Speech and expression

  • September 9, 2014
    Guest Post

    by Geoffrey R. Stone. He is the Edward H. Levi Distinguished Service Professor of Law for the University of Chicago, the former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter, and a Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter

    *This post originally appeared on the Huffington Post. 

    In the context of ongoing deliberations over a proposed amendment to the Constitution to authorize the government to enact laws regulating campaign expenditures and contributions, a sharp, even bitter, rift has emerged between different generations of the ACLU's leadership over the ACLU's understanding of the First Amendment. The rift is not about whether to adopt the proposed constitutional amendment (neither side of the intra-ACLU debate has endorsed it), but about the ACLU's position on the constitutionality of campaign finance reform today.

    The current leadership of the ACLU takes a strong pro-free speech position that, like the position of Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts, looks askance at most forms of campaign finance regulation that would limit the freedom of individuals to spend as much as they want in the political process to advance their political beliefs.

    The six individuals who led the ACLU from 1962 to 1993 endorse a rather different view. In a letter sent on September 4 to the leadership of the Senate Committee on the Judiciary, they embraced a position that, like the position of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, recognizes that limitations on campaign expenditures and contributions may be necessary to ensure the proper functioning of the democratic process.

  • September 5, 2014
    Guest Post

    by Leslie Brueckner, Senior Attorney at Public Justice. 

    *This post originally appeared on the Public Justice blog.

    Late yesterday, a federal court in Idaho denied the state’s motion to dismiss our constitutional challenge to Idaho’s Ag-Gag law.

    The court’s 33-page ruling affirms that Idaho’s statute—which criminalizes whistleblowing at factory farms—may violate the First Amendment and the Equal Protection Clause of the U.S. Constitution.

    Big Ag is now officially on notice that these laws are constitutionally suspect.

    Proponents of Ag-Gag laws—currently on the books in 16 states—vigorously defend them against First Amendment challenge on the ground that they are merely “content neutral” efforts to protect factory farms from trespassers. The court in our case did not mince words in dismissing this argument: “it is a fallacy to suggest, as the State does, that the misrepresentation provisions prohibit only conduct and not speech.” 

  • September 3, 2014
    Guest Post

    by Jeff ClementsThe writer is the Co-Founder and Board Chair of Free Speech For People and the author of the 2014 updated and expanded edition of Corporations Are Not People: Reclaiming Democracy From Big Money and Global Corporations)

    In the November 2012 election, the same Montana voters who gave the State’s presidential electoral votes to Republican Mitt Romney by a wide margin also approved a ballot initiative that called for a Constitutional amendment to overturn Citizens United v. Federal Election Commission. Challenging the twin propositions on which that 5-4 decision precariously rests, the ballot question declared the policy of Montana as follows:

    (1)  Political spending may be regulated in order to defend the integrity of elections, prevent corruption, and to defend the political equality of all Americans; and

    (2)  corporations do not have the Constitutional rights of human beings but rather have the rights and obligations of state corporation laws. 

    Montana voters passed the ballot initiative by 75-25%, making Montana the 16th state to call for the 28th Amendment. 

    Some were surprised by the overwhelming margin. Clearly, many Montana conservatives and Republicans joined Democrats, progressives and independents in supporting the ballot initiative and the overturning of Citizens United. The landslide margin, however, followed similar results in virtually every region of the country when Americans have had a chance to vote on the question of Citizens United (as they did in Colorado and in hundreds of cities and towns that have enacted Constitutional amendment resolutions.)  Indeed, conservative opposition to special Constitutional rights for corporations and the protection of political privilege for an elite of large donors is not new. It is rooted in the traditional American concern about concentrations of power corrupting republican government.

  • April 4, 2014
    Guest Post
    by Georgina Yeomans, 2L, Columbia Law School
     
    I am very concerned about the Court’s decision in McCutcheon v. FEC, though perhaps not for the reasons you’d think. I will leave it to others to be concerned that the Court is moving toward a system in which the richest among us have significantly louder political speech than the rest of the country; I won’t even lament the irony of the Chief Justice’s opening line acknowledging that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders,” when juxtaposed with the Shelby County opinion from last term. I won’t comment, as Ari Berman eloquently has in The Nation, on the Court’s disturbing trend toward “More Money, Less Voting.” My concern right now is more selfish—I’m concerned because I’m a second year law student, exams are a few weeks away, and the Chief Justice has fundamentally confounded my understanding of stare decisis.
     
    In McCutcheon, the Court struck down aggregate spending limits imposed by the Federal Election Campaign Act (FECA). This is a conclusion that would seem to require overruling the Court’s decision in Buckley v. Valeo upholding that very same provision. And yet the Court did not go through the “prudential and pragmatic considerations” announced in Planned Parenthood of Southeastern Pennsylvania v. Casey, when deciding whether to overrule precedent. In Casey, in which the Court refused to overturn Roe v. Wade, the Court stressed the importance of precedent in our Constitutional system: “Indeed, the very concept of the rule of law under our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.” And yet we see none of this respect for continuity or the rule of law in the Chief Justice’s decision to override the aggregate limit holding in Buckley.
     
    Instead, the Court notes that Buckley’s holding on the issue was only three sentences long, was not “‘separately addressed at length by the parties,’” and thus “does not control here.” The Chief Justice points to two other cases in which the Court has not felt bound by what the Chief basically characterizes as sloppy decision-making: Toucey v. New York Life Ins. Co and Hohn v. United States. Yet both of those cases dealt with procedural issues that the Court stressed did not alter primary conduct—a situation thought by some to carry less precedential weight. McCutcheon’s invalidation of aggregate political contribution limits will undoubtedly alter primary conduct and thus deserves more precedential respect.
     
  • April 4, 2014
    Guest Post
     
    Goldfish have a reputation for short memories. Once around the bowl and the goldfish forgets where he has been. The Supreme Court is behaving like goldfish when it comes to campaign finance law. Not only are they forgetting precedent from decades ago, they can’t even recall cases from the beginning of the Roberts Court—a mere eight years ago.
     
    On Wednesday, April 2, the Supreme Court in McCutcheon v. FEC ruled 5-4 (natch, since all big campaign finance cases of late are 5-4) that federal aggregate contribution limits are unconstitutional. This trashes the current limit of $123,200 and replaces it with a figure north of $3 million every two years for the very well-heeled, who can afford such extravagant sums.
     
    To get this result in McCutcheon, the Supreme Court overruled part of the seminal Buckley v. Valeo case from 1976 for the first time. Buckley has been at issue in many cases including one from first term of the Roberts Court called Randall v. Sorrell. You can be forgiven if you’ve never heard of this particular case. Randall was a big deal for campaign finance nerds, but it was met with a yawn by the general public as it essentially reaffirmed Buckley from thirty years before.
     
    Randall was a conscious progressive test case of Buckley’s basic structure, which has generated a cottage industry of criticism ever since it was originally decided per curiam in the mid-1970s. Buckley ruled that campaign expenditures could not be limited, but campaign contributions could. This left federal candidates with a bottomless demand for campaign cash and a limited supply. Hence, this case is blamed for the endless treadmill of dialing for dollars for candidates for Congress and the Presidency.