WASHINGTON: SUPREME COURT DECIDES IT'S OK TO SAY STUFF--OR MCCAIN/FEINGOLD TAKES IT IN THE SHORTS
It won't last long, but I'm starting to feel better about the chief justice:
"2. Because WRTL's ads are not express advocacy or its functional equivalent, and because appellants identify no interest sufficiently compelling to justify burdening WRTL's speech, BCRA §203 is unconstitutional as applied to the ads. The section can be constitutionally applied only if it is narrowly tailored to further a compelling interest. E.g., McConnell, supra, at 205. None of the interests that might justify regulating WRTL's ads are sufficiently compelling. Although the Court has long recognized "the governmental interest in preventing corruption and the appearance of corruption" in election campaigns, Buckley, 424 U. S., at 45, it has invoked this interest as a reason for upholding contribution limits, id., at 26-27, and suggested that it might also justify limits on electioneering expenditures posing the same dangers as large contributions, id., at 45. McConnell arguably applied this interest to ads that were the "functional equivalent" of express advocacy. See 540 U. S., at 204-206. But to justify regulation of WRTL's ads, this interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy. Issue ads like WRTL's are not equivalent to contributions, and the corruption interest cannot justify regulating them. A second possible compelling interest lies in addressing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 660. McConnell held that this interest justifies regulating the "functional equivalent" of campaign speech, 540 U. S., at 205-206. This interest cannot be extended further to apply to genuine issue ads like WRTL's, see, e.g., id., at 206, n. 88, because doing so would call into question this Court's holdings that the corporate identity of a speaker does not strip corporations of all free speech rights. WRTL I reinforced the validity of this point by holding §203 susceptible to as-applied challenges. 546 U. S., at 411-412. Pp. 23-28."
For those of you scoring at home, WTRL = "Wisconsin Right To Life" but business organizations, unions and the ACLU joined hands in submitting briefs supporting this outcome. Guess folks actually sort of like being able to say stuff.
posted by UMRBlog @ 16:42
20 comments
20 Comments:
Justices Roberts and Alito truly cover a multitude of (Bush's) sins.
Maybe but they have mighty small shoes to fill.
TYFCB
The decision doesn't go as far as I would like, but it's a meaningful step in the right direction. And while I think Scalia has the better of the argument with Roberts, and wish his concurring opinion (overturning the 30/60 day ban in its entirety) had commanded a majority of the Court, this is a victory for the First Amendment nonetheless. We know for sure that there will be a next case. Justice Alito's one-page concurrence--similar to one he wrote in Randall v. Sorrell--practically begs for the next case and, presumably, the opportunity to strike down the law on its face.
For over thirty years, incumbent politicians have been building a wall of campaign finance regulations around Washington in an effort to shield themselves from the brickbats of their political opponents; and in this effort they have been supported by left-wing academics and groups who will not see their sources of political influence limited by the restrictions they would put on the rest of us. This morning's decision, like last year's decision in Randall, is a positive step towards dismantling a portion of that wall.
Now if Ginsburg and Stevens will retire, we can really correct the assinine rulings of the last 50 years.
I would love to be a fly on the wall at McCain HQ today. Things haven’t been going well for him in the campaign because of the Amnesty bill, and now the big story is going to be one of the other main reasons conservatives can’t stand him.
Bong Hits for Jesus man bong hits for Jesus
Ah, yes. As you probably know I've written often that speech and money are the same thing and limiting either is noxious and undemocratic.
But Roberts exercised the proper and customary judicial restraint. The court's only supposed to decide the case before it and that's what he did.
(They did get the silly, little bong hits case wrong, though.)
Currently, free speech is under attack as, perhaps, never before in our history. McCain-Feingold has been chipped away at, but persists. Worse, over the next year, we are likely to see an effort by the Democrats to put talk radio out of business. The next few Supreme Court appointments may be crucial to ensuring that the First Amendment does not become the exclusive preserve of pornographers, nude dancers, and "mainstream" news outlets like the New York Times and the Washington Post.
What did you think of Souter's dissent?
“After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention,”
"corrosive" is an opinion and not a legal term of art. Speech is speech and Souter is wrong on this one.
Evil Unions and evil corporations...kind of a tiresome justification for limiting one of our most treasured rights, no?
Look at our judicial races in Illinois...a lot of noxious crap...but never for one minute did I think either side should be muzzled. That is the slipperiest of slopes.
How do you feel about reviving the Fairness Doctrine?
Apologies for not taking that up earlier in this thread.
First, the thing that has it on our minds is a little bit unfair. Boxer was talking to a colleague on the way to the anteroom. She had every right to expect she was under the cloakroom privilege. She was just thinking out loud. It's not like she had a piece of legislation all doped out.
Equal Time, for a licensee, as interpreted in current law does not set my hair on fire.
Mandating offsetting program whether it's commercially successful or not is just a form of eminent domain. Moreover, it chills the exercise of free speech in way that can't be accomplished in any other fashion, because it's being done by a governmental monopoly.
So the idea that there are too many conservative shows and not enough liberal shows is something to be addressed (or not) in the market place, not in the regulatory sphere. Any time speech is to be regulated or chilled there should be a compelling (not just legitimate) state interest and a clear showing (burden on the government) of no less onerous alternative.
I'm only one click off "No Law Means No Law"
Speech and money are the same thing? Speech is something that everyone outside of the disabled have - we don't all have money. I guess you could consider the poor disabled. The philosophy you support has created the mess we are in today - what is the approval rating of the Congress by the way? A small group controls large portions of the money - they might as well control the government too.
Why do you suppose Durbin supports reviving the Fairness Doctrine?
Rob,
A citizen has the right to use the fruits of his labor to express himself--his time, energy and creativity. The money is simply a way of storing these things up for free use later.
To focus on the less endowed with wealth is to avoid the point. Those with similar views can bond together to be powerful--Labor organizations and AARP are examples.
The remedy for "bad" speech is not restricted speech. It is more "good" speech.
Always, TYFCB
I do not have a great deal of money to donate to express myself. I do have a 25-cent off gas purchase at County Market though - I could donate that, every little bit helps. I feel like the Little Drummer Boy of campaign contributions - too bad Jesus isn't running in 2008.
No comment on Durbin's position?
1645,
If you cannot infer that I disagree with Senator Durbin from my 1018 comment, I really do not know what I can add to help you.
You really don't need me to tell you why, politically, he did that, do you?
TYFCB
I assume you meant 0445.
He does that alot doesn't he? No principle. Both sides do it, he is one of the worst.
Ah, yes, I have trouble telling my A's from my P's. Must be Phonics training--no, wait! That's a city in Arizona isn't it? I get these terrible headaches.......
You know who you are.
I'll talk about the principle thing later. I take your point.
TYFCB
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