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Monday, April 7, 2014

A sharply divided U.S. Supreme Court recently invalidated another campaign-finance restriction on First Amendment grounds in McCutcheon v. FEC.

Eight of the nine justices evaluated the case under the Courts seminal decision, Buckley v. Valeo (1976). Justice Clarence Thomas, however, once again reiterated his strongly held views that Buckley was wrongly decided.

For the sixth time, Thomas wrote an opinion calling into question the viability of the Buckley decision, which drew a distinction between political contributions and political spending. Thomas views Buckley as unnecessarily restricting the right of the people and others to make political contributions.

In his concurring opinion in McCutcheon, Thomas pulls no punches, writing that the Buckley decision denigrates core First Amendment speech and should be overruled. He believes that the late Chief Justice Warren Burger was correct years ago in his separate opinion in Buckley when he reasoned that political contributions and expenditures were two sides of the same First Amendment coin.

Thomas fervently asserts that when an individual or corporation contributes money to a political candidate or campaign, that individual or entity is saying, I support this political candidate. The contributing of money is core political speech, which should receive the highest protection in First Amendment jurisprudence.

Others may criticize Thomas view for ignoring what they see as the corrupting influence of big money in political campaigns. But give Thomas credit for consistency. He has remained constant in his constitutional vision.

It is not unusual for Thomas to advocate the overruling of precedents that he believes are inconsistent with the Constitution. He has argued for the overruling of the Courts leading student-speech case, Tinker v. Des Moines Independent Community School District (1969); the Courts leading commercial-speech test in Central Hudson Gas & Elec. v. Public Service Commn (1980); the Courts prisoner-rights standard in Turner v. Safley (1987) and the incorporation of the establishment clause way back in Everson v. Bd. of Education (1947).

This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment, Thomas writes. Until we undertake that reexamination we remain in a halfway house of our own design.

Clearly, Justice Clarence Thomas continues to advocate his own constitutional design.

See the original post here:
Thomas again calls for overruling of Buckley v. Valeo

Tom Jacksons conservative opinion column is published each Sunday. The Right Stuff blog is updated throughout the week at tbo.com/tomjackson/

Politics, rude, rollicking and messy by nature, is likely to get even more so in the aftermath of the U.S. Supreme Courts decision this week that eliminates caps on the aggregate amount of money individuals can donate to candidates and political parties. I know, hell, hand basket, etc. Easy there.

The ruling also left in place (over Justice Clarence Thomas energetic dissent) perfectly arbitrary limits on how much candidates for federal office can accept from each donor, $2,600 per race; $5,200 per year. One shackle at a time. Rescuing the First Amendment from imprisonment by a jealous political class egged on by a mass-media monopoly is, like defusing an intricately wired bomb or performing neurosurgery, a delicate task.

Still, the eventual outcome a full unraveling of Washingtons decades-long attack on political speech seems inevitable.

Because one is required to support dissemination of the other, the court long ago equated money with speech. That being the case, it was perfectly logical, as well as philosophically appropriate, for the five justices forming the majority in McCutcheon v. Federal Election Commission to rule as they did.

Many legal scholars see McCutcheon as a natural extension of the courts 2010 ruling in the Citizens United case, which scuttled a prohibition against corporations spending money on campaigns after an FEC statute blocked distribution of a documentary about Hillary Clinton. Those who thought Citizens United was properly decided also approve of the McCutcheon verdict, and those who didnt like the first really, really dont like the latter.

The way forward for those horrified by McCutcheon is clear: Draft an amendment to the Constitution. Until thats done and ratified, the glorious, re-emerging original stands with its unequivocal command: Congress shall make no law that compromises the peoples rights to publish, speak, assemble and petition. And within those rights, they should be able to bring whatever qualities, talents, know-how or material well-being they have to the task.

The First Amendment safeguards an individuals right to participate in the public debate through political expression and political association, Chief Justice John Roberts wrote for the majority. When an individual contributes money to a candidate, he exercises both of those rights. A Wall Street Journal editorial elucidates: Restricting how many candidates an individual can support infringes on those rights. Obviously.

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The Right Stuff: Freeing the First Amendment, one shackle at a time

What kind of bizarro world do we live in where a near majority of Justices of the United States Supreme Court criticizes a First Amendment ruling for being overly concerned with the individuals right to engage in political speech? Where these same jurists instead elevate the publics interest in preserving a democratic order in which collective speech matters? Are these four reactionary horsemen who wont countenance anti-war protestors, marches against oppressive laws, and other anti-establishment speech-acts? Or perhaps theyre censorious troglodytes inveighing against flag-burning, nude dancing, and other emotion-riling forms of expression?

It turns out no, that this statist-majoritarian cant is the highest explication of so-called liberal dissent. Weve always been at war with Eurasia (at least until those in charge decree that our eternal enemy is Eastasia), etc.

Rubbish. Just as the government cant limit the number of hours that Oprah broadcasts or issues that The New York Times publishes lest they unduly influence our political system it cant restrict the money that someone wants to spend on campaign donations lest he skew the marketplace of ideas. Heck, Ive been part of enough SCOTUSblog symposia that Im sure glad theres no federal limit on how much analysis someone can provide on a website thats read by all the key opinion-making eyeballs!

Despite the alarming five-to-four split among the Justices, McCutcheon is an easy case if you apply well-settled law (let alone the political-speech-protective first principles upon which this nation was founded): (1) Preventing quid pro quo corruption (or the appearance thereof) is the only valid basis for regulating the finance of political campaigns; (2) restrictions on the total amount an individual may donate to candidates and party committees dont serve that bribery-prevention interest and thus violate the First Amendment; (3) thats it; case closed.

The only surprise here is that the ruling wasnt a unanimous rejection of the governments incredible claim that, somehow, someone who maxes out to nine congressional candidates corrupts the system by giving more than $1,800 to any others. (Or maybe its those nine candidates who are corrupted by the jealous knowledge that theyre no longer unique snowflakes, that their benefactor has Benjamins for literally anyone who agrees with his political positions?I could never fully grasp the logic.)

In any event, Chief Justice Roberts provided the nut of this oh-so-easy-to-crack-case when he called the contribution limits a tax wrote for the majority (which is indeed a majority because Justice Thomas concurred on broader grounds): Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi paradesdespite the profound offense such spectacles causeit surely protects political campaign speech despite popular opposition.

With Justice Thomas, however, I would go beyond that simple point and overrule Buckley v. Valeo altogether because [c]ontributions and expenditures are simply two sides of the same First Amendment coin and the Courts efforts to distinguish the two have produced mere word games rather than any cognizable principle of constitutional law (quoting Chief Justice Burgers partial dissent in Buckley). Justice Thomas would abandon Buckleys framework and replace it with a strict scrutiny test for limits on both contributions and expenditures. Quite so.

Buckley transmogrified the speech-restrictive post-Watergate Federal Election Campaign Act into something no Congress wouldve passed, also inventing legal standards such that one type of political speech has greater First Amendment protection than another.

Nearly twenty years later, the Supreme Court in McConnell v. FEC again rewrote a congressional attempt to reform the rules by which people run for office the Bipartisan Campaign Reform Act, also colloquially known as McCain-Feingold shying away from striking down Buckley and producing a convoluted mish-mash. (The Chief Justice delivered the opinion of the Court with respect to miscellaneous BCRA Title III and IV provisions. . . . Justice Breyer delivered the Courts opinion with respect to BCRA Title V504 . . . . Stevens and OConnor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. . . . [and on and on and on, such that this part of the syllabus explaining who agrees with what jot and tittle is longer than the average Oliver Wendell Holmes opinion].)

Enough! The drip-drip of campaign-finance rulings over the last decade has shown that existing campaign-finance law is as unworkable as it is unconstitutional, serving nobodys interest but the election lawyers who regularly get to bill hours explaining to their clients exactly what type of speech will now get them thrown in jail and how to structure their next political move so as not to provoke Justice Breyer into attaching yet another appendix onto his next dissent.

Read more here:
Symposium: The First Amendments protection of political speech extends to both donations and spending



Second Amendment On Trial
D.C. vs. Heller was not the final word on the 2nd Amendment. Tonight we look at the 5 cases making their way through the courts that could impact the future …

By: yazchat

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Second Amendment On Trial – Video

The loss of net neutrality this week was even bigger than expected.

This time of year is always the worst of times and best of times for internet freedom. Internet activistAaron Swartzcommitted suicide on January 4 of last year. Two years ago today, millions took part in the successful 2012 SOPA/PIPA Blackout protest, followed last year by an event many of us celebrated for the first time as Internet Freedom Day. (You can read all about Internet Freedom Day here, but basically, we should have at least one special day designated for celebratingone of the most revolutionary technologies the world has ever known.)

And this week, on January 14, the FCCs network neutrality rule wasgutted. So now, the internet freedom issue we need to focus on is network neutrality.

Because with the recent ruling, cable and phone companies like Verizon and AT&T now have the legal right to block any website, webpage, blog, video, web technology, app, cloud sync technology, or anything else running online through their pipes. Put another way, Comcast or Time Warner Cable can now block Netflix, BitTorrent, or even this article. They can choose to provide better service to some entities and not others, letting some websites load very, very slowly and others load instantly (for a fee!).

Even though we predicted this decision here in WIRED, it turns out that the real problem isnt the courts decision but the FCCs response to it.

Rather than taking the difficult (political) journey to protect internet freedom, the FCC is issuing deluded statements that no journey is necessary. Itd be like Frodo saying hes going to save Middle Earth except without carrying the ring to Mount Doom, the only place it can be destroyed.

In this case, FCC Chairman Tom Wheeler is Frodo and Mount Doom is a legal move called reclassification, which is the only way to win net neutrality in the courts.

Heres the insider background, one I personally lived. In 2007, when I was a lawyer for the public interest groupFree Press, I helped draft the complaint to the FCC against Comcast for secretly blocking BitTorrent and other technologies. My theory was simple: the FCC had issued a set of Open Internet principles in 2005 and by blocking legal technologies like BitTorrent, Comcast was violating those principles.

Now, the Open Internet principles were not legal rules adopted by the FCC; they were effectively a press statement posted on the FCC website. But we filed that complaint because the FCCs leadership had publiclyand repeatedly promised that if anyone violated the principles, the FCC would have the power and will to stop it. We took the FCC at its word and filed a complaint based on their stated Open Internet principles.

And the FCC ruled in our favor, against Comcast, in 2008. It found that Comcast violated the FCCs principles and that a certain part of the Communications Act, the first part known as Title I, gave the FCC the jurisdiction to act. Then the case went to court, and in January 2010 three years ago this week actually I argued the case, alongside the FCCs top lawyer, before the appellate court. But the three judges there made it clear they didnt buy a single one of our arguments. It was a bloodletting.

Go here to read the rest:
Internet Freedom Day: This Year We Go to War for Net Neutrality



Facebook likes Constitute Free Speech Says Courts
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Facebook likes Constitute Free Speech Says Courts – Video

In a case that brings free speech protections literally to the very steps of the US Supreme Court, a federal judge in Washington has struck down as unconstitutional a statute that allowed police to arrest anyone attempting to deliver a message of protest on the wide marble plaza outside the high courts elegant front entrance.

US District Judge Beryl Howell declared the 60-year-old law in violation of free speech protections and thus void as applied to the courts plaza.

The absolute prohibition on expressive activity in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment, Judge Howell wrote in a 68-page opinion released Tuesday.

RECOMMENDED: How much do you know about the US Constitution? A quiz.

The decision puts in doubt a long tradition at the high court of police forcing demonstrators to confine their picketing, chanting, and sign waving to the relatively narrow public sidewalk in front of the court.

The police have consistently enforced the ban against protests on the plaza. During all of the courts highest profile and most controversial cases involving abortion, civil rights, affirmative action, the Affordable Care Act, and others throngs of supporters and opponents routinely jammed the sidewalk on First Street NE in front of the court.

As the crowd swelled, the sea of earnest humanity would spill onto Maryland Avenue to the north and down the sidewalk toward the Library of Congress. But through it all, the protests have never surged forward past the line of police officers to occupy the white-marble plaza with its fountains, benches, and flag pole.

Want your top political issues explained? Get customized DC Decoder updates.

Now, that may change.

The decision comes in the case of a Maryland man, Harold Hodge, who was arrested in January 2011 for standing silently on the marble plaza while wearing a 3-by-2-foot sign around his neck.

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Free speech outside Supreme Court: Ban on protests in plaza struck down

The First Amendment broadly protects political speech and the use of resources (printing presses, the internet, money) to facilitate that speech. Yet when someone wants to engage in the most obvious kind of political speech supporting election campaigns the government is allowed to restrict this important constitutional right. In a new case coming to the Supreme Court, Shaun McCutcheon, a wealthy political donor, and the Republican National Committee contend that the limits on political donations are unconstitutionally low and not supported by a sufficient governmental interest.

Currently, an individual may contribute up to $2,500 per election to federal candidates, up to $30,800 per year to a national party committee, and up to $5,000 per year to any non-party political committee. The Federal Election Campaign Act of 1971, as amended most recently by McCain-Feingold in 2002, also imposes an overall limit on the aggregate amount one may contribute in a two-year period. For 2011-2012, an individual could contribute up to $46,200 to all federal candidates combined, and $70,800 to political action committees and political party committeesa total of $117,000.

Of course, this isnt the first time that the Supreme Court has dealt with contribution limits. In the seminal 1976 case ofBuckley v. Valeo, the Court held that while contribution limits implicate fundamental First Amendment rights, such limits are justified if theyre closely tied to an important governmental interest, such as preventingquid pro quocorruption or the appearance thereof.

But the Court also decided that restrictions on campaignspendingput a heavier burden on political expression, one which the government couldnt justify. One of the plaintiffs arguments here is that the biennial contribution limits are simultaneously a limit on expendituresa position which Cato elaborated in a newamicusbrief.

We argue thatBuckleys distinction between contributions and expenditures, with limits on the former but not the latter being constitutional, is problematic. Not only does it allow infringements on the freedom of speech, but it has led to an unbalanced and unworkable campaign finance system.

Various justices over the years, some even inBuckleyitself, have questioned the Courts logic on this point. Justice Thomas in particular has assailed the distinction, pointing out that both contributions and expenditures implicate First Amendment values because they both support political debate. Moreover, candidates must spend an inordinate amount of time fundraising instead of legislating because they face an unlimited demand for campaign funds but a tapered supply. At the same time, money has been pushed away from politically accountable parties and candidates and towards unelected advocacy groups, leading to a warping of and decrease in political competition.

The special three-judge district court that first heard this case was legally bound to the framework the Supreme Court laid out inBuckleyand restated that contribution limits are constitutional as such, dismissing the lawsuit. Still, Judge Janice Rogers Brown wrote that the constitutional line between political speech and political contributions grows increasingly difficult to discern.

In a truly free society, people should be able to give whatever they want to whomever they choose, including candidates for public office. We urge the Supreme Court to strike down the biennial contribution limits and give those who contribute money to candidates and parties as much freedom as those who spend money independently to promote campaigns and causes.

The Supreme Court will hear argument inMcCutcheon v. FEC this fall.

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The First Amendment Protects Both Political Donations and Campaign Spending

Newswise A group of some of the countrys top scholars in First Amendment law recently gathered at Washington University in St. Louis to discuss pressing challenges being faced by the first of our Bill of Rights. Three issues rose to the top of the list for Washington Universitys first amendment experts: free expression in a digital age; impaired political debate; and weakened rights of groups.

John Inazu, Greg Magarian and Neil Richards, professors of law at Washington University in St. Louis, comment:

John Inazu Breakdown of the rights of expressive groups

One of the most important recent issues is the Supreme Courts unwillingness to recognize the distinctive rights of the First Amendment and the ways in which those rights complement and reinforce one another, he says.

In a troubling trend, the Court increasingly collapses the rights enumerated in the First Amendment into a framework that emphasizes the moment of expression to the detriment of the background contexts from which expression emerges.

For example, the Courts doctrine of expressive association focuses on whether groups further some other First Amendment purpose like speech or political or religious activity. Butmany associations exist for other than expressive purposes: dinner groups, bowling leagues, sororities, intramural spots teams, chess clubs. These groups may not appear to be explicitly expressive, but they create a space where relationships foster, ideas form, and thoughts emerge.

Gregory Magarian Impaired political debate

First Amendment law plays a large role in enabling robust public political discussion, he says.

In particular, expressive freedom can help to generate dynamic political change. Current First Amendment doctrine, however, has many features that flatten political debate and impair dynamic change.

The Supreme Courts campaign finance and government speech doctrines, for example, constrain participation in political discussions while narrowing the range of ideas that those discussions take into account. Meanwhile, the Court ignores important threats to political dissent, such as law enforcement crackdowns on political activists and suppression of speech by nominally private authorities. In an age when our political discourse has grown both more acrimonious and less informative, we sorely need for the Court to reconsider its priorities and revise some essential doctrines.

Read the rest here:
Three Challenges for the First Amendment

Now, you might think it is right to muzzle such people because, in reality, they just dont like gays and are hiding their disapproval behind a spurious religiosity. In some cases that may be true, but it is not the issue here: this is about free speech. Just as gays are entitled to extol their own sexual identity, so people who take another view, on whatever grounds, should be allowed to say so, shouldnt they?

That is clearly a controversial statement. Yet people who have lived as heterosexuals and repressed their homosexuality are praised when they come out. Is the alternative, however unlikely, not possible? And even if it isnt, why cant you say that it might be? None the less, the CIT poster was banned by Boris Johnson, the Mayor of London, which is why the matter is going before the courts this week. Dr Mike Davidson, a director of the trust, who describes himself as ex-homosexual, says he has been denied the freedom to express his views on the legitimacy of therapy for those dealing with unwanted feelings of same-sex attraction. He certainly has a case: if Stonewall can have their say, then why cant his organisation?

This is by no means an isolated affair. Official disapproval, even the criminalisation, of opinions that a few decades ago were mainstream attitudes poses a significant threat to free speech in this country. After all, who is to decide what is the correct view to hold? In this case it was Mr Johnson, who called the CIT poster clearly offensive. He added: London is one of the most tolerant cities in the world and intolerant of intolerance. However, this tolerance does not, it would appear, extend to free speech. Once you start to shut people up for expressing opinions that are not officially approved then you are on a very slippery slope. Transport for London might have taken the view that the Christian poster was offensive, but the same could be said of the Stonewall campaign.

A few years ago, there was another busbased spat, this one between atheists and believers over whether God exists. Both sides were allowed their say, though the humanist poster, Theres probably no God, left open the possibility that there might be, just in case. Imagine if someone Boris had taken the decision that only the atheist poster could run, on the grounds that the scientific evidence of a deity could not be produced. There would have been justifiable outrage.

There is an argument that the CIT poster served to reinforce prejudice against homosexuals by implying they can be cured. But, as Dr Davidson said on the Today programme on Monday, people who say they no longer want to live as gays are being accused of internalised homophobia when they are merely choosing their own sexual identity. Isnt that what the gay rights movement was all about?

We are in danger of replacing one brand of narrow-mindedness with another. Increasingly, the courts are being dragged into disputes between people who hold different opinions in what is really an attempt to close down debate on particular subjects. This is the very antithesis of free speech and unless there is an attempt to stir up hatred and violence, the fact that some people may dislike or object to what others say should not be a matter for the law, or for official censorship.

Philip Johnston is the author of ‘Feel Free to Say It, to be published by Civitas next month

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Free speech means we should all have a say

We likely will hear a great deal about the Second Amendment to the U.S. Constitution in the next several months as Congress heeds the cry for meaningful gun control legislation following the Sandy Hook elementary school massacre. Already, pro-gun legislators and gun rights lobby groups are warning about the anticipated attack on “Second Amendment rights.”

But would, say, a ban on assault rifles or high-capacity ammunition magazines violate the Second Amendment? The answer appears to be “no.”

From 1939 until 2008 the courts of this country almost uniformly interpreted the amendment as granting to the states the right to maintain militias, but not creating an individual right to “keep and bear arms.” That view changed with the decision of the U.S. Supreme Court in the case of District of Columbia v. Heller in 2008.

The court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that firearm for self-defense in the home. The justices noted, however, that the protections of the amendment are “not unlimited.”

In particular the court concluded that laws regulating the carrying of concealed weapons, prohibiting possession of firearms by convicted felons and the mentally ill, forbidding the carrying of firearms in sensitive places like schools and government buildings and imposing conditions on the sale of arms do not violate the Second Amendment.

The court also strongly implied that bans on military-style rifles specifically “M-16 rifles and the like” would be permissible.

Since the Heller decision lower courts have upheld statutes restricting the carrying of concealed weapons, banning the open carrying of firearms, prohibiting ownership of guns by misdemeanants, requiring registration of firearms, banning assault rifles and large-capacity magazines, preventing sale of guns on county property (in gun shows) and outlawing the importation of firearms into a state through interstate commerce.

In short, restrictions short of the outright banning of all firearms are likely to be upheld by the courts.

The issue, therefore, is not whether assault weapons, semi-automatic pistols and large-capacity magazines can be banned (I think they can be). Rather, the questions which all of us not just gun owners must decide are these: “Should society interfere with the rights of those who want to own firearms?” If so, “To what extent should those rights be restricted?”

The answer to the first question must be “yes.”

More here:
Second Amendment and assault rifles



Patriot Pastors Defy IRS.mov
Over 1500 churches have challenged the constitutionality of the Johnson (LBJ) Amendment that has been used since 1954 to intimidate free speech from the pulpit. Organized by Alliance Defending Freedom (ADF), the protests have grown from 33 churches in 2008, to 500 in 2011 and 1500 in 2012. The Foundation for Freedom From Religion has sued the IRS to enforce the Johnson Amendment (which they have so far not done). ADF says go ahead, throw us into the Brier patch. They welcome a review of the unconstitutional Johnson Amendment by the courts and/or repeal by the Congress.From:InfoWarsNewsHDViews:0 8ratingsTime:05:22More inNews Politics

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Patriot Pastors Defy IRS.mov – Video

First time accepted submitter stanlrev writes “When is software, or content generated by software, ‘speech’ for First Amendment purposes? That is the question that Andrew Tutt seeks to answer in an article published today in the Stanford Law Review Online. He argues that the two approaches commentators and the Supreme Court have proposed are both incorrect. Software or software-generated content is not always speech simply because it conveys information. Nor is software only speech when it resembles traditional art forms. Instead, the courts should turn to the original purposes of the First Amendment to develop a new approach that answers this question more effectively.”

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The First Amendment and Software Speech

Tony Mauro

First Amendment Center Legal Correspondent

Monday, October 1, 2012

The Supreme Courts fall session begins today without any direct First Amendment cases on the argument docket, signaling a possible respite from free-speech and religion cases for the near-to-middle future.

Recent terms of the Court have featured numerous free-speech cases involving controversial expression, campaign expenditures and the rights of public employees, as well as occasional forays into both the establishment and free- exercise religion clauses. But not so far this term.

It would be hard to say the absence of First Amendment cases is intentional on the part of the Court since, as justices often say, its docket is at the mercy of the petitions that come in the door, and whether those specific cases merit review. And the Courts argument calendar for this term is far from full, so new First Amendment cases could still be added.

But still, some First Amendment scholars say the hiatus may reflect the justices general sense that the Courts doctrines on both speech and religion clauses are fairly stable and settled, without major divisions that require repair.

The Court has not ruled on a press-freedom case in more than a decade, for example. Media organizations are generally content to leave it that way, with pro-press precedents such as New York Times v. Sullivan firmly in place. And even the fight over campaign finance, which has been the subject of numerous Supreme Court First Amendment battles in recent years, may have run its course for now. In a Montana case decided in June, the Court passed up a chance to revisit its controversial Citizens United ruling loosening restrictions on campaign expenditures by corporations.

Maybe they have free-speech fatigue, said Notre Dame Law School professor Richard Garnett. Seriously, though: I am not aware of any speech or religion cases that have granted, or even of any potentially hot-ticket speech or religion petitions that are pending. Garnett said that may be because, as I see it, at least in the Religion Clauses context, we have actually reached a point of relative doctrinal stability and completeness, for better or worse.

University of Virginia School of Law professor Leslie Kendrick offered another possible explanation. An argument could be made that the Courts First Amendment docket has been artificially inflated lately, and it may be returning to normal this term, she said.

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First Amendment gets short shrift at high court

An anonymous reader writes “On 6 January 2010, Paul Chambers typed a flippant tweet that would turn his life upside-down for the next two and a half years. As the courts repeatedly showed a lack of common sense and an ignorance of technology, for a long time it looked as though the right to free speech in the UK was under very real threat. Now that it's over, we can step back and take a detailed …

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Twitter Jokes: Free Speech On Trial

A Virginia sheriff’s deputy who was fired for “liking” his boss’ opponent on Facebook likes his chances in a federal lawsuit claiming his click was constitutionally protected.

The deputy, Daniel Ray Carter Jr., and five other employees were fired after clicking the like button on Facebook in support of Jim Adams, their boss opponent in the race for Hampton sheriff in 2009. Carter and the other five terminated employees have been fighting in the courts ever since, saying their firings violated their right to free speech. But a May decision from U.S. District Judge Raymond A. Jackson did not go in their favor.

It is the Courts conclusion that merely liking a Facebook page is insufficient speech to merit constitutional protection, Jackson wrote in his opinion.

– Richard Roth, First Amendment lawyer

Carter’s legal team filed an appeal last week with the U.S. Court of Appeals and is hoping a panel of judges will overturn the previous ruling.

I think the Virginia court blew it, attorney Richard Roth of the Roth Law Firm told FoxNews.com. Youre pressing a like button. Youre pressing a button that says I like the ad or the candidate. I dont know how the court can say its not protected speech.

Facebook and the ACLU have recently gotten involved in this suit, both filing an amicus brief, which states their support for First Amendment protection in this particular case.

It is essential that the courts understand that these new ways of speaking be protected by the First Amendment just as much as our old ways, ACLU attorney Aden Fine told FoxNews.com

In the filed brief, Facebook said the like was the 21st-century equivalent of a front-yard campaign sign. They continued to say, liking a Facebook Page is entitled to full First Amendment protection. The district court reached a contrary conclusion based on an apparent misunderstanding of the way Facebook works.

Those in defense of Sheriff B.J. Robert, who won his re-election and then fired the six employees, claim that because no actual speech was involved, it does not warrant protection.

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Judge Doesn't 'Like' Facebook as Free Speech?

Under the cloak of free speech, rich Americans especially on the Right are buying whats left of U.S. democracy anddoing much of it in secret, insisting their sponsorship ofTV attack ads be hidden. Some of their handmaidens even boast about their impending victories, note Bill Moyers and Michael Winship.

By Bill Moyers and Michael Winship

In all the hullabaloo over the U.S. Supreme Courts decision on health care, another of its rulings quickly fell off the public radar. Before deciding the fate of the Affordable Care Act, the Court announced it would not reconsider Citizens United, the odious 5-4 decision two years ago that opened our elections to unlimited contributions.

Within minutes of that announcement, right-wing partisans were crowing about the advantage they now own, an advantage not due to ideas or personalities but to the sheer force of money. They were remarkably candid and specific. Heres what Fred Barnes wrote in The Weekly Standard about the Senate race in Missouri:

For three weeks in May, Republican super-PACs took turns attacking Democratic senator Claire McCaskill in TV ads. Republicans hadnt held their primary its not until August 7 but McCaskill wound up trailing all three of the GOP candidates in polls. Now McCaskill, unnerved, is struggling to recover. Thats what super-PACs can do. When they emerged in 2010 and worked in tandem, they were a critical force in the Republican landslide in the congressional elections. This year theyre playing an even bigger role. The size and reach of their efforts dwarf what they did two years ago.

Attaboy, Fred, for telling it like it is, for exposing the hoax that the Courts original decision was about free speech. No, its about carpet bombing elections with all the tonnage your rich paymasters want to buy.

Try not to laugh when you hear one of its decisions perpetrators, the noted lawyer Floyd Abrams, say, as he did not too long ago: I dont think we should want as a matter of policy, to make decisions which are essentially, people cant do all the speaking that they can in a political campaign. I dont think we can ration speech.

Speech already is rationed. On your playing field, Messieurs Barnes and Abrams, those who have no money have no speech. And just who do you think is doing this speaking? Poor people havent lost their voice they cant afford a voice. Everyday working people suffer from universal laryngitis, brought on by the absence of money. As for children children who have a big stake in our elections but no vote, forget it for them to be heard they would need piggy banks the size of Walmart heirs. Or the Koch brothers for uncles.

And if its free speech the Deep Pockets are practicing and touting, why are you ashamed of it? If free speech is a right, why all the secrecy? Why hide from voters where the money is coming from? Why not openly say you are downright proud to be exercising their First Amendment rights and writing checks is your patriotic duty?

Instead, conservatives across the country are fighting legal battles to keep their sugar daddies secret. Why? According to their guardian angel in Congress the highly leveraged Senate Minority Leader Mitch McConnell the right wing opposes disclosure laws because the super-rich just might be bullied and harassed by the rest of us who want to know whos buying our elections.

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Buying What’s Left of Democracy

Algorithmically generated editorial judgment is still judgment.

Is Google using its power as the number-one search engine to promote its own products such as Google Places and Google Maps? That was the question at hand last fall when Google executive chairman Eric Schmidt testified in Congress. “I see you magically coming up third every time,” Senator Mike Lee of Utah said. “I don’t know whether you call this a separate algorithm or whether you’ve reverse engineered one algorithm, but either way you’ve cooked it, so that you’re always third.”

Schmidt responded, “Senator, may I simply say that I can assure you we’ve not cooked anything.”

Schmidt’s sounded definite but it didn’t really answer anything — what precisely would qualify as cooking the results? Google could claim not to “cook” anything, but it’s indisputable that it writes the algorithms that underlie its search tool, and that those algorithms include choices — judgment — that whittle the Internet’s billions of pages down to a ranked list of 10.

That process — that judgment — is now at the heart of an argument in defense of Google against the accusations of anti-competitive behavior. Coming from Eugene Volokh, the UCLA law professor and prominent blogger, is a paper that makes the case the Google’s search results are an editorially curated product, not different from a curated list of likes like the Drudge Report, multiplied ad infinitum. And, as the Drudge Report would be protected by the First Amendment, so should Google search results. With this argument, Google (who funded Volokh’s paper) takes the argument against the company and turns it on its head: You think we are not being “neutral” in our search results? Damn right we are not being neutral. And it’s for exactly that reason that you can’t do anything about it.

The idea of a “neutral” or “unbiased” search was always a bit specious. If Google can provide the same information — or better information — from within its own tool shed, why should it not? Certainly some information is objectively better than others. If you doubt this, try this search engine which does not return results from the top one million websites. You’ll find that the results are pretty terrible — junk from paid content sites, reprints of Wikipedia articles, not-very-funny Tumblrs and so on. The results remind you just how much muck is out there, and just how good Google is at finding the needles in the Internet’s hay stack time and time again.

But at the high quality end of the Internet’s curve — how do you sort and rank the very best information? What if the information returned by two sites — Google Places and Yelp, for example — is nearly identical? Those decisions are judgment calls, coded into Google’s algorithm by humans. Not neutral, not the unbiased calculations of a machine, no matter how it works in a given instance. Volokh’s paper rests on this idea (he uses the word judgment 34 times) that in exercising judgment, Google’s engineers are essentially acting as editors, curators, or, even, parade organizers — all of whom the First Amendment protects in their decisions to include or exclude content, even when they themselves are not the creators of that content.

There’s a lot of support for Volokh’s argument including two lower court decisions (2003 and 2007), and, as First Amendment and technology law expert Marvin Ammori argues, other courts — and even the Court — would likely agree. The result would be greater protection for Google and its preference for its own products — something we may not like. But the First Amendment has never been interested in curating society to our liking — quite the opposite in fact. The results of a strong First Amendment are often distasteful in varying degrees, with hateful speech at the extreme end. But the converse is much worse — would we really want the government to have a say in the content of Google’s returns? Could you imagine what it would like to do with something like this?

The law is always under revision as new technologies emerge and challenge the old categories we had created. Is Google like a publication — such as the New York Times — or a utility like the gas company that merely conveys information “neutrally”? Which set of laws should we apply? These comparisons never work perfectly, and refining their raggedy edges is the work of the courts and the participants in their adversarial process. In the case of Google, its search results do seem more like the handiwork of a newspaper editor or a parade organizer than an electrical utility. But the impact of its choices — judgment, if you will — are so much greater, so much more central to our civic life that it can be scary to give it such free reign. But that free reign is at the core of our grand experiment with free speech and a free press, an experiment you just have to hold your breath and hope for, because the alternative is much, much worse.

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Should Google's Search Results Be Protected by the First Amendment?

Monday, March 19, 2012

Thurgood Marshall is best known for being the first African-American to serve on the U.S. Supreme Court and as one of the attorneys who argued the education-desegregation case Brown v. Board of Education (1954). But Justice Marshall also had a keen appreciation for the First Amendment and freedom of speech.

Marshall had a gift for explaining the importance of the First Amendment in different contexts. Here are five of his more memorable free-speech passages from opinions dealing with obscenity, picketing, prisoner speech, public-employee speech and commercial speech.

Constitutional heritage Marshall wrote the Courts opinion in Stanley v. Georgia (1969) holding that the private possession of obscene material could not be made a crime. The police had gone to Robert Stanleys home to execute a search warrant to uncover whether he was involved in illegal bookmaking activity. Instead, they found rolls of film of alleged obscene material.

Marshall questioned whether law enforcement had adhered to constitutional standards under the First and Fourth Amendments. On the First Amendment point, he wrote with passion:

If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control mens minds.

M.I.S.C. quote A seminal principle of modern First Amendment law is the content-discrimination principle that government officials should be loath to restrict speech on the basis of its content or viewpoint. Marshall expressed this principle well in Police Department of City of Chicago v. Mosley (1972), involving a man charged with violating a law prohibiting picketing near schools unless the picketing was for a labor cause. The man, Earl Mosley, had picketed because he said the school had practiced racial discrimination.

I tell my First Amendment law students that a way to remember to remember the content-discrimination principle is to remember the M.I.S.C. quote from this case message, ideas, subject, content:

But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

Human spirit Unlike most members of the high court, Justice Marshall showed special solicitude for the rights of prison inmates during his tenure on the bench. In Procunier v. Martinez (1974), involving censorship of prisoner mail, Marshall wrote a concurring opinion that spoke to the need of the human spirit for free expression:

The rest is here:
Justice Marshall: eloquent First Amendment defender

Attorneys convention Understanding gap is widespread about role of courts, he says.

Cuts in judiciary funding in New York have meant courts close at 4:30 p.m.

If a jury is just about to complete a verdict, but its not ready by closing time, theyll have to return the next day. In the San Francisco area, 29 of 63 courts were closed in the fall and 40 percent of the staff were laid off.

“Its axiomatic but true that justice delayed, is justice denied,” said Bill Robinson, American Bar Association president and keynote speaker for Utah State Bars 2012 Spring Convention, which convenes Saturday in St. George.

Robinson said his upcoming speech to local attorneys attending the conference, “No Courts, No Justice, No Freedom,” is a theme the ABA is focusing on throughout the year because of the funding cuts state courts are facing across the country.

Utah courts have not gone untouched. Rod Snow, Utah States Bar president, said courts are 20 percent down from staffing levels a decade ago. On the upside, no courts have been closed and they remain open for regular hours.

To address funding locally, members of Utah Bar Association meet annually with the governor and emphasize the business-friendly orientation the state enjoys.

“If you slow down the courts down, you slow business down,” said Snow. “If businesses cannot resolve their disputes or it takes longer because of lack of funding, you have millions maybe even hundreds of millions of dollars tied up in court.”

That money belongs on somebodys financial statement, so it can be used to hire employees or make capital investments, Snow added.

In contrast to Utahs situation, Robinson said, last year 42 of the 50 states cut court funding. He said there is no state in the country that funds its judiciary branch on an annual basis with more than 4 percent of its operating budget.

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Funding cuts to courts endanger freedom, ABA President says



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