Time to Fight for Free Speech

Every supporter of the natural right to unlimited free speech and free association in elections, be you liberal, conservative, or libertarian, should be outraged at Senate Democrats’ current extremist campaign to repeal the First Amendment for all Americans, save for a select few who parrot their talking points in the establishment press that are given a special class exemption status.

Despite the completely faux populist rhetoric about stopping “Big Money” from “buying elections,” the controlling of political speech via campaign finance “reform” has historically always solely been about protecting incumbent politicians and their (Big Moneyed, I might add) special interest allies from competing outsider candidates and ideas in the political marketplace through disproportional enforcement against cash-strapped citizen challenger campaigns that often need large contributions of funds to combat against the innumerable advantages of incumbency.

Where this amendment to pass, any “reasonable” free speech you have will be a wholly writ of privilege from the State, able to be rescinded at anytime and for any purpose that the political class deems “unreasonable” (i.e., threatens their reelection).

Religious Liberty, Right-to-Work Decisions @ SCOTUS

images(photo credit: Time.com)

The US Supreme Court today delivered its rulings in the two cases that ranked among the biggest legal “blockbusters” for this term: Burwell v. Hobby Lobby and Harris v. Quinn.

The Hobby Lobby decision involved a particular provision of the ObamaCare law that mandated US employers provide birth control free of charge to their employees. The Green family, which owns the arts and crafts store Hobby Lobby, sued the government arguing that this section of the law violated their religious liberty under the First Amendment and the Religious Freedom Restoration Act of 1993, which states that if the government is going to infringe on core religious expression it must have a “compelling government interest” and act only in the “least restrictive way.”

And while Hobby Lobby doesn’t oppose all contraceptives (their employee insurance plans cover most varieties), the company specifically abstained from covering certain medications that it believes induce abortions, such as Plan B.

On a 5-4 decision, with the four so-called conservative justices plus swing vote Anthony Kennedy, the Court agreed with the Green family and the other plaintiffs in the case that the contraception mandate went too far in burdening closely-held companies with threat of either violating the owners’ religious conscience or violating the law.

Unfortunately, the decision apparently leaves open the opportunity for the Obama administration to create a government program that directly distributes birth control at taxpayer expense.

This and other factors have prompted some Republicans, most recently Colorado Representative and US Senate candidate Cory Gardner, to float the idea of legalizing the sale of contraceptives over-the-counter so as to appease both factions in the debate.

The decision does not grant such religious exemptions to publicly-traded companies. It only applies to “closely-held” corporations like sole and joint proprietorships and nonprofits.

In Harris v. Quinn, an Illinois law that conscripted home health care workers into public sector sector unions, or at least forced them to pay union dues, because, the state argued, all medical providers compensated with Medicaid funds count as “public employees” and thus obligated to be represented exclusively in union collective bargaining agreements.

The court again split 5-4 in a decision which distinctively separated Medicaid reimbursement recipients from actual public state employees, arguing that private patient assistants are responsible solely to their customers, not to the state. In so doing the justices have invalidated about a dozen and a half other similar state laws around the US with similar inclusions of home health care workers.

And while the Court’s decision has liberated many thousands of PAs from compulsory union representation, many had wished, or feared, that the it would have gone farther and invalidated all mandated collective bargaining schemes as unconstitutional infringements on First Amendment-protected rights to free association and expression. However, the highest judicial body in the land may be gearing up for such a case in the coming term(s) and plenty of pro-Right-to-Work litigants are eager to test how far they can push the justices in that direction.

The 1st Amendment Protects Flag Burning and Big Money

Luke Wachob at the Center for Competitive Politics has an excellent Op-Ed up today at the Washington Examiner highlighting the hypocrisy of some Democrats who in previous years opposed usurping free speech when it came to flag burning, are now all in favor of assaulting the First Amendment freedom of campaign contributing and spending.

It has become a cause celeb, and a mighty profitable one at many liberal fundraisers, to bash heroic Supreme Court decisions like Citizens United and McCutcheon that liberate American political freedom and strengthen the First Amendment.

Tales of “legalized bribery” and “buying elections” infect the discourse like a putrid fever. But the reality is such decisions have been a boon to the little guy in US elections, allowing the Average Joe and Jane Citizen to have more access to money to fund their startup campaigns and causes.

And while the power of incumbency is still overwhelming in part because political campaigns and groups are still too regulated, it has been less powerful in recent election cycles. In 2010, all though it was going to be a good year for Republicans anyway, the Citizens United decision allow for independent groups to express themselves and inform fellow voters on who to support.

In 2012, GOP presidential contenders in the party’s primaries allowed rebel candidates like Newt Gingrich, Rick Santorum, and Ron Paul to stay in the contest longer in part because they and their middle income supporters had the financial lifeline from Big Money donors like Sheldon Adleson, Foster Freiss, Peter Thiel, and of course, Charles and David Koch.

But back to the issue at hand. In his piece Wachob quotes from prominent Democratic senators like Barbara Mikulski of Maryland, DickDurbin of Illinois, and Tom Harkin of Iowa.

On the topic of flag burning, Mikulski says:

“I cannot support an Amendment to the United States Constitution which would, for the first time in our nation’s history, narrow the reach of the First Amendment guarantee of freedom of speech.”

Durbin says:

“The Bill of Rights has served this nation since 1791, and with one swift blow of this ax, we are going to chop into the First Amendment.”

Harkin says:

The Bill of Rights “has stood unchanged for more than two centuries, despite Civil War, Depression, two world wars, and powerful internal movements of dissent. Even at those times of profound turmoil, we resisted any temptation to amend the Bill of Rights.”

That last statement is particularly interesting because this author is pretty sure that all of those things the Iowa Democrat referenced were more dangerous than the danger of “unregulated dark money” in politics.

So why is an anti-flag burning amendment a bridge too far but a similar ban on political contributing isn’t?

Answer: Both were and are dangerous political ploys that need to be abandoned immediately if we are going to continue expanding the First Amendment by abolishing contribution limits that stifle free speech, free expression, and citizen education.

College Students Increasingly Using Tech To Upset University Commencements

There has been a lot of metaphorical ink spilled, much of it negative, about student protests of commencement addresses. POLITICO has an interesting piece up about students with views antagonistic to the invited speaker’s are increasingly voicing themselves and their opposition, sometimes fervent.

Students across the country are protesting commencement speakers of all political varieties. Rutgers students balked at Condoleezza Rice and her ties to the Iraq War. Smith College kids and professors threatened to jeer IMF director Christine Lagarde’s monetary policies. And Robert Birgeneau faced protests at Haverford College over an incident involving campus police and batons. All the high-profile speakers are taking a pass.”

While some commentators believe that this is a symbol of growing intolerance on America’s campuses (a very real concern given the rise of tiny “free speech zones” and bureaucratic retaliation against faculty and staff who don’t tow the line on certain political/economic issues), I do not share this concern when it comes to commencement speakers.

After all, no speaker has the “right” to speak and receive an honorary degree free from criticism. And students, who have a range of views, do have the right to voice opposition to certain divisive figures who will monopolize the symbolism of four years of hard work, making it prohibitively harder and more expensive for family and friends to attend the event.

Fortunately, rapidly innovating technology platforms like Twitter and YouTube are able to provide student protesters new sources of voice via sites like Change.org and Kickstarter.

This is all for the good. The solution to bad speech is more speech. With any hope, technology + decentralization will help to make university campuses a bastion of free thought and free speech once again.




Three cheers for Citizens United v. FEC and free speech!

Today marks the four year anniversary of arguably the most controversial Supreme Court ruling of the last decade. On January 22nd 2010, in a 5 to 4 decision, the Court struck down a provision of 2002 Bipartisan Campaign Reform Act, popularly known as McCain-Feingold after its two principal Senate co-sponsors, which mandated the carte blanche prohibition on corporations and unions financing independent political advertising 30 days before primary and general elections.

Right after the ruling was announced, it’s fairly safe to say that the left in America went bat shit crazy. They turned a decision that should have been praised as the greatest pro-free speech decision since New York Times v. Sullivan into “our Dred Scott,” as Keith Olbermann infamously put it, referring to the 1850’s Supreme Court decision that held upheld the forced returning of a runaway slave (that’s right, Citizens United is akin to slavery!).

In reality, Citizens United held that every American has the exact same rights as super wealthy individuals and multinational media corporations to raise and spend unlimited amounts of money for the purpose of independent political speech and association.

Pre-Citizens United, a billionaire like T. Boone Pickens could take out a multi-million dollar ad buy to promote his energy plan, but any group of citizens who lacked such resources were banned from coming together to pool resources to express themselves under one banner.

Opponents of spending money on First Amendment-protected speech shrieked that now our elections would be “bought” by “the highest bidder” and mocked those who said “money is speech.” First of all, let’s never forget that voters, not contributors, determine who wins elections. Ideally, the candidate as well as independent backers should have full freedoms to raise and spend as much as they want to on trying to persuade (not “buy”) support among the voters (and his opponents are equally free to do the same), and then they vote. Period.

Second, while, true, money itself isn’t “speech,” it cannot be denied that money enables speech and by restricting the amount of money citizens can either raise and spend themselves, or give to others, for the purposes of speaking, you are engaging in de facto censorship.

Super PACs, which resulted from a later DC Court ruling that allowed for corporations and unions to raise unlimited amounts as well as spend, and activist nonprofits, have allowed for more speech and more competitive elections by allowing for more sources of money to go to more sources of speech, leading to a more informed electorate and a freer society over all.

So three cheers for Citizens United! Three cheers for free speech!

(P.S. Here is a fantastic short little video put out by the pro-First Amendment Center for Competitive Politics about all the things the anti-free speech media and activists don’t want you to know about Citizens United v. FEC)

SCOTUS should strike down Mass. state abortion clinic ‘buffer zone’ law

The Supreme Court heard oral arguments today on a Massachusetts law that creates a so-called “buffer zone” of 35 feet between legal abortion clinics and pro-life protestors outside that extends onto public streets and sidewalks.

At issue, POLITICO reports, is that the law gives an exemption to employees speech outside but punitively restricts the activists from their famous “sidewalk counseling” where they try to persuade, very passionately at times, potential mothers and parents that they are making a very big mistake in seeking an abortion.

POLITICO writes:

A key issue in the case, McCullen v. Coakley, is whether Massachusetts can differentiate between people who want to peaceably protest or consult people outside of the facility and those who intend to be violent or disruptive. Miller, as well as the Obama administration, argued that it is “enormously difficult” to make that distinction, so everything from loud protests to quiet conversations must be restricted.

The problem with this kind of reasoning being put forth by Massachusetts and the Obama administration, who is backing the law in the court, is that it is impermissible for the federal or state governments to restrict core political speech–or any peaceful speech–during reasonable hours on public property that is neither violent nor threatening.

Even more galling is that the law doesn’t even allow for conversational “quiet” speech. That is patently ridiculous on its face and demonstrably so when Justice Kennedy asked, “Do you want me to write an opinion and say there’s no free speech right to quietly converse on an issue of public importance?”

This is the first major case that this writer knows of to come before the Court since the 2000 case Hill v. Colorado that created an eight foot “floating” barrier in that state between protesters and clinics, which a majority of the justices upheld.

But the composition of justices has changed since then. Neither Justice Roberts, Alito, Sotomayor, nor Kagan were on the court at that time. And with Kennedy likely going with the conservatives on this ruling, it appears that those Republican-appointed justices will strike down the law.

But this is really not a case about abortion or abortion rights. It’s more about free speech. And this court, to the pleasure of this writer, is a very pro-free speech court relative to the Rehnquist court or others that have come before.

This is the court that has struck down laws banning the watching of animal cruelty videos, the picketing of soldiers’ funerals, and the funding of independent political advertising by by corporations and unions.

In this case, McCullen v. Coakley, the court should do the right and constitutional thing and strike another blow for First Amendment political speech.