Tuesday, February 2, 2010

Simple, clear communications triumphant

Dear friends of simple, clear communications:

First read this

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.
– First Amendment to the U.S. Constitution

Now read this
As amended by §203 of the Bipartisan Campaign Reform Act of 2002, federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate. An electioneering communication is “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary election, and that is “publicly distributed,” which in “the case of a candidate for nomination for President . . means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days.”
– Opening summary from the Supreme Court's ruling in Citizens United v. Federal Election Commission (1.21.2010)

Now ponder this
How is it that our society got so far removed from the basic tenets of democracy that we allowed this legislative abomination called "campaign finance reform" to override the simple, noble principles of the First Amendment?

...and rejoice in this
That law has been tossed out by the U.S. Supreme Court, reinforcing not only freedom of speech, but respect for simple, clear language. The Supreme Court has essentially ruled that we the people have written down in our Constitution precisely what we mean and mean precisely what we have written down.



Jeffry Pilcher said...

If the Constitution was unflawed when written, then we wouldn't have needed 27 Amendments (25 actually, since one Amendment -- the 21st -- was needed to cancel another -- the 18th).

Just saying…

brandsinger said...

Thanks Jeffry.
Right you are -- things ain't nearly as simple as I made it out. But still...

Jay Livingston said...
This comment has been removed by the author.
Jay Livingston said...

It's very tempting to think that the simple language of the First Amendment needs no interpretation and is in fact not open to interpretation. If that's so, a ton of First Amendment law goes into the fireplace. Libel, slander, kiddie porn, etc. "No law" means "no law," so anything goes, right?

Odd that the court that thinks the First Amendment protects a corporation that wants to spend gagillions to elect a candidate also thinks that it doesn't protect an 18-year-old who unfurls a "Bong hits 4 Jesus" banner on a public sidewalk.

brandsinger said...

Hi Jay –
The struggle to defend the First Amendment – and apply it consistently – never ends.

Then "a ton of First Amendment law goes into the fireplace"? Amen! I'm sure it should. A ton of LAW should go into the fireplace – our massive unintelligible tax code with hidden loopholes, for example. That would make a great bonfire.

Are you so wedded to recent precedents that might perpetuate error? Do you support the "not within 30 days" "not about a candidate" "as defined as 50,000 citizens" "not including news media corporations" and all the rest of that unconstitutional law? Seriously?

You must love your lawyer!


Thomas said...

I'm sure our founding fathers, and all of those who put pen to paper to write the First Amendment, had no idea of the future nit picking that would take place with such a broad and straight forward piece of legislation.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" ...but what about the religious zealist who kill and condemn in the name of religion??

"...or abridging the freedom of speech, or of the press" ...unless of course you're speech is considered indecent by many.

"...or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" ...unless it's an election year and you make the candidate look bad.

Nothing is really straight forward anymore, and hoping it will be is just wishful thinking.

This reminds me of the old joke of why they bury lawyers 12 feet down when they die. Because deep down, they're really good people.

brandsinger said...

Hey Thomas -
I love yer joke about the lawyers. You know the other old joke about the lawyer who falls overboard into a sea infested with hungry sharks and is pulled safely into the ship without a scratch. Professional courtesy.


Anonymous said...

This is simplistic, but freedom of speech should be differentiated from freedom to harm with speech. Kiddie porn involves harming children. Libel and slander dishonestly harm people's livelihoods. There is no clear dividing line, I know. But saying that corporations (who attract shareholders based on an ability to act in those shareholders' interests), are causing harm by expressing generally well-fouded viewpoints is really unfounded.

brandsinger said...

Thanks, oh anonymous one. I agree that your distinctions need to be made and that all possible allowances should favor freedom where possible. Congressional restraint of political speech -- no matter how well intended -- has already led to preventing political books and movies from being made public -- and that's clearly banned by the Constitution.

Anonymous said...

Cool story you got here. It would be great to read something more about that theme. The only thing your blog needs is a few photos of any gadgets.
Nickolas Stepman
Phone Blocker

David said...

Your argument would make sense if Corporations were people. They're not. The constitution applies to citizens of this country. Not to corporations that have the sole goal of making profits for shareholders.

I agree that the campaign finance law was " funky" and I'd be fine eliminating it if we also eliminated this ridiculous notion that Corporations are deserving of free speech protections.

brandsinger said...

Hi David - thanks for your comment.
I've debated this for two wks. Everyone I know is agin me.
Seems to me that the two sides are clearly delineated:
You side with those who argue that corporations are not people and therefore not entitled to people's rights. The Court has ruled that the First Amendment keeps Congress from abridging freedom of speech.

And that's it: We have an impasse. I don't believe that -- to accept the ruling -- one has to accept the positive role of corporations in society (that they employ millions of people, are modern engines of economic growth, are run by people with rights, etc.). Nor does one have to look at facts and recognize that Congress -- under campaign finance law just struck down -- ALREADY is scandalously influenced by special interests. To accept the ruling one only needs to see that Congressional rules and regulations that keep political books from being published and political videos from being aired are EXACTLY the quelling of free speech that the First Amendment of the Bill of Rights forbids. End of story. The rest of the debate is just academic...

To fix a dysfunctional Congress will require other measures, not book banning.

That's my view. And it ain't popular, I know.


Jay Livingston said...
This comment has been removed by the author.
Jay Livingston said...

There are at least two different issues here:

1. Does the “simple, clear” language of the First Amendment cover Citizens United? Five justices said yes, four no. My point was that simple clear language is not sufficient to decide complicated cases. If the language is so clear, why didn’t those same five male Catholics think that it covered the Bong Hits 4 Jesus guy? Did the language lose its simplicity and clarity?

If it were just a matter of simple, clear language, you wouldn’t need an opinion that runs to 57 pages plus two concurring opinions of another dozen or so pages each, let alone the 90-page dissent.

2. Will Citizens United have an actual impact on who gets elected or what policies they support? The evidence so far (comparing states with different laws) is far from conclusive; there’s not a big difference between these types of states. But it's much too early to know.

brandsinger said...

Thanks, Jay.

1 You made this pt. earlier.

Your second paragraph: Scalia's concurring opinion was less than 9 pages. Seemed to make the First Amendment case rather succinctly.

2 I'm sure you're right in asking the question here (re: impact on states). Not sure what your point is.

Cheers - brandsinger