Speech and expression

  • March 2, 2011
    The over-the-top anti-gay group called the Westboro Baptist Church convinced a majority of the U.S. Supreme Court that its speech aimed at tarring gays, Jews, Catholics and American soldiers is protected by the First Amendment.

    In an 8-1 opinion issued this morning, the high court led by Chief Justice John Roberts found that the content of Westboro's speech "plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern.'"

    For decades Fred Phelps and his tiny Kansas-based church, made up largely of his relatives, have traveled the country initially targeting the funerals of persons who had died of AIDS with signs reading "God Hates Fags." Eventually after antiviral drugs helped, in this country, to lessen the number of AIDS-related deaths, Phelps and his family turned to protesting funerals of soldiers, and with two American wars, the opportunities to amplify their vitriol again increased. According to its website "godhatesfags.com," Phelps and his family picket funerals of soldiers as part of a campaign attacking America for allegedly being tolerant of gays. Beyond posting invective on its web site, the small group travels the country to hoist signs at soldiers' funerals reading "God Hates the USA," and "Semper fi fags." When Phelps and his family brought their act to a Maryland funeral of Marine Lance Corporal Matthew Snyder, his father, Albert lodged a lawsuit against the group and won a jury verdict of $2.9 million in compensatory damages and $8 million in punitive damages. The jury verdict was overturned by an appeals court, citing First Amendment protection for Phelps.

    Writing for the majority in Snyder v. Phelps, Roberts said the content of Westboro's messages "may fall short of refined social or political commentary, the issues they highlight - the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy - are matters of public import," and ultimately protected by the First Amendment. "Such speech," Roberts wrote, "cannot be restricted simply because it is upsetting or arouses contempt."

    Justice Samuel Alito was the only member to dissent. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he wrote.

    Alito continued that Phelps' band has a freedom to "write and distribute books, articles, and other texts," and disseminate its commentary in other public ways, such as posting its commentary on its web site.

    "It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate," Alito said.

    Alito also questioned the majority's conclusion that the Phelps outfit was engaging in speech of public concern. He wrote that evidence showed that the group went "far beyond matters of public concern," and "specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, and this attack was not speech on a matter of public concern."

    Tom Goldstein, founder of SCOTUSblog provides some initial reaction to the opinion, noting:

    The Court left undecided two important issues that it concluded were not squarely presented. First, recognized that the government may regulate the "time, place, and manner" of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held. The Court did not decide the constitutionality of that statute or other similar federal and state laws. The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals' decision, did not call such statutes into question.

    Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website. But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing. The Court was therefore able to limit its decision strictly to the context of funeral protests.

  • January 31, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Daniel JH Greenwood, is a professor at Hofstra University School of Law, where he researches corporate governance and the role of corporations in our economy and democracy. He co-authored an amicus brief in Citizens United on behalf of the American Independent Business Alliance.
    A year later, Citizens United still looks like the modern Lochner v. New York. This case may well come to symbolize the Court's contribution to our modern Gilded Age and its destruction of the foundations of prosperity and democracy.

    Lochner symbolizes the Old Court's turning the Civil War Amendments on their heads. The Fourteenth Amendment promised African-Americans, and indeed all Americans, the rights of citizenship, equal protection and due process of law. The Court, instead, ruled that American citizens had fought the Civil War in order to forfeit our right to use democratic government to protect ourselves against the arbitrary power of "malefactors of great wealth."

    The Gilded Age's concentration of power and wealth in the hands of a few, symbolized and furthered by Lochner's rejection of basic American values, led straight to the Great Depression. Neither democracy nor market capitalism can long survive if entrenched economic power is permitted to set the rules of competition so that it always wins. When ordinary Americans lacked the power to demand wages high enough to buy the products and services they produced, the resulting shortage of demand nearly destroyed the system.

    Today, we are again in a crisis caused by a similarly radical upward shift of power and wealth. In sector after sector, economic incumbents have amassed enough power to be able to shift the rules in their own favor. We have raised CEO and banker pay, at the direct cost of ordinary employee wages, to the point where our major firms increasingly resemble the world's kleptocracies. The wonder is not that so many have collapsed, Enron-style, into complete corruption or, dot.com and housing-style, into utter incompetence and misallocation, but that so many manage to last so long, emulating the Soviet and Third World autocracies in their fantastically wealthy elites and long slow slides into collective failure.

  • January 25, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC. The author, Joseph Sandler, is a member of the firm Sandler, Reiff & Young P.C. and an election law expert. Sandler participated in an ACS panel discussion and ACSblog video interview about the decision last February.
    From the vantage point of its one-year anniversary, the biggest surprise about the Citizens United decision was not the decision itself nor its consequences for the 2010 campaign. Rather, it was the successful effort by Republican and conservative forces to keep secret the sources of much of the independent expenditures made possible by that decision.

  • January 25, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC. The author, Elizabeth B. Wydra, is chief counsel for the Constitutional Accountability Center. CAC filed an amicus brief in Citizens United with the League of Women Voters.
    It has been just over a year since a 5-4 majority of the Supreme Court ruled in Citizens United v. Federal Election Commission that corporations have a constitutional right to spend unlimited amounts of money from their general treasuries to influence our Nation's elections. With President Obama scheduled to give his State of the Union address tonight, it is also, of course, one year since the President spoke out against the Citizens United decision (and in return got the infamous headshake from Justice Samuel Alito).

    The American people were with Obama last year, and it appears that, a year later, the American people still agree with the President's denunciation of Citizens United. According to a new poll, "[f]ully 79% of voters support passage of a Constitutional amendment to overturn the Supreme Court's decision in the Citizens United case and make clear that corporations do not have the same rights as people." The problem of corporate money in the political system was made far worse by Citizens United, to be sure, and "We the People" might indeed need to amend the Constitution to right the wrongs wrought by the Supreme Court's decision. But the fundamental problem of Citizens United - the idea that artificial corporate entities enjoy the same constitutional rights that living, breathing human beings do - doesn't come from a defect in the Constitution that requires a correction. It stems instead from the Court's conservative majority's fundamentally flawed view of the Constitution and corporate personhood.

    As detailed in a Constitutional Accountability Center report entitled "A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law," Citizens United and its view of corporate rights cannot be squared with the Constitution's text and history or with Court precedent.

  • January 21, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Paul S. Ryan, is FEC Program Director and Associate Legal Counsel at The Campaign Legal Center.
    One year ago, Justice Kennedy wrote in Citizens United, on behalf of eight of the Court's nine Justices: "A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today." Nor, sadly, did it exist after that day.

    Justice Kennedy offered these words as solace to those who feared the consequences of the Court's decision to unleash of millions of corporate dollars into our political process. He continued: "The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

    Justice Kennedy claimed to be striking a balance. Corporations get unrestrained political speech, while the electorate gets effective disclosure of who is behind that speech.

    Unfortunately, the electorate got the short end of the stick. Corporations spent unknown millions in 2010 elections, but the "campaign finance system that pairs corporate independent expenditures with effective disclosure" simply does not exist.

    Though Congress, through the enactment of the Bipartisan Campaign Reform Act of 2002 (BCRA), dramatically improved campaign finance disclosure, the Federal Election Commission (FEC) has since eviscerated the law.