I really have to thank this community for reviving an interest I have always had. I am no scholar of any import. But the more I see people engaged and interested in Con Law the more it reminds me of how fascinating a class and experience learning it was for me.
I do hope other attorneys voice their opinions as for all I know they are in fact greater con law scholars as I am sure any would tell you that it is impossible (unless you work perhaps for the ACLU) to work on Con Law primarily.
I wanted to (try) to explain some of what I recall of First Amendment Speech, and an understanding of Citizens United/today’s decision.
I also see some common questions. I wanted to attempt to bring my understanding to you. So you would not have to pay what I did for it. :-) And hopefully others could bring their input as the law is in no way one man's interpretation. That is why Judges/Lawyers exist. If you can communicate your stance under applicable precedent usually you win. If you cannot well as they say better to know the Judge than the Law, Perhaps for Citizens' United better to know the Judges will take something to its extremes than the law.
So I will appreciate any dissenting opinions or additions. I will try to answer any questions but I would again say 1st Amendment (unless you are defending the porn industry-seriously those are the only 1st Amendment firms, is to most lawyers and interest, it is a great one to me and I hope that I am giving back to the Community in some way by stating what I know so that you may be better equipped to understand the means of the decisions, or what you think think is right/wrong). More below.
I apologize for any non-full citations or issues not fully fleshed out. Much of this is from my own writings and I will do my best to make it Cohesive. I will start with some common Questions I see in the wake of Citizens United and the Montana decision today (June 25, 2012).
1. Doesn't the First Amendment Apply to FEDERAL ACTORS?
The First Amendment:Originally this meant only the government (or Federal Government).
Congress shall make no law respecting
an establishment of religion, or prohibiting
the free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble,
and to petition the Government for
a redress of grievances.
This however changed over time.
Supreme Court Authority to Review State Court Judgments
1.) 2 systems, state and federal courts. In state courts have final say on what a state statute means. If the issue is the meaning of statue statute in federal courts they have to go with say the state supreme court’s interpretation. Someone saying a state law is unconstitutional is a federal issue.
Case Showing the Change
B. Martins v. Hunter
1.) Facts- VA has seized land owned by Lord Faifax, Fairfax didn’t recognize the legitimacy of the seizure so he bequeathed the land, One of the litigants got the land from Fairfax.
The question therefore is whether Virginia legally seized the land. Fairfax says (federal question treaty is federal law) that the peace treaty ending the revolutionary war prohibited the seizure.
State supreme courts tend to uphold state laws (we like the Browns in Cleveland)
2.) What happened. Virginia SC said the seizure didn’t violate the treaty. The USSC decided it did and sent it back on remand instructing the Virginia judges to enter judgment for Fairfax. VA Judges responded saying it was unconstitutional for the USSC to tell them what to do, that they didn’t have the power.
3.) THE SC Story presiding (Marshall sat it out- he bought land through Fairfax’s heirs) decided that since we need uniformity of decisions the Supreme Court has the Supreme Federal judicial power, they can tell state courts what to do.
-> That’s how it is today, if you lose at at State SC, you can ask the USSC to decide the issue and it will be decided and remanded, rarely do they enter judgment for themselves
Q: But what about Integration of the Bill of Rights?
That has a longer history based on a struggle with the Question "Did the 14th amendment’s due process clause make the Bill of Rights (which was originally limited to the federal government) applicable to the states as well?"
Pre 14th Amendment- the Bill or Rights did not apply to the states
“All Persons born or naturalized in the United States and subject t the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”Pre-civil war, there was little restraint-States had had their own constitutions and there were few restrains by the federal constitution on the states. But Post-civil war amendment signified a major escalation in the NATIONAL CONCERN with the PROTECTION of individual rights from state governmental action.
Where could you stop states from doing the Unthinkable? Everyone agreed, the 14th amendment, but it was less clear how the 14th amendment did that.
2 views arose.
1. Total Incorporation- Justice Black- Section 1 of the 14th amendment was intended to and DOES incorporate the first 8 amendments the result is word for word you wouldn’t say MT is banned from making their own Corporate/Speech Law:
You'd say "Montana is prohibited from it's Corporate Expenditure Law by the First Amendment as Interpreted by the SCOTUS by virtue of the 14th Amendment".
2. Selective Incorporation- 14th amend. Doesn’t spell out the BOR, due process clause and fundamental fairness and it was up to judges to determine if what the state did was unfair. Due process means something fundamental fair- it just so happens that the First 8 amendments spell out a lot of these things.
“It is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process o law . . . if this is so it’s not because the rights are enumerated in the first eight Amendments, it is because they are of such a nature that they are included in the conception of due Process" See Palko for an example.
If the federal government and courts are in charge of life, liberty and property, those are the fund rights, that’s everything right there.
1. * Then the courts would be in charge of everything.
Q What if they choose to not listen? What if Montana didn't want to change?
There have been means of redress suggested elsewhere. But I will stick with a view of the SCOTUS that they have power because we view them in an exalted way. Fundamentally if the POTUS didn't want to listen the Bailiff's of the SCOTUS (if the US was on the POTUS' side wouldn't exactly have much effect on the Military at the POTUS' disposal).
That is the tight-rope if you will. That even in Marbury v. Madison the Court Recognized they had made up Judicial Review so they should do so sparingly. See pre-1937 as circumstances leading to the near divestiture of the SCOTUS' import. Could it happen again? Yes. Will it? I think until they are viewed by more than us as a Political party or simply the best SCOTUS money can by no. But it is not without precedent to think that too many false moves and suddenly why do we listen?
Theoretically Congress Could Divest the SCOTUS
Article III creates Supreme Court and vests it with various jurisdictions, but it also says Congress can make exceptions to that. So an article that withdraws jurisdiction seems ok.
a. So the First Question is whether the act takes away jurisdiction
(if so useless to decide- but see Marbury)
a. “Jurisdiction is power to declare the law and when it ceases to exist the only function remaining to the court is that of announcing the fact and dismissing the case”
b. Congress can withdraw jurisdiction and they can’t inquire as to why.
a. If congress can do what constitution says does that means they can prevent the supreme court or all federal courts from deciding constitutional questions?
5. The POINT- Notwithstanding McCardell, the question of what limits exist on Congressional power to withdraw Jurisdiction, no one knows, because it’s better to not know. At least that is conventional wisdom at this point.
Other than through Suit Can we Make Montana Officials act a certain way?
Probably but some cases (decided by Rehnquist Court make this an interesting question). What if the Montana Police were asked to enforce this Campaign law? WOuld they have to?
Printz v. United States
1.) The Federal government can’t conscript state officers directly. You can’t tell the sheriff he or she has to look up someone in a state computer database.
2.) The Brandy Handgun Act- was designed to prevent the sale of Handguns to felons, you only know that they are felons by checking a database of people’s records, they said until a federal database is finished the chief law enforcement officer of sellers’ locality would have to make reasonable efforts to see if giving the guy a gun would violate the law by searching state and local records.
Scalia says that you can’t draw a line between policy making and non policymaking activities, (the sheriff’s decision to answer phone or search database, that’s policy making)
There is policymaking in carrying out the law
Ironically Justice Scalia states that, although there is no constitutional text precisely responding to the challenge, an answer can be found “in historical understanding and practice, the structure of the Constitution, and in the jurisprudence of this Court.”
HISTORICAL INTERLUDE- THE FIRST AMENDMENT
: Speech Protections from Tudor England to the Present
A. Tudor England
1. The Doctrine of Constructive Treason Statute of treason enacted in 1350 made it a crime to compass or imagine the king’s death conviction required an overt act.
2. The Licensing of the Press The licensing of press, asserted power to impose editorial control over all printed matter, intitially it was a right of royal prerogative, licensing system of England criminalized. Was a clamp on dissent, afforded the crown pre publication censorship and prosectutions were simple only had to show the d printed the publication and didn’t first get advanced approval. Penalites for unliscensed were confiscation, fines and penalties, forfeiting of bonds. Printers were usually different than authors. It was imposing penalties on printers to get them to squeal on authors.
Licensing ceased in 1694 because the number of presses grew and it was hard to regulate, by 1769 it was a forgotten thing.
3. The Law of Seditious Libel- It was broad enough to criminalize any comment critical of the government fell within this doctrine.
CONTENT RESTRICTIONS v. TIME PLACE AND MANNER
As we developed our Common Law I think that for Speech that is regulated it is fair to say there are TWO tracks for analysis. (I will get into restricted Speech). Q1 though is always "is there a Federal (and now via the 14th Amendment) and or state actor".
Generally when the Government is attempting to argue in favor of a restriction they try to state it is a TIME PLACE/MANNER.
Those Challenging generally ask for a track one analysis saying it is restricting the CONTENT of Speech.
Citizens’ United (if we make the (il)logical leap and say it was people speaking, say a decision restricting your placement of a political sign within thirty days of an election (for appearance).
Generally that type of Law has not survived. It is track one and destined for a quick overturn.
1. “Track One” analysis (strict scrutiny for content-based restrictions);
“The regulation must be necessary, and narrowly drawn, to serve a compelling
There are very few categories that fall into this. However, clearly the Montana Supreme Court was arguing that the state did have such an interest. (Also Applicable in the less Hostile track 2 Analysis).
2. “Track Two” analysis (intermediate scrutiny for time, place, or manner restrictions).
1.The regulation must be content-neutral (i.e., it must
be justified by the government without reference to
the content of the regulated speech).
-> How does the government justify its
regulation? What is the aim or
purpose of the regulation? (This is about as long as they’re not trying to restrict the expression the courts will regard it as content neutral)
2.It must be narrowly tailored to serve a significant
-> Look for substantial restrictions on
valued speech methods like marching,
demonstrating, leafleting, picketing. (Not the least restrictive means, narrow tailoring, that the government aim could not be achieved as effectively absent this regulation)
-> An outright ban on leafleting or something is the type of thing that will flunk prong 2.
3.And it must leave open ample alternative channels
for communicating the information.
-> Does the regulation largely impair the
speaker’s capacity to reach her intend-
ed audience? (Key: Speaker’s desired location)
(Ex: If 7 Hills told protester at Dimyonovik’s to go protest in front of the federal building instead of his house, that’d raise prong 3)
From Montana’s Majority Decision:
[T]he Montana law at issue in this case cannot be understood outside the context of the time and place it was enacted, during the early twentieth century. (Montana became a state in 1889.) Those tumultuous years were marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations. These disputes had profound long-term impacts on the entire State, including issues regarding the judiciary, the location of the state capitol, the procedure for election of U.S. Senators, and the ownership and control of virtually all media outlets in the State.UNPROTECTED AND LESS THAN PROTECTED SPEECH
Examples of well-financed corruption abound. In the fight over mineral rights between entrepreneur F. Augustus Heinze and the Anaconda Company, then controlled by Standard Oil, Heinze managed to control the two State judges in Butte, who routinely decided cases in his favor. K. Ross Toole, Montana, An Uncommon Land, 196-99 (Univ. of Okla. Press 1959) the Butte judges denied being bribed, but one of them admitted that Anaconda representatives had offered him $250,000 cash to sign an affidavit that Heinze had bribed him. Toole, Montana, An Uncommon Land, 204.
In response to the legal conflicts with Heinze, in 1903 Anaconda/Standard closed down all its industrial and mining operations (but not the many newspapers it controlled), throwing 4/5 of the labor force of Montana out of work. Toole, Montana, An Uncommon Land, 206. Its price for sending its employees back to work was that the Governor call a special session of the Legislature to enact a measure that would allow Anaconda to avoid having to litigate in front of the Butte judges. The Governor and Legislature capitulated and the statute survives. [...]
The State of Montana was still contending with corporate domination even in the mid-20th century. For example, the Anaconda Company maintained controlling ownership of all but one of Montana’s major newspapers until 1959.
Again, this is discussing the compelling interest. A problem perhaps with initial opposition (though sand-bagged in citizens united) I would guess would be at oral argument or briefed “what is the proof” that money leads to a lack of integrity? Perhaps it has not been studied. I would say Montana has such a history to prove that the fundamental premise that “Money does not corrupt or give rise to a questioning of the integrity of elections” has wheels for Montana. They have a very specific law for a very specific reason
This remains equally applicable if you could convince the Court that it it is not a content restriction but Time/Place/Manner. I am sure that this was argued in Citizens United. That track two should apply. And certainly here. That we aren’t saying you cannot (as in Tudor England) question x, we are regulating all Corporate influence, the manner it can be done. I wonder what the effect of altering the law so that it would be “Corporations” are only allowed to keep their charter if they spend no more than x % of money on activites not relating to objects that are not revenue producing (as the purpose of a corp is a profit or non profit entity to serve a limited liability shield recognized by a state). I digress however.
Assuming it is Content- Restrictive there are only truly several Categories of unprotected speech.
1.Advocacy of Imminent Lawless Action Speech that advocates illegal conduct may be criminalized ONLY… 1.when it is directed to inciting or producing imminent lawless action, 2.and is likely to incite or produce such action. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
2.Obscenity- Expression will be obscene and hence unprotected if it satisfies each prong in the following test:
1.whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a prurient interest in sex;
2.whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state
3.whether the work, taken as a whole, lacks serious literary,
artistic, political, and scientific value.
Miller v. California, 413 U.S. 15, 24 (1973).
3.Child Pornography- The test is a modified version of the Miller Test
4.Fighting Words- permits the government to criminalize statements that constitute unambiguous invitations to brawl, specifically directed by one person to another.
5. True Threats: a threat that “on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.”
United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir. 1976).
1.Defamatory Statements/False Statements of Fact- Under the “actual malice” standard, the defamatory statement must have been made
“with knowledge that it was false or with reckless disregard of [its truth].” New York Times v. Sullivan, 376 U.S. 254 (1964).
2.Commercial Speech- 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.
3.The Lewd/Profane/Indecent- No test
Thus not all Speech is “fully protected”. I cannot say let’s go to my boss’ house follow me and we will break his windows. Just the same I cannot Defame, however it is not as cut and dry.
Commercial Speech/Defamation to me are most of interest to me of all the above, as while I doubt they decided Citizens' united following either, they certainly have applicability as to prior discussion of 1. Corporate Speech 2. Discussing Public Officials;
Beginning with the latter there is a distinction between you or I and a public official. Or someone who has “thurst themselves into the political [public] vortext”. We give them less protection for uttered falsehoods as the worry is that if any false statement against would be a suit, we would chill truthful statements as well.
the Court held  that public officials are precluded from recovering damages for defamatory falsehoods uttered in reference to their official conduct unless they can prove that the statement was made “with knowledge that it was false or with reckless disregard of [its truth].” New York Times v. Sullivan 376 U.S. 254 (1964) ): invoking the First Amendment to afford limited legal protection even to FALSE statements uttered by critics of government officials.There is also the ability to simply state “in my opinion” opinion is not a statement of fact. The difference in perception can matter. It makes it then very difficult to say bring Defamation against all of those claiming Obama is this or that. If it were you or I being discussed that would be a different story.
More interestingly as we have Corporate Actors (to me I don’t know to what extent it interested the Court as there has truly never been to my knowledge such a merger of the freedom to assemble/speak).
There have been some cases prior to Citizens United that beg the question important question (The biggest Example I can think of perhaps my colleagues may know others)
- Advertising or Political Speech by a Commercial Speaker Something Else? **
(When i went to Law school this was a Question mark. Citizens United has certainly went much further than the way this was analyzed. What I do wonder is if as you will read below Nike was discussing and advertising in favor of a candidate could you or I if stockholders bring a Derivative Action?)
Background: Widely criticized for exploiting its Asian workforce, Nike responds with a public relations campaign. In the course of that campaign, Nike allegedly makes false statements of fact about its labor practices and about the working conditions in its Asian factories.
The question is whether this is commercial or noncommercial speech, if it’s commercial it’s more vulnerable to regulation. That had been the idea. I bring this up as Citizens United started somewhere and made a B, and a C, to get to D. As it was unclear if Nike Could even defend themselves in their Corporate person-hood?
In response to news stories In response to this adverse publicity, Nike
executives launched a public relations campaign featuring press conferences,
press releases, letters to the Op-Ed pages of newspapers, letters to university presidents and athletic directors, and full-page newspaper advertisements. In these statements, Nike executives specifically asserted that…everything is legit that they do with their workers basically.
At oral argument both sides conclude that if Nike’s speech is political it is protected. The Prosecutor said Nike’s speech was only to sell shoes, whereas Nike contends that it is merely engaging in public debate. So it’s either corporate citizen defending their business practices, or making assertions of fact in a forum not all that different than advertising.
What ultimately persuaded Cali was that although the context was a bit different than someone watching Thursday night football this is designed to protect Nike’s sagging market share.
The California Supreme Court, adopting an expansive view, held that Nike’s statements DO fall within the less-than-fully-protected realm of commercial
speech – “[b]ecause the messages in question were directed by a commercial speaker to a commercial audience, and because [Nike] made representations
of fact about [its] own business operations for the purpose of promoting sales of its products.”Krasky v. Nike, Inc., 45 P.3d 243, 247 (Cal. 2002). Then cert granted but claimed it was improvidently granted.
CONTENT/MEANS OF DISSEMINATIONI previously commented in other threads about another strand that struck me. That is the Content/means. In my opinion there have been many cases that the means can be regulated. Some of my colleagues disagreed. However, I would say that Citizens United cannot fit into any of our previous understandings of First Amendment Law. There are strands elsewhere that all indicate otherwise. That is in this area it would seem that (in addition to the Time Place and Manner Restrictions/Test) this would or could be a consideration for future law.
These cases are generally in the less that fully protected Lewd/Profane/Indecent area.
First I mention Reno v. ACLU-521 U.S. 844 (1997) This was a ban on Internet as a means of Transmission of indecent communications. The ACLU made every effort to distinguish the MEANS. That is that TV broadcast into your home has been viewed differently than content you go out and get. The implication of this case as I learned was that the internet was higher on the totem pole (protection-wise) as you had to go out and get it.
I bring this up because there is essentially a pecking order of sorts for how a communication is made. I wonder if any re-incarntions of MF or the Mont law will somehow utilize. It is mixing and mashing of law. But well so was Citizens United.
From an earlier Comment in a Citizens United Thread:
A sentence in print, certainly does not run the same risks in our society so the government's interest is different.I certainly have learned something in writing this. I hope you have too. A lot of questions prevail, how should it have been Decided (CU or MT)? How could they re-write the law? Etc. Almost as many ironies.
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.
What if the Empirical studies show that there is a terrible influence between $ and Politics. Well, while in enacting your own regulation of speech (say WHERE a pornographic bookstore may be located) you do not need to rely on your own study. But the secondary effects (ie I don’t want it next to a school, or I don’t want movies near my election) are considered. Again why Montana’s point of history was important IMHO. The irony, being our affair with all politi-speech is itself entrenched in history back to the tudors.