First Amendment or Censorship?

I wanted to address the recent First Amendment case.  I will key off the New York Times reportage, as it will be the most left and ends based, as opposed to means based, which is what the First Amerndment addresses.  I do go over this often, but I think it is necessary to repeat: an ends based basis for laws and rulings leads to tyranny. The Bill of Rights preserves due process - the fair and regulated MEANS.

Our nation is one defined by due process, not ends justifying the means, or it used to mean that.

Here is the argument as proposed by the NYT: 

The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.

The rest of the article is blather.  It is an overt and successful attempt to whip up fear, anger, and whatever among those who have no idea what is going on; that is, they read the New York Times. The NYT and Chuck Schumer don't want any ads that might contradict their positions on state control and socialism.

It is, of course, disingenuous for Mr. Obama to say the big Wall Street banks, this week's enemy, will buy ads for the GOP.  In fact, and it is well known, Wall Street is democratic.  This fact is irrelevant to those who already have control of most media.  The latest relevant poll show something like 92% of "journalists," an archaic term meaning someone who reports on facts as objectively as possible, are liberal. 

As proactive liberals filter information, why let anyone else register an opinion?

The paragraph above is a fair synthesis of the argument:  free speech vs. we don't like what freedom will bring.

What is amazing is that there is even a discussion that follows this analysis. With a straight face people say "Sure, free speech is OK, but there are reasons why it may be something I don't like."  Let you in on a secret, it is called "free" speech.  The article goes on:

The ruling represented a sharp doctrinal shift, [says the NYT] and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. Though the decision does not directly address them, its logic also applies to the labor unions that are often at political odds with big business.

The decision will be felt most immediately in the coming midterm elections, given that it comes just two days after Democrats lost a filibuster-proof majority in the Senate and as popular discontent over government bailouts and corporate bonuses continues to boil.

Doesn't anyone on the Times see what they are saying?  The argument is: Geez, there may be stuff published I don't like. I am assuming there must be legal arguments in the 90 pages dissent, but none are presented here. All we hear about is a dislike for potential ads.

 

From the decision: 

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of the court’s conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Times:

The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.

The 2002 law, usually called McCain-Feingold, banned the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections. The law, as narrowed by a 2007 Supreme Court decision, applied to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

 This case is certainly one worth reading on a long ocean voyage there being 180 pages of which Justice Stevens dissented to the tune of 90 pages. Of course, these days, one can offer opinions and vote on things not even read, but at least, here, we take a look at what one side (The NYT)  is saying.


Of note:

Eight of the justices did agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements, at least in the absence of proof of threats or reprisals. “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way,” Justice Kennedy wrote. Justice Clarence Thomas dissented on this point.

The majority opinion did not disturb bans on direct contributions to candidates, but the two sides disagreed about whether independent expenditures came close to amounting to the same thing. “The difference between selling a vote and selling access is a matter of degree, not kind,” Justice Stevens wrote. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.”  {The left has this interesting view - if an elected Congressman is corrupt, it is not his fault for making a corrupt vote - its the system that allowed him to be tempted.}

Justice Kennedy responded that “by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

...The majority cited a score of decisions recognizing the First Amendment rights of corporations, and Justice Stevens acknowledged that “we have long since held that corporations are covered by the First Amendment.”  {But, so what, we don't like the possible results of freedome.}

But Justice Stevens defended the restrictions struck down on Thursday as modest and sensible. Even before the decision, he said, corporations could act through their political action committees or outside the specified time windows.{If there is no problem here, why resist this decision?}

Please understand what Justice Stevens is saying - I don't like what could happen.
 

This sort of determination is NOT the role of a traditional judge.  Now, "activists" judges disagree and do whatever they want. An activist judge will not say:  "Well, I really like X, but I have to rule against it because the Constitution restricts it." No, they say times change and the Constitution has to grow.

There was hoopla about The McCain-Feingold law that contained an exception for broadcast news reports, commentaries and editorials. So, NBC news could say whatever it wanted about a subject, but a corporation that was actually involved in the matter could not.  This is supposed to be fair, I suppose. Bottom line:

Justice Kennedy’s majority opinion said that there was no principled way to distinguish between media corporations and other corporations and that the dissent’s theory would allow Congress to suppress political speech in newspapers, on television news programs, in books and on blogs.

Justice Stevens responded in an odd immaterial observation:

...that people who invest in media corporations know “that media outlets may seek to influence elections.” He added in a footnote that lawmakers might now want to consider requiring corporations to disclose how they intended to spend shareholders’ money or to put such spending to a shareholder vote.

This case is about the First Amendment, not confused notions of intent, spin, or investors.  Is there an argument in favor of  post-natal abortion among the poor because it makes sense to kill children because a large percentage of them will be criminals? Their right to life is secondary to a notion that fewer criminals si a justifiable end?

On its central point, Justice Kennedy’s majority opinion was joined by Chief Justice Roberts and Justices Alito, Thomas and Antonin Scalia. Justice Stevens’s dissent was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.

The crazy, right-wing logic, as traditional judges are called, is: 

“When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” Justice Kennedy wrote. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”