Category Archives: Courts

Another Federal Agency

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…that needs to be eliminated and its work force returned to the private sector.  The Federal Election Commission believes that the 1st Amendment and inconvenient parts of the Federal Election Campaign Act don’t apply to it.

A Boston TV station [emphasis added]

had invited two congressional candidates (a Democrat and a Republican) into its studio to appear on “On the Record” in the weeks leading up to the 2012 election and formatted the joint appearance as a 30-minute debate.

Another candidate (a Libertarian) who was not invited filed a complaint alleging that the value of WCVB’s production costs and airtime constituted unlawful corporate contributions to the two candidates who were invited.  Corporate contributions to federal candidates are illegal and people who make them face stiff fines, injunctions, and can even go to prison.

The Federal Election Campaign Act, which established the FEC, regulates money in federal campaigns to protect American citizens from corrupt politicians.  It also expressly forbids the agency from regulating the press.  Congress enacted this “press exemption” to protect the profoundly important First Amendment right of the press to inform the public about campaigns and candidates without government interference.

WCVB invoked the First Amendment and the campaign act’s press exemption.  When the FEC considered the matter in November 2013, the staff recommended that the agency disregard both.

That the FEC ultimately—and officially—accepted the legitimacy of WCVB’s decision-making process for selecting those candidates simply emphasizes the arrogant mendacity of the agency.  As the WSJ so correctly notes,

A decision to approve implies the power to disapprove.

Neither are within the scope of FEC authority, and the FEC knows that.

Remember, too, that this is the same FEC that insisted that it had the authority to ban books.*  Such an agency has no place in the lives of Americans, much less in our government.

 

*This exchange involving Justice Samuel Alito and Deputy Solicitor General Malcolm Stewart, arguing for the FEC in Citizens United:

Alito: Do you think the Constitution required Congress to draw the line where it did, limiting [the “electioneering communications” ban] to broadcast and cable and so forth?  What’s your answer to [the] point that there isn’t any constitutional difference between the distribution of this movie on video [on] demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book?  Would the Constitution permit the restriction of all of those as well?

Stewart: I think the Constitution would have permitted Congress to apply the electioneering communication[s] restrictions…to additional media as well.

Alito: That’s pretty incredible.  You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned.  …  The government’s position is that the 1st Amendment allows the banning of a book if it’s published by a corporation?

Stewart [In answer to a related follow-up question from Justice Anthony Kennedy]: [A] corporation could be barred from using its general treasury funds to publish the book….

Another Judge Gets One Right

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This one seems small, but it has large implications.

It seems that a motorist in Ellisville, MO, flashed his headlights at oncoming motorists to warn them of a speed trap.  An Ellisville police officer saw that and, in keeping with the city’s policy of suppressing such warnings, promptly arrested the motorist, who then faced a $1,000 fine and points against his driver’s license toward its suspension.

During the course of the motorist’s subsequent lawsuit over this violation of his 1st Amendment right, the city recognized the error of its policy and eliminated it.

Federal Judge Henry Autrey remained unimpressed, though, as he ruled against the city and for the motorist.  In his ruling, Autrey wrote that flashing one’s headlights

sends a message to bring one’s driving in conformity with the law—whether it be by slowing down, turning on one’s own headlamps at dusk or in the rain, or proceeding with caution.

There’s not even anything controversial about that form of speech.  Autrey also wrote, on the matter of Ellisville having corrected its policy,

The chilling effect of Ellisville’s policy and custom of having its police officers pull over, detain, and cite individuals who are perceived as having communicated to oncoming traffic by flashing their headlamps and then prosecuting and imposing fines upon those individuals remains, regardless….

Indeed.  The formality of the ruling was necessary to alleviate a bit of that effect.

A Conservative’s Thoughts on Rights and Duties, their Duality, and some Implications

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I have a new pamphlet out, A Conservative’s Thoughts on Rights and Duties, their Duality, and some Implications; a link to the Kindle version of it (the only version, currently) has been added to the sidebar at right.

I touched on rights and duties and their duality in my book A Conservative’s Manifesto, but only tangentially to a larger discussion of Conservative principles.  However, an understanding of individual rights and individual duties, especially their nature as individual endowments rather than as attributes of groups of men or as grants from some men acting in a “government’s” name, forms a critical part of Conservative thought.  Now, with us Americans broadly divided on what our rights and duties really are, or even whether the government should have them instead of us, is the time to expand on that peripheral discussion and to address the matter directly.

My central thesis is this: our inalienable rights and our inalienable duties, as endowments from and by our Creator, and as duals of each other, are a part of the fabric of our existence—both as individual rights and duties and in the capacity of those duals.  Further, just as importantly, our inalienable rights and our inalienable duties are in each of us as individuals; they are not in groups of us, they are not in the whole of us as a nation.  Each one of us is possessed of them entirely in ourselves.

This, of course, has implications for the role our government, and especially for the roles of “civil law” and “civil rights,” in our lives.

I hope you enjoy the pamphlet.

A Second Amendment Victory

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…for the most part.  Larry Bell, of Forbes, has the tale.

Federal Judge Edmond Chang, US District Court for the Northern District of Illinois, was blunt in his ruling:

Chicago’s ordinance goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms, and at the same time the evidence does not support that the complete ban sufficiently furthers the purposes that the ordinance tries to serve.  …the ordinances are declared unconstitutional.

Some of that evidence includes the homicide numbers for Chicago.  Last year, for instance, both Chicago led the nation in the number of homicides, and Chicago’s raw homicide numbers jumped 15% even though it has the strictest gun control laws in the US—still, after its ban on concealed carry had been struck down earlier.

Beyond that, 80% of the murders and non-fatal shootings in Chicago last year were gang-related, and very few of those members sought to buy the guns used in these endeavors openly and legally.

Chang did grant Chicago six months to draft a new gun sales law, but this new drafting will need to be closely watched.  Chicago City Attorney Drew Worsek wants the new ordinance to address robust regulations targeting illegal sales and transfer practices.  The city’s judgment concerning what the definition of illegal regarding guns has already been shown, repeatedly, to be suspect.

Chang did have one thing at least partly wrong in his opinion, though:

[C]ertain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment.

This is a misreading of the 2nd Amendment, which says quite clearly,

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

There’s nothing in there authorizing government to declare a purpose for a man to keep and bear Arms, only that his right to do so shall not be infringed.  Indeed, there are two things about this: one is that the government has no role in telling a man what his purposes are; government’s role is in protecting each man’s right to pursue his own ends, his own purposes, and limiting this right only by keeping a man pursuing his own purpose from infringing another man’s right to pursue his.  The second thing is that the history behind the 2nd Amendment, and of the Constitution itself, is the right of every man to protect himself, not only from other men, but from overweening or misbehaving governments.  That is the degree of “self-defense” addressed in this Amendment.

Another Judge and Free Speech

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On Friday a Wisconsin judge struck a major blow for free political speech when he quashed subpoenas to conservative groups and ordered the return of property to the targets of a so-called John Doe campaign-finance probe.

Wisconsin John Doe “investigations” are secret, star chamber probes into prosecutorial targets in which even the targets are forbidden to speak publicly.  In this case, the targets were conservative organizations who had supported Wisconsin Governor Scott Walker in that state’s recently concluded recall election (which Walker won by a larger margin than his original election).  This secret fishing expedition was being conducted by special prosecutor Francis Schmitz at the behest of Milwaukee County Assistant District Attorney Bruce Landgraf.

Wisconsin Judge Gregory A. Peterson tossed most of Schmitz’ subpoenas, generally gutting the Landgraf/Schmitz job action.  Peterson was blunt in his ruling:

[The subpoenas] do not show probable cause that the moving parties committed any violations of the campaign finance laws.

And

There is no evidence of express advocacy [as required under Wisconsin law in order t oshow a violation]…the subpoenas fail to show probable cause that a crime was committed.  …the State is not claiming that any of the independent organizations expressly advocated.

Despite disgruntled Wisconsin Democrats’ best efforts (this is the party, remember, that a couple of years ago ran out of Wisconsin en masse, thereby shutting down the state’s government, when they couldn’t get their way on labor law) to continue their attempts to intimidate those of whom they disapprove and to prevent them from speaking, a judge has intercepted their plans and disrupted them, for a time.