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?).
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]
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]
“… 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]
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.
Some of the best protests [Ad Age, earlier on Flickr's clever entry and others]
Going-dark site “strike” was a bit like Atlas Shrugged without the monologues [Greve] “So, nothing like #AS” [@nickgillespie] “…and fewer pirates” [@JohnPMcGuinness] “That’s a shame. I want to see Francisco’s money speech in binary code.” [@BenK84]
“Presidential candidate Ron Paul’s campaign committee sued the unidentified makers of a video attacking ex-Republican rival Jon Huntsman claiming it falsely implies it was made or endorsed by the Texas congressman.” [Bloomberg] Paul Alan Levy contends that Rep. Paul, a longtime civil liberties advocate, should know better than to advance arguments that would if accepted narrow the legal protections afforded to anonymous political speech.
Updating our story of last December: A federal judge has given the go-ahead to former Rep. Steve Dreihaus’s suit against the anti-abortion Susan B. Anthony List for allegedly falsely characterizing his stands on issues during last year’s race, thus causing him to lose. Earlier, Driehaus had filed a complaint against the Anthony List under Ohio’s remarkable False Statements Law, “which criminalizes lying about public officials” and has been assailed by the ACLU among other groups as inconsistent with the First Amendment. [Seth McKelvey, Reason; Peter Roff, U.S. News]
My Cato colleague John Samples detects a perhaps intended consequence of the imposition of regulations that stifle political speech other than that conveyed by the institutional press. More: Paul Sherman, Make No Law (Institute for Justice blog).
Litigation rates similar for poor and good nursing homes, researchers find [US News] Effects of medical liability reform in Texas [White Coat, scroll] New York’s Cuomo caves on medical liability plan [Heritage] Sued if you do, sued if you don’t in the emergency room [same]
At The Atlantic, civil libertarian Wendy Kaminer catches Washington Post columnist Katrina Vanden Heuvel misrepresenting the role of campaign spending in the defeat of Wisconsin Sen. Russ Feingold, and the New York Times — in a more appalling lapse of journalistic standards — digging in to defend gross misstatements about the high court’s opinion.
New frontiers in campaign law? Ohio Rep. Steve Driehaus, defeated in November’s election, is suing the Susan B. Anthony List, an anti-abortion political group, for depriving him of his “livelihood” by way of allegedly unfair campaign attacks. [Cincinnati Enquirer, Politico]
The video above is of the Society’s 10th annual Barbara Olson Memorial Lecture, in which Second Circuit Chief Judge Dennis Jacobs provocatively criticizes legal academia and other precincts of influential legal thinking for misunderstanding the role of the military and its relation to the law.
“The founder of ‘The Rent is Too Damn High Party’ is outraged that in 2006, when he ran for governor, and three years later, when he ran for mayor, the board took the world ‘Damn’ off his ballot line.” Officials say it was a matter of lack of space; in the last election they were able to accommodate his imprecation in the ballot heading by shortening the party title to, “Rent is 2 Damn High Party.” He’s representing himself and wants $350 million. [New York Post]
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