Rebecca Rosen of The Atlantic reports that Microsoft has joined with Nike and other for-profit corporations to advocate for gay marriage in Washington State:
In a week of tech industry protests about censorship, one company—Microsoft—is lending its voice to a different political cause: gay marriage.
It has joined with five other businesses (Vulcan, NIKE, RealNetworks, Group Health Cooperative, and Concur) to support bills that would legalize gay marriage in Washington state, where Microsoft is based. The letter to Governor Chris Gregoire was brief. In its entirety it reads, “We write you today to show the support of our respective companies for SB 6239 and HB 2516 recognizing marriage equality for same-sex couples.”
Good for Microsoft—they saw an issue they cared about and they spoke out. But, as critics of the U.S. Supreme Court’s ruling in Citizens United v. FEC keep reminding us, corporations aren’t people. Bearing that in mind, here are some questions for people who believe that corporations should not have First Amendment rights:
Do you think Microsoft should be prohibited from engaging in this sort of advocacy unless it first gets approval from its shareholders?
Do you think this sort of political advocacy is a “threat to democracy”?
Do you think the government should have the power to ban this sort of political advocacy simply because Microsoft is a corporation?
As it turns out, slogans like “corporations aren't people” aren’t very helpful when dealing with First Amendment issues, particularly if you’re sympathetic to the message being espoused. The solution, we think, is to take the text of the First Amendment at face value and conclude—as the Supreme Court did in Citizens United—that the First Amendment prohibits the government from banning political speech based on the speaker’s identity.
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Writing for The Atlantic, Wendy Kaminer has a must-read takedown of the efforts by Massachusetts Senator Scott Brown and his opponent, professor Elizabeth Warren, to keep third-party groups from speaking out against their candidacies. Here’s a snippet:
Warren apparently wants the press to help silence outside groups. According to the Boston Globe, she has “suggested notifying broadcasters in the hopes of getting their help and ‘ensuring that the agreement not only cover express advocacy ads, but all paid advertisements that seek to promote or attack either candidate or campaign.’”
Shame on any media outlet that offers “help” for efforts to repress independent advocacy. Candidates naturally want to monopolize electoral speech; they want to “control the narrative.” They’re entitled to desire control, obviously, but they’re not entitled to exercise it, and they should surely know better than to ask media outlets to act as enforcers for their campaigns. The presumptuousness of the proposed Brown/Warren agreement is jaw-dropping.
Check out the whole thing
. While you’re at it, check out her article from earlier this week
on the failure of campaign finance reform.
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This Saturday, voters in South Carolina will cast their ballots to decide which candidate they want to represent their party in the 2012 presidential election. Saturday also marks the two-year anniversary of the U.S. Supreme Court’s ruling in Citizens United v. FEC. As anyone who has followed the presidential campaign knows, Citizens United and its effect on the election is a topic of hot debate. In particular, there has been a tremendous amount of news coverage regarding so-called “Super PACs,” which were made possible, in part, by that ruling.
Because the Institute for Justice supported the Court’s ruling in Citizens United and, indeed, played a direct role in the rise of Super PACs, we thought our readers might appreciate a little background on what exactly Super PACs are, how they came about, and how the law has continued to develop. What follows is not a complete history, but it should provide a solid overview.
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At the stroke of midnight this morning, popular Internet sites went "dark" in order to protest two anti-piracy bills under consideration in Congress: the House's Stop Online Piracy Act (SOPA) and the Senate's Protect IP Act (PIPA). Instead of finding informative entries on topics of interest, visitors to Wikipedia's English website will find an ominous shadow of the usual logo with the following message:
Imagine a World Without Free Knowledge
For over a decade, we have spent millions of hours building the largest encyclopedia in human history. Right now, the U.S. Congress is considering legislation that could fatally damage the free and open Internet. For 24 hours, to raise awareness, we are blacking out Wikipedia. Learn more.
On Google's home page, a black bar covers its iconic banner and links to an online petition opposing the bills. Under the search box, the site reads: "Tell Congress: Please don't censor the Web." Reddit, the popular social news website, replaced its usual content with a page describing its opposition to the bills, containing information on how to contact members of Congress, and a live update of latest news regarding the blackout. Mozilla is also participating in the "virtual strike" to protest the legislation, as are Craigslist and other websites.
The political message of the blackout is unmistakable: the proposed legislation would give the government unprecedented power to censor the Internet.
Whether the anti-piracy bills would result in censorship of the Internet is an important question worthy of debate. But what is beyond question is that corporations – like Google, Craigslist, the Wikimedia Foundation, Mozilla, and others -- have a right to free speech protected by the First Amendment.
That is what makes it so surprising that Occupy Wall Street and its offshoots have joined today's protest against SOPA and PIPA. For months, the Occupy Movement has been telling us that corporations, like the ones involved in today's "virtual strike" have no free-speech rights. Now they oppose SOPA and PIPA on the grounds that these laws would censor content on the Internet. But if corporations have no right to free speech, what prevents the government from shutting down websites of corporations right now, even without authority under SOPA or PIPA? Would members of the Occupy Movement really be in favor of a world in which the government could censor anything a corporation said? Eugene Volokh asks a related question in his post.
Imagine a world without free-speech rights for corporations. One thing is for sure: it would look much worse than today’s blackout.
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Yesterday the U.S. Supreme Court summarily affirmed a lower-court decision upholding a federal law that prohibits noncitizens who lawfully reside in the United States—except for “permanent residents,” i.e., “green card” holders—from spending money to influence U.S. elections. IJ had submitted a friend-of-the-court brief urging the Supreme Court to hear the case, Bluman v. FEC.
The result is disappointing, not only because the Supreme Court sanctioned the censorship of noncitizens who lawfully live in the United States, but because the Court did not stick to the principled stance it announced in Citizens United v. FEC. Indeed, the Montana Supreme Court recently pointed to the lower-court ruling in Bluman—affirmed by the Supreme Court today—as a reason to defy Citizens United.
What is perhaps most disappointing is that the Court’s summary affirmance could be read erroneously to sanction not just the lower court’s result, but also the slipshod approach the court took to getting there. The lower court disposed of the case on a motion to dismiss, which meant that the government was not required to provide any evidence to support its argument that the government had a compelling interest in banning speech by noncitizens, including even such patently harmless speech as leafleting in Central Park. This is, to our knowledge, the first time in the Supreme Court’s history that it has upheld a campaign-finance law that came before it with no factual development on a motion to dismiss.
In all likelihood, the decision is Bluman is an anomaly that will not have a major effect on the rest of the Court’s campaign-finance jurisprudence—it will be treated as a sui generis rule that applies only to noncitizens. As opponents of campaign-finance regulations, we take comfort in that. But as believers in the idea that the First Amendment protects a preexisting natural right to engage in peaceful political speech and association—a right on which citizens and permanent residents hold no monopoly—we can’t help but be disappointed in the Court’s ruling.
Despite the case’s unfortunate conclusion, we give kudos to Michael Carvin, Yaakov Roth, and Warren Postman of Jones Day for their exemplary work on the case. And, of course, kudos to plaintiffs Benjamin Bluman and Dr. Asenath Steiman for being willing to stand up for their rights.
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At the Institute for Justice, we want the message of liberty to reach the widest-possible audience. So when we were approached by a website that translates American legal writing into Slovenian and asked if they could reprint one of our Make No Law blog posts about media censorship, well, how could we refuse?
For anyone who is interested, the translation is available here. And if any of our readers are Slovenian, let us know how jokes about Lake Wobegon play in Ljubljana.
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Writing for the Project on Government Oversight (POGO), Ben Freeman argues that my recent op-ed in The Wall Street Journal regarding Bluman v. FEC is “deceptively titled” and uses a “bait-and-switch tactic” to con people into believing the Congress shouldn’t have the power to ban political contributions and expenditures by noncitizens who lawfully reside in the United States.
My op-ed was titled “Do Foreigners Deserve Free-Speech Rights?” As Freeman sees it, the real question is “Do American Citizens Deserve Sovereignty?” The Institute for Justice believes that the answer to both questions is “yes.” Where we disagree with Freeman is on whether acts of peaceful political expression and association by noncitizens are a threat to American sovereignty.
The way we see it—and the way the U.S. Supreme Court saw it in Citizens United v. FEC—the First Amendment ensures a wide-open political marketplace where voters can listen to diverse points of view from diverse speakers. We believe this includes speakers who were not born in the United States but who live here now. In this system, sovereignty remains with American citizens because American citizens are the ones who get a vote.
The real threat to American sovereignty is not that someone born outside the United States might present an argument that voters find compelling, but rather that government will use its coercive power to prevent voters from gathering information from certain distrusted sources before making their political choices. This is what the Supreme Court in Citizens United rightfully derided as censorship for the purpose of thought control.
Freeman doesn’t engage at all with the Supreme Court’s ruling in Citizens United and, indeed, thinks this whole First Amendment argument is a bait and switch. To Freeman, this case has nothing to do with speech, and is instead just about preventing foreigners from using money to influence American politics:
The simple fact is that the prohibition on foreign national contributions does not actually restrict speech at all. It in no way restricts non-U.S. citizens from engaging in issue advocacy or speaking out on public policies— it simply does not allow them to do so with money.
With all due respect to Freeman, the Supreme Court has long rejected the view that the First Amendment protects only the uncompensated spoken word. For over 35 years, the Supreme Court has held that the First Amendment is implicated whenever individuals are prevented from pooling money to engage in political speech. And it could hardly be otherwise. Freeman’s approach would give the government virtually unlimited power to silence speech, because virtually every type of communication requires the use of resources amassed in the commercial marketplace.
Freeman suggests that the First Amendment issue isn’t as cut-and-dry as all that by pointing to another line of cases:
In prior cases, the Court found that foreign citizens may be barred from activities “intimately related to the process of democratic self-government,” and aren’t eligible to perform functions inherent to democratic government, like serving as jurors or police officers, because “the right to govern is reserved to citizens.”
This was the argument made by the government in Bluman and accepted by the three-judge panel below. But the argument fails, most notably, because not a single one of those earlier cases involved a claim under the First Amendment. Instead, all of those cases involved equal-protection claims by noncitizens seeking to hold positions of actual government authority. But there is a world of difference between giving noncitizens control of the coercive power of government and permitting noncitizens to attempt to persuade others through political advocacy. The former may be a threat to sovereignty, but the latter surely isn’t.
It is also irrelevant for First Amendment purposes that other countries—like Canada and Israel, the plaintiffs’ home countries—don’t permit noncitizens to make political contributions or expenditures. Canada and Israel don’t have constitutional protections for speech that are at all comparable to America’s First Amendment. For Americans, this is generally a point of pride. But as long as we’re looking at other western-style democracies, let’s also look at Australia, which has virtually no campaign finance laws and permits unlimited campaign contributions not just from non-permanent resident aliens, but from aliens, corporations, and even governments outside of Australia. We are aware of no evidence that Australia’s hands-off approach to campaign financing has done that country any harm. Indeed, according to Transparency International, Australia is perceived as substantially less corrupt than the United States.
Freeman’s failure to provide any actual evidence to justify the ban on political contributions and expenditures by noncitizens is consistent with the approach taken by the three-judge panel and by other commentators who have supported the panel’s ruling. But it is not consistent with the First Amendment. The Supreme Court has repeatedly made clear that speculation and conjecture are not a sufficient basis to restrict speech. Government must justify such restrictions with actual evidence, not simply make ominous allusions to Nazi Germany or Mahmoud Ahmadinejad.
Ultimately, though, even if every claim Freeman made in response to my op-ed were accurate, the Supreme Court should still take this case. As documented in the amicus brief in support of review by the Illinois Coalition for Immigrant and Refugee Rights, there are millions of non-permanent resident aliens who reside in the United States. Until now, no court has ever held that these lawful residents were entitled to anything less than the full protection of the First Amendment. If these people are to be stripped of their First Amendment right to engage in peaceful political advocacy because of vague and unsupported concerns about “sovereignty,” that decision should come only after serious consideration by the highest court in the land.
The Supreme Court’s next opportunity to take up the case will occur on January 9.
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My colleague Paul Sherman has an op-ed in The Wall Street Journal today making the case for why the U.S. Supreme Court should take up Bluman v. FEC, a First Amendment challenge to a federal law that prohibits noncitizens, even those who lawfully live and work in the United States, from spending any money in candidate elections. The law is so broad that it even prohibits printing up and distributing flyers advocating the election of a candidate. Here’s an excerpt from the op-ed:
As Justice Anthony Kennedy eloquently expressed it in his majority opinion in Citizens United: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
The Justices who signed on to Justice Kennedy’s opinion should apply that same reasoning to Bluman. Those who instead agree with retired Justice John Paul Stevens’ dissent—which decried the application of the First Amendment to entities that have “no consciences, no beliefs, no feelings, no thoughts, no desires”—should recognize that noncitizens living in this country do have those qualities and are entitled to the First Amendment’s protection.
Over the past five years, the Supreme Court has been sharply divided on many campaign-finance questions. Whether Congress has the power to ban peaceful political speech by people who lawfully live and work in the United States should not be one of them.
Wall Street Journal subscribers can read the whole thing here.
For more information on Bluman v. FEC, read our earlier coverage here and here.
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