Category Archives: Courts

Free Speech

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…especially, the aim of those clauses of the First Amendment, free political speech.  Chief Justice John Roberts, writing for the Court, had this to say in striking down aggregate limits to political contributions:

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.

And

Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.

And [bold added, italics in the original]

The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance.  We have, however, held that this interest must be limited to a specific kind of corruption—quid pro quo corruption—in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.  For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley.  They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.”

What he said.  The Supremes’ ruling can be seen here.

A Judge to be Impeached

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US District Court Judge Jesse Furman said the censorship itself was protected free speech.

This is a man who has violated his oath of office and so is unfit to continue in office.

Baidu, the People’s Republic of China’s Google wannabe, has a free speech right, according to this “judge,” to block searches for things related to the PRC citizenry’s pro-democracy movement.  After all,

The First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects plaintiffs’ rights to advocate for democracy.

Advocating for one’s own position by actively preventing those with differing opinions from speaking their differing opinions, or from seeking out differing opinions, is “free speech.”  Because suppressing the free speech of dissenters, suppressing dissenters’ access to others’ free speech, or to anything related to the subject(s) of their own interests, is just “editorial judgment.”  Because isolating dissenters each into a separate, individual island, and preventing contact with any other island is entirely legitimate free speech.

In fact, in dismissing a free speech suit against Baidu, this judge ruled in part

…to allow Plaintiffs’ suit to proceed, let alone to hold Baidu liable for its editorial judgments, would contravene the principle upon which “[o]ur political system and cultural life rest”: “that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.”

And therein lies a fatal contradiction of this judge’s pseudo-logic.  Each person cannot decide ideas and beliefs for himself if he’s actively denied access to those ideas and beliefs.  If each person is allowed only to decide from among a carefully limited set of ideas and beliefs which others permit him to view, he has no decision to make.

The failure of the judge’s logic goes further.  The only liability to which a publisher is subject in the editorial judgments it makes is from its decision to suppress speech, not its decision to present it.

And further, and far more fundamentally: each person’s right to decide for himself “the ideas and beliefs deserving of expression, consideration, and adherence” extends to presentation and consideration to him alone; it does not include any right to prevent presentation to or consideration by others.  Each person’s right to decide questions of adherence extends to himself alone; there is right to prevent such consideration by others.

What this judge appears to have (carefully?) ignored is that there is nothing at all in a right to free speech that requires any person to listen to another, nor is there any right to determine for another person what that person will be permitted to listen to.

Furman’s opinion can be read here.

Another Thought on the Contraceptive Mandate Case

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Justice Stephen Breyer asked why the government couldn’t provide the companies the same accommodation it offered nonprofit religious organizations.  In those instances, the government effectively picks up the cost of the challenged methods.

“You’re talking about a very open-ended increase in the cost to the government,” [Solicitor General Donald] Verrilli said.

Related to that is Justice Elena Kagan’s worry that “everything would be piecemeal.  Nothing would be uniform.”

There’s a hint there, folks.  If a thing is too expensive, or too confusing or hard, for government to do right, maybe government shouldn’t be doing it.

The Liberal Justice and the Birth Control Mandate

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Justice Elena Kagan had a number of questions—as did Justice Sonya Sotomayor—in Tuesday’s oral arguments on Obamacare’s Contraceptive Mandate.  Indeed, counsel for the mandate’s challengers, Paul Clement, wasn’t even allowed to get into his argument, so little were these Justices in a listening mode, but that’s for another post.  Kagan had one “question,” though, which was very telling:

One religious group would opt out of this and one religious group would opt out of that, and everything would be piecemeal.  Nothing would be uniform[.]

Yeah, and, Madam Justice?  So what?  Why must everything fit into a Liberal’s—or Big Government’s—Procrustean bed?  Opting out is part of the Free Exercise Clause—it goes right to the heart of it.  If things do get…piecemeal…where is the problem?  Government convenience is not a reason to deviate from the Constitution on the bench—or to truncate liberty from anywhere.

If it isn’t government convenience, then the Liberal just seems terrified of the noisiness of republican democracy.

Another Federal Judge

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…gets it right.  US District Judge Eric Melgren has ruled that Kansas and Arizona can, indeed, require proof of citizenship as a criterion for registering to vote in Federal elections: American elections are for American citizens only.  The second clause of the 14th Amendment is pretty clear on this.

Melgren ruled, in part,

Because the Court finds that Congress has not preempted state laws requiring proof of citizenship through the National Voter Registration Act, the Court finds the decision of the EAC denying the states’ requests to be unlawful and in excess of its statutory authority.  Since the Court’s decision turns on the plain statutory language, the Court need not resolve the question of whether the Constitution permits the EAC, or Congress, to disregard the states’ own determination of what they require to satisfactorily determine citizenship.

As the Kansas City Star pointed out,

Nationally, voting rights experts contend that the court’s ruling—if it survives on near-certain appeals—could open the door for more states to enact laws requiring voters to produce documents proving their citizenship.

One can certainly hope so.  Like I said: American elections are for American citizens only.

Melgren also noted

The Constitution gives each state exclusive authority to determine the qualifications of voters for state and federal elections.  Article I, section 2, clause 1—often called the Qualifications Clause—provides that the voters for the US House of Representatives in each state shall have the same qualifications required for voters of the largest branch of the state legislature.  The Seventeenth Amendment adopts the same requirement for voters for the US Senate.  The US Supreme Court has read these provisions to conclude that the states, not Congress, set the voter qualifications for federal elections.

Melgren went on to note that the same Clause also grants Congress the power to overrule the States’ rules statutorily—and that the Congress has not done so.  We can look forward to further Democratic Party efforts to sully our elections by attempting to get Congress to force the States to accept anyone as voter, citizen or not.

Melgren’s ruling can be read here.