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The beginning of the end for McCain-Feingold?
Posted by: McQ on Monday, June 25, 2007

We can only hope:
The Supreme Court loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision of a landmark campaign finance law.

The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections.
That is the nuts and bolts of the decision. As to the particulars of how it broke down:
Chief Justice John Roberts, joined by his conservative allies, wrote a majority opinion upholding the appeals court ruling.

The majority itself was divided in how far justices were willing to go in allowing issue ads.

Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, would have overruled the court's 2003 decision upholding the constitutionality of the provision.

Roberts and Justice Samuel Alito said only that the Wisconsin group's ads are not the equivalent of explicit campaign ads and are not covered by the court's 2003 decision.
That gives me hope that eventually the constitutionality of the whole law will end up being questioned and eventually overturned. This is definitely a liberty enhancer.

(HT: Stop the ACLU)
 
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Gosh, if one read this opinion, one might get the idea that the justices in the majority actually care about the right to free speech.

But that would be misleading, in light of the Bong Hits for Jesus case.

Talk about incoherence. Take just these two passages, both from Roberts:
From Wisconsin Right to Life: “Because WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy,” the Chief wrote. In defining what qualifies as “express advocacy,” "the court should give the benefit of the doubt to speech, not censorship."

From Morse: : ’’The message on Frederick’s banner is cryptic. But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.’’
So if speech is ambiguous, and can be reasonably interpreted two different ways, it should be given the benefit of the doubt and not censored. But if it is ambiguous, and can be reasonably interpreted two different ways, it should be censored.

So which rule applies? Guess it depends on whether you are a corporation or an individual.
 
Written By: mkultra
URL: http://
Welcome to the politicized Court, mkultra. The politicized Court was largely created by FDR, and dramatically expanded during the 1960s and 1970s. At the time, the Left liked it and the Right argued against it, in both cases based on whose ox was being gored. Now that the Court’s makeup has swung around, the two groups have switched sides accordingly. Both sides argue not that a politicized Court is wrong (though they often use exactly that language), but that the Court should be politicized in their favor.

The only reasonable argument that I have heard against a politicized Court is that it is wrong in principle to make the meaning of the Constitution subject to arbitrary whim and who is currently in charge, or which opinion set is currently dominant. Anything else is just an argument that the rest of us should surrender our rights and, in general, all political power to the person making the argument. No thanks.
 
Written By: Jeff Medcalf
URL: http://www.caerdroia.org/blog
actually the two decisions are very different. Since one was an a priori restraint of political speech, precisely that which is most protected, and the other involved a minor under en loco parentis, a much higher hurdle to jump to invoke the first amendment.
 
Written By: kyleN
URL: http://impudent.blognation.us/blog
Welcome to the politicized Court, mkultra.
It’s not political, it’s simply incoherent.

In FDR’s day, he wanted justices who took an expansive view of Congress’s Commerce Clause powers. Justices who took such a view may or may not have been wrong on the merits, but there was nothing incoherent about their viewpoint.
 
Written By: mkultra
URL: http://
actually the two decisions are very different. Since one was an a priori restraint of political speech, precisely that which is most protected, and the other involved a minor under en loco parentis, a much higher hurdle to jump to invoke the first amendment.
In the high school case, the student was off campus. Furthermore, the principal had released students from class for the day.

But again, that is beside the point. It’s the patent incoherence that is the main problem. Roberts’s incoherence does not go to the distincitions between the two cases.

It’s goes to the adoption of different rules to analyze the same basic issue, namely, when speech is ambiguous, and can be taken to mean different things by different people, whose interpretation controls? In the first case, Roberts said the government’s interpretation should not control. In the second, he said the opposite.



 
Written By: mkultra
URL: http://
In the first case, Roberts said the government’s interpretation should not control. In the second, he said the opposite.
because the two cases were different.
 
Written By: kyleN
URL: http://impudent.blognation.us/blog
Mkultra, your argument is no stronger than this:

Roberts wrote ’because’ in the WRLT case but didn’t in the Morse case. Why the incoherence?

 
Written By: Grimshaw
URL: http://
Roberts wrote ’because’ in the WRLT case but didn’t in the Morse case. Why the incoherence?
The message on the banner was cryptic. Hence, its meaning was not clear. Which effectively means that it could have reasonably been interpreted more than one way. And one of the ways in which it could have been interpreted would have subjected it to First Amendment protection.

Now, under WRTL, when the message of a statement is subject to two possible interpretations, one protected by the First Amendment, and one not, a court should choose the one protected by the First Amendment.

If that rule would have been applied in Morse, as stare decisis demands, then the student should have won. "Because the message "Bong Hits for Jesus" could reasonably been interpreted as not promoting illegal drug use, ....."

But the student didn’t win. Which means that the rule wasn’t applied. Which means that Roberts either doesn’t understand stare decisis (which seems doubtful), or doesn’t care.

Regardless of where you sit on the political divide, stare decisis must have some meaning. Without it, there is no point in having a Supreme Court.

 
Written By: mkultra
URL: http://
Let me clarify for you, mkultra:

The First Amendment’s Free Speech Clause is first and foremost meant to protect political speech. When such speech is curtailed or regulated by the state — specifically in order to target the viewpoint or content of the speech as opposed to a more neutral or incidental reason — then the state has a very high burden to meet in showing that the law is Constitutional. (The law must be narrowly tailored and be promulgated only for very compelling interests of the state.) Other speech, less clearly political in nature (an easy example would be false advertising) is not afforded such deference.

Now, let’s parse the two cases a bit with the above in mind:

1. WRTL was about regulating political speech under the guise of serving the compelling governmental interest of removing corruption. As the focus of the regulation clearly goes to the nub of what the 1st A is all about, the Court deemed the interest not compelling enough (let alone not reasonable enough) to infringe on political speech.

2. Bong Hits 4 Jesus was about regulating speech similarly argued to be political in nature. But, the compelling interest standard used above for purely political speech does not apply to students at a school functions. The standard for reasonableness, and the burden of the school (i.e., the state) in demonstrating reasonableness, is set to a much lower threshold in the context of student-school cases.

So, while WRTL was explicitly and directly on point regarding political speech, Bong Hits 4 Jesus had to be viewed through a different lens, i.e., a different legal standard, specifically political speech in a school setting by a student.

CJ Roberts, correctly, of course, applied the different tests to different issues.

If I were you, I’d become more informed about the legal issues at hand before snarkily dismissing a jurisprudential expert such as CJ Roberts as a corporate sycophant. Then again, if I were you, I would be a bit more humble before posting ad hominem attacks in situations when I clearly had no idea what I was talking about. But, that’s just me...
 
Written By: mjs
URL: http://
actually the two decisions are very different. Since one was an a priori restraint of political speech, precisely that which is most protected, and the other involved a minor under en loco parentis, a much higher hurdle to jump to invoke the first amendment.
Very true. This is another related, though not quite the same, basis for holding the two cases to different standards of review. In fact, a priori restraints make the reasoning for the different standards applied a complete slam dunk: a priori restraints are almost never held to be Constitutional, excepting some very, very specific and narrow circumstances.

Touche, kyleN.
 
Written By: mjs
URL: http://
2. Bong Hits 4 Jesus was about regulating speech similarly argued to be political in nature. But, the compelling interest standard used above for purely political speech does not apply to students at a school functions. The standard for reasonableness, and the burden of the school (i.e., the state) in demonstrating reasonableness, is set to a much lower threshold in the context of student-school cases.

So, while WRTL was explicitly and directly on point regarding political speech, Bong Hits 4 Jesus had to be viewed through a different lens, i.e., a different legal standard, specifically political speech in a school setting by a student.

CJ Roberts, correctly, of course, applied the different tests to different issues.

If I were you, I’d become more informed about the legal issues at hand before snarkily dismissing a jurisprudential expert such as CJ Roberts as a corporate sycophant. Then again, if I were you, I would be a bit more humble before posting ad hominem attacks in situations when I clearly had no idea what I was talking about. But, that’s just me...
Obviously, you didn’t read a d*mm thing I wrote. The issue I wrote about is not the issue of what level of scrutiny should be applied in considering whether the government has impermissibly regulated political speech. The issue I wrote about is the analysis Roberts’ used in determining whether the speech in question was political in the first place.

If you cannot tell the difference between determining the nature of the speech on the one hand, and, on the other, ascertaining the level of scrutiny that should be applied once the nature of that speech is determined, then you should hardly be lecturing others.

My point was - and remains - that with regard to the first step, what is the nature of the speech in question, Roberts deferred to the government in one case, but not in the other. This has nothing to do with the level of scrutiny that should be applied to the regulation of that speech.

The problem I have with Roberts in the Morse is that his analysis of the nature of the speech in question was flawed. Read Stevens’ dissent for more on that subject. He deferred to the government on that question. But in the WRTL case, he did the opposite. Why? Results oriented jurisprudence.

Of course different standards of scrutiny apply in a school setting. Duh. No one is arguing that point. Again, read Stevens’ dissent. The problem with Roberts’ opinion is that it characterizes the speech incorrectly in the first place. It gets it wrong from the get go. And it does so in a manner inconsistent with the methodology in WRTL.



 
Written By: mkultra
URL: http://
Obviously, you didn’t read a d*mm thing I wrote.
LOL!

Uh, sorry ... irony just cracks me up sometimes.
 
Written By: McQ
URL: http://www.qando.net/blog

 
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