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January 24, 2010

Two More Observations On The Citizens United Decision

For all of those wailing and gnashing their teeth over the Citizens United case upholding the First Amendment and striking down a number of provisions of our nation's campaign finance laws as unconstitutional, I'd like to suggest that you consider reading the opinion of the court written by Justice Kennedy. Take, for example, the sort of things that Justice Kennedy notes are allowed under the law that was struck down.

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations — including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

If that does not cause folks to stop and think, nothing will. Does anyone really believe that it is within the power of government to criminally punish the creation of books, movies, television shows, advertisements, flyers, and websites that communicate a political message? Does anyone really believe that government ought to be allowed to not merely censor such speech, but also jail or fine those engaged in it?

If you do, then I suggest to you that you engage in a little bit of political speech yourself, urging a Constitutional Amendment so as to overrule the decision in Citizens United and create a constitutional order more in keeping with your stunted view of liberty. Might I suggest the following text as a starting point for your movement?

Section 1 -- Unfettered speech and expression, being a danger to the maintenance of the political, social, and economic status quo, may be regulated and/or banned in any manner deemed appropriate by the Legislative and Executive branches of the Federal Government and by the several states and their political subdivisions.

Section 2 -- The First Amendment of the United States Constitution is hereby repealed, and all constitutional protections of freedom of speech, press, assembly and religion are hereby eliminated.

I recognize that such a proposal may seem radical, but it is the natural extension of any philosophy that takes a clear statement indicating that government "shall make no law" abridging certain rights and interprets it as allowing for the passage of laws that allow for precisely such abridgments.

Oh, and I'd like to point out for those who find something nefarious in Justice Kennedy's opinion that today's Washington Post notes that Kennedy has long been a justice who adheres to a philosophy that attempts to provide the maximum amount of liberty possible. While certainly no libertarian, Kennedy has been consistently moving towards this sort of holding on the extent of the First Amendment for years.





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NAME: Greg
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