Things We Read Today: Runaway Supremes Edition
From the New York Review of Books, “The Decision that Threatens Democracy” by Ronald Dworkin, re the decision in Citizens United v. FEC:
A second popular theory [on the intent of the First Amendment] focuses on the importance of free speech not to educate the public at large but to protect the status, dignity, and moral development of individual citizens as equal partners in the political process. Justice John Paul Stevens summarized this theory in the course of his very long but irresistibly powerful dissenting opinion in Citizens United. Speaking for himself and Justices Stephen Breyer, Ruth Ginsberg, and Sonia Sotomayor, he said that “one fundamental concern of the First Amendment is to protect the individual’s interest in self-expression.” [Justice Anthony] Kennedy tried to appeal to his understanding of the First Amendment to justify free speech for corporations. “By taking the right to speak from some and giving it to others,” he stated, “the Government deprives the disadvantaged person or class of the right to use speech to strive to establish the worth, standing, and respect for the speaker’s voice.” But this is bizarre. The interests the First Amendment protects, on this second theory, are only the moral interests of individuals who would suffer frustration and indignity if they were censored. Only real human beings can have those emotions or suffer those insults. Corporations, which are only artificial legal inventions, cannot. The right to vote is surely at least as important a badge of equal citizenship as the right to speak, but not even the conservative justices have suggested that every corporation should have a ballot.
The whole article is worth reading, but then I suspect that not too many on the left, right, or center think this was a wise decision, perhaps with the exception of pols who will benefit from the indirect financial support. The five justices did this, as Dworkin writes, “on their own initiative, at the request of no party to the suit.”
On the bright side, they just made the Supreme Court Hall of Fame for Bad Decisions, joining Dred Scott, Plessy, Hammer, and dare I say Bush v. Gore? (I dare!) Hammer, for those who didn’t get that in school history, said that Congress didn’t have the power to prohibit child labor on the basis of, yes, the Tenth Amendment. That’s the kind of government we’re trying to get back to, right?
April 26th, 2010 at 9:23 am
It may be that this decision invalidated a good law, for the reasons given by Steven. However, the decision was patently correct. The First Amendment does not permit the government to equalize political speech. On the contrary, it says Congress shall make no law…abridging the freedom of speech… That could hardly be more clear. Congress is prohibited from making a law that abridges freedom of speech for the rich in order to equalize them with the poor.
BTW eqalization is impossible, because the media are excluded from any limitations (as they should be, due to Freedom of the Press.) How can my speech have the same impact as the New York Times or Rush Limbaugh?
Note also that the majority decision points to the difficulty of determining who the “Press” is today. Anyone who blogs is arguably a member of today’s “Press” and so entitled to an exception to the Campaign Finance Reform restrictions.
April 26th, 2010 at 10:44 am
Glenn Greenwald wrote extensively on Citizens United. In short, he said that while its clearly quite bad from a policy point of view, it was (probably) rightly decided from a constitutional law point of view (at least from his). Larry Lessig disagreed - it was an illuminating discussion, you can find it at salon.com - and I agree with Prof. Lessig.
Of course, as best I can tell, Glenn Greenwald is a 1st Amendment absolutist, like Justice Douglas was. I’m not. David, am I safe in guessing from your post above that you are an absolutist too?
April 26th, 2010 at 11:53 am
Shaun P. - I’m not a complete “First Amendment Absolutist”. I do think certain types of dangerous speech can be banned, such as shouting “fire” in a crowded theatre. I think it’s Constitutional for the Government to regulate claims made about pharmaceuticals and other commercial speech.
The area where I am more of an absolutist would be political speech. Earlier SC decisions have held that political speech deserves the highest protection, and that makes sense to me.
May 2nd, 2010 at 10:02 am
David, it sounds like you are saying it is right for congress to limit companies from making factual claims about their products but it is wrong to limit them from making distorted claims about legislation to sway voter opinion.
June 12th, 2011 at 8:43 am
hello…
really good article. Ready to hear more next week,my blog http://eveningdressesvuv.sweetcircles.com/2010/12/20/low-priced-night-dresses/ Many Thanks….
June 13th, 2011 at 1:56 pm
hello…
really good article. Ready to hear more next week,my blog http://talonmpgraham.blogdrive.com/archive/20.html Many Thanks….
June 16th, 2011 at 1:12 am
really good article…
I have spent a bit of time going through your posts, more than I should have but I must say, its worth it! http://vandy071.i.ph/blogs/vandy071/ many Thanks….
June 20th, 2011 at 1:50 am
hello…
Hi there thanks for the quality post! http://michelle.chicasblog.it/ ,i’d a good read.appreciate your article,My problem continues to be resolved….
June 20th, 2011 at 2:59 pm
very helpful…
I preferred to thank you for this good article. http://nxysm.blogcindad.com/ I by all odds liked every little bit of it…
June 21st, 2011 at 12:18 pm
Great…
You did a great job! http://dennisea.zoomblog.com/archivo/2011/06/20/lair-Du-Temps-a-floral-explosion.html...
June 26th, 2011 at 1:10 am
quality post…
I have spent a bit of time going through your posts! http://davina.fruitblog.net/4dfdee0e97861.html ,i had a good read….
June 26th, 2011 at 4:13 am
really…
Fat women and girls always worried because of their ugly shaped bodies. They want to wear expensive and stylish outfits . http://bgtyrde.blogturk.org/ but they can not wear these outwears…
June 27th, 2011 at 4:37 am
Greate…
It’s such a great site! http://ericfprobinson.xanga.com/750973888/sherri-shepherd-losing-weight-for-pregnancy/ Great post, I just bookmarked it on Digg….
July 18th, 2011 at 12:57 pm
Great One…
I must say, its worth it! My link!http://davis071.canalblog.com/ ,thanks haha…
August 12th, 2011 at 5:26 pm
Great One…
I must say, its worth it! My link, http://blog.extra.by/elizabeth/,thanks haha…
December 1st, 2011 at 9:12 pm
quality post…
ugg boots ultimate love, http://www.ballaterholidaycottage.com ,thanks ugg…