Friday, January 22, 2010

We The People Fight Back for The Constitution!

Well, it's been one heck of a week, hasn't it?
Healthcontrol? - Dead!

Cap and Tax?- Dead! (But be sure to keep your watch by the grave with stake and garlic at the ready, and no sleeping on duty! Vampires and Werewolves and Zombies oh my!)

McCain/Feingold? - Critically wounded! Oh Yes!
The full opinion is available on CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, but I'll sample a couple points here.

The fact that one of the worst assaults on the constitution, the most damaging 'campaign finance' reform since the 17th amendment, took a bellyful of buckshot... just fabulous!

Lets review, shall we?
Amendment I (This link is focused on the 'Speech and Press' aspects of it)

"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."

Proregressives like Sen.'s McCain & Feingold took that to mean that that didn't apply, that you'd lose that right of free speech, if you dared associate with others of like mind, and used money to project your speech.

But... each time I read that amendment... I somehow miss those implications... how about you? Apparently it's a perceptual malady common to proregressives, a form of proregressive constitutional dyslexia, because the losing 'Justices', Stevens, Ginsburg, Breyer, and Sotomayor read that same amendment, and came up with this crap,

The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United's nor any other corporation's speech has been "banned," ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.

Huh. Reading the First Amendment, they take from that short passage, that the 'real issue' of free speech has to do with the speakers financial status, and when and where they meant to speak... you were free to speak in some places and at some times, just not at others... where's the problem with that?(!) You could have free speech, unless of course it was close to the election you wanted to speak about, I mean, if you wanted to speak within 30 days of an election you felt strongly about, then of course you should lose your freedom of speech... in order to protect free speech. Clear?


I can feel my blood pressure rising, along with my bile, so I'll cut my bloviating short and let the majority Justices handle the issue, one of those few times I get to see Supreme Court Justices paying attention to the Constitution.

Justice Kennedy, in one of his more lucid moments, summed the issue up this way,

"There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. See McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 360-361 (1995) (Thomas, J., concurring in judgment). Yet television networks and major newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society's most salient media. It was understood as a response to the repression of speech and the press that had existed in England and the heavy taxes on the press that were imposed in the colonies. See McConnell, 540 U. S., at 252-253 (opinion of Scalia, J.); Grosjean, 297 U. S., at 245-248; Near, 283 U. S., at 713-714. The great debates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication of that era--newspapers owned by individuals. See McIntyre, 514 U. S., at 341-343; id., at 367 (Thomas, J., concurring in judgment). At the founding, speech was open, comprehensive, and vital to society's definition of itself; there were no limits on the sources of speech and knowledge. See B. Bailyn, Ideological Origins of the American Revolution 5 (1967) ("Any number of people could join in such proliferating polemics, and rebuttals could come from all sides"); G. Wood, Creation of the American Republic 1776-1787, p. 6 (1969) ("[I]t is not surprising that the intellectual sources of [the Americans'] Revolutionary thought were profuse and various"). The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted."
Chief Justice Roberts, and Justice Alito fire another round to the gut,

"The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations--as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

The Court properly rejects that theory, and I join its opinion in full. The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer. I write separately to address the important principles of judicial restraint and stare decisis implicated in this case."

Justice Scalia puts it this way,

"I write separately to address Justice Stevens' discussion of "Original Understandings," post, at 34 (opinion concurring in part and dissenting in part) (hereinafter referred to as the dissent). This section of the dissent purports to show that today's decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why "the freedom of speech" that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored.

Instead of taking this straightforward approach to determining the Amendment's meaning, the dissent embarks on a detailed exploration of the Framers' views about the "role of corporations in society." Post, at 35. The Framers didn't like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech. 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 ("there is not a scintilla of evidence to support the notion that anyone believed [the First Amendment] would preclude regulatory distinctions based on the corporate form," post, at 34-35)."

And saving the best for last, my personal favorite Supreme Court Justice, Justice Thomas, says
"Political speech is entitled to robust protection under the First Amendment. Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) has never been reconcilable with that protection. By striking down §203, the Court takes an important first step toward restoring full constitutional protection to speech that is "indispensable to the effective and intelligent use of the processes of popular government." McConnell v. Federal Election Comm'n, 540 U. S. 93, 265 (2003) (Thomas, J., concurring in part, concurring in judgment in part, and dissenting in part) (internal quotation marks omitted). I dissent from Part IV of the Court's opinion, however, because the Court's constitutional analysis does not go far enough. The disclosure, disclaimer, and reporting requirements in BCRA §§201 and 311 are also unconstitutional. See id., at 275-277, and n. 10."
Justice Thomas also cites an important point, which all the other Justices either missed or (more likely) were constitutionally unable to see, due to their own proregressive infection, the fact that you don't lose your rights because you wish to speak annonymously. Any of those other Justices ever read the Federalist Papers? Those commentaries which were published by newspapers anonymously under names such as Publius, Brutus, etc.. might want to check into that guys! Anyway, Justice Thomas picks up their slack,
"Congress may not abridge the "right to anonymous speech" based on the " 'simple interest in providing voters with additional relevant information,' " id., at 276 (quoting McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 348 (1995)). In continuing to hold otherwise, the Court misapprehends the import of "recent events" that some amici describe "in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation." Ante, at 54. The Court properly recognizes these events as "cause for concern," ibid., but fails to acknowledge their constitutional significance. In my view, amici's submissions show why the Court's insistence on upholding §§201 and 311 will ultimately prove as misguided (and ill fated) as was its prior approval of §203."
He lists several examples of people voicing their opinion anonymously, and then having their identity outed by activists, and losing their jobs, being publicly excoriated and even exposed to death threats, and concludes with,
"Irony aside, the Court's promise that as-applied challenges will adequately protect speech is a hollow assurance. Now more than ever, §§201 and 311 will chill protected speech because--as California voters can attest--"the advent of the Internet" enables "prompt disclosure of expenditures," which "provide[s]" political opponents "with the information needed" to intimidate and retaliate against their foes. Ante, at 55. Thus, "disclosure permits citizens ... to react to the speech of [their political opponents] in a proper"--or undeniably improper--"way" long before a plaintiff could prevail on an as-applied challenge.2 Ibid.

I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in "core political speech, the 'primary object of First Amendment protection.' " McConnell, 540 U. S., at 264 (Thomas, J., concurring in part, concurring in judgment in part, and dissenting in part) (quoting Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 410-411 (2000) (Thomas, J., dissenting)). Accordingly, I respectfully dissent from the Court's judgment upholding BCRA §§201 and 311."

The only Natural Law aware Justice on the Supreme Court. President George H.W. Bush did one thing right, at least.

Quite a week... quite a week indeed!


xlbrl said...

I am a corporation...of one. Tremble at my power, and read this at your own risk.

Our simple minded voter, of which I am one, need to understand that this case was about a few citizens who were inspired by Hillary to get off their butts and present her in all her videotaped glory for further consideration in an upcoming election comedy, and that they were denied permission to show the product of their enthusiam. Which means, more importantly, you were denied permission to see it.

Permission. That is the etiquette of the State.

Supreme Court Justice Robert Jackson-
It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error.

I don't know if he made that statement around the time he presided at the Nuremberg War Crimes trials, or if that thought had already occurred to him.

USS Ben USN (Ret) said...

Well said, Van!
There is no good reason for govt. to restrict our RIGHT to free speech, and the lame "excuses" used to justify this assault on our liberties are idiotic at best.

Thanks for the excellent takedown of the proregressive efforts to turn our liberties into privileges that can be denied by the State.

The morons that support McCain/Feingold are the same type of morons our Founding Fathers fought.

Ginny said...

Indeed this past week was amazing. All who have spoke out in voice, blog,email, and fax against this administrations tyrannical behavior did good. We can pat each other on the back or give a big 'high five'.

But to God be the glory, this was indeed a miracle. We need to be ever watchful, though. A huge battle was won, but the war is still raging. We can never trust the Dems. Truth is not in them, so speaking with a forked tongue is their nature. Great blog! Thanks!

Van Harvey said...

Xlbrl said "Permission. That is the etiquette of the State."

Yep, and last night it looked like nObama was annoyed that the Supremes hadn't asked his permission to overturn his fellow proregressives campaign control law.

Poor barry.

Loved Alito's silent "Not True".

Van Harvey said...

Ben said "The morons that support McCain/Feingold are the same type of morons our Founding Fathers fought"

Yep, same fight, different whigs.


Good to see you, I assume you got your modem fixed?

Van Harvey said...

Ginny said "A huge battle was won, but the war is still raging. We can never trust the Dems. Truth is not in them, so speaking with a forked tongue is their nature."

Heh, got that right... and judging from nObama's State of Denial speech and Pelosi's ""We will go through the gate. If the gate is closed, we will go over the fence. If the fence is too high, we will pole vault in. If that doesn't work, we will parachute in," Pelosi said. "But we are going to get health care reform passed for the American people.", which seemed like her best imitation of Churchill's "We will fight them on the beaches..." speech... this fight ain't over yet.

Sigh. Zombies... they keep coming back. We've just gotta keep putting them back down.