Today in Supreme Court History: December 10, 2003

12/10/2003: McConnell v. Federal Election Commission decided.

Comments

[Dan Schiavetta]

Whole Women’s Health v. Jackson, 595 U.S. — (decided December 10, 2021): suit against abortion “bounty hunter” statute (Texas S. 8) can proceed against state health officials having collateral authority over abortion services but not against judges and clerks who put S. 8 cases on dockets (Sotomayor’s argument in dissent, that such a statute can in effect prevent the exercise of any explicitly recognized Constitutional right, survives Dobbs)

McConnell v. Federal Election Comm’n, 540 U.S. 93 (decided December 10, 2003): rejected First Amendment attack on McCain-Feingold campaign finance disclosure law (partly overruled by Citizens United v. FEC, 2010)

Tanzin v. Tanvir, 592 U.S. — (decided December 10, 2020): FBI agents violating Religious Freedom Restoration Act can be liable in individual capacities (plaintiffs were Muslims who were placed on “no-fly” list for refusing to inform on their communities; they were then taken off list, making the injunctive claim moot; Court here held only that claim for damages could go forward, without deciding merits)

[Brett Bellmore]

"(Sotomayor’s argument in dissent, that such a statute can in effect prevent the exercise of any explicitly recognized Constitutional right, survives Dobbs)"

Not sure what a dissent 'surviving' a subsequent case implies. Legally, I mean. Genuinely, I don't understand what you mean here.

That you still find the argument persuasive? Well, sure, she did have a point. Is that all you meant?

[Dan Schiavetta]

I meant that her objection applies to any bounty-hunter statute, no matter what Constitutional right it impinges on (even though the right at issue disappeared with Dobbs). One of the VC'ers agreed with her on this point.

[The Margrave of Azilia]

They shouldn't have decided that case. They should have waited until Dobbs and then declared the Texas case to be moot - since the Court will no longer enforce a "right" to abortion, there's no more call to have federal lawsuits challenging abortion statutes.

[Dan Schiavetta]

They should have struck the statute down immediately. Not doing so creates room for future statutes that eviscerate rights that conservatives care about. It was not just Sotomayor saying this; Roberts, Breyer and Kagan agreed.

At least, they should have enjoined enforcement.

[Brett Bellmore]

No, I agree: That statute is too clever by half, and they should have instantly swatted it down, even if I like the objective.

[The Margrave of Azilia]

But that would have been premised on the idea of abortion as a constitutional right.

[Nameless But Highly Opinionated]

Courts don't strike down laws. They simply ignore them, refusing to recognize their validity. Enjoining enforcement is all they could have done.

"Not doing so creates room for future statutes..." Exactly. E.g. Gun people are violating gun laws at their own risk. What courts won't do today they might do tomorrow.

Jonathan Mitchell was wrong about one thing, though: The statute was turning ordinary citizens into enforcers of Texas law. There was no reasonable claim that they were actually injured as individuals. Thus, since the civil rights statutes say "No [any] person shall [who]..." not "officer" or employee, anyone who sued under these statutes might have been subject to 42 usc 1983 (if there's anything left of it) or 18 usc 272.

[Brett Bellmore]

Ah, so that is what you meant, not that it had some kind of legal weight. OK.

[Dr. Ed 2]

What I never understood is why McCain Finegold couldn't have been re-written so as to allow what essentially was citizen journalism without having to allow the Super PACs that we have today.

Citizens united wanted to air a film critical of Hillary Clinton, much like NBC aired the Billy Bush (grab pussy) film.

[Dan Schiavetta]

Airing the Billy Bush film was a freedom of press situation, not a freedom of speech situation.

[Mr. Bumble]

There's a difference?

[Dan Schiavetta]

"Hillary: the Movie" was "electioneering" (to put it kindly), a long smear against Hillary Clinton with interviews from various people who lied about her record and her actions.

The Billy Bush tape was an unedited recording of a 2005 interview Trump gave for the show "Access Hollywood". It couldn't even be called "reporting". It was simply letting the public see Trump speaking.

[Brett Bellmore]

Setting aside the claim that it was false, calling it "electioneering" puzzles me. The only proper response to that is, "Yeah, so what?"

It's not like 'electioneering' has some different legal/constitutional status from, oh, discussing the weather. Or if it does, it's a more protected status, not less, being core political speech.

People who don't like freedom of speech keep trying to set up categories of speech, as though those categories have some constitutional significance. Like, if we call it 'electioneering' or 'disinformation', the 1st amendment goes away.

It doesn't go away.

[Mr. Bumble]

"Electioneering" was one of the main reasons for the 1st Amendment. An informed and knowledgeable citizenry needed unfiltered information to make wise choices in how they would be governed (not that its always worked out that way).

[Dan Schiavetta]

“Electioneering” is permitted, folks.

My point is only that it’s protected under a different part of the 1A than freedom of the press, and the analysis is different.

[SomeGuy 2]

Is it? Like, what's an example of speech that can be criminalized if I said it, but not if a reporter says it? Or vice versa?

[Brett Bellmore]

I guess at this point I can only remind you that just as freedom of speech is everybody's freedom of speak, freedom of the press is everybody's freedom to publish.

So if 'electioneering' is published, it's exactly protected under freedom of the press.

[defaultdotxbe]

I'm still confused at what point a printing press was involved in the Access Hollywood tape to make it protected as freedom of the press rather than speech.

[Nameless But Highly Opinionated]

There wasn't a corporate press back in the 1700s, just Ben Franklin & Thomas Paine type one-man enterprises.

The law had always made a distinction between slander (spoken) and libel (written) so it made sense to say that people had the right both to speak and to publish.

[SomeGuy 2]

I don’t really know how you meaningfully line-draw without ending up with SUPER Pacs.

At oral argument, the government couldn’t distinguish between banning a documentary and banning a book. Neither can I, if the government can ban one it can ban the other. It’s, needless to say, a bit odd to take the position that a book or documentary could be banned because it might influence an election. Persuading the citizenry is how elections are supposed to work.

The rhetorical feint is to say it’s about “money” but this doesn’t really work– it’s nearly impossible to make speech without spending some money. This post cost me some electricity, which I will pay for eventually. Well, surely if a documentary is permissible then it doesn’t have to be a particular length– so now we have 30 second documentaries that talks up a candidate you like or slams one you don’t. We can put those documentaries on YouTube or pay to have it put on the commercial breaks.

The most I think the government can do is restrict candidates from working with SUPER Pacs– they waive first amendment rights they otherwise would have had as a condition of running for office. But we already do that, when the media talks about “Candidate X’s SUPER Pac,” that’s a bit imprecise, the candidate/campaign are banned from coordinating with the SUPER Pacs. I don’t necessarily love it, but I like it better than the government’s solution of banning books and documentaries because they might influence an election. That such a ban would help the incumbent lawmakers who tried to pass that law is, surely, just a startling coincidence.

[Brett Bellmore]

" they waive first amendment rights they otherwise would have had as a condition of running for office."

I'm not seeing any constitutional basis for imposing such a demand. Maybe you can enlighten me?

[SomeGuy 2]

Waiver happens all the time-- military members give up a lot of free speech rights, as do government employees. At minimum, the government is the one printing the ballots and can create conditions for your name appearing on it (which it does and has to do, otherwise every yahoo would be running for POTUS and the ballot would be 500 pages long). You want your name on the ballot? Sure thing, here's what you have to do and it includes compliance with campaign finance law.

I suppose if someone flouted all the laws and ran such a successful campaign that they won as a write-in, then you might have an issue. But get me that winning write-in candidate first, then the courts can figure it out.

[Magister]

Somebody fired up the Margrave signal but no response.

the government ... can create conditions for your name appearing on [the ballot] (which it does and has to do, otherwise every yahoo would be running for POTUS and the ballot would be 500 pages long).

[Brett Bellmore]

"Running for office" is just 1st amendment activity aimed at persuading people to vote for you. You can't be required to waive 1st amendment rights as a condition of exercising 1st amendment rights...

So, you'd have the government condition ballot access on agreement to not exercise a civil right? I'm not seeing how that is a constitutionally defensible position. But the whole idea of conditional ballot access is sketchy, not because it violates the rights of candidates: Because it violates the rights of voters.

I'll remind you that there wasn't even such a thing as "ballot access" until states started adopting the Australian Ballot back in the 1880's. For about the first century of this country's existence, voters provided their own ballots, either written by themselves, or printed by some outside group, like a candidate, party, club. And those ballots could have anybody on them they damned well pleased, the right to vote was the right to vote for ANYONE you wanted. Period.

You might be wasting your vote if you voted for somebody who didn't meet the qualifications for the office, but you could still do it. From an originalist perspective, the right to vote is the right to vote for whomever you want, no limitations.

Then in the 1880's, states started pre-printing ballots with announced candidates on them as a convenience for the voters. It took a while for them to realize that, by doing this, they'd gained an opportunity to control who the voters could conveniently vote for, and 'ballot access' was born. Extending this abuse to abolishing write in votes, (The lingering remnant of the original right to vote for whomever you wanted.) is a pretty recent thing.

Again, from an originalist perspective, allowing write in votes is constitutionally mandatory, and requiring more than a trivial filing requirement to get on the ballot? It's a voting rights violation.

[Nameless But Highly Opinionated]

The cure for bad speech is more speech.