U.S. Supreme Court Overturns Corporate Political Spending Ban

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Do you believe the government should determine what the media can broadcast? Do you believe the government should decide which businesses constitute “media” and which do not? This is exactly what the Supreme Court ruled on yesterday in Citizens United v. Federal Election Commission. As Justice Kennedy wrote for the conservative majority:

“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations-- including nonprofit advocacy corporations-- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” 558 U.S. ___ (2010) at 20.

This law, according to the majority opinion, gives rise to “the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations,” on a whim. Even the People’s Press Collective, as private corporation not classified as traditional media, could have incurred criminal liability for advocating for or against any candidate within the statute’s time frame. Does this frighten you? It should.

The reason for this oppressive law is that it supposedly protects shareholders from being forced to fund political causes with which they disagree. It also prevents the appearance of corruption and quid pro quo arrangements between politicians and corporate interests. Finally, and most importantly, it allegedly prevents the distortion of the election process by the large accumulations of wealth held by corporations.

The Court swiftly dismissed the first two concerns. Corporate shareholders have the option of divesting if they do not like the actions of any particular company. However, even if this were not the case, limiting political speech only in the days immediately prior to an election but at no other time hardly shows a serious concern for shareholder interests. As to quid pro quo arrangements, we already have anti-bribery laws in force. Attempting to go further and prevent mere access or influence is not only impossible, it is an impediment to representative democracy itself. As it is, the law would continue to permit lobbying by those companies wealthy enough to engage in it, but prohibit other companies from engaging in fundamental political advocacy; hardly an equitable arrangement.

In his dissent, Justice Stevens argued passionately, if not plausibly, that the government has a strong interest in preventing the appearance of corruption corporate wealth can create. He further maintained that, as the First Amendment never mentions corporate entities, they should not be entitled to full speech and press protections. In fact, he maintains that corporate speech is adequately protected in the lengthy procedures set up to create 527 groups, PACs, and the cumbersome and expensive filing, reporting, and maintenance requirements such affiliations entail.

The Court maintains, however, that:

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’ The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation.” Id. at 7 (internal citation omitted).

The Court goes on to point out that corporations, as affiliations of individuals, have long enjoyed First Amendment protections. Moreover, the text of the First Amendment itself is not limited to individuals, but protects the freedoms of speech and the press in general. The Court, “rejected the premise that the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections,” and stated that, “The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.” Id. at 37 (internal citation omitted).

In short, the First Amendment exists to protect the political speech of citizens, as individuals, groups, or corporations. “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 24.

“The censorship we now confront is vast in its reach. The Government has muffle[d] the voices that best represent the most significant segments of the economy. And the electorate [has been] deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than the disease. Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.” Id. at 38 (internal citation omitted).

This is as it should be. Despite this, though, the Court still upheld requirements for disclosing donors and issuing disclaimers as to who funds political advertisements. Only Justice Thomas objected to this. He points out the possible chilling effects on speech when activists target political donors with violence and intimidation, saying, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” Id at 6 (Thomas, J., concurring) (internal citation omitted). Thus, he maintains we have still one further step to take on the road to truly free political speech.

As it stands, the Supreme Court has overturned the ban on direct corporate political advocacy. Corporations are still subject to contribution limits in candidate campaigns, as are individuals, and they must still disclose their donors and take credit for any political advertisement they produce. Nonetheless, this decision should be celebrated by anyone who still believes in the First Amendment. Here in Colorado, I am certain some enterprising company will use this decision to overturn our own state ban on direct corporate advocacy, which so closely mirrors federal law. I look forward to that day.

Churchill Trialpalooza Roundup

**Update--More from Drunkablog--jury selection completed:

A jury of four men and four women -- including two alternates -- has been seated in Ward Churchill's wrongful termination trial against the University of Colorado.

Denver District Judge Larry Naves gave a set of admonishments to the jury, telling them not to read about the case in newspapers or on the Internet or to watch anything about it on television.

Opening statements are scheduled to be made Tuesday at 9 a.m.

The lawyers in the case took an hour vetting the prospective jury as a group Monday afternoon, asking questions about the role of the First Amendment and about the kind of questions a public university has the right to ask when an employee is making controversial statements.

They also asked the jurors if they thought they could be fair in the case.

Lawyers had already met individually with each potential juror in the morning.

Bonus video from last week's Ward rally at CU, with moonbats issuing support from the "free speech" cage.

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Drunkablog made the rounds this morning in Civic Center park ("Save Ward!" rally) and the Denver City and County building for the jury selection, but not much was going on . . . yet.

Looking at the Left has more reflections on the Churchill kerfuffle, and kook-aid guzzling Ben Whitmer soldiers on in his support of his idol mentor.

Churchill's lawyer, David Lane, parrots the continued charge of a CU "witch hunt" borrowed from William "free as a bird" Ayers:

"He is looking forward to having his day in court finally in a public forum so the public can hear what this witch hunt was all about," Lane said.

The trial is being held in the courtroom of Denver Chief District Judge Larry J. Naves.

Prospective jurors began receiving questionnaires about their knowledge of Churchill and the facts of the case last week.

The jury will be asked to consider two claims: that the university retaliated against Chur chill first by launching an investigation into his academic record and then by firing him. Churchill, 61, is seeking reinstatement and a financial judgment.

"In firing Mr. Churchill, CU did the right thing in the right way for the right reasons," said Ken McConnellogue, a spokesman for the CU system. "Essentially, I think that Churchill has had a trial by a jury of his peers and now he wants a do-over, and so we hope the jury sees things the way we do."

Churchill was roundly criticized in the court of public opinion, justifiably terminated by due process of his academic peers, and now has his day in court.

Some see no resolution in sight, and the decision in this lawsuit as anything but the final word in the Churchill/CU saga.

Stay tuned for more "As the Ward Turns"--as the lawsuit's first full day will commence tomorrow with opening arguments scheduled for 8:30 am Tuesday.

Rocky Mountain News Endorses The Blogger Protection Act Of 2008, And You Should Too

Freedom of speech may cost you dearly if you blog--you could find yourself subject to campaign finance law regulating "public communications."

Fortunately, in a surprising editorial from an MSM source, the Rocky Mountain News endorses the forthcoming Blogger Protection Act and addresses why, with the First Amendment, it should even be needed:

Maybe you're thinking of setting up your own blog to comment on the affairs of the day. By all means, join the fray. But please make sure you don't run afoul of a judge who considers your opinions a political contribution that should be regulated by federal campaign law.

We're not joking. This nation that so enshrines free expression still hasn't decided for certain whether bloggers should have the same leeway that, ahem, newspaper editorials and other traditional forms of opinion enjoy. Fortunately, Congress will soon have an opportunity to give Web blogs more durable First Amendment protection.

In the coming days, Rep. Jeb Hensarling, R-Tex., is set to introduce The Blogger Protection Act of 2008. The bill would enact in law regulations that were handed down two years ago by the Federal Election Commission regarding bloggers and campaign finance laws.

The FEC has twice attempted to protect Internet users from the strictures of campaign law, as it has exempted newspapers, broadcasters and other more traditional media outlets. But because these rules have been reversed once by a federal judge and could be overturned in another legal challenge or by a future FEC, a statute is needed. We hope the Blogger Protection Act becomes law.

The reason the FEC got involved to begin with was - you guessed it - the deeply flawed McCain-Feingold campaign finance law. That act regulates "anything of value used to influence an election," including "public communications." This lets the government determine whether a particular form of communication is either a contribution or an expenditure and subject to the limits of the finance law.

So does that mean a blogger who posts some snarky comment about John McCain's age or Hillary Clinton's hairdo is making a contribution to an opponent's campaign? How would such a message be valued in monetary terms? By the number of hits the page receives? By the number of comments posted by readers?

It shouldn't be. And in 2002, the FEC seemed to resolve the problem when it exempted from the law pretty much any information transmitted over the Internet.

The fact that the issue remains unresolved is most troubling, but since this has effects for all corners of the blogosphere, both left and right, it should be easy to build momentum for the bill.

What is amazing is that we need to debate this at all. The FEC and the courts have no place in regulating politically-related speech on blogs. We applaud the RMN's lead in bringing awareness of the issue, at least for Colorado's political community and especially its bloggers.

Denver To Begin Accepting Democrat National Convention Rally And Protest Requests

Gotta beef with the Democrat party? Want to levitate the Denver Mint? Or simply participate in likely the most media-drenched event in Denver's history?

Then you better get your plans in early or face the "blind lottery":

The city of Denver has set up a process for groups to apply for permits and licenses for the use of parks and city streets before and during the Democratic National Convention.

Denver Mayor John Hickenlooper on Friday declared the convention an "extraordinary event," which requires special procedures to handle permits and licenses for use of city property and facilities.

The city on Monday will start accepting requests from groups that want to hold rallies, marches and other events before and during the convention.

"We're working as hard as we can to make it a fair and transparent process," said Kevin Scott, the permitting liaison for the convention.

From March 3 to March 14, the city will be accepting requests for use of parks and suggested parade or march routes. The requests will be for events to be held from 12:01 a.m. Aug. 15 to 11:59 p.m. Aug. 31. The convention runs from Aug. 25-28.

A few DNC details are still TBD:

Two things have yet to be determined - the security perimeter or First Amendment Zone around the Pepsi Center, where protesters can gather.

"That comes from the Secret Service," said Archuleta. "When we know it, we would release it."

Another is the parade route. The city is committed to having at least one route open to groups that want to hold a parade or march that will end within view and earshot of the Pepsi Center.

"We share the protesters' concerns about that and they will be taken into consideration," said Archuleta.

Guess who isn't pleased with the new rules--that's right, Recreate68! wants a place to camp:

"The city has made some very positive changes as far as removing insurance requirements," said Glenn Spagnuolo, one of the organizers for Recreate' 68 Alliance. "But we are upset with the fact that the city has made one specific change to stop Recreate 68 what it is intending to do."

Under the old park ordinance, Spagnuolo said the city allowed overnight camping at the Civic Center park. However, that provision was not included under the new permitting process.

Spagnuolo said he expects thousands of people to come from across the country for the Recreate '68 events, but most will not be able to get hotel rooms, because they would have long been booked up, and have no place to go.

"That's a major problem," said Spagnuolo. "The city knows that they are creating a confrontational event that we're trying to avoid."

But Archuleta said that the city's park ordinance has long prohibited overnight camping except in Denver's mountain parks.

"They understand the laws," she said. "What we want them to do is honor the ordinance."

They won't honor the ordinance in August any more than they honored it in October 2006 ahead of the annual Columbus Day Parade protests. By preemptively threatening confrontation--a common moonbat intimidation tactic, despite protestations that they are the "peaceful" ones--Recreate68! puts Denver's police on the defensive and creates the meme that the police are, in fact, provoking the poor, innocent protestors.

Boo hoo.

Max Karson's Latest Attention Scheme Results In Diversity Training

CU student and self-styled provocateur Max Karson's latest foray into the world of the First Amendment and adolescent attention-mongering has resulted in--you guessed it--mandatory "diversity training" and other politically correct "reeducation". The goal? A more "nuanced" Campus Press staff at CU:

The University of Colorado student newspaper's staff will undergo diversity training and meet other measures outlined Thursday by CU officials in response to a column published earlier this week that said Asian people should be rounded up, "hog-tied" and "forced to eat bad sushi."
. . .
On Thursday, five editors of the Campus Press and faculty advisor Amy Herdy met for 90 minutes with Paul Voakes, dean of the School of Journalism and Mass Communication, to talk about how to deal with fallout from Karson's column.
. . .
He said the Campus Press also will work with Dave Martinez, the school's diversity coordinator, to establish a Student Diversity Advisory Board composed of non-journalism majors who "represent a broad swath of interests on the campus," which will provide editors with regular feedback.

The Campus Press also agreed in the meeting to:

Invite student organizations to meet face-to-face with the editors.

Adopt an "opinions policy," with standards and procedures for determining the acceptability of opinion columns or reader-generated content.

Schedule a series of diversity-awareness workshops for the entire staff with the CU Office of Diversity, Equity and Community Engagement, with participation of professional journalists of color.

Host a series of workshops for opinion writing and editing, to be presented by experienced professional opinion editors.

"I'm confident that the current crop of editors has begun to develop a new, more nuanced understanding of the delicate balance between absolute free speech and journalistic social responsibility," Voakes wrote. "I also want to apologize on behalf of the school for the upset that our student publication has created."

Instituting "diversity training" seminars and a kangaroo non-journalism-but-PC-advisory-board are hardly startling, especially for a moonbat liberal campus that can't seem to grasp satire (even if poorly written).

What is disappointing is the dean's necessarily PC notion of trying to "balance" between "absolute free speech" and "journalistic social responsibility". Karson's column--distasteful and perhaps misguided--and the editors' decision to run the piece can and should be criticized. But blurring the line of free speech latitude with cumbersome PC "advisory boards" and the ambiguous "social responsibility" mantra is the true threat in this instance.

Karson is a hack, albeit a dedicated one. CU's damage control went into overdrive (as it has in the past), seeking to deflect or mitigate another potentially damaging story. Where are the Ward Churchill acolytes to support Karson's free speech protections? Or is there (yes there is!) a double-standard? Had Karson targeted white Christian conservative males, there would surely be cries in defense of his rights to push the "boundaries" and challenge the status quo. Instead, he chose Asians as the vehicle for his satire.

Karson may not be funny, but once again the joke is on CU.

The Drunkablog has more background on Karson's previous free speech flaps at CU.

CSU Editor Retains Churchill Lawyer; Update--Hundreds Attend Meeting

**Update 3--formal hearing for CSU editor next Thursday

**Update 2--Editor "arroganhttp://www.blogger.com/img/gl.link.gift", wanted to be "center of attention" (we noted this earlier, below):

Students who have worked with McSwane at the paper, The Rocky Mountain Collegian, said they are not surprised by the furor he has provoked.

They described McSwane as arrogant and eager to make himself the center of attention. Winning a prestigious journalism award shortly after graduating from high school only boosted his ego, the other students said.

"Everything was about him," said Emily Polak, 20, a junior who was a reporter on the CSU paper.

**Update--No decision yet:

Wednesday night's meeting started at 7 p.m. and the 310-seat room was filled to capacity. McSwane also spoke during the meeting, answering questions from the board.

"We expected a negative reaction, but we didn't think it would be as bad as it is," said McSwane.

It was the beginning of due process under the bylaws of the board, according to CSU. The nine-person board was to gather information and listen to public comment about the editorial before deciding whether to take further action.

The board has the ability to fire McSwane if they chose. They were not expected to make a decision Wednesday night, but one could come as soon as Thursday.

The board could dismiss the complaints, admonish, reprimand or dismiss McSwane.

The revenue costs have grown:

Student officials and faculty adviser Jeff Browne told the board that since the editorial ran, 18 advertisers have either called to pull their advertising or threatened to end their advertising in the newspaper, which could result in some $50,000 in potential lost revenue. Officials have said that staff would have to take an across-the-board 10 percent pay cut to make up for the losses, which cut into the $950,000 advertising budget. Browne said some staff members, including a photographer, have quit.
. . .
Nick Hemenway, a senior and an engineering major, summed up the argument for many who spoke in opposition to the editorial:

"Although the First Amendment guarantees freedom of speech, nowhere does it claim to provide freedom of consequence," he said, adding that he wasn't sure what punishment would be appropriate for McSwane.
. . .
No Collegian editor has ever been fired in its 116-year history.

McSwane's self-aggrandizing efforts to portray himself as the embattled defender of free speech are undercut by his apparent desire to draw national attention to himself (eery Ward Churchill parallels here--see below for more Churchill connections) Some moonbat gets tasered at John Kerry event at the University of Florida, and McSwane convinces his colleagues at CSU to use an expletive and the President's name to get 15 more minutes of fame.

He isn't defending journalistic integrity or the First Amendment.

He's launching a career in professional moonbattery.

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David McSwane reaches out to Colorado's new celebrity lawyer, David Lane.

CSU Paper Prints Expletive Targeting Bush--Update

**Update--The price of one word:

The Associated Press Saturday reported the student newspaper has lost $30,000 in advertising and had to cut pay and other budgets by 10 percent because of fallout.

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Taser this . . . F*** BUSH!

David McSwane (aka the student who captured a military recruiter promising to secure him a fake high school diploma) is now the editor-in-chief of the Rocky Mountain Collegian, who decided to take this week's taser incident at a John Kerry snooze speech at the University of Florida to highlight first amendment issues, in typical moonbat BDS fashion!

DNC Protestors Demand Written Guarantee Of Rights At Democratic National Convention

Hey moron, there is a document that literally enshrines your First Amendment rights.

It is called the Bill of Rights.

More hand-wringing from the moonbat leader:

City Council members said Wednesday they support First Amendment rights for protesters at the 2008 Democratic National Convention, despite killing a proclamation last month that detailed rights for demonstrators.

"Just because there is not a proclamation out there doesn't mean we don't support free speech," Councilwoman Jeanne Robb said.

But Glenn Spagnuolo, a co-founder of the activist group Re-create 68, said lack of a written document affirming that commitment is a concern.

"I think it is an embarrassment that they won't do it," said Spagnuolo, who wrote the proclamation in question. Outgoing Councilwoman Kathleen MacKenzie sponsored it.

What Spagnuolo wants is a surrender treaty from the police, disguised as meaningless symbolism, and grandstands when he can't get his way.

Pathetic.

Anti-War Activists Halted In Rocky Mountain National Park

Moonbats marching from coast-to-coast to protest the war, accompanied by reporters:

A pair of teenage anti-war activists who are marching across the country to promote their cause said they were detained for three hours at Rocky Mountain National Park Sunday and asked to remove peace bibs from their shirts.

Ashley Casale, 19, said she and her partner, Mike Israel, 18, are making their way through Colorado as they "March for Peace" from San Francisco to Washington, D.C.

Casale said they were stopped by a park ranger near the west entrance to the park and asked to remove bibs that were pinned to their shirts which read: "March for Peace."

"They said they couldn't let us in because we were making a political statement," Casale said.

After a park ranger took their identification, Casale said it took nearly three hours for park officials to determine they were in violation of park rules that require permits for "public assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views..."

Park spokeswoman Kyle Patterson said park logs show the pair arrived at the west gate entrance at 9:04 a.m. and were headed into the park at 10:15 a.m., just over an hour total.

She said the two students were accompanied by two reporters, and that park staff worked to accomodate the group as quickly as possible for a Sunday morning, when the park is often full of visitors.

Of course, for the moonbats, this "harassment" is a violation of their First Amendment rights:

Casale, a college freshman from Connecticut, said she asked park officials to explain to her and Israel how their bibs were any different from bumper stickers or T-shirts with messages that park visitors wear.

Patterson said bumper stickers and T-shirts are private expressions.

"They had placards. They had reporters with them. They were promoting their Web site. It became a public demonstration and public expression," said Patterson.

Gayle Watson with Mountain Forum for Peace said a San Francisco peace group called her Nederland-based organization to offer assistance to Casale and Israel after they learned of the incident.

Watson said she encountered the pair in the park, and offered them food and water. They had removed their bibs and written their message in ink on their T-shirts.

"I think what park officials did was a violation of their First Amendment rights," said Watson. "Plus, what a way to say 'Welcome to Colorado.'"

It is pretty clear, both by their conduct and their retinue, that the "marchers" intended to do more than simply pass through the park. They are self-promoting anti-war moonbats, and anyone accompanied by reporters is up to more than simply marching for peace.

Rocky Mountain National Park rules obviously allow for the private expression of political views--bumper stickers, t-shirts, etc.--that are probably quite well-represented at camp ground parking lots this holiday week. Even a small contingent of two people accompanied by reporters and promoting a political point-of-view can be reasonably estimated by park officials as more than "private expression". More likely just another moonbat publicity stunt, designed to waste park officials' time and energy during a holiday week.

Nice to see local moonbats out in force to help the poor, oppressed marchers--all the while lobbying accusations of rights violations and railing against inhospitability.

**Update--Whaddya know? The ACLU and others are condemning the ranger's actions:

Alan Chen, a University of Denver Sturm College of Law professor and free-speech expert, said park officials overstepped their authority.

"This is an astounding story," Chen said. "There is no question at all, those people have the right to not only wear the placards but walk through the park with them on."

"To say to two persons who happen to be carrying a message as they walk through the park that they're carrying on a demonstration that requires a permit is ridiculous," said Mark Silverstein, legal director for the American Civil Liberties Union of Colorado.

Two moonbats privately expressing themselves while merely passing through the park? Not likely--their coast-to-coast may be a two-person parade/march/demonstration, but it is still more than a pair of students who just happen to be espousing anti-war beliefs. The placards, the march itself, and the accompanying journalists all point to more than that.

**Update 2--ACLU not sure it will pursue case
Why not, if this is such a slam-dunk case?

Ward Churchill's Latest Televised Bloviations

With Ward's legal defender David Lane arguing--shocker--that this is all about the First Amendment.

The Drunkablog links to an editorial citing Churchill's apparent unfamiliarity with the principle that the First Amendment applies to all, not just left-wing professors.

PirateBallerina, as usual, has all the Churchilliana one could handle--and though Churchill and Lane say nothing earth-shattering, readers and viewers seem less than impressed by the mighty prof.