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View Diary: How John Roberts orchestrated the Citizens United decision (220 comments)

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  •  I disagree Speech Is and Should be restricted (3+ / 0-)
    Recommended by:
    Tracker, basquebob, wsexson

    I am not going to get into the main point.

    But it is a falallacy that Free Speech is completely Free. There are I believe something like 9 categories of Speech that are NOT free.

    The SCOTUS has been the decisive reason for why in many of the famous cases behind them.

    There are both
    A. Content Based Restrictions
    B. Time-Place-Manner type restrictions

    This is an interesting mix of both.
    Under track "A" you look at the government purpose. Speech will always receive strict scrutiny. It must be narrowly tailored to serve a significant governmental interest. And it must leave open ample alternative channels for communicating the information. I could argue both ways if only looked at like this.

    It probably is a hybrid. So looking at Content Restrictions you would also ask are they compelling or depriving speech? That is viewed differently. If depriving is is direct or indirect.

    Some of the Direct Deprivations are:
    1. Immediate advocacy of unlawful action
    2. Osbscenity
    3. Child Pornography
    4. Fighting words
    5. True Threats

    Perhaps more closely related are "Less than fully Protected Categories" and their reasons:
    1. Defamatory
    2. Lewd/Profane/Indecent (different than Obscenity Obscenity is basically extremely pornographic)
    3. Commercial Speech

    I bolded Commercial Speech because the SCOTUS already recognizes that it is less than fully protected.

    The test for "Commercial Speech" is supposed to be:
    So long as the advertisement concerns lawful activity and is not misleading, the Court inquires whether the regulation directly advances the asserted governmental interest.  If the answer to that question is “yes,” the Court inquires whether the government interest could be served by a more limited restriction on commercial speech.  If so, the regulation is invalid under the First Amendment.

    Again I think you could argue both ways.

    Just the same the Court could have carved out a greater exception regarding Campaigns due to the real threats of misinformation outsiders can play. Or you could get there based on the decisions now.

    You say nowhere in the constitution does it say that. I say nowhere in the constitution does it say I am limited to carry a sign that reads "bong-hits for jesus". It is Judicial Activism we like Corporations, we don't like high-schoolers speech (there is a very real attack on free speech in schools). Also, I still am waiting for anyone to show me anywhere in the Constitution where an INDIVIDUAL has  a right to bear arms. Point every decision is determined prior to Oral Argument, and every Case decided by the SCOTUS is the Law, and hence an example of judicial activism (since Marbury v. Madison).

    •  But where has the Court ever said that (2+ / 0-)
      Recommended by:
      ClevelandAttorney, VClib

      a particular category of speech could be treated differently depending on the medium used to disseminate it?

      Stewart was already asking for a new rule -- that speech could be treated differently depending on who paid for it to be disseminated.  He was already asking for the Court to hold that Congress could not ban a movie paid for by Michael Moore out of his own pocket, but if Michael Moore formed a corporation of which he was the sole shareholder, and that corporation put out the movie, then Congress could ban it.  That's a new, and novel, limit on the First Amendment in and of itself.  Even the ACLU saw a problem with that new rule.  

      What Toobin is saying is that, instead of asking for one new and novel limitation on the First Amendment (based on who paid to disseminate the speech), Stewart should have asked for two new and novel limitations on the First Amendment: (1) based on who paid to disseminate it, and (2) based on the method used to disseminate it.  In essence, Toobin said that the government's position should be that, under the First Amendment, Congress can treat each method of speech differently -- it can presumably put more restrictions on speech in a movie than speech in a book.  That seems absurd to me.  It would mean that the exact same sentence that could not be banned if it were in a book -- vote for X -- can be banned if it's in a movie.  What about if it's in a pamphlet?  What about if it's in a newspaper ad?  What about if it's in billboard?  What about if it's in an email?  What about if it's in a mass email?  What about if it's in a Facebook posting?  Does Congress get to decide which mediums mean it can ban speech and which don't?

      I just think Toobin's argument -- that the exact same speech that can't be banned in one medium can be banned in another medium, and that Congress can decide which mediums get which treatment -- is an absurd First Amendment argument.  

      •  Reno v. ACLU-521 U.S. 844 (1997) (0+ / 0-)

        Q: Where has a particular category of speech could be treated differently depending on the medium used to disseminate it?

        A:     Reno v. ACLU-521 U.S. 844 (1997)

        I need to sue Wells. Yeah!!

        So cannot exchange thoughts. But that is the case that comes to mind just as to the first question. The considered the new "medium" of internet. From what I recall they likened it more to something that takes affirmative action to find the Speech (so more like Cable, and they analyze Cable TV different than Regular, as Regular is broadcast to everyone).

        That case may make your point. But the Court has (since Cable TV at least) considered the medium of Speech in coming up with the propriety of the restriction.

        •  You mean the case where the Supreme Court (1+ / 0-)
          Recommended by:
          VClib

          struck down the anti-indecency provision of the CDA as a violation of the First Amendment?  The supposed "unique nature of the Internet" was not a sufficient justification for restricting speech that was constitutional otherwise.  That's how I recall the Stevens opinion.  

          The only time I think the court has used the medium itself as a basis for restricting speech is when it is talking about the public airways, where the medium was (1) provided in part by the government; and (2) was limited --  only so much was available.  

          Nothing in any prior case, as far as I know, would justify treating the exact same sentence differently based on whether it was in a book or in a privately distributed movie.

          •  I disagree with the idea that medium is not (2+ / 0-)
            Recommended by:
            burlydee, wsexson

            a consideration. Even if you are saying ok, but those cases have to do with a certain type of Speech that is regulated, the decisions still depend on how you are disseminating it.

            Reno was about what you said. But it would have been decided differently if it was a broadcast on regular television. So there is a difference between something you might write on the internet or a book (you have to actively go and get or pay for) or something being beemed into your home (the latter being at the bottom of the totem pole in terms of protection depending on the speech because it could be "unwanted innundation" basically.

            I'd say FCC v. Pacifica Foundation 438 U.S. 726 started this. Looking at the syllabus I think you can take from it that the medium makes a difference:

             (Justice Stevens writing for majority)

            4. Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid [728] those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children. Pp. 748-750.
            Therefore, yes depending on the sentence it would be Ok in a book, and not in a movie broadcast beemed into my house.

            I would also add that in analyzing a First Amendment issue you start by descerning if it is a Content restriction OR a Time/Place/Manner. The latter also shows that depending on what you are saying, and the way it is restricted (if there's any discretion you're in trouble) a law where you write something down then come to my house to give it to me at midnight is probably not ok. However, the same during the day might be. And in a movie would certainly be (as it would probably not be considered based on time/place/manner analysis in a theatre).

            There are then to me multiple ways that medium is important, and has been for 40 years.

            •  I mean to say (0+ / 0-)

              If solicitation was banned from midnight to 6 at personal residences it would probably survive scrutiny.

              If it was ever, probably not.

              If it was this movie cannot ever be broadcast it would not (as there would be no alternative outlet to meet the test).
              So again, what you write can be resitricted coming into my home probably, but the same sentence probably not in a private theater (I do realize it all depends on what the sentence is).

              •  The whole "broadcast television" thing doesn't (1+ / 0-)
                Recommended by:
                VClib

                work here.  

                The justification for more regulation of broadcast journalism was the "limited public airwaves" -- the idea that (1) the airwaves were a public resource; and (2) the number of usable airwaves was limited.  Frankly I kind of doubt that, with cable tv so pervasive, that argument would even work any more.  The FCC case was decided in the 70's.

                Even if you relied on that "broadcast into your homes" argument, that didn't work here, where "Hilary the Movie" was supposed to be made available on cable in a pay-per-view situation.  That means I, as a viewer, would have to seek it out, choose to watch it, and pay extra for it.  And the ban meant that I, as a viewer, could not choose to receive the speech.  It's much more akin to a movie in a theater.  

                So, given that, what's the constitutional justification for saying that Congress can ban a private, pay-per-view movie, but it can't ban the exact thing if it comes out at the exact same time in print form?  

                How was Stewart supposed to answer that?  

                •  We didn't start there (0+ / 0-)

                  We started at where is there a difference in Medium ever recognized.  I was saying it has.

                  But you would be correct that the viewpoint even through Pacifica and Reno's lens would be buying a book, going to a theatre, are about the same level on the totem pole.

                  •  Off the top of my head (0+ / 0-)

                    Which would never happen if you are arguing in front of the SCOTUS.

                    I would think that Stewart should have said that it was a time/place/manner restriction.

                    That the governments interest is different in a sentence in (and say it is commercial speech) commercials for and the actual publication v a book. The difference lying in the real world ability of allowing a Corporation to expend unlimited funds does not necessarily encourage political debate, but allows for the innundation of one view-point with more money.

                    A sentence in print, certainly does not run the same risks in our society so the government's interest is different.

                    Would this win? Probably not. It reminds me of cases like:
                    Painesville Bldg. Dept. v. Dworken & Bernstein Co., L.P.A., 89 Ohio St.3d 564, 2000-Ohio-488

                    We conclude that a narrowly drawn municipal ordinance imposing reasonable time, place, and manner restrictions on the display of temporary signs, including political yard signs posted on private property,
                    could constitutionally be enacted. Section 1135.02(d), however, is not such an ordinance, and is  unconstitutional when applied to prohibit the owner of private property from posting a single political sign on that property outside the durational period set by the ordinance.
                    I think that the government interest changes. When you are on track two the medium and alternative outlets are actually very important. I think then that the People and Government have a much greater interest in limiting innundation (there were to be commercials on Network Television and I am not even allowing that to be determinitive) via television than books. As this Case clearly allows for Company A say an oil company running their CEO for governor Candidate A. Candidate B has no money. This case says too bad. Company A can innundate you in any medium, most importantly television. If Company A writes a book the government's interest in the propriety of elections is certainly different.

                    I see several ways then to differentiate:
                    1. Time/Place/Manner track even between PPV with Commercial v Book there are greatly different gov't interests.
                    2. Commercial Speech in either medium would be viewed differently.

                    I think the viewpoint so I cannot write on P 1 of a biography of Candidate "A" vote for Candidate A is equivalent to not expending numerous sums of money on medium that are more readily accessible and "trusted" is being intellectually dishonest and he could have responded in various ways.

                    Would he win? Seems clear this was sand-bagging and he had no chance.

                    As if the Court viewed this as limiting both, truly this should have been decided on over-breadth, but that obviously was never going to happen.

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