Topic: Law and Civil Liberties

Democracy against Free Speech?

A new poll from Washington Post/ABC News poll shows that most respondents oppose the recent Citizens United decision by the U.S. Supreme Court. Just over 70 percent of those polled want to reinstate the unconstitutional restrictions. The questions asked may be found here.

Sean Parnell asks whether the wording of the questions in this poll drove the results. William McGinley shares Parnell’s concerns and suggests some alternative questions for future polling.

I was not surprised by the result. Polls have long found that substantial majorities support something called “campaign finance reform.” Over two years ago, a poll found that 71 percent of Americans wanted to limit corporate and union spending on campaigns. 62 percent also supported limiting the amount of money a person could give to their own campaign, even though such donations could not involve the possibility of corruption. (This desire to restrict self-funding, by the way, has been patently unconstitutional for over thirty years).

The history of public opinion also should be kept in mind. Fifty years ago, when mass polling started, researchers found that the public both supported and opposed the First Amendment. Surveys found overwhelming support for “the First Amendment” and other abstractions like “the Bill of Rights.” They also frequently detected less than majority support for actual applications of the First Amendment and the Bill of Rights. Majorities opposed, for example, permitting Communists or other disfavored groups to speak at a local school.

Not much has changed over the years. In 2007, a survey funded by the First Amendment Center reported the following opinions related to First Amendment freedoms:

  • Only 56 percent believe that the freedom to worship as one chooses extends to all religious groups;
  • 50 percent agree “A public school teacher should be allowed to use the Bible as a factual text in a history or social studies class.”
  • 58 percent of Americans would prevent protests during a funeral procession, even on public streets and sidewalks;
  • 74 percent would prevent public school students from wearing a T-shirt with a slogan that might offend others;
  • majorities thought “the government should be allowed to require television and radio  broadcasters to offer an equal allotment of time to conservative and liberal commentators.”
  • That same poll also revealed that 66 percent of the public thought “the right to speak freely about whatever you want” was essential. Moreover, 74 percent found “the right to practice the religion of your choice” to be essential.

In the abstract, Americans continue to support First Amendment freedoms. In concrete cases, majorities still often oppose the exercise of such freedoms. Citizens United vindicated the First Amendment in a specific case that a majority does not support. This gulf between principle and application has been and continues to be common among Americans.

These findings suggest two thoughts. Liberals are now saying Citizens United should be undone because majorities oppose the decision. The principle that First Amendment rights should be overturned by majority sentiment may not please liberals in the future. Freedom of religion, in particular, attracts minority support in many concrete applications.

The more important lesson here involves an often ignored truth: the U.S. Constitution does not establish a government through which a majority can do anything it likes. The Bill of Rights marks a limit on political power even if a majority controls the government. (James Madison might have said especially if a majority controls the government). We have a Supreme Court to enforce those limits against government officials and against majorities. In Citizens United, the Court finally did what it should have done: protecting unpopular groups from the heavy hand of the censor. The fact that a majority favored and favors giving unchecked power to the censor matters not at all.

Wednesday Links

  • Is there a place for gay people in conservative politics? We’ll be discussing it today at Cato. Watch here live at 12 PM EST.

Is Madonna Eminent? Or Is This Just “Celebrity Domain”?

The AP reports:

In a land dispute pitting Madonna against African villagers, Malawi’s government has sided with the pop star who has pumped millions into the impoverished Southern African country and adopted two of its children.

Villagers have been refusing to move from a plot of land near the capital, Lilongwe, where Madonna wants to build a $15-million school for girls. The government, however, says it had originally planned to develop the plot, and only allowed the villagers to live there until a project was identified.

Lilongwe District Commissioner Charles Kalemba, accompanied by other government officials and representatives from Madonna’s Raising Malawi charity, on Thursday met with about 200 villagers and told them they would have to move. The villagers have been offered other government land.

“Government allowed you to occupy this land because there was no project yet. But now that Madonna wants to build you a school you have to give way,” Kalemba told the villagers. “You are lucky that Madonna has compensated you for your houses, gardens and trees.”…

Headman Binson Chinkhota urged residents to move, saying the school would benefit their children. But Amos Mkuyu said the $1 500 in compensation he received from Madonna for mango trees and three homes was not enough. He said his family had been living on his three-hectare plot for three generations.

Susette Kelo vs. Madonna – that would be a great battle. As usual, the government has a beneficent purpose in taking these people’s land. They took Kelo’s home for a development that would yield “new jobs and increased tax revenue.” They’re taking Amos Mkuyu’s home for a school.  But stealing land is not beneficent; it is not an act of kindness and charity.

In this case the Malawian government says that the villagers are living on government land. But Mkuyu says his family has been there for three generations. Sounds like they thought it was theirs. For a discussion of collective and traditional property inspired by the movie “Avatar,” click here. Hernando de Soto, author of The Mystery of Capital, has spent a career showing how the lack of well-defined property rights hurts the poorest people in the world.

Congress Goes After Citizens United

Snowstorm notwithstanding, Sen. Charles Schumer and Rep. Chris Van Hollen introduced legislation in response to the Citizens United decision. A summary of their effort can be found here.

Some parts of the proposal are simply pandering to anti-foreign bias (corporations with shareholding by foreigners are prohibited from funding speech) and anger about bailouts (firms receiving TARP money are banned from funding speech). Government contractors are also prohibited from independent spending to support speech. We shall see whether these prohibitions hold up in court. The censorship of government contractors and TARP recipients will likely prove to be an unconstitutional condition upon receiving government benefits.

Despite Citizens United, Congress will try to suppress speech by other organizations.  Schumer-Van Hollen relies on aggressive disclosure requirements to deter speech they do not like. CEOs of corporations who fund ads will be required to say they “approve of the message” on camera at the end of the ad.

Citizens United upheld disclosure requirements, but it also vindicated freedom of speech. The two commitments may prove incompatible if Schumer-Van Hollen is enacted. This law uses aggressive mandated disclosure to discourage speech. We know that members of Congress believe this tactic could work. Sen. John McCain said during the debate over McCain-Feingold that forcing disclosure of who funded an ad will mean fewer such ads will appear. In other words: more disclosure, less speech. Just after Citizens United, law professor Laurence Tribe called for mandating aggressive disclosure requirements in order to “cut down to size” the impact of disfavored speech.

During the next few months the critics of Citizens United may well show beyond all doubt that the purpose of its disclosure requirements are to silence political speech. In evaluating the constitutionality of Shumer-Van Hollen, the Court could hardly overlook such professions of the purpose behind its disclosure requirements.

One other part of Schumer-Van Hollen is probably unconstitutional. They would require any broadcaster that runs ads funded by corporations to sell cheap airtime to candidates and parties. Several similar attempts to equalize speech through subsidies have recently been struck down by the Court. This effort would share a similar fate.

All in all, Schumer-Van Hollen is a predictable effort to deter speech by disfavored groups. Congress is reduced to attacking foreigners and bailout recipients while hoping that mandated disclosure will discourage speech.  The proposal law suggests a comforting conclusion. For most Americans, Citizens United deprived Congress of its broadest and most effective tools of censoring political speech.

ObamaCare = Litigation Bonanza

At a recent conference, former Sen. Phil Gramm (R-TX) remarked, “The Democrats don’t have a health care bill. They have an empty shell.”  At the time, I thought the shell would be filled through regulation. But in today’s Wall Street Journal, the Committee for Justice’s Curt Levey reminds us it would also be filled through litigation:

By creating new federally enforceable rights and obligations, layers of complex federal regulations, and dozens of new programs and agencies—not to mention 50 newfangled “exchanges”—ObamaCare would guarantee a flood of litigation. That means more money wasted on attorney fees, physicians focused on legal rather than medical considerations, and growing delays in our already-overburdened courts…

Lawsuits claiming equal protection violations will be limited only by the human capacity to feel discriminated against…

Liberals who complained about the interference of federal courts in the Terri Schiavo case may wind up regretting their push to federalize health care…

Supporters of the legislation favored by the president and most of his party point to socialized medicine in Europe as evidence that federalizing health care won’t be the disaster that many predict. But European nations are not nearly as litigious as our own. The uniquely American combination of bureaucrats, trial lawyers, and judges running our health-care system will prove more costly and deadly than anyone can imagine.

Levey runs through a long list of issues that will be litigated in the courts – but he overlooked that there would be First Amendment litigation, too.

The Government Can Monitor Your Location All Day Every Day Without Implicating Your Fourth Amendment Rights

If you have a mobile phone, that’s the upshot of an argument being put forward by the government in a case being argued before the Third Circuit Court of Appeals tomorrow. The case is called In the Matter of the Application of the United States of America For An Order Directing A Provider of Electronic Communication Service To Disclose Records to the Government.

Declan McCullagh reports:

In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

The government can maintain this position because of the retrograde “third party doctrine.” That doctrine arose from a pair of cases in the early 1970s in which the Supreme Court found no Fourth Amendment problems when the government required service providers to maintain records about their customers, and later required those service providers to hand the records over to the government.

I wrote about these cases, and the courts’ misunderstanding of privacy since 1967’s Katz decision, in an American University Law Review article titled “Reforming Fourth Amendment Privacy Doctrine”:

These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”

This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.

NRA Shoots Itself in the Foot

I previously blogged about the NRA’s misbegotten motion, which the Supreme Court granted, to carve 10 minutes of oral argument time away from the petitioners in McDonald v. Chicago.  Essentially, there was no discernable reason for the motion other than to ensure that the NRA could claim some credit for the eventual victory, and thus boost its fundraising.

Well, having argued that petitioners’ counsel Alan Gura insufficiently covered the argument that the Second Amendment should be “incorporated” against the states via the Fourteenth Amendment’s Due Process Clause, the NRA has now filed a brief that fails even to reference the four biggest cases regarding incorporation and substantive due process.  That is, the NRA reply brief contains no mention of Washington v. Glucksberg (1997), Benton v. Maryland (1969), Duncan v. Louisiana (1968), or Palko v. Connecticut (1937).  (The NRA did cite those cases in its opening brief.)  What is more, it also lacks a discussion of Judge O’Scannlain’s magisterial Ninth Circuit opinion in Nordyke v. King (2009), which the Supreme Court might as well cut and paste regardless of which constitutional provision it uses to extend the right to keep and bear arms to the states!

I should add that the petitioners’ reply brief does cite all of those aforementioned cases (as well as the “Keeping Pandora’s Box Sealed” law review article I co-authored with Josh Blackman).  I leave it to the reader to determine whether it is Alan Gura or the NRA who is better positioned to argue substantive due process – or any other part of the McDonald case.

For more on the rift between the McDonald petitioners and the NRA, see this story in today’s Washington Post (in which I’m quoted, full disclosure, after a lengthy interview I gave the reporter last week).

(Full disclosure again: Alan Gura is a friend of mine and of Cato, and I suppose I should also say that I’ve participated in NRA-sponsored events in the past.)