Freedom Line Blog

This is why we do what we do, and why CFIF’s mission is important.

Today, in conjunction with the Hispanic Leadership Fund, CFIF secured a critical victory on behalf of the First Amendment rights to free speech and free association.  In a unanimous decision that arrived just four days following oral argument on the issue, a notably quick turnaround time when rulings typically arrive months later, the United States Court of Appeals for the District of Columbia Circuit reversed, vacated and remanded a recent lower court decision infringing upon the right of the people to engage in protected speech and associate in privacy.  The case was initiated by Representative Chris Van Hollen (D – Maryland), who apparently never internalized the First Amendment’s explicit provision that, “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”

Vindicating the Supreme Court’s Citizens United and Wisconsin Right to Life decisions, the Court of Appeals noted the muddled nature of campaign finance regulations generally:

After reviewing the record with care, we conclude that the District Court erred in holding that Congress spoke plainly when it enacted 2 U.S.C. § 434(f), thus foreclosing any regulatory construction of the statute by the FEC.  The statute is anything but clear, especially when viewed in the light of the Supreme Court’s decisions in Citizens United v. FEC, 558 U.S. 310 (2010), and FEC v. Wis. Right to Life, Inc. (“WRTL II”), 551 U.S. 449 (2007).”

This constitutes an enormous and welcome win for the freedoms of speech and association, one that all who value the First Amendment can celebrate.

From CNS News:

Six months after declaring that all churches in the Arabian peninsula should be destroyed, Saudi Arabia’s top cleric called at the weekend for a global ban on insults targeting all religious “prophets and messengers,” a category that, from a Muslim perspective, includes Jesus Christ.

Saturday’s demand by Saudi grand mufti Sheikh Abdul Aziz Al-Asheikh came on the same day that another of Sunni Islam’s most prominent figures, Egypt’s Al-Azhar University grand imam Ahmed el-Tayyeb, made a similar appeal.

Lest we think this is a phenomenon isolated to the Middle East, let us remember that there is no idiotic attempt to suppress liberty abroad that won’t find a sympathetic ear in our own State Department. Under the Obama Administration, Foggy Bottom has gone out of its way to accommodate the Islamic world’s fervor for anti-blasphemy laws by acceding to sympathetic UN resolutions. This may seem like nothing more than superficial bridge-building, but we know the course these impulses can take in the West, as embodied by the growing trend of aggrieved Muslims attempting to use liberal sensitivity to “hate speech” as a way to exact punishment on their critics from the judicial system.

The islamists’ tactics give the lie to their ideology. On one hand, they want us to believe that they represent a powerful, ascendant culture. On the other, their attempts to forcibly silence their critics betrays a deep and pervasive insecurity.

Great societies disprove their detractors. Weak ones send them to the stocks.

Somewhat lost amid today’s Supreme Court ruling on Arizona’s SB 1070, the Court reinforced First Amendment free speech rights as affirmed in Citizens United v. Federal Election Commission.  In fact, the Court did so without the need for full review, oral argument and exhaustive written briefing.  Demonstrating in this instance that brevity is the soul of sound jurisprudence, the Court in American Tradition Partnership v. Bullock overturned a Montana Supreme Court decision favoring a ban on political speech that flatly contradicted Citizens United.  The single-page majority opinion is notable for its cogency:

A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”  Mont. Code Ann. §13–35–227(1) (2011).  The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment.  2011 MT 328, 363 Mont. 220, 271 P. 3d 1.  In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation.”  558 U. S. ___, ___ (2010) (slip op., at 26) (internal quotation marks omitted).  The question presented in this case is whether the holding of Citizens United applies to the Montana state law.  There can be no serious doubt that it does.  See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

The petition for certiorari is granted. The judgment of the Supreme Court of Montana is reversed.

It is so ordered.”

The First Amendment, the Constitution itself and free speech have been vindicated.

Oh, those champions of free expression on the left. From the Daily Caller:

Three stalwarts of the feminist movement — Gloria Steinem, Jane Fonda and Robin Morgan — have added their voices to the calls to take radio giant Rush Limbaugh off the air.

The co-founders of The Women’s Media Center put pen to paper over the weekend to request that the public complain and urge the Federal Communications Commission to revoke the licenses of stations that carry “The Rush Limbaugh Show.”

…

“This isn’t political. While we disagree with Limbaugh’s politics, what’s at stake is the fallout of a society tolerating toxic, hate-inciting speech,” they wrote. “For 20 years, Limbaugh has hidden behind the First Amendment, or else claimed he’s really ‘doing humor’ or ‘entertainment.’ He is indeed constitutionally entitled to his opinions, but he is not constitutionally entitled to the people’s airways. It’s time for the public to take back our broadcast resources.”

It’s amazing, isn’t it? The left — which see McCarythism around every corner — instinctively turns to government force to squelch the opinions of those they despise. And as for “toxic, hate-inciting speech” … well, Limbaugh wasn’t the one cheering on the Viet Cong, Ms. Fonda.

CFIF’s Renee Giachino discusses the U.S. Supreme Court’s recent decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.  Applauding the decision, which struck down as unconstitutional Arizona’s matching political funds scheme, Giachino says that no one should be coerced to support political candidates with whom he or she disagree.

Along with lying about the size of the budget deficit and imposing a steep rise in the car tax, California Governor Gray Davis did something else to guarantee his historic recall: impose a pay-to-play “donation” schedule on groups wanting to do state business.  Want a permit from the Coastal Commission?  How about a government contract to manage welfare cases?

For Davis & Co. there was only one question: How much did you contribute to my campaign?

Former Federal Elections Commissioner Hans von Spakovsky obtained a draft executive order that would implement the substance of the Disclose Act, a bill promising to chill corporate political speech before it was defeated in Congress last year.

According to von Spakovsky, the proposed executive order claims to “increase transparency and accountability,”

Yet this proposed Executive Order would require government contractors to disclose:

(a) All contributions or expenditures to or on behalf of federal candidates, parties or party committees made by the bidding entity, its directors or officers, or any affiliates or subsidiaries within its control.

(b) Any contributions made to third party entities with the intention or reasonable expectation that parties would use those contributions to make independent expenditures or electioneering communications.

In layman’s terms, that means the federal government wants to know which political groups you’ve been giving money to before it will consider awarding a government contract.

In an editorial today, the Wall Street Journal (subscription required) notes that the order exempts federal employee labor unions and the recipients of federal grants, both dues paying members of the Democratic Party.

At the moment, the Right is deploring the president’s last-ditch effort to silence dissenting political views after losses in the courts, Congress, and the FEC.  (Especially since Obama’s executive order specifically targets only those entities most likely to disagree with him.)

However, the Left should be leery of this latest version of gangster government.   There’s only a hair’s breadth of difference between punishing “bad” political expenditures, and demanding “good” ones.  As the deposed Gray Davis showed in California, a government nosy enough to punish its enemies, is a government powerful enough to tax its friends.

Looking for an upside to the prospect of a shutdown of the federal government? This gem from the Daily Caller’s Chris Moody ought to do it:

Fast fact: It is illegal to deliver the Gettysburg Address on the steps of the Lincoln Memorial without permission from the U.S. National Park Service.

On President’s Day — standing where the Rev. Martin Luther King Jr. delivered his “I Have a Dream Speech” — Phillip Howell, 25, recited Lincoln’s famous address and was quickly stopped by a Park Police officer. He told Howell that he could not give speeches on the steps of the memorial without a permit.

“He called me Abe, and then I turned around and he said, ‘Do you have a permit?’ I said ‘no’ and he said, ‘well you can’t do that here then,’” Howell told The Daily Caller. “Then I said, ‘I’m just giving the Gettysburg Address, come on, it’s President’s Day.’ And he said, ‘I don’t care what you’re giving, You’re not allowed to do that here. I don’t care what speech or what agenda you want to give.’”

Amid the flurry of inanity brought upon this nation by Barack Obama, Nancy Pelosi and Harry Reid, it is important to stop and smell the roses of triumph.  One arrived today when the Senate blocked, at least for now, the DISCLOSE Act. 

That act would violate the First Amendment rights of free speech and free association in its attempt to reverse the Supreme Court’s correct Citizens United v. FEC decision, while effectively exempting politically powerful labor unions.   Obama, Pelosi and Reid will surely follow with their usual bromides about “the people versus the powerful,” but the fact is that the DISCLOSE Act is nothing more than a scheme to enable the powerful, namely partisan Big Labor, at the expense of everyday citizens.  It’s a welcome victory for free speech and freedom of association, and a stinging defeat for an Obama Administration that manages to pioneer new realms of cynical partisanship on a daily basis.

House Democrats are planning to force a vote TODAY on H.R. 5175, the so-called DISCLOSE Act.  CFIF is asking its activists — and all Americans — to call their Representatives in Congress now to demand they vote “No” on this assault on the First Amendment.

Billed by proponents as a response to the U.S. Supreme Court’s decision in Citizens United, the DISCLOSE Act is nothing more than another attempt by career politicians to silence their critics during elections.  Specifically, the legislation seeks to subject small non-profit organizations like CFIF and others to burdensome and expensive disclosure requirements that will make it virtually impossible to speak out on important public policy issues at times when it is most important to do so – in the months leading up to elections.
 
Alarmingly, the DISCLOSE Act exempts labor unions and other large powerful organizations.  In other words, Congress wants to arbitrarily preserve the free speech and association rights of a handful of politically-favored interests, while at the same time muzzle the voices of smaller groups of Americans, including Tea Party groups.

Such a flagrant assault on the First Amendment must be stopped.  Remember, a vote on the DISCLOSE Act in the House of Representatives is expected to take place today.  

Call your Representative in Congress and urge him or her to vote “No” on H.R. 5175, the DISCLOSE Act.  To find your representative’s contact information, click here.

… comes courtesy of the Heartland Institute’s Ross Kaminsky over at Human Events.

In a piece with the wonderfully direct title “Can Kagan be Trusted to Defend the Constitution?”, Kaminsky takes the would-be justice to town on her record as Solicitor General and as a legal academic.

The whole piece is worth reading (especially for two extended quotes in which Chief Justice Roberts excoriates Kagan’s legal reasoning from the bench). But what may be most provocative is this little nugget:

Kagan’s hostility toward the plain meaning of the 1st Amendment is nothing new. In a 1996 paper (PDF) for the University of Chicago Law Review (she was a professor at the University of Chicago at the same time that Barack Obama was a lecturer there), Kagan suggested that the government’s motives in restricting speech should be important factors in whether those restrictions are upheld by a court. She wonders aloud, in eye-opening Socialist language “what view of the 1st Amendment accounts for the court’s refusal to allow, by means of restrictions, the redistribution of expression?”

You read that right; she said “redistribution of expression.”

She continues: “The question remains, however, why the court should treat as especially suspicious content-neutral regulations of speech—such as the regulations in Buckley—that are justified in terms of achieving diversity.” You can already hear her ruling in a sure-to-come challenge to the re-imposition of the Fairness Doctrine meant to muzzle talk-radio conservatives in the guise of increasing “diversity of opinion”.

Similar to her argument in Stevens which implies a government arbiter of speech, Kagan makes this remarkable statement in her paper: “If there is an ‘overabundance’ of an idea in the absence of direct governmental action—which there well might be when compared with some ideal state of public debate—then action disfavoring that idea might ‘unskew,’ rather than skew, public discourse.”

Be afraid, America. Be very afraid.

The Obama Administration continues its bizarre behavior in selecting targets for its wrath.

For reasons unknown, the Administration has ostentatiously and histrionically escalated its condemnation of Israel, our most loyal Middle East ally.  Why?  Merely because Israel announced preliminary approval (the fourth stage of a seven-stage bureaucratic planning process) to build housing units within its own municipal boundaries in Jerusalem.  Meanwhile, as The Wall Street Journal reminds us, the Obama Administration continues to treat such anti-American rogues as Libya, Iran, Venezuela and Syria with kid gloves.

Then yesterday, chief White House heavy David Axelrod characterized our First Amendment free speech and petition rights as “a threat to our democracy.” The First Amendment explicitly states that “Congress shall make no law … abridging the freedom of speech … or of the right of the people … to petition the Government for redress of grievances.”  Despite those protections, federal laws like McCain/Feingold literally prohibited, under penalty of imprisonment, political speech within 30 and 60 days of an election.  Fortunately, the United States Supreme Court struck a blow for First Amendment rights in January by overturning some of those restrictions in Citizens United v. FEC.

The Founding Fathers would not have taken kindly to McCain/Feingold’s unconstitutional restrictions on free speech and the right to petition Congress.  To them, abridgment of free speech was a threat to democracy.  In contrast, that towering intellectual and philosophical sage David Axelrod considers free speech itself “a threat to our democracy.”

Or at least that’s the conclusion one can take away from a recent New York Times article examining campaign finance reform laws across the globe.

The Times reported:

“There is no evidence that stricter campaign finance rules reduce corruption or raise positive assessments of government,” said Kenneth Mayer, a professor of political science at the University of Wisconsin-Madison.  “It seems like such an obvious relationship but it has proven impossible to prove.”

The article also notes that Australia imposes no restrictions on the amount of money corporations and individuals can give, yet Australia is hardly a failed state.  In fact, according to the Heritage Foundation, Australians enjoy more economic freedom than Americans.

If the First Amendment doesn’t support opponents of free speech and neither does social science research, where else will they turn? Olbermann?

Yesterday’s United States Supreme Court decision in Citizens United v. Federal Election Commission was a welcome victory for free speech and the First Amendment.

By overturning byzantine prohibitions against the very type of fundamental electioneering speech most valued by our Founding Fathers when they drafted the First Amendment itself, the Court reclaimed enormous territory in freedom’s war against incumbent-protecting censorship.

While welcome, however, the decision also carries political implications about which conservatives must remain alert.  Liberals, predictably, hysterically focus upon the sinister prospect of free speech for those big, bad, evil corporations that actually employ people and produce things.  For instance, resident MSNBC village idiot Keith Olbermann rendered himself not only the world’s worst person, but also the most idiotic, when he suggested the decision was even worse than the infamous Dred Scott slavery decision of 1857.

But apart from the Olbermann crowd’s inanity, one negative prospect is Big Labor’s new ability to engage in direct electioneering communications.

Don’t get us wrong – union bosses should be just as free as other groups to exercise their free speech rights, so long as the dollars used to fund that speech aren’t forcibly wrenched from reluctant members’ wages.  As long as Big Labor isn’t afforded particularized protected status, fair is fair.

Nevertheless, expect new union efforts to not only flood the airwaves, but also to increase the amount of members’ dues used to fund those efforts, as well as even more pressure to enact legislative agenda items.  In particular, we can anticipate all new efforts to enact card-check, which would literally eliminate the secret ballot in union elections, and empower federal bureaucrats to dictate wages and working conditions via mandatory arbitration. In 2008 alone, two unions (the American Federation of State, County and Municipal Employees and the infamous Service Employees International Union) spent $58 million of their hard-working members’ wages on political campaigns.

They’ll only scheme to increase that amount now.

Card-check legislation appeared all but dead, but this device to increase Big Labor’s membership rolls, and consequently the amount of money it can spend electing liberals across the country, will receive even more push now.

We applaud the Supreme Court’s decision, but we conservatives must remain wary of Big Labor’s upcoming campaign.

If there were any lingering questions about this Administration’s stance on free speech, all doubt was removed last night when the White House issued this response:

“With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

Right.  When did censorship become as popular as organic foods in this country?  Mr. President, you also failed to mention that this decision will be a huge boon for unions, major contributors to your campaign and the Democratic Party.  Citizens United is a victory for both the left and the right, a victory for anyone who is opposed to jailing someone over broadcasting a political position.

This Administration claims to be “liberal,” yet it also took the position that banning books that contained one line of advocacy was a felony.  What would have happened if McCain-Feingold were around in the 18th Century when the Federalist Papers were being printed with small business paper?  Locking people up for political speech is as American as burning books or jailing political enemies.  Why stop now, Mr. President?

The end of the world is still far off in the distance.  As former Federal Election Commission Chairman Bradley A. Smith mentioned today, 28 states already allow corporate and “special interest” spending.  States like Oregon, Virginia and Utah are hardly known as bastions for corrupt political activity, even though they allow corporations to take a stance when issues are debated in the public circle.

Harsh critics of Free Speech claim that because corporations don’t vote that they shouldn’t be afforded basic First Amendment protections.  So, if the First Amendment doesn’t apply to corporations, perhaps they shouldn’t pay taxes?

The Supreme Court has already held that the Constitution, in most parts, applies to corporate entities.  Is the First Amendment inapplicable when the actor grows richer?  What about the Takings Clause in the Fifth Amendment?  Should corporations and other for-profit entities be denied due process of the law simply because they don’t vote?  I’m sure politicians would approve of that but thankfully they haven’t overturned the Fifth Amendment … yet.

Lacking voting rights is an argument for this decision, not against it.  Corporations and non-profits lack the right to vote and can’t even contribute directly to political parties unless they choose to form expensive political action committees (PAC).  Independent expenditures are one of the few ways businesses can influence legislation that has a direct impact on their existence.

Let’s also remember that 99% of corporations in the U.S. aren’t rich or powerful.  The language in McCain-Feingold was woefully overbroad and applied to every entity from General Electric to your local florist.

Americans should be rejoicing because the Administration and most politicians hate this decision.  That’s wonderful. Anything that upsets career politicians is normally good for the rest of the country.   Then again, Congress should be happy; their enemies are no longer hidden behind the veil of those evil 527 groups.

With the blackballing of Fox News, his appointment of Justice Sotomayor, who voted against free speech, and his response to Citizens United, President Obama has made clear what many suspected years ago.  The President is not a fan of free speech, that is unless he’s breaking campaign promises and drowning out his opponent with over $700 million in union-funded spending.  As much as his speech might have been repulsive to some, President Obama had every right to spend money spreading his views.

Maybe it’s not free speech to which the President is opposed; maybe it’s just a little healthy competition.

Rather than trudge through the entire 183-page decision in Citizens United, here are a few choice passages from the opinion. Enjoy.

As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate.

In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary) critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections. It feared, however, that both the film and the ads would be covered by §441b’s ban on corporate funded independent expenditures, thus subjecting the corporation to civil and criminal penalties under §437g.

There are short timeframes in which speech can have influence. The need or relevance of the speech will often first be apparent at this stage in the campaign. The decision to speak is made in the heat of political campaigns, when speakers react to messages conveyed by others. A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit.

In McConnell v. Federal Election Comm’n, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce, that political speech may be banned based on the speaker’s corporate identity. Austin “uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court’s] history.” There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a specific candidate. Michigan law, however, prohibited corporate independent expenditures that supported or opposed any candidate for state office.

Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures.

The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form.

Austin interferes with the “open marketplace”of ideas protected by the First Amendment. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations.

Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers.

The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.

The long-awaited case of Citizens United v. FEC was decided today and defenders of the First Amendment received a welcome surprise.

The Court sided with Citizens United and gave another blow to McCain-Feingold’s onerous campaign finance restrictions.

Click here for the full opinion. 

The decision was 5-4, with Kennedy, Thomas, Scalia, Alito and Roberts siding with the First Amendment.  The newest justice, Sotomayor, joined with Stevens, Breyer and Ginsburg in dissent.

Here is how the Court broke down the opinion:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.

Today, the U.S. Supreme Court resumes its 2009-2010 term with a round of two oral arguments.  Though the two cases that pit Alabama v. North Carolina and Briscoe v. Virginia have national legal implications, court watchers are eagerly awaiting other consequential decisions this term.

The fate of the First Amendment and campaign finance reform could be decided as early as tomorrow in Citizens United v. FEC.  The justices reargued the case on September 9, 2009, but the Court has yet to report a decision.  With federal primary elections less than a month away, candidates and First Amendment lawyers seek guidance from the Court as soon as possible.

The best case scenario would be a broad sweeping opinion striking down many of McCain-Feingold’s onerous First Amendment restrictions.

In addition, the spring term ushers in a new round of retirement speculation.  Justice John Paul Stevens is the oldest member of the Court, 89, and has not hired his full slate of clerks for the next Supreme Court term.

This article also mentioned the possible retirement of Justice Antonin Scalia.  Any vacancy would cause political wrangling in the Senate but a Scalia departure, coupled with President Obama’s liberal record on judges, would result in a judicial and political Armageddon unseen since the days of Judge Robert Bork.

Whatever occurs during the conclusion of this Supreme Court term will surely have major implications for individual rights and the future of our Constitution.