More than a year after the U.S. Supreme Court’s ruling in Citizens United, attacks on that historic ruling just keep coming. The latest comes from a group called ProtectOurElections.org, which has submitted a complaint (.pdf) to the D.C. Bar arguing that Justice Clarence Thomas should have recused himself from the case.
ProtectOurElections.org claims that Justice Thomas’ recusal was required under the Supreme Court’s recent ruling in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), because, in 1991, Citizens United spent $100,000 on ads independently urging the Senate to confirm Justice Thomas to the bench.
Put bluntly, this is crazy.
Caperton dealt with an elected justice of the West Virginia Supreme Court, whose campaign had benefited from millions of dollars in independent expenditures by a litigant who had a multi-million-dollar case on its way to the state supreme court within a matter of months. The U.S. Supreme Court held that the elected judge should have recused himself, because the extraordinary events of that case created the “probability of actual bias.”
Even assuming that the reasoning of Caperton could apply to federal judges—who have life tenure and no incentive to repay favors—there is absolutely no way that Caperton would have required Justice Thomas to recuse in Citizens United. The situation in Caperton was, in the Court’s words, “extreme by any measure,” and the ruling was “thus . . . confined to rare instances” that created the “probability of actual bias.”
Only someone with an ideological axe to grind could make the groundless accusation that Justice Thomas should have recused himself in Citizens United. No intellectually honest person could believe that Thomas voted the way he did in Citizens United because, 20 years ago, Citizens United said nice things about him in a television ad. And no intellectually honest person could believe that Thomas would have voted differently if the petitioner had been some other nonprofit, and not Citizens United. Those who make claims to the contrary never really hope to win; their only goal is character assassination. They and their empty efforts should be called out.
During Justice Thomas’ service on the Supreme Court, there have been 10 major campaign finance cases. In every one of those cases, Justice Thomas has voted against regulation and in favor of free speech, often writing separately to explain why, in his opinion, the entire enterprise of campaign finance regulation is unconstitutional.
Justice Thomas’ unbroken voting record over 20 years shows only one bias, and that is in favor of free speech and the First Amendment. We should applaud this bias in Justice Thomas and hope for as much in all our judges.
Astute readers of this blog will note that its name is “Congress Shall Make No Law,” not “Parliament Shall Make No Law.” A story from Canada, however, teaches important lessons about how regulation can strangle basic human rights like the right to freely speak or peaceably assemble.
As described in the FrumForum, municipal regulations and enormous fines threatened to shut down the Liberty Summer Seminar, a libertarian Woodstock that takes place every summer on the farm of Peter Jaworski and his parents, Marta and Lech, in Ontario, Canada. Ironically, a peaceful gathering of freedom-minded folks from across North America faced extinction because municipal bureaucrats kept piling regulatory requirements on the hosts.
Enter the Canadian Constitution Foundation, a group which is bringing strategic litigation for liberty in Canada, particularly those rights enshrined in the Canadian Charter of Rights and Freedoms. The CCF argued to the Municipality of Clarington that its efforts to regulate the Liberty Summer Seminar into the ground violated the Charter’s guarantee of the “freedom of peaceful assembly.” As the FrumForum’s Tim Mak reports today, the Municipality has backed off and specifically recognized “their use of the property was purely for the purpose of a peaceful assembly and expressive activity.”
The CCF’s efforts represent a great victory for some wonderful people and demonstrate the emergence of a new and powerful voice for freedom in Canadian courtrooms. But we in America should not feel immune from this kind of overbearing government. When the government has the power to regulate so much of our daily lives, it should come as no surprise that it will use this power to burden our fundamental political rights, including the right to discuss what is wrong with the government. The ability of a municipality to use its sign code to stop protests of its eminent domain policies is precisely the issue my colleague Michael Bindas will be arguing on Wednesday, February 16, to the Eighth Circuit Court of Appeals in St. Louis.
The rights protected by the Canadian Charter and the U.S. Constitution require those, like the Jaworskis and IJ client Jim Roos, willing to stand up for freedom. It’s good to see that kind of courage on both sides of the 49th Parallel.
New York Times columnist Adam Liptak has penned a thoughtful column on the meaning of the First Amendment’s protection for freedom of “the press” and its application to corporations. Some critics of the Supreme Court’s ruling in Citizens Unitedargue that the institutional press—unlike other corporations—enjoys special protection under the First Amendment, but as Liptak correctly notes
[T]he argument is weak. There is a little evidence that the drafters of the First Amendment meant to single out a set of businesses for special protection. Nor is there much support for that idea in the Supreme Court’s decisions, which have rejected the argument that the institutional press has rights beyond those of the other speakers.
There is a practical problem, too, especially in the Internet era. Who, after all, is “the press”? Anyone with a Twitter account?
The sports world is abuzz with the news that Daniel Snyder has filed a defamation lawsuit against the Washington City Paper because he is upset that it has been critical of his tenure as owner of the Washington Redskins.
In particular, he’s mad about a recent article in the paper that, in the words of Washington Post columnist Gene Weingarten, described him as
an avaricious, imperious, conscienceless plutocrat with callous contempt for the fans; a man whose Napoleonic, pouter-pigeon swagger conceals a doofus-like understanding of the game and whose pernicious, autocratic meddling has consigned the team to perpetual mediocrity and its players and coaches to a perennial state of harrowing anxiety, all of this starting virtually from the moment [he] arrived and continuing to this very minute.
The overwhelming response to the lawsuit seems to be that Mr. Snyder should be flagged for acting like a thin-skinned bully.
But I disagree. All the naysayers are missing the point. They should instead see the lawsuit for what it really is: a valiant stand against the evils of corporate speech. After all, the City Paper is owned and published by a corporation, Creative Loafing, Inc. And that corporation is owned by a private equity firm that no doubt has investments in other, perhaps even more nefarious corporations.
By filing his lawsuit, Mr. Snyder is standing up for the little guy against the power of corporations, which—as we have been constantly reminded by critics of the Supreme Court’s decision in Citizens United v. FEC—shouldn’t have any First Amendment rights because they aren’t real people.
Creative Loafing has clearly used financial resources that normal folks don’t have access to in order to write, print, and distribute a story that has unduly influenced the public into believing Mr. Snyder is a humorless dweeb. The only reason his message—that he’s a competent NFL owner and not a total jerk—hasn’t gotten through to the public is because it’s been drowned out, not only by Creative Loafing, but also by bigger corporate-owned media outlets like the Washington Post (see above) and ESPN.
We can only hope that he’ll attempt to shut up these and other corporations soon, including those that try to influence Americans about things that are almost as important as football (e.g., elections). Because unless we are going to surrender control of public debate to faceless, soulless corporations, we’ll need heroes like Mr. Snyder to protect us from them. (I mean, he’s got to win at something, right?)
[Update: Yes, this post is intended to be satirical. (See my comment below.)]
On January 28, a federal judge in Maryland handed down a ruling that neatly illustrates how far the U.S. Supreme Court’s precedent has drifted from the idea that political speech is at the core of what the First Amendment was intended to protect.
The case, O’Brien v. City of Baltimore, involved a challenge by a Catholic-based crisis-pregnancy center to a Baltimore ordinance that would have required them to put up a sign in their lobby stating that the center “does not provide or make referral for abortion or birth-control services.” Because the First Amendment protects not just the right to speak but also the right to choose what one will say, the center objected to the ordinance on the grounds that it unconstitutionally compelled them to speak.
The district court in O’Brien correctly concluded that the required disclaimer was compelled speech and that the ordinance must be subject to the highest level of judicial scrutiny, known as “strict scrutiny.” The court went on to hold that the law failed strict scrutiny because the government’s alleged interest in combating “deceptive advertising” by crisis-pregnancy centers could have been achieved by simply modifying the city’s existing anti-fraud statute, without compelling the centers to convey a message they would prefer not to convey.
So far so good—except for the fact that the Supreme Court has upheld disclaimers in the campaign finance context for ads that support or oppose candidates. The district court in O’Brien recognized this and was forced to explicitly distinguish disclaimers in the campaign context from those at issue in the case. Here’s what the court said:
Strict scrutiny review is a standard traditionally used when examining regulations of fully protected speech rather than the ‘exacting scrutiny’ standard described in Citizens United v. Fed Election Comm’n.,__ U.S. __, 130 S. Ct. 876 (2010) (addressing a First Amendment Challenge to political campaign laws).
In short, speech about a crisis-pregnancy center is “fully protected” under the First Amendment, but speech about candidates is not. The Framers gave us the First Amendment specifically to allow citizens to, among other things, talk about and criticize their government. Yet three decades of campaign finance decisions have forced a district court to have to say, in effect, “Unlike political speech, the speech at issue here is entitled to significant First Amendment protection.” Nonetheless, decisions like the one in O’Brien are important—by exposing the contradictions between our First Amendment rhetoric and our First Amendment as enforced by the courts, it lays bare how far we have drifted from first principles. And that is the first step to restoring those principles.
Over at ACSblog, Ohio State law professor Dan Tokaji argues that it’s time for campaign finance “reformers” to proclaim proudly that “equality,” rather than “corruption,” is the reason they favor restricting political speech:
Acceptance of equality as a rationale won't make hard questions surrounding campaign finance regulation disappear. It will, however, ensure that we are asking the right question: Whether particular regulations will really promote political equality, without unduly infringing other values like fair competition. The time has come for U.S. reformers to embrace equality openly, rather than continuing to disguise it in the garb of anticorruption. This approach will not find favor before the current U.S. Supreme Court. In the long run, however, it will lead us toward a healthier democracy that more closely approaches the ideal of equality for all citizens, regardless of wealth.
We agree that “reformers” should be more candid about how the equality rationale is at the heart of their efforts to limit speech. But Professor Tokaji fails to realize that there’s a very good public-relations reason for “reformers” to keep that rationale under wraps: It’s pretty obvious that it will inevitably lead to censorship.
For example, under the equality rationale, there’s no reason the government couldn’t silence media outlets and outspoken critics of the government’s policies on the ground that those speakers aren’t promoting political equality—defined by the government as the implementation of its policies. If the public rejects those policies, then speech must be limited further to avoid what the government deems to be inegalitarian outcomes.
These logical implications of the equality rationale do not, to say the least, enhance the marketability of campaign finance “reform.”
Professor Tokaji does not grapple with these implications. Perhaps he hopes that wise and benevolent leaders will be fair in their policing of political speech, including speech they don’t like, but he should know better. Perhaps he hopes that the only leaders who will exercise this power will be those who promote his notion of “equality,” but, again, he should know better.
Thankfully, the Founding Fathers did know better. That’s why the First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” Whether regulations comply with it—rather than whether they promote an amorphous notion of political equality—is the right question to ask. Until he does so, Professor Tokaji (and other proponents of the equality rationale) will keep coming up with the wrong answers about the government’s power to limit political speech.