Tag: First Amendment

A Grimm Proceeding

On Tuesday — you may have missed this because of some political developments that day — the Supreme Court heard oral arguments in Schwarzenegger v. Entertainment Merchants Association.  This case is a First Amendment challenge to a California law that prohibits selling violent video games to minors. 

Cato had filed a brief pointing out that, to paraphrase the Four Tops, it’s just the same ol’ song, but with a different meaning whenever a new form of entertainment comes along.  In other words, it is difficult to find any form of entertainment that did not once suffer the ire of parents’ groups, smoldering church bonfires, and would-be government protectors of children. From the Brothers Grimm, to “penny dreadful” novels, to comic books, to movies, to video games, each new entertainment medium was said to achieve innovative levels of mind control that corrupted children with flashing pictures, bright colors, or suggestive mental imagery.  

And it seems like the justices were listening.

Throughout a lively oral argument that primarily dealt with the vagueness of trying to define a “violent video game,” justices and counsel consistently discussed the rogues gallery of past entertainment industries that were said to corrupt our children. At one point Justice Scalia asked California’s attorney what “deviant violence” is, to which the attorney responded, “deviant would be departing from established norms.” Scalia asked incredulously, “There are established norms of violence?” The attorney began to say “Well, if we look back…” before Scalia cut him off with, “Some of the Grimm’s fairy tales are quite grim, to tell you the truth.” When California’s attorney said he would not advocate banning Grimm’s fairy tales, Justice Ginsburg came back, asking, “What’s the difference?…[I]f you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm’s fairy tales?”

Later in the argument, Paul Smith, attorney for the Entertainment Merchants Association, referenced Cato’s argument: “We do have a new medium here, Your Honor, but we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals.”

Granted, these arguments could have been raised even without Cato’s brief, but exchanges like these demonstrate the value of amicus briefs. Along with novel legal arguments, they can supply the Court with historical, statistical, sociological, and other information that is relevant to deciding the case.

You can read the argument transcript here and the audio will be available tomorrow at this site.  Thanks to Cato legal associate Trevor Burrus for his continuing work on this case (including with this blogpost).

Why Some People Think NPR Exhibits Bias

Listening to NPR on the way into work, I twice heard a reporter refer to Meredith McGehee, a champion of (ahem) campaign finance reform, as a “good-government lobbyist.”

Got that?  If you disagree with McGehee’s lobbying agenda — if, say, you think campaign finance reform is an unconstitutional attempt by the Left to restrict political speech that they don’t like — then you are against making government better.

But did you catch the more subtle form of bias?  I maintain there is no such thing as good government. (Call it Cannon’s First Law of Politics.)  And I’m not alone.  ”Government, even in its best state,” wrote Thomas Paine in Common Sense, “is but a necessary evil.”  Not good.  Less evil than the alternative, to be sure.  But still, evil.  Others disagree.  The reporter, like many others and probably without even realizing it, took sides in that long-standing debate too.

Campaign Finance: Don’t Confuse Me with the Evidence

Today POLITICO Arena asks:

Is it worrisome that Americans spend on political advocacy – determining who should make and administer the laws – much less than they spend on potato chips, $7.1 billion a year?

My response:

For decades among modern liberals it has been an article of faith – devoid of evidence – that money corrupts politics and that there is too much money in politics – “unconscionable” amounts, we’ve been told, repeatedly. Thus the crusade to restrict and regulate in exquisite detail every aspect of campaign finance, beginning in earnest with the Federal Election Campaign Act of 1971 and culminating with the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold). Yet after every new restriction along that tortuous course, ever more money has flowed into our political campaigns. But for all that, they’re no more corrupt than they’ve ever been. In fact, the best evidence of the fool’s errand that campaign finance “reform” has been all along is found in comparisons between states with little and states with extensive campaign finance regulations: When it comes to corruption, there’s not a dime’s worth of difference between the regulated and the unregulated states.

But all those regulations have accomplished two things that should give liberals pause. First, by virtue of their sheer complexity and cost, they pose a serious impediment to those who would challenge incumbents, who already have a major leg up on reelection. And second, because we cannot limit private campaign contributions and expenditures altogether, thanks to the First Amendment, the regulations have led to money being diverted away from candidates and parties and into other, often unknown, hands, over which the candidates and parties have no control – by design. As a result, we see candidates today having to disavow messages underwritten by people who would otherwise, but for the regulations, have given directly to the candidate or the party. But that outcome was absolutely predictable – and was predicted. Two good reasons to end this campaign finance regulation folly and let individuals and organizations contribute and spend as they wish. What are we afraid of, freedom?

The Primary Purpose of McCain-Feingold Revealed

Kenneth Vogel offers an unexpected insight into the nature of campaign finance regulation:

“[Wisconsin Senator Russell] Feingold faces an uphill battle against a novice opponent, who, perhaps ironically, has been the beneficiary of hundreds of thousands of dollars in ads attacking Feingold that would have been prohibited had McCain-Feingold remained intact.”

In other words, if Feingold’s campaign finance law had not proven to be contrary to the U.S. Constitution, he might well not be facing “an uphill battle” to serve a fourth term in Washington. The political speech that is causing Feingold problems would have been prohibited in that situation. But the First Amendment favors speech and not the re-election needs of senators.

Oddly, Vogel writes as if the freed political speech (“ads attacking Feingold”) is a bug rather than a feature of current law.

Time to End the Campaign Finance ‘Reform’ Ruse

Today POLITICO Arena asks:

Looking at the repeated failures of campaign finance reforms, is it time to end the restrictions?

My response:

Funny, we didn’t hear the primal scream about campaign finance from liberal Democrats during the 2008 campaigns, when money was pouring into their coffers from everywhere. Do we need any better evidence of the hypocrisy surrounding their screams this year? If so, turn to the lead editorial in this morning’s Wall Street Journal. It’ll tell you all you need to know about the campaign finance “reform” ruse that has been going on for years.

As I’ve written often at the Arena, the true aim of this game is incumbent protection, and it has been from the beginning. But thanks to the First Amendment, incumbents can’t shut down all private campaign financing, or regulate it in many of the ways that have been tried over the years. So after each new “reform,” private money – which is speech – finds new ways to try to influence election outcomes. The reformers real beef, then, is with the First Amendment. They won’t say it. But there it is. It’s time to end this nonsense.

Snyder v. Phelps: The Constitution Protects ‘Outrageous’ Speech Too

I’ve resisted commenting on Snyder v. Phelps, the “funeral protest case,” because, as the old saying goes, hard cases make bad law.  And in this instance, really weird and repugnant speech makes for a lot of sound and fury signifying very little.

Still, the bizarre and inflammatory facts of the case – protestors show up at soldiers’ funerals to make the point that these deaths are God’s retribution for America’s tolerance of homosexuality – have gained plenty of media interest, particularly during this relatively uneventful term at the Supreme Court.  So I have commented a few times on the radio and yesterday attended the oral argument, the transcript of which you can read here and audio for which should be released on the Court’s website tomorrow.

At the end of the day, this case implicates all sorts of legal issues but the First Amendment is almost tangential to it.  A private cemetery can and should remove unwanted visitors for trespassing – but the Phelpses didn’t enter the cemetery.  A town can pass ordinances restricting the time, place, and manner of protests – but the Phelpses stayed within all applicable regulations and followed police instructions.  Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like – but the Phelpses’ protests are neither loud nor involve “getting up in the grill” of people, as their lawyer (and church member) put it during oral argument.  In short, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade.  If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas – or federal laws in the case of military cemeteries—but they shouldn’t be able to sue simply for being offended.  Eugene Volokh has a more detailed analysis in the Wall Street Journal.

Oh, and as for predicting how the Court will rule, I’ll say 8-1 for the Phelpses in a narrow opinion, with Justice Alito dissenting (as he did last year in United States v. Stevens, the “depictions of animal cruelty” case).

The Next Step for SpeechNow

The plaintiffs in the SpeechNow.org case have petitioned the U.S. Supreme Court to decide “whether, under the Free Speech Clause of the First Amendment, the federal government may require an unincorporated association that makes only independent expenditures to register and report as a political committee.”

You can read all about this important case here.