Malo periculosam, libertatem quam quietam servitutem.

Citizens United v. FEC Archive



April 2012



The Judiciary Strikes Back

Written by , Posted in Liberty & Limited Government, The Courts, Criminal Justice & Tort

Following the President’s intemperate, childish outburst of Constitutional ignorance, one  federal appeals court is fighting back:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would not “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

…The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists.

Orin Kerr at the Volokh Conspiracy is upset over the rebuke, finding it to be “embarrassing to the federal judiciary.” I disagree. While I don’t necessarily think that demanding a three page response is necessary, standing up to the Obama’s dangerous assault on the judiciary certainly is.

The Obama administration, which leads a branch of the government, has since Citizens United all but declared war on another co-equal branch, the judiciary. I, for one, do not expect members of the judiciary to just sit back and take such a dangerous assault (see the damage wrought to our liberty and economic well-being by FDR’s successful attack on the Supreme Court), and am rather heartened to see that they are not.

Simply put, I don’t think it’s appropriate for a sitting President to engage in dishonest, populist assaults on a vital American institution in order to undermine freedom and expand the already near limitless power of government. I find pushing back against his intemperate outbursts to be entirely appropriate, certainly in intention if not the precise manner.



March 2012



McCain’s Campaign Finance Ignorance

Written by , Posted in Election Time, The Courts, Criminal Justice & Tort

John McCain was on Meet the Press Sunday and used the opportunity to bash the Citizens United decision that struck down his anti-free speech “campaign finance reform” legislation. He claimed that this election is unusually negative – a similar claim that was made in 2008 and which I suspect he will make in ever single election until such time as he succeed in limited free speech – and blamed that observation on Super PACs and the Supreme Court for “unloosening” all money.

In so doing, he has confirmed that he is completely ignorant about the issue which he has made his most important, and in particular what the Supreme Court ruled. According to analysis from the Sunlight Foundation, the Super PACs which McCain blames for the perceived level of negativity have received 70% of their contribution from individuals, not the corporations and unions which were the subject of the Citizens United decision. In other words, John McCain doesn’t know what he’s talking about.

Related Update: Reason offers Five Ways Citizens United Is Making Politics Better, including “competitive campaigns, funnier ads and greater freedom of speech.”



November 2010



Liberal Law Professor Pushes Back Against Citizens United Demagoguery

Written by , Posted in General/Misc.

Liberals responded to the Citizens United decision – which upheld the basic principle of free speech even when it is most needed: during elections – with unhinged rage. As I explained at the time, they reacted so because they believe that people are fundamentally stupid and cannot be allowed to hear multiple points of view, for fear that they may stray from the liberal orthodoxy (naturally, I think the people’s tendency to reject liberalism when presented with the facts proves that the public is largely intelligent).

But there’s at least one liberal who isn’t completely dishonest. Touted as a potential Supreme Court nominee (I guarantee she’s off the list now), Professor Kathleen Sullivan analyzed the decision and its subsequent responses, in a paper published by the Harvard Law Review, in light of two different visions of free speech. One side, she described, is the egalitarian view which allows government subsidies for marginalized speech and restrictions for corporate or well funded speech.  This is the left-wing view. The other perspective is speech as a check on government and a necessary component of political liberty. This is the more conservative (and I’ll say, accurate) view.

She goes on to review the legal history of both views, which is interesting in its own right. But of political interest to the current political debate (I use the term debate very loosely, given the hysterical and overwrought nature of liberal criticisms to Citizens United) is her conclusion:

Citizens United has been unjustly maligned as radically departing from settled free speech tradition. In fact, the clashing opinions in the case simply illustrate that free speech tradition has different strands. The libertarian strand from which the majority draws support empha-sizes that freedom of speech is a negative command that protects a system of speech, not individual speakers, and thus invalidates government interference with the background system of expression no matter whether a speaker is individual or collective, for-profit or nonprofit, powerful or marginal. The egalitarian strand on which the dissent relies, in contrast, views speech rights as belonging to individual speakers and speech restrictions as subject to a one-way ratchet: impermissible when they create or entrench the subordination of political or cultural minorities, but permissible when aimed at redistributing speaking power to reduce some speakers’ disproportionate influence. In many First Amendment challenges, the two traditions converge upon the same outcome. For example, Justices favoring either tradition will typically vote to protect marginal or dissident speakers from regulation at the hands of expressive majorities. The traditions diverge, however, where government seeks to limit speech to reduce the influence of speakers deemed too dominant in public discourse, as in the segregated-fund requirements struck down in Citizens United.

…The Court’s pronounced willingness to uphold compelled disclosure requirements provides the best guide to future policymaking in the area of campaign finance. Coupled with the libertarian approach em-braced by the majority, it also suggests an emerging coherent vision of free speech that may characterize future Roberts Court decisions. In this vision, the more speech the better, with its distribution and assessment nearly always best left to the citizenry rather than the government. For a generation raised on YouTube and other channels of instantaneous access to information made possible by the internet, this may prove to be a congenial vision.

So this was no grand departure from free speech jurisprudence, nor any kind of judicial activism as popularly understood. Now that at least one well respected liberal academic has said so,can the left quit it with the end-of-democracy demagoguery? I’m not getting my hopes up.



January 2010



Victory For Free Speech

Written by , Posted in The Courts, Criminal Justice & Tort

The long awaited Citizens United decision has been handed down, and it appears to be a resounding victory for free speech!

From Volokh Conspiracy:

The Court held 5–4 that restrictions on independent corporate expenditures in political campaigns are unconstitutional, overruling Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC, and it upheld the disclosure requirements 8–1 (Thomas dissenting).  Justice Kennedy explained that the Court was overruling some of its prior decisions because it was not possible to rule in favor of the petitioners on narrower grounds without chilling protected political speech.  According to Justice Kennedy, the Court is re-embracing the principle that a speaker’s corporate identity is not a sufficient basis for suppressing political speech, as held in pre–Austin cases.  It would appear this holding applies equally to unions.

The media is predictably spinning it as “rolling back” and overturning “key campaign limits,” rather than as upholding First Amendment rights.

It will be some time before the jumble of partial concurrences and dissents is fully dissected.



September 2009



Free Speech On The Rise?

Written by , Posted in The Courts, Criminal Justice & Tort

That’s the hope following Wednesday’s rehearing of Citizen’s United.  SCOTUSblog paints an optimistic picture for freedom lovers:

Three Justices — Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — have explicitly urged the Court to overturn the two precedents that sustained congressional limits on campaign financing by corporations and labor unions. Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind.

That lineup has always put the focus, as the Court volunteered to take on new constitutional questions in the Citizens United case, on the Chief Justice and Justice Alito.  While both have been skeptical in the past about campaign finance laws, supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections.  None of those arguments seemed to appeal to either Roberts or Alito.

This is a good opportunity to clear up some misconceptions about free speech.  NPR asks:

The question always is: Who does the First Amendment apply to? Do only individuals have the right of free speech? Or does this right extend to corporations and unions as well?

These are the wrong questions. The First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

NPR (along with the rest of the advocates for government regulation of speech) thinks the First Amendment creates a right to free speech, and that reasoned people can debate its scope, or divine through enlightened discourse just who that creation applies to.  The text does not justify this approach.

The amendment references “the freedom of speech” as a right already in existence – as is the case for all true rights – in the course of restricting government. The Constitution did not create the right, and has no more say as to whom it applies than it does the application of the right to life, or any other right.  These are natural rights that predate the document created to protect them.

Congress shall make no law … abridging the freedom of speech.

The restrictions placed on government in the First Amendment leave little room for debate.  What part of “no law” is unclear?



July 2009



Will Free Speech Make A Comeback?

Written by , Posted in The Courts, Criminal Justice & Tort, The Nanny State & A Regulated Society

Along with the Ricci decision, there was more important news that came out of the Supreme Court on Monday. Rather than issuing a decision in Citizens United v. FEC, the court invited new oral arguments with the question: “For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, and a part of McConnell v. FEC, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?”

People who know much more about this sort of thing than I have weighed in on what this means.

Institute for Justice:

The Court has set up a blockbuster case about Americans’ First Amendment rights to join together and speak freely about politics.  A majority of the High Court appears to recognize the grave threat to free speech posed by both the electioneering communications ban in McCain-Feingold and the ban on corporate political speech.  This case could mark a significant advance for First Amendment rights and will have major implications for state laws nationwide.


Justices Kennedy and Scalia, both current members of the Court, wrote dissents in Austin. Justice Thomas has called for Austin to be overruled in other contexts.  Neither Justices Roberts nor Alito is likely to vote to uphold Austin (or the relevant parts of McConnell v. FEC for that matter). But it would seem that either or both of them were unwilling to strike down a precedent without a formal hearing. That hearing will come on September 9 with a decision expected by Thanksgiving.

Almost six years after the Court utterly refused to defend free speech in McConnell v. FEC, the Roberts Court may be ready to vindicate the First Amendment against its accusers in Congress and elsewhere.



May 2009





March 2009



Citizens United v. FEC Will Challenge McCain-Feingold

Written by , Posted in The Courts, Criminal Justice & Tort

In a couple weeks, the Supreme Court will hear arguments in Citizens United v. FEC.  The case involves Citizens United’s film, Hillary: The Movie, and the law of political censorship known as McCain-Feingold.

The creators of the film wanted to show it on TV during the election campaign.  The FEC essentially said, “no, you can’t do that.”

The McCain-Feingold law bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election. That leaves out old technologies, like newspapers, and new ones, like YouTube.

The law, as narrowed by a 2007 Supreme Court decision, applies to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” It also requires spoken and written disclaimers in the film and advertisements for it, along with the disclosure of contributors’ names.

The net effect, Mr. Bossie said in an interview, is censorship.

“I can put it in as many theaters as I want across the country,” he said of the documentary. “I just can’t let anyone know about it.”

Last year, a three-judge panel of the Federal District Court here said the film was prohibited electioneering communication with one purpose: “to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her.”

But that is not the only possible interpretation of the film.

For instance, in a brief in the Supreme Court defending the film, the Reporters Committee for Freedom of the Press said the film “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.”

Let’s hope the court takes this opportunity to take another bite out of unconstitutional restrictions on speech in the name of “campaign finance reform.”