5 ms·

As a law-talking-guy, I can say: this is really, really bad. It's really unusual to see such a split (4-1-4) in such an important decision, and it's tough to sa

by fourply 12y ago

As a law-talking-guy, I can say: this is really, really bad. It's really unusual to see such a split (4-1-4) in such an important decision, and it's tough to say for sure what the law actually is now. One thing that's clear: this doesn't bode well for American democracy UNLESS the legislature takes the clear signal the Court appears to be trying to send and crafts new law to fix the problems this decision creates.

ctdonath 12y ago
The signal the Court appears to be trying to send is "Congress shall make no law ... abridging the freedom of speech, or of the press". It's not a new message, and not new that Congress is inclined to abridge it.
- iandanforth 12y ago
  Money is not speech.
  - twoodfin 12y ago
    No, but many useful, protected forms of speech and the press require money. Congress couldn't constitutionally shut down the New York Times by making it illegal for them to purchase ink.
  - ctdonath 12y ago
    Speaking to more than a few people requires money.
    - jmj42 12y ago
      You have a right to speech. You DO NOT have a right to be heard.
      - smsm42 12y ago
        So is it OK for Congress to ban New York Times from distributing their paper? After all, they still can speak as much as they want, and if you want to listen to them you can come to their office or to their homes and listen, and nobody has right to be heard beyond that?
      - ctdonath 12y ago
        You have a right to speak to those who choose to hear you (to wit: not be punished for doing so). That is the point of the ruling in question: Citizens United made a film (acknowledged by the court as none other than a 90 minute campaign commercial directed at a particular candidate) and accepted money to "speak" (via pay-per-view, prepaid by corporate supporters) to those who made a deliberate and positive effort to listen; current law forbade them from doing so, and there was no other way to allow it while preserving the bulk of the abridging law without instilling a "chilling effect" on other lawful political speech (which would be deemed so by voluminous case-by-case analysis, there being no bright line).
  - skrowl 12y ago
    Haven't you ever heard the phrase: Money talks, bulls--t walks? Money is the ONLY speech heard by career politicians
  - strlen 12y ago
    I would love to think that way as well, but it looks like most justices (not just the majority) do agree that there is a free speech issue at play here (without saying "money is speech", however). Reading the majority opinion and Breyer's dissent ("collective good should overrule free speech"), I'm inclined to agree with majority as in the current political climate the alternative is much scarier. It's worth noting, that while Breyer is often considered a liberal, he has also dissented (with similar logic) in favour of upholding a ban on violent videogames: http://en.wikipedia.org/wiki/Brown_v._Entertainment_Merchants_Association http://en.wikipedia.org/wiki/Brown_v._Entertainment_Merchant... Additionally, ACLU did file an amicus brief in Citizens United case (although the law in question was much more unambigious restriction of speech) in favour of Citizens United and while they did not do so in this case, there does seem to be an internal split on the matter: http://www.scotusblog.com/2014/03/the-aclu-the-mccutcheon-case/ http://www.scotusblog.com/2014/03/the-aclu-the-mccutcheon-ca... An analogous situation may be access to abortion: opening an abortion cleaning is not the same as getting an actual abortion, but restricting the clinics severely curtail the options available to women (I can't find the citation now, but this was the logic used in a recent decision in a federal court about an AZ law). Keep in mind that abortion is a non-enumerated right, in theory enumerated rights like free speech are held to even tighter standards. Ezel vs. Chicago (also from a district court, but drawing on SCOTUS precedents) is also similar: while the right to open a shooting range is not equivalent to the right to bear arms, the court ruled that since a Chicago requires range practice in order to receive a firearm license, the city must allow ranges within its limits. So far there isn't a clear scrutiny standard set for the second amendment, but it seems to be converging on "heightened scrutiny" which (again) is less than the strict scrutiny standard applied to the first. Don't get me wrong, I am not happy about money in politics, but I am not willing to jeopardize the right to free speech (or general way individual vs. collective equation is evaluated in regards to constitutional rights) to fight it.
  - logfromblammo 12y ago
    Correct. Money is commerce. While it is true that people have as much freedom to engage in commerce as they have to speak, candidates for public office do not. I can offer a candidate as much money as I please, as is my right, but in the interest of providing equal protection under the law to the voters, the public may choose to prevent the candidate from accepting more than a certain amount from a single source. Campaign contributions limits are not restrictions upon the rights of the public; they are restrictions upon the privilege of representing other people as part of the government. If you wish to retain your unlimited ability to speak as a private individual, do not enter the public sector. The same principle, applied by the courts elsewhere, would also strike down laws preventing public servants from engaging in certain forms of political activity. After all, they have freedom of speech as well, don't they? I think that the most likely and most damaging response to this will be a decreasing engagement by career politicians with near-the-median people and increasing engagement with wealthy patrons. The interests represented will shift accordingly.
    - smsm42 12y ago
      You're looking at it wrong. Nobody gives the candidate a suitcase packed with dollar bills, not usually anyhow. The money is spent on ads, materials, events, etc. Now, if I spend money on expressing my point of view that X is true, and the candidate Y happens to make the point that X is true centerpiece of his campaign, can you prohibit me from expressing my point of view? I never gave a dime to Y, I may not even have met Y once, but we happen to agree on point X. That is the question which Supreme Court is deciding - can my freedom of speech be restricted if it benefits some politician? I say if you value your freedom of speech, you can answer anything but "NO!". Otherwise, you'd be able only speak about nonsense things like celebrity gossip and lolcats - as soon as you get to serious things, there would be a politician whose view aligns with yours or is opposite to yours, and as soon as that happens, your speech would be either contributing to her campaign or to her opponent's, and you'll be banned from speaking on the grounds of the limits to campaign contributions. >>> would also strike down laws preventing public servants from engaging in certain forms of political activity This is not the same. While everybody has right to free speech, nobody has right to be a public servant. So once the person resigns from his public servant position, she has full right to speak her mind. But while occupying that position, certain restrictions - taken voluntarily as condition for this assignment - may apply as long as you want to keep that position. You have the full right to make face tattoos and avoid bathing, but if you join customer service in a bank, they may not accept you unless you look and smell in a way that don't make their clients faint. And if you are being appointed the head of the IRS, it's better that you avoid political campaigning as long as you are in that post. Not that it is easy to achieve, as it turns out, but we should at least try. When we are employed, we give up certain freedoms - freedom to choose where we are, what we do, what we say, to some measure, etc. - in exchange for money. Not all employment requires this, but some do, and it's nothing out for the ordinary. We are not employees of the Congress, however - on the contrary, the Congress are employees of the citizens.
  - smsm42 12y ago
    Paper is not speech too. Radiowaves is not speech. Electrons is not speech. IP addresses are not speech. Speech is an abstraction, which is realized with material means - including, yes, money. If you ban technical means with which speech is achieved - including banning using paper, or ink, or IP addresses, or money to achieve speech - you are infringing freedom of speech. If you have theoretical right to speak, but are prohibited from spending any money on it, you right remains only theory and can not effectively be realized, and as such worth nothing. If you're allowed to publish your views but aren't allowed to pay for an ad - what use it is, who's going to read it? Limits on spending on speech is effectively limits on speech, plain and simple.
- digikata 12y ago
  Corporations enjoy a legalized fiction as persons, but I don't think their role as citizens has been questioned enough. Non-citizen natural persons aren't allowed to make political donations. Should international corporations who funnel their profits to offshore entities be treated as persons as well as having the speech protections of citizens? Citizens, by birth or going through the effort of naturalization have a bond to their nation. And so we trust that collectively, the political speech from those citizens serves the long term interests of the nation. Corporations have no such bond, so an essential element that is provided with live citizens is missing.
benihana 12y ago
This is the kind of knee jerk panic comment I expect to find in the comments section of NYT, not voted up on HN. Why is this "really, really bad?" You talk about how bad this is with a bunch of FUD language about how this is a threat to democracy and there are a bunch of problems with this decision but you never actually explain why. I don't necessarily approach this as the worst thing that has ever happened, and not everyone here does either, so it might help to explain something you seem to assume everyone knows.

by fourply 12y ago

ctdonath 12y ago

The signal the Court appears to be trying to send is "Congress shall make no law ... abridging the freedom of speech, or of the press". It's not a new message, and not new that Congress is inclined to abridge it.

iandanforth 12y ago
Money is not speech.
- twoodfin 12y ago
  No, but many useful, protected forms of speech and the press require money. Congress couldn't constitutionally shut down the New York Times by making it illegal for them to purchase ink.
- ctdonath 12y ago
  Speaking to more than a few people requires money.
  - jmj42 12y ago
    You have a right to speech. You DO NOT have a right to be heard.
    - smsm42 12y ago
      So is it OK for Congress to ban New York Times from distributing their paper? After all, they still can speak as much as they want, and if you want to listen to them you can come to their office or to their homes and listen, and nobody has right to be heard beyond that?
    - ctdonath 12y ago
      You have a right to speak to those who choose to hear you (to wit: not be punished for doing so). That is the point of the ruling in question: Citizens United made a film (acknowledged by the court as none other than a 90 minute campaign commercial directed at a particular candidate) and accepted money to "speak" (via pay-per-view, prepaid by corporate supporters) to those who made a deliberate and positive effort to listen; current law forbade them from doing so, and there was no other way to allow it while preserving the bulk of the abridging law without instilling a "chilling effect" on other lawful political speech (which would be deemed so by voluminous case-by-case analysis, there being no bright line).
- skrowl 12y ago
  Haven't you ever heard the phrase: Money talks, bulls--t walks? Money is the ONLY speech heard by career politicians
- strlen 12y ago
  I would love to think that way as well, but it looks like most justices (not just the majority) do agree that there is a free speech issue at play here (without saying "money is speech", however). Reading the majority opinion and Breyer's dissent ("collective good should overrule free speech"), I'm inclined to agree with majority as in the current political climate the alternative is much scarier. It's worth noting, that while Breyer is often considered a liberal, he has also dissented (with similar logic) in favour of upholding a ban on violent videogames: http://en.wikipedia.org/wiki/Brown_v._Entertainment_Merchants_Association http://en.wikipedia.org/wiki/Brown_v._Entertainment_Merchant... Additionally, ACLU did file an amicus brief in Citizens United case (although the law in question was much more unambigious restriction of speech) in favour of Citizens United and while they did not do so in this case, there does seem to be an internal split on the matter: http://www.scotusblog.com/2014/03/the-aclu-the-mccutcheon-case/ http://www.scotusblog.com/2014/03/the-aclu-the-mccutcheon-ca... An analogous situation may be access to abortion: opening an abortion cleaning is not the same as getting an actual abortion, but restricting the clinics severely curtail the options available to women (I can't find the citation now, but this was the logic used in a recent decision in a federal court about an AZ law). Keep in mind that abortion is a non-enumerated right, in theory enumerated rights like free speech are held to even tighter standards. Ezel vs. Chicago (also from a district court, but drawing on SCOTUS precedents) is also similar: while the right to open a shooting range is not equivalent to the right to bear arms, the court ruled that since a Chicago requires range practice in order to receive a firearm license, the city must allow ranges within its limits. So far there isn't a clear scrutiny standard set for the second amendment, but it seems to be converging on "heightened scrutiny" which (again) is less than the strict scrutiny standard applied to the first. Don't get me wrong, I am not happy about money in politics, but I am not willing to jeopardize the right to free speech (or general way individual vs. collective equation is evaluated in regards to constitutional rights) to fight it.
- logfromblammo 12y ago
  Correct. Money is commerce. While it is true that people have as much freedom to engage in commerce as they have to speak, candidates for public office do not. I can offer a candidate as much money as I please, as is my right, but in the interest of providing equal protection under the law to the voters, the public may choose to prevent the candidate from accepting more than a certain amount from a single source. Campaign contributions limits are not restrictions upon the rights of the public; they are restrictions upon the privilege of representing other people as part of the government. If you wish to retain your unlimited ability to speak as a private individual, do not enter the public sector. The same principle, applied by the courts elsewhere, would also strike down laws preventing public servants from engaging in certain forms of political activity. After all, they have freedom of speech as well, don't they? I think that the most likely and most damaging response to this will be a decreasing engagement by career politicians with near-the-median people and increasing engagement with wealthy patrons. The interests represented will shift accordingly.
  - smsm42 12y ago
    You're looking at it wrong. Nobody gives the candidate a suitcase packed with dollar bills, not usually anyhow. The money is spent on ads, materials, events, etc. Now, if I spend money on expressing my point of view that X is true, and the candidate Y happens to make the point that X is true centerpiece of his campaign, can you prohibit me from expressing my point of view? I never gave a dime to Y, I may not even have met Y once, but we happen to agree on point X. That is the question which Supreme Court is deciding - can my freedom of speech be restricted if it benefits some politician? I say if you value your freedom of speech, you can answer anything but "NO!". Otherwise, you'd be able only speak about nonsense things like celebrity gossip and lolcats - as soon as you get to serious things, there would be a politician whose view aligns with yours or is opposite to yours, and as soon as that happens, your speech would be either contributing to her campaign or to her opponent's, and you'll be banned from speaking on the grounds of the limits to campaign contributions. >>> would also strike down laws preventing public servants from engaging in certain forms of political activity This is not the same. While everybody has right to free speech, nobody has right to be a public servant. So once the person resigns from his public servant position, she has full right to speak her mind. But while occupying that position, certain restrictions - taken voluntarily as condition for this assignment - may apply as long as you want to keep that position. You have the full right to make face tattoos and avoid bathing, but if you join customer service in a bank, they may not accept you unless you look and smell in a way that don't make their clients faint. And if you are being appointed the head of the IRS, it's better that you avoid political campaigning as long as you are in that post. Not that it is easy to achieve, as it turns out, but we should at least try. When we are employed, we give up certain freedoms - freedom to choose where we are, what we do, what we say, to some measure, etc. - in exchange for money. Not all employment requires this, but some do, and it's nothing out for the ordinary. We are not employees of the Congress, however - on the contrary, the Congress are employees of the citizens.
- smsm42 12y ago
  Paper is not speech too. Radiowaves is not speech. Electrons is not speech. IP addresses are not speech. Speech is an abstraction, which is realized with material means - including, yes, money. If you ban technical means with which speech is achieved - including banning using paper, or ink, or IP addresses, or money to achieve speech - you are infringing freedom of speech. If you have theoretical right to speak, but are prohibited from spending any money on it, you right remains only theory and can not effectively be realized, and as such worth nothing. If you're allowed to publish your views but aren't allowed to pay for an ad - what use it is, who's going to read it? Limits on spending on speech is effectively limits on speech, plain and simple.
digikata 12y ago
Corporations enjoy a legalized fiction as persons, but I don't think their role as citizens has been questioned enough. Non-citizen natural persons aren't allowed to make political donations. Should international corporations who funnel their profits to offshore entities be treated as persons as well as having the speech protections of citizens? Citizens, by birth or going through the effort of naturalization have a bond to their nation. And so we trust that collectively, the political speech from those citizens serves the long term interests of the nation. Corporations have no such bond, so an essential element that is provided with live citizens is missing.

benihana 12y ago

This is the kind of knee jerk panic comment I expect to find in the comments section of NYT, not voted up on HN. Why is this "really, really bad?" You talk about how bad this is with a bunch of FUD language about how this is a threat to democracy and there are a bunch of problems with this decision but you never actually explain why. I don't necessarily approach this as the worst thing that has ever happened, and not everyone here does either, so it might help to explain something you seem to assume everyone knows.