale for exempting the media from restrictions, any more than an argument could be made that news media corporations could have their free press rights abridged simply because they are operated by corporations. The argument is fallacious on its face.
Censorship of a message because of its content or its advocate is clearly unconstitutional. The First Amendment grants not only the freedoms of speech and press, but also "the right of people peaceably to assemble and to petition the government for a redress of grievances." A corporation or a union is an assemblage and political messages state grievances. Free speech is meant to give all citizens access to every viewpoint available. The voters are perfectly capable of rejecting a bogus argument no matter how much money is spent on it or when.
Kennedy, writing for the majority in the 5-4 ruling, spells this out in no uncertain terms.
"The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations -- including nonprofit advocacy corporations -- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election," Kennedy writes.
He points out that this makes it a felony for the Sierra Club to run an ad before an election that exhorts the public to disapprove of a congressman who favors logging in national forests or for someone to tell the voters to support a candidate who favors free speech. "These prohibitions are classic examples of censorship."
In his dissent, Justice John Paul Stevens found quotes from Thomas Jefferson in 1816: "I hope we shall ... crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country." Stevens wrote this was proof the Framers would find the "notion that business corporations could invoke the First Amendment ... quite a novelty."
Justice Antonin Scalia skewered this line of reasoning thusly: "Of course the Framers' personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted -- not, as the dissent suggests, as a freestanding substitute for that text. But the dissent's distortion of proper analysis is even worse than that. Though faced with a constitutional text that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolated statement from the founding era to the effect that corporations are not covered, but places the burden on petitioners to bring forward statements showing that they are ..."
The ruling is a restoration of a key democratic principle.
Thomas Mitchell is editor of the Review-Journal and writes about the role of the press, free speech and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@ reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.
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Serious question here, counselor. Why is it you have such a difficult time with the concept of context? You have this habit of only paying attention to that which tends, in your mind, to support your position and conveniently ignore everything else in between. It causes you to miss the point every single time.
“You are a coward, (sic) you hide behind your silly screenname (sic) and toss verbal grenades to me, and pretend that you are some kind of defender of all things obnoxious.”
This is an awful lot like the pot calling the kettle black, counselor. Can you honestly sit there with a straight face and claim you don’t hide behind a screen name, tossing verbal grenades at anybody who disagrees or questions you?
“So, keep it up, and we'll see who laughs last.”
What is this supposed to mean, counselor? Please elaborate.
Continuing . . .
When one joins the military, he/she voluntarily signs a contract and takes an oath. Part of this oath and contract is agreeing to follow the orders, rules and regulations as defined in the UCMJ. By signing this contract and taking this oath, a member of the military has voluntarily relinquished his/her right to free speech for as long as he/she remains in the military. The government cannot take or limit what one has voluntarily given away.
One can view prisoners in the same light. When that prisoner committed the crime he/she was ultimately convicted and sentenced to, he/she voluntarily relinquished a number of rights guaranteed by the Constitution. Again, the government cannot take or limit what one has voluntarily given away.
Your commentary regarding equal application of the law ignored the second part of the equation which incorporates the term “similarly situated.” It also conveniently ignored the context in which my statements were made as well as the Equal Protection Clause contained in the Fourteenth Amendment, but this doesn’t come as a surprise. You certainly haven’t shown the ability to grasp the subtle nuances in the application of case law (SCOTUS or lower courts).
“. . . you will see the litany of citations I posted from cases dealing with members of the military, students, and prisoners, who all have been subject to "limitations" on their free speech rights based on their identities. . .”
Let me just start by saying you’re comparing apples to oranges – keep the term “similarly situated” in mind here, counselor. In your Bong Hit for Jesus example, the SCOTUS didn’t limit the rights to free speech of students (although it happened to be a student that was impacted). It limited the right to free speech of anybody setting foot into a public school. I’m certain if the impacted party was a faculty member wearing the Bong Hits for Jesus shirt, the decision would remain the same.
laugh riot:
As an attorney, I know that the law DOES NOT have to be equally applied; just because a cop arrest you and not me for speeding, does not damage to the validity of the law, and just because the law enforces different penalties on you, than it does on me changes nothing.
And, think what you will about whether I read the decision or not (I did) but it changes not a single thing about what I wrote. The majority did in fact LIE, when they asserted that the government can make no distinctions relating to the identity of speakers when it comes to the First Amendment.
If you are reading Mr. Mitchell's most recent screed about the subject in todays issue, you will see the litany of citations I posted from cases dealing with members of the military, students, and prisoners, who all have been subject to "limitations" on their free speech rights based on their identities. The fact that the majority members of the Court voted on at least one of those cases (Bong hits for Jesus) demonstrate that they made this distinctions, they knew they made the distinction, and they asserted that no such distinction was permissible.
And, yes, it has been over 100 years of Constitutional law since the Tilman Act, that the Court has permitted such distinctions to exist; the majority ignored it, then lied about it.
And, since you couldn't leave well enough alone, I won't either.
You are a coward, you hide behind your silly screenname and toss verbal grenades to me, and pretend that you are some kind of defender of all things obnoxious.
You are not only ignorant, you have the wit your mother should have left on the hospital floor. So, keep it up, and we'll see who laughs last.
I can’t leave this string without addressing your name calling and lack of substance claims:
In that string of four straight posts, I responded directly to the three questions you asked me, and offered more analysis than you did in the 29 posts you left in this string. You’re quick to point the finger at others claiming they started the personal attacks, yet it is you who always casts the first stone. In support of this assertion, I could leave, at least, one 300 word response containing nothing but direct quotes (from you) personally attacking somebody. It’s clear you lack the strength and the guts to take in return what you so readily dish. This makes you a gutless hypocrite.
You are being treated no differently than you have treated others (including me) in this AND all the other threads you’ve ever bothered to leave a response in. I’ll never hide the fact I take great pleasure in giving somebody a “dose of their own medicine” and watch as they complain about it. I’ll never hide the fact I take great pleasure in challenging a self-proclaimed expert to put up or shut up and watching them fall on their face or avoid the challenge altogether. So keep on bringing the insults and the excuses, counselor. You’re the only one looking silly in the end.
“. . . I responded, and unfortunately it didn't take. . .” really? Yet your other postings took - very strange, but very convenient for you. You and I have been down this road before, counselor. When it’s time for you to put up, the dog has always eaten your homework. Deflect and avoid. Deflect and avoid.
As an attorney, you must certainly know that the law must be equally applied. As an attorney, you must also certainly know that when the law restricts a right (like speech and/or gun ownership) the restrictions are applied to those “similarly situated.” There have been SCOTUS decisions where the court has recognized the First Amendment applies to corporations. These same decisions extended First Amendment protections to political speech. These decisions were directly referenced in the majority decision. The SCOTUS didn’t ignore 100 years of precedent when the majority made this decision, they were following it. They didn’t lie, either.
I’ve figured something out, however. You DIDN'T read the decision. You cut and pasted three overly broad and general statements from an extreme left blog or website and used this as the basis of your argument. Anybody who actually read the decision would never use the “SCOTUS ignored 100 years of precedent” argument (this includes the President who used the same argument in his State of the Union address), as it clearly doesn’t apply. Par for the course, though.
the 8 posts of nonsense you wrote wherein you attacked me as an ambulance chaser multiple times, suggested that I was a fool, and other pithy comments which of course has been the extent of the "analysis" that you offered.
And, gutless my friend is a guy that comes to these boards saying such nonsense all the while hiding behind a screenname like laugh riot.
Yeah, I read the stupidity, I responded, and unfortunately it didn't take, maybe you woulda learned something, although given your obvious inability to do that so far, maybe I'm hoping for too much.
Suffice it to say that, you didn't say anything, again, and you repeated the same nonsense, although you did use more words to do it.
And, maybe YOU should be the one reading your nonsensical posts before your finger pushes the post comment button; you NEVER asked a question. Take a look and see for yourself. And, to make it easy on yourself; look for a question mark after any "comment" you made, this is the simple way to identify questions.
Whatever "substance" exists in your last four ignorant posts could hardly be described as "analysis". What you did, was "claim" that I was wrong; congratulations this is like Duran claiming he "won" the "No Mas" fight.
If you aren't aware of the distinctions that the Supreme Court, including members of the majority have made with regards to the "identity" of speakers when it comes the first amendment, you ain't looking very hard. Students, members of the military, and prisoners, have all been found to have "limits" to their "rights" to free speech and members of the majority here, were part of decisions that found such limits appropriate. Thus, asserting that the Constitution does not recognize such limits is, well at least based on their previous decisions, a lie.
And, I have to give you credit, at least as regards to the issue of why the majority didn't follow Constitutional doctrine relating to deciding cases on the questions presented, although you said squat, at least you distracted the discussion with another personal attack on me. So you know, in the posts that didn't take, I pointed
Ahh, more drivel displaying your gross inability to place the written word into context. At least you're consistent.
Now, why don't you go back to post #2 in my string of four straight posts, re-read it and try answering the questions I posed to you instead of taking your normal course of deflect and avoid. Take a risk and provide some original analysis - not some partisan tripe from a DNC sponsered blog. Stop being gutless, counselor.
Wow, an "actual" response, such that it is.
Although you start out with your typical stupidity, and "neglect" to address the first point, I concede that you give it your best attempt so I will reply to the nonsense you posted.
The only posts that attempted any "analysis" were those posted by "scalia" "josh" and possibly "re:patrick2". I addressed each of their posts, with reasoned analysis, along with some questions which of course they didn't/couldn't answer. Now, most of the posters responded much like yourself with stupid nonsense likeObamatar wrote on January 24, 2010 10:10 PM:
Patrick's head is so far up his keister, he views anything to the right of Marxism as radical right wing. His ilk have been chipping away at the Constitution for 200 years and it's killing him to see any restoration whatsoever. Heil, Obamatar!"
"Geoff", otherwise known as " "mr. 1520 on the GMAT", also wrote some nonsense like:
"Geoff wrote on January 24, 2010 04:03 PM:
Even if there were no constitutional provisions for corporate personhood (which there are) the fact that there are no specifics provisions in the constitution (which there are) does not mean the rights don't exist."
Now, read slowly laugh riot, cause what this genius is trying to say is that the Constitution HAS (and implicitly at least, EXPRESS PROVISIONS) for "corporate personhood". As you know, this is just false. So, asserting that it does, is, well, dumb.
And, demonstrating your complete inability to understand the stuff that's right in front of your ignorant face you responded with:
"Geoff explained this to you with his first post...You make a biggger fool of yourself with each post."
Which was followed up closely by such "zingers" as:
"So let me get this straight. . . The guy (lowercase/class patrick;
Seems to me you're the "dime store novel" lawyer.;