As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of is post-war predecessors, and it’s not even close. “Activism” is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority.”His argument is partly based on a quantitative evaluation of the rate of judicial activism, when Toobin's accusation of "aggressive conservative judicial activism" is all about the actual scope and practical results of the court's decisions. That seems like a rather more useful measure. And surely the dissenting opinions are completely irrelevant to the question of whether the court's actual decisions are "activist".
As for Kennedy’s fear that the government might regulate speech based on “the speaker’s identity,” Stevens wrote, “We have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.” And Stevens, a former Navy man, could not resist a generational allusion: he said that Kennedy’s opinion “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”posted by A Thousand Baited Hooks at 7:13 AM on May 15, 2012 [2 favorites]
Not everyone thinks that "government" is a swear word, you know.I think that referring to the government's "freedom to regulate" is just a bit irksome, though, in that it upends the traditional (in America) trope of freedom for people, and constraint for government. One wants to make sure the government can regulate within its competence; a toothless government is bad in its own way, obviously. But one shouldn't conflate the word freedom in such a way as to imply a leveling of status between the governed and the governing (for—despite it being a representative democracy, there is a difference). Those that have the power should require a dispensation to use it; those who have not power, the freedoms.
is argument is partly based on a quantitative evaluation of the rate of judicial activism, when Toobin's accusation of "aggressive conservative judicial activism" is all about the actual scope and practical results of the court's decisions. That seems like a rather more useful measure.It's certainly more useful if you want to be able to make claims about the court without having any accountability.
Those that have the power should require a dispensation to use it; those who have not power, the freedoms.Right, but this case assigned the freedom to corporations who already have the power. Binary visualizations of our society, viewed as man vs government, are incomplete. Corporations are now the dominant institution, and I think it's fair to say that they have more destructive power than the church had leading up to the creation of the Constitution.
Direct action right at the heart of the policy-making apparatus. Not sexy or funSays you.
Right, but this case assigned the freedom to corporations who already have the power.No, I totally agree. I was waxing a bit lyrical about why a phrase like "freedom of the government to regulate" seems jarring. My feeling is that it is completely within its competence to regulate against capture of decision-making by corporate bodies. Here might be appropriate a pithy saying about how the state is the leftist's friend against capitalists, but the rightist's friend against criminals, and so forth. But I like to keep in mind the same government that might regulate corporate political ads sends drones to kill American citizens without due process. It was a petty nicety of mine to wrangle about words, esp. when there's real political work to be done to effect real change, but as long as we're all just talking and whatnot online I thought I'd contribute.
The free speech guarantee thus does not render every other public interest an illegitimate basis for qualifying a speaker’s autonomy; society could scarcely function if it did. It is fair to say that our First Amendment doctrine has “frowned on” certain identity-based distinctions, particularly those that may reflect invidious discrimination or preferential treatment of a politically powerful group. But it is simply incorrect to suggest that we have prohibited all legislative distinctions based on identity or content. Not even close.And that's the whole point. Corporations aren't people. They don't deserve the right to vote, or the right to sway elections with massive propaganda efforts to the left or to the right. It makes elections less about ideas and individual choice and more about money and the desires of concentrated interests, which defeats the purpose of voting in the first place. And if the government isn't allowed to defend the principles behind voting, you're not going to have a legitimate government for very long.
The election context is distinctive in many ways, and the Court, of course, is right that the First Amendment closely guards political speech. But in this context, too, the authority of legislatures to enact viewpoint-neutral regulations based on content and identity is well settled... We have upheld statutes that prohibit the distribution or display of campaign materials near a polling place. Although we have not reviewed them directly, we have never cast doubt on laws that place special restrictions on campaign spending by foreign nationals. And we have consistently approved laws that bar Government employees, but not others, from contributing to or participating in political activities. These statutes burden the political expression of one class of speakers, namely, civil servants. Yet we have sustained them on the basis of longstanding practice and Congress’ reasoned judgment that certain regulations which leave “untouched full participation . . . in political decisions at the ballot box,” help ensure that public officials are “sufficiently free from improper influences,” and that “confidence in the system of representative Government is not . . . eroded to a disastrous extent.”
The same logic applies to this case with additional force because it is the identity of corporations... Not only has the distinctive potential of corporations to corrupt the electoral process long been recognized, but within the area of campaign finance, corporate spending is also “furthest from the core of political expression, since corporations’ First Amendment speech and association interests are derived largely from those of their members and of the public in receiving information.” Campaign finance distinctions based on corporate identity tend to be less worrisome, in other words, because the “speakers” are not natural persons, much less members of our political community, and the governmental interests are of the highest order. Furthermore, when corporations, as a class, are distinguished from noncorporations, as a class, there is a lesser risk that regulatory distinctions will reflect invidious discrimination or political favoritism.
If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans). Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.
In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.
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