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campaign regulation

“… is to allow citizens to monitor government, not to allow government to monitor citizens.” — Center for Competitive Politics on Sen. Dick Durbin’s demand that private donors provide information about their involvement with the American Legislative Exchange Council, an organization for state legislators, and with the issue of “stand your ground” self-defense law.

“Is Money Speech?”

by Walter Olson on September 12, 2013


Eugene Volokh in a Federalist Society video on campaign regulation and the First Amendment. A dissent: Scott Greenfield.

P.S. Beware of setting up a state-level group to promote controversial views on issues, even if promoting candidates is not your primary purpose [Adler on cert petition in Corsi v. Ohio Elections Commission]

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Free speech roundup

by Walter Olson on July 31, 2013

  • “Bryon Farmer of the Blackfeet Tribe Jailed For Talking About Corruption In Tribal Government” [Ken at Popehat] “Popehat Signal: Vengeful AIDS Denialist Sues Critic In Texas” [same]
  • Persons with federal government contracts can’t give to federal candidates or parties. Too broad? [Ilya Shapiro and Trevor Burrus, Cato]
  • “Together at last! ‘Some US conservatives laud Russia’s anti-gay bill.’” [@jon_rauch on Associated Press re: "propaganda" measure]
  • More on Second Circuit decision ruling scientific conclusions akin to protected opinion for defamation purposes [Digital Media Law Project, earlier]
  • San Antonio bars appointment to its city boards and commissions of anyone who has ever said anything demonstrating bias “against any person, group or organization on the basis of race” or various other protected categories [Eugene Volokh]
  • Cincinnati Bengals cheerleader wins defamation suit holding gossip site operator liable for user comments [Sporting News] Michigan: “Ionia newspaper editor files defamation suit against critics” [MLive, Popehat with a critical view, update at Popehat following dismissal]
  • “Hate speech” at issue: “Twitter releases users’ identities to French authorities after tough legal battles.” [JOLT]

“Attention, liberals: The ACLU wouldn’t be able to sue the NSA if it weren’t for Citizens United.” [Wendy Kaminer, The Atlantic]

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They “propose giving Congress unchecked new power over spending on political speech” [John Samples, Cato Policy Analysis] More on Citizens United here, here, here (Democrats’ platform), here, here (Michael Kinsley: case was “correctly decided”), here, here, here (Wendy Kaminer), here, here, here, here (unions as beneficiaries), even more, and on the “corporations aren’t people” sound bite and related rights-abolishing proposals, here, here, here, and here.

P.S. Self-recommending: forthcoming Michael McConnell in YLJ on Citizens United.

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Brad Smith on how Woodrow Wilson and Henry Ford used early versions of campaign finance law to settle scores with Michigan opponent Truman Newberry [Law and Liberty]

Free speech roundup

by Walter Olson on December 20, 2012

  • Did U.K. high official use pending Leveson press inquiry to browbeat newspaper? [Telegraph via Volokh]
  • Canadian blogger sued over speech by Richard Warman has a legal defense fund [Blazing Cat Fur via Instapundit, 2010 Mark Steyn]
  • “Introduction To Irony: Or, How To Take A Joke 10″ [Wendy Kaminer, WBUR]
  • Meat industry ex-employee sues blogger who led “pink slime” campaign [Popehat, Lunch Tray/Bettina Siegel]
  • 1958 ordinance still on books in Ormond Beach, Fla. prohibits distribution of publications “belittling the traditional American institutions or folkways” [Volokh]
  • “We have to concede” a rhesus monkey could not beat Mme. Taitz in court battle [Lowering the Bar]
  • Common Cause vs. First-Amendment-protected political speech, part umpteen [Hans Bader, CEI]

Great moments in international human rights: “United Nations-affiliated election monitors from Europe and central Asia will be at polling places around the U.S. looking for voter suppression activities by conservative groups … Liberal-leaning civil rights groups met with representatives from the OSCE this week.” OSCE stands for “Organization for Security and Cooperation in Europe (OSCE), a United Nations partner on democratization and human rights projects.” [Alexander Bolton, The Hill]

More: Julian Ku writes that although the OSCE is transnational, it is not “U.N.-affiliated,” and notes that contrary to some speculation, the observers’ appearance was unrelated to a separate request to the U.N. by the NAACP asking it to regulate voting methods in the U.S.

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…take note of what labor unions are doing on the Michigan ballot [Emilio Rocca/CEI, earlier] More: Shikha Dalmia, WSJ.

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“Liberals ought to show the chief justice that we too can acknowledge a principle even when we don’t agree with the result.” [LA Times] Given how execrated the Citizens United decision is on the left, should we expect it to cause a rift in the ACLU, which supports it? [Wasserman, Prawfs]

Free speech roundup

by Walter Olson on May 25, 2012

  • Boilermaker union president resorts to litigation against satirical site [Levy; another case on demands for disclosure of anonymous commenters] More on ghastly NY bill to strip protection from anonymous online speech [David Kravets/Wired, Daily Caller, my take]
  • Defending people like Aaron Worthing and Patterico shouldn’t be a left-right matter [Popehat, Tapscott/Examiner, earlier] Maryland and indeed all states need stronger statutory protection against vexatious litigants [Ace of Spades] And as a longtime Charles Schwab customer I was at first distressed to find the Schwab Charitable Fund on this list, but since the fund is billed as “donor-advised” I take it some Schwab customer rather than the company itself got to choose the beneficiary;
  • “Indonesia Prosecution for Posting ‘God Doesn’t Exist’ on Facebook” [Volokh] Curious to see an argument for Euro-style hate speech laws appearing on the Liberty and Law site [David Conway]
  • “Cyberbullying and Bullying Used As Pretexts for Censorship” [Bader]
  • “EEOC: Wearing Confederate Flag T-Shirts May Be ‘Hostile Work Environment Harassment’” [Volokh, more, Bader]
  • Video on new freedom of assembly book [FedSoc]
  • Maybe Citizens United turned out so badly for the speech-suppressive side because a government lawyer was imprudently candid before the Court [Jacob Sullum, earlier on Toobin New Yorker piece]

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Must-read Mark Steyn: “Edwards now faces 30 years in jail, for the crime of getting a couple of pals to pay for his baby’s diapers. For purposes of comparison, Anders Breivik murdered 77 people and is looking at 21 years in jail, the maximum sentence permitted under Norwegian law.” Contra: Hans von Spakovsky argues that the prosecutors’ argument is not such a stretch. And Beldar predicts the issue on which the jury’s verdict may turn. Earlier here, here, etc.

Ed Whelan charges the New Yorker’s Jeffrey Toobin with spinning the history of the First Amendment campaign regulation case [first, second, followup] Tom Goldstein at SCOTUSBlog, while sympathetic to Toobin’s overall project, also takes issue with him at numerous points. More: Adam White, Weekly Standard; Sam Bagenstos (what is supposed to have been so devious about Roberts’ handling of the case?); Howard Wasserman (why does Citizens United get singled out for demonization from among the several Court opinions pointing the same way?).

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April 16 roundup

by Walter Olson on April 16, 2012

  • Although I’m known as a foe of everything John Edwards stands for, I hope he beats this campaign finance rap [Atlantic Wire]
  • Michael Bloomberg launches demagogic new campaign against Stand Your Ground laws, calling to mind the recent critique of the NYC mayor’s paternalist dark side by Conor Friedersdorf in the Atlantic;
  • Jerry Brown frees grandmother dubiously jailed in shaken-baby death [Slate, earlier]
  • As Scruggs (Dickey not Earl) still pursues vindication, Alan Lange looks back on Mississippi scandals [YallPolitics]
  • Deservedly favorable profile of Fifth Circuit judge Jerry Smith [NOLA]
  • In which I tell off Bill Donohue’s Catholic League for its double insult last week to gays and to adoptive parents [IGF]
  • “The Ninth Circuit was, believe it or not, correct” [Ilya Shapiro and Trevor Burrus, Cato, on administrative law case arising from NLRB rules change on drug rep overtime]

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Free speech roundup

by Walter Olson on March 10, 2012

  • Berkeley: “Police chief sends sergeant to reporter’s home after midnight to demand article revision” [Poynter] In 1932, a New York Congressman convened a hearing to blast theater critics for harming the welfare of Broadway shows [Philip Scranton, Bloomberg]
  • “Blasphemy and free speech” [Paul Marshall, Hillsdale "Imprimis," PDF] “Egyptian Christian Imprisoned for 6 Years for Insulting Mohammed” [Volokh]
  • What is it about Montana and election free speech these days? [Volokh] Judge denies Ron Paul campaign request to unmask source of anti-Huntsman video [Paul Alan Levy, earlier] “Eliot Spitzer Bucks Liberal Orthodoxy: ‘Citizens United Was Correct’” [TheDC] If you rely on the NY Times for what you know about Citizens United, you’re probably misinformed [Wendy Kaminer, Atlantic]
  • “In which Ben Bagdikian, alleged scourge of media monopolies, frets at the possibility of more TV channels” [BBC via Jesse Walker]
  • Guernsey as a haven for libel tourism? [Annie Machon] “Someday I will commission a study of the relationship between defamation lawsuit threats and illiteracy.” [@Popehat on Gawker item]
  • “Key Techdirt SOPA/PIPA Post Censored By Bogus DMCA Takedown Notice” [Mike Masnick]
  • Overly aggressive trademark lawyers? “Their mothers love them too, in a prone-to-sudden-weeping sort of way.” [Popehat; earlier on Louis Vuitton v. Penn Law case]

February 8 roundup

by Walter Olson on February 8, 2012

  • Popular proposal to curb Congressional insider trading (“STOCK Act”) could have disturbing unintended consequences [John Berlau, CEI "Open Market"] A contrary view: Bainbridge.
  • Here’s Joe’s number, he’ll do a good job of suing us: “Some Maryland hospitals recommend lawyers to patients” [Baltimore Sun, Ron Miller]
  • Bribing the states to spend: follies of our fiscal federalism, and other themes from Michael Greve’s new book The Upside-Down Constitution [LLL, more, yet more] “Atlas Croaks, Supreme Court Shrugs” [Greve, Charleston Law Review; related, Ted Frank]
  • “… Daubert Relevancy is the Sentry That Guards Against the Tyranny of Experts” [David Oliver on new First Circuit opinion or scroll to Jan. 23]
  • Goodbye old political tweets, Eric Turkewitz is off to trial;
  • State laws squelch election speech, and political class shrugs (or secretly smiles) [George Will]
  • Too bad Carlyle Group got scared off promising experiment to revamp corporate governance to curb role of litigation [Ted Frank, Gordon Smith] AAJ should try harder to use people’s quotes in context [Bainbridge]

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In the Washington Post, Boston College lawprof Kent Greenfield clears up some misconceptions:

Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans. The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations. … Humans gather themselves in groups, for public and private ends, and sometimes it makes constitutional sense to protect the group as distinct from its constituent humans.

The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.

Another reason to protect corporate rights is to guard against the arbitrary and deleterious exercise of government power. If, for example, the Fifth Amendment’s ban on government “takings” did not extend to corporations, the nationalization of entire industries would be constitutionally possible. The Fourth Amendment prohibits the FBI from barging into the offices of Google without a warrant and seizing the Internet history of its users. A freedom of the press that protected only “natural persons” would allow the Pentagon to, say, order the New York Times and CNN to cease reporting civilian deaths in Afghanistan.

The actual Citizens United case, as distinct from the later caricature, was over whether the government had a constitutional right to punish private actors for distributing a video critical of a prominent politician (Hillary Clinton) before an election, which helps explain why the ACLU and many other civil libertarians took the pro-free-speech side. More: Caleb Brown at Cato.

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After SOPA protest day

by Walter Olson on January 20, 2012

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