Free speech

The Court as a Political Actor

When Obama criticized the Supreme Court’s holding in Citizens United, and the Supreme Court per Alito audibly responded, conservatives and liberals alike reacted with horror, albeit to different parts of the story. For we liberals, it’s terrible and a breach of decorum for Alito to talk back to the President; for conservatives, it’s terrible that Obama lit into the Court in the first place.

We’re both wrong. Well, we, liberals are actually right, but our simple case doesn’t present the whole story. Alito’s outburst was a breach of decorum, sure, but one he was privileged to make if we were wrong in the first place. So let’s get to that question.

Chief Justice Roberts, again speaking yesterday, regards it as impolitic for Obama to even address the Court in his speech. That surely overstates the case.  It would be wrong for Obama to attack individual Justices, or at least tacky, but the Supreme Court is a coordinate and equal branch of government, with a significant but not absolute role in the making of substantive law. The President can properly build an agenda, and Congress can properly legislate, to abrogate Supreme Court decisions or limit their effects. The Court is not a proxy for the Constitution; as the years since Roe should have proved, a constitutional holding is the beginning, not the end, of a dialogue about the document’s meaning. Presidents are entitled to input on that question, especially when that input is phrased not as an attack on the Court’s legal reasoning, but as clear concern for the holding’s effects. This, in fact, is exactly the path Obama charted:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

Roberts’ counterargument must rest on the theory that the Supreme Court is an utterly neutral body, immune and oblivious to politics, and simply engaged in a dialectic on the Platonic meaning of The Constitution, of which they are the sole arbiters.

This is a polite fiction that we occasionally tolerate, but in which we’ve never truly believed. Since the birth of the strong Supreme Court, it has been a political body. Marbury v. Madison emerged from an acknowledged political staredown between the Court and newly-elected President Jefferson, and it was the Court, not Jefferson, that performed Kruschev’s miracle: it blinked, while appearing not to. Since then, men we call heroes have taken it upon themselves to question the Court, and wound up on the right side of history for it. Lincoln campaigned against Scott v. Sanford and secured its reversal by war; Roosevelt came the closest to true impropriety by threatening the Court not with legislative reversal, but with irrelevance through dilution.

And, lest we forget, the modern conservative movement was built on attacking judicial power. Virulently. First for Brown, then for Roe (see, e.g., right), then for the principle of their existence (“activist judges!”). Conservatives can’t — or shouldn’t be allowed to — have it both ways, raising the Court’s mystique and grandeur as a defense only when it suits them.

Roberts is right to the extent that it’s better for our political culture if politicians do treat the Court’s reasoning as inviolate, even as they freely question their policy. After all, policy is not their core competency. But that’s not a commandment Obama broke, especially considering the profound policy implications, and blatant policy motivations, behind the Roberts Court’s entire campaign finance jurisprudence.* If Roberts is troubled by controversy, well, to paraphrase his most famous dicta to date, the easiest way to avoid being criticized for questionable decisions is to stop issuing questionable decisions.

* = As a favorite professor of mine says, there are two ways to read FEC v. Wisconsin Right to Life — either Roberts knows something we don’t, and doesn’t say it, or he’s making things up.

Something Controversial

Common readers of this site will know all too well that I’m a fierce partisan for the cause of gay equality — and that I don’t have a lot of patience for those who couch their arguments to the contrary in simple animus.

That makes it fairly hard to say what I’m about to say. Yesterday, the Supreme Court elected to hear oral arguments in Snyder v. Phelps (yes, that Phelps), which presents the case of whether Fred Phelps’ outrageously offensive picketing of soldiers’ funerals (“God Hates Fags”; “God Hates Soldiers”; “Thank God for IEDs”) can, of its own force, constitute intentional infliction of emotional distress, or an invasion of privacy. The district court found in the affirmative; the Fourth Circuit reversed.

The circuit court is probably right.

There’re a lot of reasons why, and they’re better treated elsewhere. Basically, the First Amendment is a fierce creature that makes no apology for sacrificing quality in favor of quantity of dialogue. Sometimes that’s a good idea, even if it breaks down in the context of modern media, but combined with this country’s almost insurmountably high standard for privacy torts (libel/slander/invasion of privacy), and a general presumption against intentional infliction of emotional distress claims, the family of Lance Corporal Matthew Snyder are set to lose on the law what they’d win under any moral rubric. Their son died in service of his country; at the least, he deserves from us a respectful service. But this is the price the First Amendment exacts.

Interestingly, in another context, there’s ample room for the opposite conclusion. It’s not immediately clear that a law or a district court injunction restricting political activity at a cemetery, while it’s being used for a memorial service, would be invalid for unduly burdening the right to free speech. The case for our side is stronger if it’s a public cemetery, but it works in the private context too. In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Supreme Court upheld regulations limiting noise near schools, on the theory that the noise affects the government’s interest in the related building; similarly, “reasonable time, place, and manner” restrictions on picketing in front of residences are constitutional to protect the inhabitant’s privacy and interest in having a home. See Frisby v. Shultz, 487 U.S. 474 (1988).

Not surprisingly, this comes up a lot in the context of abortion protesters, because those types are about one step removed from Fred Phelps as it stands. Truly, there’s a commonality between them — preying on the emotionally vulnerable with viscerally offensive images to express disapproval of a decision they have no interest in — that can’t be ignored. Anyways, the Supreme Court has repeatedly approved of “buffer zones” around individual women, and around the premises of family planning clinics, where otherwise protected speech acts are forbidden.  See Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) and Hill v. Colorado, 530 U.S. 703 (2000). The key is that where private speech, even political speech, crosses the line to personal abuse, the legislatures and the federal courts ought not be powerless to protect the blameless citizens, by law or by injunction.

This leads inexorably to the horrifying conclusion that Lance Corporal Snyder’s family should’ve had the presence of mind to file for an injunction against Phelps… before grieving for their fallen son.

That’s a goddamn tragedy. I don’t care what your politics are — the conclusion would be the same if the culprits were antiwar protesters, or anything else for that matter — at the point where a family can’t say goodbye to their son in private, something has gone wrong in this country. Someone should write a bill, and I dare the Supreme Court to strike it down. * Continue reading »

The Latest Anti-Obama Conspiracy: Freedom to “Worship”?

OpinioJuris parrots a concern on the far right that Obama’s recent public reference to religious freedom as the “freedom to worship” somehow reduces the right. Emphasis and red numbering are mine:

Recently, both President Obama and Secretary of State Hillary Clinton have been caught using the phrase “freedom of worship” in prominent speeches, rather than the “freedom of religion” the President called for in Cairo. [. . . .]

To anyone who closely follows prominent discussion of religious freedom in the diplomatic and political arena, this linguistic shift is troubling.

The reason is simple. Any person of faith knows that religious exercise is about a lot more than freedom of worship. It’s about (1) the right to dress according to one’s religious dictates, (2) to preach openly, (3) to evangelize, (4) to engage in the public square. Everyone knows that (5) religious Jews keep kosher, (6) religious Quakers don’t go to war, and (7) religious Muslim women wear headscarves—yet “freedom of worship” would protect none of these acts of faith.

Those who would limit religious practice to the cathedral and the home are the very same people who would strip the public square of any religious presence. They are working to (8) tear down roadside memorial crosses built to commemorate fallen state troopers in Utah, (9) to strip “Under God” from the Pledge of Allegiance, and they recently (10) stopped a protester from entering an art gallery because she wore a pro-life pin.

Both of the central contentions of the article about the limited reach of “freedom of worship” — bolded above — are critically wrong, as are their supporting examples. First, as to the reach of “freedom of worship,” numbers 2, 3, and 4 are covered by the First Amendment right to freedom of religion only secondarily. Those rights are best asserted, and emphatically protected, under the free speech clause of the Amendment. Any one of a million Supreme Court cases would be on point for this proposition, but let’s start with Hague v. CIO, 307 U.S. 496 (1939):

Wherever the title of streets and parks may rest, they have immemoriably been held in trust for the public use and, time of out of mind, have been used for purposes of assembly, communicating thought between citizens, and discussing public questions.

Evangelists can rest easy: no-one is going to take away their right to bother the rest of us anytime soon. Further, as to numbers #1, 5, 6, and 7, the phrase “freedom of worship” is legally equivalent to the “freedom of religious expression”: Black’s Law Dictionary defines worship as “any form of religious devotion or service showing reverence for a divine being,” and the cases support that analysis. See Lee v. Weisman, 505 U.S. 577 (1992).

Our favorite new conspiracy theorists also go astray when reading the freedom of religious exercise too broadly. Questions about whether it’s right to “strip the public square of any religious presence” aren’t about “free exercise,” which refers to the individual’s right to practice his faith — they’re about the establishment of religion, which deal with the individual’s right to push his faith on the rest of us, through state-sponsored symbols, political acts, etcetera. I can’t help but think that this confusion is deliberate: for the far-far right, the right to free exercise should include the right to bring the rest of the world under their faith. But that’s not how a pluralistic society works. The First Amendment’s religion clauses delicately balance the individual’s right of worship against the rights of others to be unaffected by personal exercise. You can’t take one part of that compromise, and abandon the other. No matter where you come down on the questions presented by numbers #8 and 9, they’re not questions of freedom to worship — and, as to #10, federal authorities can freely enforce content-neutral rules of expression within federal buildings. Deal with it.

To add the expected note of hypocrisy, general practice, from Norman Rockwell (above, right) to today, shows that “freedom of worship” has always been treated as a more artful description of, not a lesser version of, free expression of religion. It’s clear that today’s right-wing Christian community only sees in Obama what they want to see. They want to see a vast conspiracy to destroy their religion, and so, even when Obama attempts to speak their language, that’s what they see.

Plouffe’s Way Forward on “Citizens United”

Apologies for the very late post.

Let’s set aside the legal questions raised by Citizens United v. Federal Elections Commission, last month’s Supreme Court ruling that permits corporations to spend for political advertising  out of their general treasury, on the theory that such expenses somehow qualify as an analogue to personal speech. Whatever we think of this ruling, the public doesn’t seem to like it at all:

Eighty-five percent of the Democrats polled were opposed to the ruling, while 76% percent of Republicans and 81% of independents also said they were opposed. The nearly unanimous opposition crosses more than just party lines.

Despite this, Republican leadership has been uniformly positive on the issue. One example:

Mitch McConnel (R-KY): Any proponent of free speech should applaud this decision. Citizens United is and will be a First Amendment triumph of enduring significance.

This is an issue, interestingly, that threatens to ripsaw Congressional Republicans between their burgeoning (?) populist (??) base, and their vested corporate interests. Thankfully, and for once, it’s an opportunity Democrats don’t seem likely to let slide. At a fundraiser for Senator Kirsten Gillibrand (R-NY) yesterday morning in midtown Manhattan, David Plouffe, newly re-appointed to Obama’s political team, noted poll numbers on Citizens United, and underscored to the audience the importance of the fact that almost as many independents as Democrats oppose the decision. Pushing the issue could highlight the difference between true “populism” — premised on distrust of big actors, be they government or industrial — and mere grassroots conservatism, winning back right-leaning independents in the process.

These possibilities for recouping or winning political capital aright are increased by the likely method of Congressional attack. From OpenCongress, a draft bill designed to limit the holding’s imact would forbid, outright, certain entites from spending money on federal elections, including:

companies with at least 20 percent foreign ownership

government contractors

companies that received and have not paid back TARP funds

The bill also:

requires CEOs to appear on camera and say they approve the ad their company is funding

requires more disclosure of political spending from corporations, unions and 527s

provides a reduced ad cost and equal airtime for candidates facing a corporate ad buy

prevents corporations from coordinating ad spending with candidates and political parties

Without getting in to the law, such restrictions are likely to be sustained as either (1) reasonable time/place/manner restrictions on the exercise of free speech, or (2) limitations reflecting increased or exaggerated federal interests, thus permitting regulation where it would otherwise be foreclosed. And the requirement that CEO’s personally endorse their corporate ad buys is just immensely politically satisfying, expressing a truly populist desire for accountability and truth in messaging. Will it work? We’ll see. But that Democrats are for once thinking about grand strategy can’t hurt.

Cheney Acknowledges a Patriotism He Once Rejected

In its never-ending task to glorify all things Republican, and transform politics into page-six tabloid fodder, Politico offered over the weekend an examination of “Why Dick Cheney Attacks [President Obama],” with predictable analysis. The Republican narrative is reported as fact, with pushback occurring only late in the article, as what “critics say”: Cheney’s just a concerned citizen, who stepped out of retirement to sound the alarm about Obama’s “dangerous” policies:

Cheney associates say he abandoned plans for a sedate post-Bush administration retirement of fly-fishing and memoir writing because he is genuinely concerned that Obama is a weak leader who is responding to political pressures in modifying war and terror policies that Cheney himself was instrumental in crafting.

Truly, a modern Cincinnatus.

The premise is flawed. Obama’s actually doing pretty well on the national security front, rolling up part of the Taliban’s operation and, by all accounts, successfully leveraging the criminal justice system to gain useful intelligence.

But even if the facts are against him, if Cheney “attacks” out of true concern, good for him. Politics should be full of people, on both sides, who feel compelled to speak their mind candidly when they believe the public needs counsel — rather than, as appears to be the case for some, running away. Civil dissent is the patriot’s greatest duty.

What should strike us as ironic, though, is that Cheney flatly rejected this form of patriotism while in office. One example among thousands:

In the sharpest White House attack yet on critics of the Iraq war, Vice President Dick Cheney said on Wednesday that accusations the Bush administration manipulated intelligence to justify the war were a “dishonest and reprehensible” political ploy.

Cheney called Democrats “opportunists” who were peddling “cynical and pernicious falsehoods” to gain political advantage while U.S. soldiers died in Iraq.

We can accept that Cheney’s distaste for Obama is genuinely felt. But as a threshold issue, we must also accept that such feelings can be properly expressed during wartime, against the President, without the expression alone incurring accusations of unpatriotic hatemongering.

“…If He Will List His Public Engagements for Today.”

Or, "He shall, from time to time..."

For the record, I’ve been calling for a “Question Time for the President” in this country since long before it was cool — and so has Senator John McCain (R-AZ). Surprisingly, despite a left eager to showcase our litigator President, and a right somehow convinced that, “one fine morning,” they’ll be able to catch him, the proposal to institute a regular “question time” has drawn some objections, among them a fear that routinizing the process would kill its magic; that it would somehow equate the President with the Queen of England (fallacy somewhere, I fancy); that it would diminish the majesty of our august legislative chambers; and finally, that it would be unconstitutional.

None of these really make much sense. Like, at all. In order, now: concerns about whether a routine question time wouldn’t be “spontaneous” enough goes to its one-time political utility for the winner, which is pointedly not the reason to implement it. Question time isn’t about the “head of state”; it’s about the executive branch meeting the legislative (in the U.K., every minister has “Question Time,” at least every two weeks). The once-august image of our legislative chambers already stands quite tarnished — if it ever looked that great to begin with. And apart from a few specific obligations, the Constitution is quite silent about what the President can do with his time, and when and how he can meet with the legislature. The State of the Union clause is a floor, not a ceiling,

He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient (U.S. Const., Art. II, § 3, cl. 1)

Like Holmes’ dog barking in the night, any statement of the regularity with which this ritual should occur is conspicuous for its absence.

Having met these spurious objections, let’s return to the reasons to institute a form of “question time.” First, it’s easy. The President need only make himself available; legislation would only encumber the ritual, and if the concern is continuity between Presidents, that’s no matter. These things have a way of ingraining themselves into political culture: once started, it won’t readily be stopped without raising a few eyebrows. Second, it is the very definition of transparency. Negotiations between the President and Congress, today, go on behind closed doors. Obama can and should change that in other ways, but exposing at least one aspect of the executive/legislative relationship to the public represents a compelling first step. Third, and perhaps most importantly, it cuts the media out of the debate between President and Congress. Both the internet and cable television have conspired to produce such a multitude of niche programming, that it’s all too easy to insulate oneself from controversy in all matters political. The lack of visible — and watchable — clash between political actors enforces this trend, and a popular political forum focused on each side scoring points off each other, and where spin can be called out as such, would go a long way to solving the problem.

No Post

Just watch. All of it.

Like the Bartlet/Richie debate, there’s no need for further commentary. It wouldn’t be tasteful.

Oh, okay, one comment. When I say we need Prime Minister’s Questions in this country — this is why. A true statesman will stand out for his ability to punch through the politics of distraction, as Obama did yesterday.

Don’t Let Kennedy Be Kennedy

My opinion of Justice Kennedy is, by this point, a matter of public record. In short, his flair for the dramatic, middle-of-the-road and substantially unresolved politics, and sudden power combine to create a jurisprudence wholly bereft of principles, no matter what his apologists say, and a worrying tendency to depart from established law precisely when it matters most, and for bad reasons.

Thursday’s holding, in Citizens United v. FEC (pdf), was no different. By way of background, the bar on direct campaign contributions from a corporation’s general treasury was, until Thursday, ancient. Twenty years is a long, long time in law. The function of Citizens United, which permits corporations to donate to political campaigns without restriction, is to remake the legal landscape for no reason other than that Sandra Day O’Connor is no longer on the bench. Kennedy seems to acknowledge as much: nearly every citation to a controlling principle of law is to a dissent (Scalia or Thomas), or to a Kennedy concurrence. Make no mistake: this is a dissent which has, through the vagaries of politics, managed to find its way into governing law. Were we more inclined to resort to pejoratives, we might even call it “judicial activism.”

Characteristically, Kennedy’s majority opinion suffers from a surfeit of emotion, a certain sense of predestination, and a deficit of real logic. As Kennedy began his landmark abortion opinion (Gonzales v. Carhart, 550 U.S. 124 (2007)) with a grisly, in-depth explanation of abortion procedures that left no doubt about his feelings on the subject, so his opinion in Citizens United puts its author’s politics immediately on display:

Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin. (p. 12)

In a novel, we’d call this foreshadowing; in a Supreme Court opinion, it’s called “assuming your conclusion.”

For, indeed, the conclusions that corporations “speak” in any meaningful way, and that regulating them is therefore “speech suppression,” are not obvious. Excise citations to cases about the importance of the press, disingenuously billed as describing the importance of corporate speech ((pp. 25-26); a distinction that Scalia addresses but Kennedy ignores), and we’re left with an opinion that assumes but fails to explain why corporate speech matters as much as personal speech (pp. 23, 27). It should not.

The First Amendment exists for two reasons: to ensure a robust exchange of ideas, and to encourage and validate personal expression. The first rationale permits (or should permit) regulation, the better to encourage a free and fair marketplace of ideas, but the second does not. Further, because the extra protections provided by the second rationale are tied to notions of personal liberty, they ought not to apply to entities that — like corporations — are emphatically not capable of personal expression.

True, corporations have interests that deserve to be heard. But individual citizens are entirely capable of representing corporations in their own capacities: letting the same persons double their representation, and finance their speech with corporate coffers, creates a distortionary effect that ought to raise concerns about the integrity and representative quality of the marketplace of ideas.

This argument is not novel; nor is it “liberal.” It’s an exercise in responsible line drawing, drawing inspiration from a pointedly conservative Supreme Court justice:

Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an “intellect” or “mind” for freedom of conscience purposes is to confuse metaphor with reality.

Pacific Gas & Elec. Co. v. Pub. Util. Comm’n of California, 475 U.S. 1, 33 (1986) (Rehnquist, J., dissenting).

Shmaltzy comparisons to Mr. Smith Goes to Washington aside (seriously; p. 56), Citizens United was not a case about whether to let certain opinions be heard. Corporations will have their voices heard through their shareholders, their management, and their customers. This case was about whether to let some citizens exploit corporate alignments to drown out other, less fortunate voices. The First Amendment is about people, and when people are not involved, and personal liberty is not at stake, the government has an obligation to facilitate, through content-neutral rules and regulations, the easy exchange of ideas and the concomitant search for truth. To let corporate “liberty” defeat the public interest, as expressed and ratified by the people’s duly elected representatives, is, as is so often the case in Kennedy’s cases, to put style before substance.

Don’t Let Kennedy be Kennedy

Apologies for the continuing lack of a post on Justice Kennedy’s latest unprincipled, dishonest fiasco. Pending…

Advance Democracy

Courtesy Matt Yglesias, we’re told that America is, owing to recent farces of democracy like the “tea party protests,” inherently “ungovernable.”

This is an unfairly inflammatory way of stating a basic (and acknowledged) truth: Republicans are better than us at exploiting inherent flaws in democratic theory, to the ruin of all. Democracy demands a degree of selflessness, a willingness to see the other side, a decent respect for our opponents, and an appreciation of history. Unfortunately, we’re lucky to get one out of four on a good day. Tax cuts are billed as a good in their own right (to hell with the greater good); nuance is the enemy of rhetoric (“death panels”); progressives are either socialists, unpatriotic, or both; and Reagan, of course, saved the economy despite all evidence to the contrary.

Republicans almost depend on an ignorance of history for their very existence: show me a Republican President who cut taxes and decreased the deficit, and I’ll show you a script for a mirror universe West Wing. For a particularly egregious slap in the face, look no further than a recent poll, finding that a full 44% would prefer Bush to Obama. It took us ten months to forget, ten short months for a near-plurality to throw causality to the wind. The human brain is a fascinating, terrifying thing.

Truly, we are a flawed people. But the trap into which Yglesias falls is equating “flawed’ with “hopeless.” We’ve faced these problems before: it’s taken a generation each time, but we’ve almost solved institutionalized racism, terminated “states’ rights” as an excuse for bigotry, and built a great nation from a swarm of dissimilar colonies. All in the face of a stubborn, staid populace. What we had then — and what we don’t now — is strong moral leadership, and strong clash.

President Obama is capable of being a moral leader, because we’ve seen it before, as recently as last week. But he’s largely lost the spark that animated his day to day campaign presence, perhaps tempered by the responsibilities of office, perhaps because such charisma is simply incapable of routinization. Pray it’s not the latter, and hope he finds it again soon.

The second value will be tough to realize. We’ve become complacent, comfortable with a mode of political speech that permits each citizen to find his own peer group, and never leave. Ever. This is unacceptable. Our politicians should lead by example. We shouldn’t balk at serious, meaningful debates, and we shouldn’t make excuses for democracy. If we’re confident in our ideas, we should seek a fair method of clash, embrace openness, and spurn talking points.

We need a dialogue to define the era, something more than MSNBC and more than Beck, and while it’ll take opinion leaders to make it happen, we each can do our part. In discussions with your friends and family, don’t apologize for your politics — explain it, and defend it, kindly, politely, and legitimately seeking understanding. If you run a blog, turn off moderation, or moderate honestly, without editing for content. If you’re an educator, make your students comfortable with discussing politics by organizing clubs (and strive for rigorous neutrality yourself).

Ultimately, if we as a nation are “ungovernable,” it’s our duty to fix it. Break’s over.

Ahem. Unrelatedly, I realize that the Britten song, from which this post takes its title, is probably meant ironically, and taken as such by modern audiences, a jab at the unabashed enthusiasm of the original poet, and his often campy word choice. Fine, but it’s not terrible, and remember — nuance! Judge for yourself:

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