May the 1st Amendment Triumph :cheers:
http://www.nytimes.com/2009/08/30/us/30scotus.html?_r=1&ref=politics
QuoteSupreme Court to Revisit 'Hillary' Documentary
By ADAM LIPTAK
Published: August 29, 2009
WASHINGTON — The Supreme Court will cut short its summer break in early September to hear a new argument in a momentous case that could transform the way political campaigns are conducted.
The case, which arises from a minor political documentary called "Hillary: The Movie," seemed an oddity when it was first argued in March. Just six months later, it has turned into a juggernaut with the potential to shatter a century-long understanding about the government's ability to bar corporations from spending money to support political candidates.
The case has also deepened a profound split among liberals, dividing those who view government regulation of political speech as an affront to the First Amendment from those who believe that unlimited corporatecampaign spending is a threat to democracy.
At issue is whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. Re-arguments in the Supreme Court are rare, and the justices' decision to call for one here may have been prompted by lingering questions about just how far campaign finance laws, including McCain-Feingold, may go in regulating campaign spending by corporations.
The argument, scheduled for Sept. 9, comes at a crucial historical moment, as corporations today almost certainly have more to gain or fear from government action than at any time since the New Deal.
The court's order calling for re-argument, issued in June, has generated more than 40 friend-of-the-court briefs. As a group, they depict an array of strange bedfellows and uneasy alliances as they debate whether corporations should be free to spend millions of dollars to support the candidates of their choice.
The American Civil Liberties Union and its usual allies are on opposite sides, with the civil rights group fighting shoulder to shoulder with the National Rifle Association to support the corporation that made the film.
To the dismay of many of his liberal friends and clients, Floyd Abrams, the celebrated First Amendment lawyer, is representing Senator Mitch McConnell of Kentucky, the Republican leader, a longtime foe of campaign finance laws.
"Criminalizing a movie about Hillary Clinton is a constitutional desecration," Mr. Abrams said.
Most of the rest of the liberal establishment is on the other side, saying that allowing corporate money to flood the airwaves would pollute and corrupt political discourse.
"This is rough business," said Fred Wertheimer, a veteran advocate of tighter campaign regulations. "We're not dealing with campaign finance laws. We're dealing with the essence of power in America."
The case involves "Hillary: The Movie," a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton's character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.
A lower court agreed with the F.E.C.'s position, saying that the sole purpose of the documentary was "to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her."
At the first Supreme Court argument in March, a government lawyer, answering a hypothetical question, said the government could also make it a crime to distribute books advocating the election or defeat of political candidates so long as they were paid for by corporations and not their political action committees.
That position seemed to astound several of the more conservative justices, and there were gasps in the courtroom.
"That's pretty incredible," said Justice Samuel A. Alito Jr.
The discussion of book banning may have helped prompt the request for re-argument. In addition, some of the broader issues implicated by the case were only glancingly discussed in the first round of briefs, and some justices may have felt reluctant to take a major step without fuller consideration.
The question of what Congress may do to regulate books is a hypothetical one: the relevant law, the Bipartisan Campaign Reform Act of 2002, more commonly called McCain-Feingold, applies only to broadcast, satellite or cable transmissions. That leaves out old technologies, like newspapers and books, and new ones, like the Internet. But the constitutional principles involved, some of the justices suggested, ought to apply regardless of the medium.
In an interview, Mr. Wertheimer seemed reluctant to answer questions about the government regulation of books. Pressed, Mr. Wertheimer finally said, "A campaign document in the form of a book can be banned."
The McCain-Feingold law does contain an exception for broadcast news reports, commentaries and editorials. But a brief supporting Citizens United filed in January by the Reporters Committee for Freedom of the Press questioned whether the government should be making decisions about what is and is not news.
" 'Hillary: The Movie,' " the brief said, "does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history."
In a measure of the importance of that group's support, Theodore B. Olson, who represents Citizens United, referred twice to the brief at the argument in March. (He stumbled both times, though, calling the group the "Reporters Committee for Freedom of Speech" and the "Reporters Committee for the Right to Life.")
After the argument, Mr. Wertheimer pushed hard to persuade the group to alter its stance.
"He e-mailed, he memo-ed, he advocated, he called a couple of people who were donors, and he cost us some money," said Lucy Dalglish, the executive director of the committee.
But the group filed a second brief supporting Citizens United in July. "I got fair treatment," Mr. Wertheimer said, "and they basically disagreed with my position."
The disagreement echoes one within the civil rights community, said Burt Neuborne, the legal director of the Brennan Center for Justice at New York University School of Law and a former official of the A.C.L.U.
Mr. Neuborne said he disagreed with the A.C.L.U.'s longstanding position that regulation of corporate campaign spending may violate the First Amendment. The A.C.L.U.'s position was the product of "a huge fight" within the group, he said, adding that "it never was more than a 60-40 split on the board."
The Brennan Center filed a brief supporting the government in the case, Citizens United v. Federal Election Commission, No. 08-205, while the A.C.L.U. filed one supporting Citizens United.
Mr. Neuborne and four other former A.C.L.U. officials took a middle ground, urging the court to rule narrowly to protect the documentary without making a major constitutional statement.
Indeed, it would not be hard for the court to rule in favor of Citizens United on narrow grounds. The court could say the film was not the sort of "electioneering communication" that McCain-Feingold, which mostly concerned television advertisements, was meant to address. It could say that communications that people had to seek out might be treated differently from uninvited advertisements. Or it could say that Citizens United was not the sort of corporation that can be regulated.
But the request for re-argument suggests that the court is on the verge of bolder action.
Moron.
What does it have to do with the first amendment?
Quote from: Razgovory on August 30, 2009, 05:51:48 PM
What does it have to do with the first amendment?
Is this a serious question? The article goes into detail on the subject.
What's the point of having an admendment to protect freedom of speech if it doesn't protect political speech?
Quote from: dps on August 30, 2009, 06:26:13 PM
What's the point of having an admendment to protect freedom of speech if it doesn't protect political speech?
Silly person. The First Amendment was designed to protect the right of gays from parading naked thru San Francisco, not for something as base as political speech.
Body Language :wub:
Quote from: Hansmeister on August 30, 2009, 07:06:48 PM
Quote from: dps on August 30, 2009, 06:26:13 PM
What's the point of having an admendment to protect freedom of speech if it doesn't protect political speech?
Silly person. The First Amendment was designed to protect the right of gays from parading naked thru San Francisco, not for something as base as political speech.
Few people care about freedom of speech so long as it is their enemies who are being curtailed. The American left is simply taking action against the traditional supporters of the Republicans. The American system is broken, and so your side should start liquidating union members and blacks when they get back into power. Otherwise, the Democrats will get there first.
Quote from: Hansmeister on August 30, 2009, 07:06:48 PM
Quote from: dps on August 30, 2009, 06:26:13 PM
What's the point of having an admendment to protect freedom of speech if it doesn't protect political speech?
Silly person. The First Amendment was designed to protect the right of gays from parading naked thru San Francisco, not for something as base as political speech.
And Hans provides a succint and insightful analysis of why people are concerned about corporate funding in elections.
Anyway, I do think that the ability of corporate lobbying groups to spend significant sums of money and present it with the air of nonpartisanship is dangerous for society. Would restricting it be unconstitutional? Dunno; the court didn't think so at one point, after all.
Quote from: Faeelin on August 30, 2009, 08:21:46 PM
Anyway, I do think that the ability of corporate lobbying groups to spend significant sums of money and present it with the air of nonpartisanship is dangerous for society.
So do you hate rich people too, or just corporations?
Why are you so evil and unlovable?
Quote from: Neil on August 30, 2009, 07:15:31 PM
Quote from: Hansmeister on August 30, 2009, 07:06:48 PM
Quote from: dps on August 30, 2009, 06:26:13 PM
What's the point of having an admendment to protect freedom of speech if it doesn't protect political speech?
Silly person. The First Amendment was designed to protect the right of gays from parading naked thru San Francisco, not for something as base as political speech.
Few people care about freedom of speech so long as it is their enemies who are being curtailed. The American left is simply taking action against the traditional supporters of the Republicans. The American system is broken, and so your side should start liquidating union members and blacks when they get back into power. Otherwise, the Democrats will get there first.
He's right Hans, I think you should start building an ANFO bomb.
Quote from: dps on August 30, 2009, 06:26:13 PM
What's the point of having an admendment to protect freedom of speech if it doesn't protect political speech?
Corporations don't have rights like freedom of speech. This is about freedom of the press.
Quote from: grumbler on August 30, 2009, 08:41:58 PM
Quote from: dps on August 30, 2009, 06:26:13 PM
What's the point of having an admendment to protect freedom of speech if it doesn't protect political speech?
Corporations don't have rights like freedom of speech. This is about freedom of the press.
Actually I thought this was an issue over advertising. Still I'm not sure what rights corporations have in this country. It's not something I understand well.
Quote from: grumbler on August 30, 2009, 08:41:58 PM
Quote from: dps on August 30, 2009, 06:26:13 PM
What's the point of having an admendment to protect freedom of speech if it doesn't protect political speech?
Corporations don't have rights like freedom of speech. This is about freedom of the press.
Well the Bill of Rights doesn't say anything about freedom of the press - it's merely part of the overall Freedom of Speech.
And since I'm not a US lawtalker I stand to be corrected, but corporations, being persons at law, I believe would have a guaranteed freedom of speech.
I believe "Press" is used specifically in the first amendment.
Meh. Freedom of speech has to have some common sense limitations. Some of them have to do with safety, and some of them have to do with protecting against freedom of speech being used as a weapon against free society. Restricting political contributions seems to clearly fall under the second category.
Quote from: DGuller on August 30, 2009, 11:36:52 PM
Meh. Freedom of speech has to have some common sense limitations. Some of them have to do with safety, and some of them have to do with protecting against freedom of speech being used as a weapon against free society. Restricting political contributions seems to clearly fall under the second category.
:yes:
Quote from: Canadian Charter of Rights and Freedoms1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Oh, wait.
You guys don't have an equivalent to Section 1.
sorry. :(
Quote from: Barrister on August 30, 2009, 11:16:25 PM
And since I'm not a US lawtalker I stand to be corrected, but corporations, being persons at law, I believe would have a guaranteed freedom of speech.
Right, but they're persons at law because of a government fiction, not because they're actually persons. So can one restrict their First Amendment Rights in a more serious way?
Screw it, I don't have con law til next semester.
Quote from: Faeelin on August 31, 2009, 07:30:58 AM
Quote from: Barrister on August 30, 2009, 11:16:25 PM
And since I'm not a US lawtalker I stand to be corrected, but corporations, being persons at law, I believe would have a guaranteed freedom of speech.
Right, but they're persons at law because of a government fiction, not because they're actually persons. So can one restrict their First Amendment Rights in a more serious way?
Screw it, I don't have con law til next semester.
I support the idea of creating different classes of personhood under the law. Then, undesirables like fags and rabblerousers can be moved into the lower categories of personhood and disposed of.
Well corporations cannot gain the right to vote, nor serve on juries. Without a great deal of thought, I would say most of the rights in the Bill of Rights do not apply to corporations.
Quote from: Barrister on August 30, 2009, 11:16:25 PM
Well the Bill of Rights doesn't say anything about freedom of the press - it's merely part of the overall Freedom of Speech.
Quote from: First AmendmentCongress 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.
Quote from: Faeelin on August 31, 2009, 07:30:58 AM
Right, but they're persons at law because of a government fiction, not because they're actually persons. So can one restrict their First Amendment Rights in a more serious way?
So far, yes (commercial speech is less protected, and corporations have been more heavily regulated). How long this will last, who knows.
Quote from: DGuller on August 30, 2009, 11:36:52 PM
Meh. Freedom of speech has to have some common sense limitations. Some of them have to do with safety, and some of them have to do with protecting against freedom of speech being used as a weapon against free society. Restricting political contributions seems to clearly fall under the second category.
I tend to agree with this in general. All freedoms have some limits. Libel/slander laws on speech; limits on firearm ownership, etc.
This issue can get tricky though, as it seems that some campaign restrictions go too far. But keeping it all too unlimited would seem a problem also, as it would seem to corrupt the process. So this will be interesting, and important.
Quote from: ulmont on August 31, 2009, 08:55:23 AM
Quote from: Barrister on August 30, 2009, 11:16:25 PM
Well the Bill of Rights doesn't say anything about freedom of the press - it's merely part of the overall Freedom of Speech.
Quote from: First AmendmentCongress 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.
I stand corrected then.
It turns out even our own Charter makes specific mention of of the press:
Quote from: Canadian Charter of Rights and Freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
How does the USSC justify what may or may not be 'reasonable' limits on a right, especially since the Bill of Rights doesn't have any kind of limiting section?
Here we have s. 1, which talks about "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Which the SCC has told us in R. v. Oakes [1986] 1 S.C.R. 103 means that any such restriction must:
1. relate to a pressing and substantial concern; and
2. show that the means chosen reasonable and demonstrably justified
Quote from: Barrister on August 31, 2009, 10:52:02 AM
How does the USSC justify what may or may not be 'reasonable' limits on a right, especially since the Bill of Rights doesn't have any kind of limiting section?
They were 'read into the text' when people started to realize that the US Constitution, as written, was utterly incompatible with a modern, civilized state.
Quote from: Faeelin on August 31, 2009, 07:30:58 AM
Quote from: Barrister on August 30, 2009, 11:16:25 PM
And since I'm not a US lawtalker I stand to be corrected, but corporations, being persons at law, I believe would have a guaranteed freedom of speech.
Right, but they're persons at law because of a government fiction, not because they're actually persons. So can one restrict their First Amendment Rights in a more serious way?
Screw it, I don't have con law til next semester.
The fiction that corporations are persons at law only obscures that they are ultimately ways for individuals to conduct their affairs in society.
For example, for tax reasons I may choose to conduct my mom and pop business through a corporation. Does that mean that if I transfer assets into the corporation I lose the right to use those assets to express certain opinions? Is it potentially an abuse of the first amendment to advantage certain types of corporations--incentivizing people to transfer assets to them--and then restricting the the speech of the corporations? Or is this a slippery slope argument and as silly as the UN black helicopters?
The extent to which third parties can enter the political fray during elections, mainly challenges to third party spending rules, has been litigated a fair amount here in Canada over the last 10 years. It will be interesting to see what the USSC does.
Quote from: Barrister on August 31, 2009, 10:52:02 AM
How does the USSC justify what may or may not be 'reasonable' limits on a right, especially since the Bill of Rights doesn't have any kind of limiting section?
Basically, they make it up as they go along, guided by precedent, like everything else. To extremely oversimplify, there are 3 different levels of scrutiny:
Strict scrutiny: To be constitutional under strict scrutiny, the law must (1) be justified by a compelling governmental interest, (2) must be narrowly tailored to achieve that interest, and (3) must be the least restrictive means of accomplishing that interest. Strict scrutiny is typically applied when a fundamental right is implicated (including those from the bill of rights), or where racial classifications are imposed. In the free speech context, strict scrutiny is applied for laws that restrict speech in a public forum and laws that restrict speech based on its viewpoint or content.
Intermediate scrutiny: To be constitutional under intermediate scrutiny, a law must (1) involve important governmental interests that are (2) furthered by substantially related means. Intermediate scrutiny is typically applied to sex-based classifications. In the free speech context, intermediate scrutiny is applied for laws that restrict sexually explicit (but not obscene) speech and for content-neutral laws that restrict speech.
Rational basis: To be constitutional under rational basis review, a law must be (1) rationally related to a (2) legitimate government interest. Rational basis review is applied whenever strict or intermediate scrutiny is not implicated. In the free speech context, rational basis review is applied to the regulation of obscene speech.
Quote from: crazy canuck on August 31, 2009, 11:48:58 AM
The extent to which third parties can enter the political fray during elections, mainly challenges to third party spending rules, has been litigated a fair amount here in Canada over the last 10 years. It will be interesting to see what the USSC does.
And, in an ironic little twist, the leading case is Stephen Harper v Canada.
Quote from: ulmont on August 31, 2009, 11:57:18 AMmake it up as they go along, guided by precedent
:P
Quote from: alfred russel on August 31, 2009, 11:38:26 AM
Quote from: Faeelin on August 31, 2009, 07:30:58 AM
Quote from: Barrister on August 30, 2009, 11:16:25 PM
And since I'm not a US lawtalker I stand to be corrected, but corporations, being persons at law, I believe would have a guaranteed freedom of speech.
Right, but they're persons at law because of a government fiction, not because they're actually persons. So can one restrict their First Amendment Rights in a more serious way?
Screw it, I don't have con law til next semester.
The fiction that corporations are persons at law only obscures that they are ultimately ways for individuals to conduct their affairs in society.
For example, for tax reasons I may choose to conduct my mom and pop business through a corporation. Does that mean that if I transfer assets into the corporation I lose the right to use those assets to express certain opinions? Is it potentially an abuse of the first amendment to advantage certain types of corporations--incentivizing people to transfer assets to them--and then restricting the the speech of the corporations? Or is this a slippery slope argument and as silly as the UN black helicopters?
As a legal matter, of course the exact status of a corporation as opposed to an individual is a big part of the issue. But on another level, this is just a bald-faced effort to suppress expression of certain political views, something which I think should be strongly opposed.
How is this suppression of certain political views? Is bribery protected by First Amendment?
Quote from: DGuller on August 31, 2009, 04:50:58 PM
How is this suppression of certain political views? Is bribery protected by First Amendment?
How the heck is the distribution of books advocating a certain position a form of bribery?
Quote from: dps on August 31, 2009, 04:55:05 PM
Quote from: DGuller on August 31, 2009, 04:50:58 PM
How is this suppression of certain political views? Is bribery protected by First Amendment?
How the heck is the distribution of books advocating a certain position a form of bribery?
Because you're supporting the politicians who espouse those views?
It's Dorsey. He's retarded.
Quote from: dps on August 31, 2009, 04:55:05 PM
Quote from: DGuller on August 31, 2009, 04:50:58 PM
How is this suppression of certain political views? Is bribery protected by First Amendment?
How the heck is the distribution of books advocating a certain position a form of bribery?
Except that books weren't what's going on. The law does not cover that. That's just somebody playing a game of what if. No books have been banned.
Quote from: Razgovory on August 31, 2009, 08:16:20 PM
Quote from: dps on August 31, 2009, 04:55:05 PM
Quote from: DGuller on August 31, 2009, 04:50:58 PM
How is this suppression of certain political views? Is bribery protected by First Amendment?
How the heck is the distribution of books advocating a certain position a form of bribery?
Except that books weren't what's going on. The law does not cover that. That's just somebody playing a game of what if. No books have been banned.
I understand that the book thing was a hypothetical. I still don't see where bribery entered into the discussion.
It's the logical extension of money as a form of speech I guess.
JR, what are your opinions on this case?
Not sure I'd like to read the briefs first.
But gut feeling is that this goes to far in regulating political speech.