freedom of speech

Do Corporations Have Free Speech Rights? The Supreme Court’s Ruling in Citizens United v. FEC

by Hans Bader on February 6, 2010

in International, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

In the Citizens United case, the Supreme Court recently struck down restrictions on corporations’ and unions’ ability to criticize politicians.

Do corporations have free speech rights? I explained why I think they should have free speech rights in this letter in the New York Times. Many civil liberties guarantees, like free speech, have long applied to corporations in the U.S. and Europe, as I noted earlier at the Examiner.

Anthony Dick rebuts common misconceptions about the Supreme Court’s decision here.

Earlier, I wrote about Justice Alito’s reaction to the President’s attack on the Supreme Court’s ruling in the Citizens United case. Here, Justice Thomas explains why he skips the State of the Union Address.

Why Supreme Court Justice May Have Been So Annoyed at the President’s State of the Union Address

by Hans Bader on February 1, 2010

in Employment, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

At the president’s recent State of the Union address, he misleadingly attacked the Supreme Court for supposedly “reversing a century of law“ restricting corporate spending on political campaigns in its ruling this month in Citizens United v. FEC.

In response, an annoyed Supreme Court Justice Samuel Alito, who was attending the speech as an invited guest, apparently mouthed the words “not true,” although his words were not audible and did not interrupt the president’s speech.  (Obama was criticizing a Supreme Court ruling that struck down a recent federal restriction on corporations’ ability to criticize politicians.  The ruling, which was based on the First Amendment, said it was not invalidating a century-old 1907 law that bans corporations from making donations to politicians, who have long leaned on corporations to give money to their pet causes.  The ruling also did not lift restrictions on foreign corporations.  I earlier explained in the New York Times why corporations logically do have free speech rights.)

Maybe Justice Alito’s annoyance was cumulative, and based as much on the president’s past lies about an earlier Supreme Court ruling authored by Alito, as on his misleading criticism of the Supreme Court’s recent ruling.   Past lies make later falsehoods seem less like innocent mistakes.

In his 2008 campaign, and again in 2009, Obama criticized Justice Alito’s decision in Ledbetter v. Goodyear, which did not, contrary to the president’s claims, create a rigid 180 day deadline for bringing pay discrimination claims after an employee’s pay is set, regardless of whether the worker couldn’t have discovered the discrimination until years later.  (The deadline was 180 days, with various common-sense exceptions for hoodwinked employees, under one federal law, called Title VII.  But it is generally three years under another federal law, the Equal Pay Act, that also has more generous accrual rules.  Most employees could evade the short deadline of Title VII simply by having the sense to sue under the Equal Pay Act as well.  Alito’s ruling left workers with ample time to sue over discrimination, contrary to what Obama claimed.  Lilly Ledbetter lost her discrimination case because she waited until 1998 to file a complaint, despite admitting in her deposition that she knew her pay was low by 1992.)
I documented this in my commentary about the Supreme Court last year.  National Journal’s Stuart Taylor (a critic of the Supreme Court’s recent ruling in favor of corporations), and lawyers Paul Mirengoff and Ed Whelan, also described how Obama repeatedly distorted what the Supreme Court said in the Ledbetter case.

Regulation of the Day 100: Posting YouTube Videos

by Ryan Young on January 19, 2010

in International, Legal, Personal Liberty, Regulation, Regulation of the Day, Tech & Telecom

The Italian government is considering making it illegal for its citizens to post videos on the Internet without a license.

The free speech implications are obvious. But could the proposal also be a move to restrict unwanted economic competition against Italy’s state-dominated media?

Hate Crimes Bill Passes, Eroding Civil Liberties and Double Jeopardy Safeguards

by Hans Bader on October 23, 2009 · 1 comment

in International, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

Yesterday, Congress approved a measure to dramatically expand the existing federal hate crimes law, by adding it to an unrelated defense appropriations bill.  The measure would expand current law to cover virtually all hate crimes already covered by state law (both by adding gender, sexual orientation, disability, and transgender characteristics to a law originally designed to protect racial minorities, and by getting rid of the requirement that a hate crime effect federally-protected activities to be prosecuted in federal rather than state court.)

The measure was opposed by the U.S. Commission on Civil Rights on double-jeopardy grounds.  As I previously explained at length, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy.  Civil libertarians like Nat Hentoff and Wendy Kaminer also object to the bill on double-jeopardy grounds.   Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of trying all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial.  When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill contains speech-related provisions designed to allow prosecution of people who are not violent and do not intend to cause hate crimes, but whose speech inadvertently incites a hate crime by some violent, bigoted nut.  For now, courts are likely to block such prosecutions on First Amendment grounds, under the Supreme Court’s Brandenburg decision banning prosecutions of people whose speech unintentionally incites violence or other illegal acts (and the federal appeals court ruling in White v. Lee faithfully applying that principle to speech that incites violations of federal civil-rights and anti-discrimination statutes).  But if the ideological composition of the Supreme Court changes substantially, it is conceivable (although far from certain) that that could change.  Although the provisions will probably prove unsuccessful in censoring speech, it speaks volumes about the mindset of the hate-crimes bill’s backers that they would even try.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision, as I explained earlier.

Passage of the bill was aided by lousy reporting, in which journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.”  Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded (and DNA evidence showed), and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

The Obama administration supports the hate-crimes bill, which it used as a wedge issue in the 2008 election.

The Obama administration recently urged restrictions on hate speech and blasphemy at the United Nations, joining in calls by left-wing lawyers and conservative Islamic countries to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation.  Religious minorities have often been persecuted for “blasphemy” in Islamic countries for disagreeing with Islam, criticizing the prophet Mohammed, or interpreting Islam’s holy book, the Koran, differently than the majority of Muslims do.  In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, defending the death penalty against racism charges, and calling homosexuality immoral.  In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.

Congressional Conference Committee Attempts to Turn Hate Crimes Law Into a Speech Code

by Hans Bader on October 14, 2009

in Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

Hate crimes are irrational, and what sets them off is often unpredictable. The hate-criminal whose sentence was upheld in Wisconsin v. Mitchell by a unanimous Supreme Court attacked a young white boy because of the outrage he felt after watching the movie Mississippi Burning, which depicted racism against black people in the Deep South. To him, two wrongs made a right.

If the victim had attempted to sue the makers of Mississippi Burning for inciting the hate-crime, the lawsuit would have been dismissed under the Supreme Court’s rulings in Brandenburg v. Ohio (1969) and Hess v. Indiana (1973), which say that the First Amendment protects speakers from being held liable for inciting a crime unless they intended to incite the crime, and to cause it imminently. This is the so-called Brandenburg test, and appeals courts have consistently applied it to all but one context (workplace discriminatory harassment claims under the federal civil rights laws).

A conference committee reconciling House and Senate versions of the federal hate-crimes bill recently decided to reject the Brandenburg test, however, hoping to snare people who do not intend to incite a hate crime in hate-crimes prosecutions. Both the House and Senate had earlier passed versions of the federal hate crimes bill that included language intended to limit, rather than expand, its reach over speech. The conference committee turned this language inside out, converting the free-speech language into anti-speech language. It inserted new language that made it clear that the absence of any intent to incite a crime should not necessarily protect the speaker from punishment if the government can show a “compelling interest” in prohibiting the speech that cannot be achieved through less “restrictive” means. A speaker can now be convicted even if his “exercise of religion, speech, expression, or association was not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another.” (This changed version then passed the House as an amendment to a defense appropriations bill, and it is now expected to pass the Senate in a few days.)

The purpose of the conference committee’s change appears to be to allow the government to prosecute people for otherwise protected speech, under the theory that it is “incidentally swept up” within a ban on discriminatory conduct — a rule uniquely applied to workplace discrimination law. In sexual harassment cases, employers get held liable for allowing employees to read things that incite them to harass fellow employees, even though such liability would not be possible under Brandenburg, which requires a closer link between speech and the incited action. (See Robinson v. Jacksonville Shipyards (1991) (trial judge ruled that employer was partly liable for letting employees read porn, which made them view female employees as sex objects, and thus resulted in sexual harassment).) The argument is that such speech is not banned for its own sake, but rather is “incidentally swept up” in a larger ban on discrimination, an “incidentalness” that somehow is supposed to make the ban on speech less objectionable (legal commentators have long ridiculed this reasoning, but the courts sometimes accept it in the workplace). (See R.A.V. v. St. Paul (1992) (Supreme Court said in dictum that race-based fighting words could be “incidentally swept up” within a ban on racial and sexual harassment in the workplace).)

Courts have by and large refused to restrict speech on this basis in society as a whole, outside the workplace. In White v. Lee, 227 F.3d 1214 (9th Cir. 2000), a federal appeals court held that the speech-protective Brandenburg test — not the speech-hostile standards of workplace discrimination law — applied to investigations under the Fair Housing Act, meaning that public speech against housing projects for minority groups like recovering drug users and the mentally ill could not be “incidentally swept up” within a statutory ban on discriminatory acts. Such speech remained protected, the appeals court unanimously ruled, even if it led to municipal action against such housing projects, as long as it did not intentionally cause imminent attacks on minority group members. The court rejected the argument that the speech lost its First Amendment protection because it was “discriminatory” in its purpose and effect. By contrast, in Presbytery v. Florio, federal district judge William Bassler suggested that anti-gay handbills could be restricted under New Jersey’s gay-rights law based on its “secondary effect” of causing discrimination against gay people, regardless of the Supreme Court’s Brandenburg ruling.

The conference committee’s changes to the hate-crimes bill appear to be intended to nudge courts interpreting the hate crimes law towards a more speech-hostile “secondary effects” interpretation, akin to Judge Bassler’s interpretation of the gay-rights provisions in the New Jersey Law Against Discrimination.

Courts may well decline this invitation to regulate speech so broadly, however. Under the canon of constitutional doubts, courts are supposed to construe statutes narrowly to avoid potential constitutional problems. Criminal statutes like hate-crimes laws have to be more precise than a purely civil enactment like a workplace discriminatory harassment law. Interpreting the hate-crimes statute as not requiring that speech “imminently” and intentionally incite a hate crime for a conviction would render the hate-crimes law unconstitutionally vague, meaning that courts would generally interpret the law as requiring intentional, imminent incitement, under the canon of constitutional doubts. On the other hand, a court might refuse to do that based on the argument that it cannot rewrite the explicit language of the hate-crimes law inserted by the Conference Committee, which expressly assumes that speech can be banned even if it does not intentionally incite a hate crime. That would present a serious constitutional problem.

The language of the hate-crimes bill itself requires a violent crime to have occurred for a prosecution. However, another federal statute, the federal aiding and abetting statute, 18 U.S.C. 2, holds people liable for a federal crime even if they did not physically perform it, as long as they “induce,” counsel, aid, or abet it: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” The conference committee appears to be trying to get courts to interpret those words, such as “induces,” broadly at the expense of free speech, by preventing courts from construing those words narrowly to comply with the Supreme Court’s Brandenburg test.

In the long run, as the political climate shifts, and courts begin watering down the Brandenburg test even outside the workplace, such language could open the door to prosecutions over speech that offends a prosecutor, if it allegedly had some influence on a hate criminal. In Canada, hate-crimes laws were on the books for decades before they began to be used in earnest against publishers for peacefully dissenting against politically correct orthodoxies or offending radical Islamists.

Moreover, even if the attempt to convert the hate-crimes law into a speech code or hate-speech law fails, it still says volumes about the mind-set of the bill’s backers, who want to take a law seemingly aimed at violent hate crimes, and use it as a backdoor way of censoring speech, contrary to the wishes of many of their colleagues. Members of the public should ask the members of the conference committee, like Senator James Webb (D-VA), why they substituted this harmful language for the harmless language in the previous House and Senate versions, which were designed to protect against censorship, rather than cause it.

The hate crimes bill raises other problems as well. While the original version of the hate-crimes bill did not raise free-speech problems (contrary to the claims of the Religious Right, which also focused obsessively on the inclusion of sexual orientation in the bill), it did, sadly, seek to take advantage of a loophole in constitutional protections against double jeopardy (as I noted here and here), and it also did raise serious constitutional federalism issues. Those problems are equally present in the version of the hate-crimes bill that is now slated to be enacted by Congress.

More Big Brother Tactics Against Charity

by Gary Howard on March 5, 2009 · 2 comments

in Odds & Ends, Personal Liberty, Politics as Usual

There are more  developments on the charity front-not exactly related to the budget issue I posted on previously–but interesting nonetheless.  Apparently, the National Committee for Responsive Philanthropy (do not miss this link!)-NCRP, wants to work with legislators to push this agenda.  At first glance, its goals laid out here seem harmless enough:

It attempts to answer the questions: What differentiates an exemplary foundation from the rest of its peers? What can foundations do to improve its relevance to nonprofits, the economically and socially underserved Americans and society as a whole?

Of course, all things are not always what they seem.  Here is a critique of the report in by Heather Higgins of Philanthropy Roundtable:

The full text of the report came out March 3, but NCRP has been circulating a 15-page summary that already makes clear that this paper is not only replete with flawed logic, poor economic understanding and selective data, but is most disingenuously an Orwellian world of deliberate redefinition, where benign and admirable words are used but have meanings very different from common understanding.

Why? Because this report is a tool to a larger end. The document says it’s to be used to “criticize those who do not measure up.” Moreover, “Policymakers may find the criteria valuable when considering regulations or legislation … and the media will find the resource helpful for reporting.”

Back up a minute. NCRP has been around for 30 years. Its Web site homepage features “Happy Birthday, Saul Alinsky,” for the radical-left union and community organizer. Though self-styled as an independent “watchdog” of foundations, the reality is that NCRP doesn’t care about charity broadly–indeed it’s quite contemptuous of large swaths of it. It only cares about encouraging ever-greater flows of funds to the groups it deems worthy and truly serving of the public good, chief among which would be “social justice” activists like ACORN, an NCRP member.

In another article by an affiliate group critical of the report:

However, despite its name, The Alliance for Charitable Reform believes these benchmarks have nothing to do with measuring effectiveness. In fact, the natural consequence of these benchmarks will be to reduce the scope and diversity of the foundation sector to one that serves a more narrow set of highly politicized interests…

…”On average, foundation assets have dropped 20-40% and The New York Times reports an unusual number of charities filing for bankruptcy. It is incomprehensible that the NCRP is proposing criteria that could further ravage the charitable sector,”…

Again, I leave with more questions: Is there an effort out there to ‘de-fund’ or seriously reduce the funding of certain private non-profit charities, and ensure only select ones remain well-funded?   If so, why? I have no idea, it may be just a misunderstanding of intentions, but it sure seems fishy.

Incoming Attorney General Eric Holder Is Hostile to Civil Liberties

by Hans Bader on January 23, 2009 · 1 comment

in Legal, Personal Liberty, Politics as Usual

Eric Holder, Obama’s choice for attorney general, is hostile to civil liberties. He has previously expressed veiled support for using the misnamed “Fairness Doctrine” to squelch “conservative critiques” and “conservative media,” such as Fox News (which Holder believes is anything but “Fair and Balanced,” contrary to its slogan). The “Fairness Doctrine” is designed to shut down conservative Talk Radio.

Holder also has advocated hate-crimes legislation to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broad federal hate-crimes law have pointed to the Duke Lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations. Supporters of federal hate-crimes legislation like Janet Reno view it as a way of getting around constitutional protections against double jeopardy, by allowing reprosecution in federal court of people who have already been found innocent in state court.

Civil libertarians like Wendy Kaminer have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections. So has Gail Heriot, a law professor and member of the U.S. Civil Rights Commission.

Holder has also been criticized by civil libertarians for seeking to undermine the Sixth Amendment right to counsel, and by gun-rights advocates for seeking to eviscerate Second Amendment rights recognized by the Supreme Court.

Holder was also involved in the disgraceful pardon of fugitive millionaire Marc Rich,, whose ex-wife was a major Clinton donor, and the pardons of unrepentant Puerto Rican terrorists.

I wrote earlier about how the federal hate-crimes bill backed by Obama and Congressional leaders would violate constitutional federalism safeguards, and how it would allow people found innocent in state court to be retried in federal court. Supporters of the hate-crimes bill have all sorts of rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had “inadequate resources” or were of “questionable effectiveness.”

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution.”

The defendants in the Duke lacrosse case, charged with an interracial rape, were vindicated by DNA evidence. But their detractors, such as former John Edwards staffer Amanda Marcotte (who has repeatedly smeared critics of the federal hate crimes bill as being bigots) and radical activist Alton Maddox (who was involved in the Tawana Brawley hate-crime hoax), continue to insist that they were guilty of hate crimes, and that more hate-crimes laws are needed.

For some people, it seems, hate crimes are so terrible that not even innocence should be a defense. Such people eagerly await passage of the federal hate-crimes bill.

Federally Sanctioned Propaganda Machine

by Gary Howard on December 11, 2008 · 1 comment

in Bailout Watch, Economy, Intellectual Property, Nanny State, Odds & Ends, Privacy, Regulation, Tech & Telecom

 

Apple's 1984 "Big Brother" commercial.

Apple's 1984 "Big Brother" ad

An article over at Ad Age brings up an angle on the whole auto industry bailout probably not considered much before.  The fact that a yet-to-be-appointed “car czar” will have control over a multibillion dollar advertising budget for the big three.  Under the guise of “oversight,” this would effectively “Create World’s Most Powerful Marketing Exec[utive].”  

The draft rescue plan for Detroit sent to the White House by Congress yesterday calls for the appointment of a “car czar” who will oversee the Big Three automakers’ expenses over $25 million — which, by extension, would include media buys. Based on Advertising Age’s estimates of spending by General Motors Corp., Chrysler and Ford Motor Co., that would give the as-yet-unnamed car czar control over some $7.3 billion in marketing spending in the U.S. alone.

The most disturbing thoughts about this (particularly to those concerned with liberty) are provoked here: 

The car czar would wield a budget more than double those of AT&T, Verizon, Unilever and Johnson & Johnson, which round out the nation’s top five marketing spenders, and give the car czar more clout with media and agencies than such famed names in marketing as Walmart Chief Marketing Officer Stephen Quinn and Anheuser-Busch VP-Marketing Dave Peacock.

…If the bailout goes through, agencies that work for the Big Three will essentially be toiling on a government account, with all the associated red tape and strictures that involves.

So there you have it.  We should all be concerned about this for many reasons.  As mentioned, the large ad budget that comes with a czar-controlled U.S. auto industry will allow a government bureaucrat to wield unbalanced and unchecked influence over not only who gets ad contracts, but what media outlets get ad money. The czar can simply refuse to give business to an advertising agency who works for a foreign competitor of the big three (or a “non-compliant” corporation), or refuse to pay money to show ads on outlets that they deem “unfriendly” to the administration or its mission.   This will be an unequivocal disaster.  We have already seen the lengths to which administrations (and pre-administrations) have gone to influence and/or silence media they do not like.  What kind of power plays do you think are possible when the administration’s appointee controls a major source of media outlets’ ad revenue? Whatever it ends up being, it won’t be pretty.

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