June 25, 2007

Free speech prevails in the issue ads case in an as-applied challenge to McCain-Feingold.

The Supreme Court also decided the Wisconsin Right to Life case:
Completing a day of 5-4 decisions, the Court issued its fifth ruling of the day, concluding that a Wisconsin abortion rights group had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate. Three of the five Justices in the majority urged the Court to overturn the part of a 2003 ruling that upheld the constitutionality of the federal law restricting such radio and TV ads close to elections. The Chief Justice's main opinion, joined fully by Justice Alito, said the case did not provide an occasion to revisit that ruling. Justice Souter recited at length from the bench for the four dissenters -- who were in the minority on each of the day's rulings.
Here's my earlier post on the case, written after the oral argument:
[T]he Wisconsin Right to Life case... is about the provision the McCain-Feingold campaign finance law that prohibits issue ads right before the election if they mention the name of a candidate. The Court rejected a facial challenge in McConnell in 2003, but this is an as-applied challenge, and, moreover, McConnell was decided 5-4 with O'Connor in the majority. Alito has replaced O'Connor and may be expected to vote with Scalia, Thomas, and Kennedy, who dissented in McConnell. The fourth dissenter was Rehnquist, and Roberts, who replaced Rehnquist may be expected to join Scalia, Thomas, and Kennedy as well.
So, Roberts and Alito vote as expected. And you can expect to see plenty of issue ads -- and litigation about them -- in the future.

ADDED: Here's the opinion. It's rather fragmented. Chief Justice Roberts writes for a majority for only part of his opinion. Only Justice Alito sticks with him until the end (but he still writes a separate opinion). Scalia, Kennedy, and Thomas peel away, and Scalia writes their concurring opinion. The liberals stick together with Justice Souter doing the writing.

Let's start with Justice Scalia. Here's how he starts:
A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lese majesté being a serious crime in Morocco) as follows: “ ‘I’m not a revolutionary, I’m just defending freedom of speech… . I never said we had to change the king—no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?’ ” Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running. That is the import of §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), the constitutionality of which we upheld three Terms ago in McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003). As an element essential to that determination of constitutionality, our opinion left open the possibility that a corporation or union could establish that, in the particular circumstances of its case, the ban was unconstitutional because it was (to pursue the analogy) only the king’s policies and not his tenure in office that was criticized. Today’s cases present the question of what sort of showing is necessary for that purpose. For the reasons I set forth below, it is my view that no test for such a showing can both (1) comport with the requirement of clarity that unchilled freedom of political speech demands, and (2) be compatible with the facial validity of §203 (as pronounced in McConnell). I would therefore reconsider the decision that sets us the unsavory task of separating issue-speech from election-speech with no clear criterion.
Unsurprisingly, he's for overruling.

Chief Justice Roberts takes the narrow approach:
[T]he speech at issue in this as-applied challenge is not the “functional equivalent” of express campaign speech. We... conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA §203 is unconstitutional as applied to the advertisements at issue in these cases.
Alito's very short separate opinion states that it is unnecessary to reconsider whether §203 is unconstitutional on its face but:
If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech... we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm’n...
Until then, enjoy the chill. And the litigation.

28 comments:

Internet Ronin said...

Good for them. McCain-Feingold is an abomination.

steve simels said...

Who gives a fuck.

The masses are clamoring for more vegetable porn!!!!

C'mon, people -- those carrots sticks can't penetrate the onion rings by themselves!!!!!

Dewave said...

Excellent. One more nail in the coffin for the McCain Feingold Incumbent Protection Act.

Jim Hu said...

I'll be interested to see why you expect not just more issue ads but also more lawsuits about them. Doesn't this make the lawsuit route less likely to succeed? If so, I'd expect fewer, and those that are brought to fail to get injunctions to prevent them from airing.

But IANAL!

The other case in the news today is that the DC pants suit was decided against the plaintiff, and the defendants got court costs.

Wurly said...
This comment has been removed by the author.
Michael said...

If there was any justice, McCain and Feingold would be swinging by the neck from opposite ends of the same rope.

TMink said...

The masterminds in Washington neither require nor solicit our thoughts or involvment. Just ask Trent Lott, who chastised the American voters for getting "too involved" in the Immigration bill.

If things do not change, they will get ugly.

Trey

Peter Palladas said...

The Chungs' lawyer, Chris Manning, said that the protracted case had transformed the family's American dream into "the American nightmare", according to the AP.

He said the family, who own three dry-cleaners in the Washington area, were considering returning to South Korea.


...Hey come on! Keep up with the really important cases.

American legal system is rescued by the verdict or condemned by its impossible lengthy process?

You the jury decide - though on direction I instruct you to find that no legal system that could permit such nonsense a minute in court, never mind a day or two frigging years even, can hold up its head with any pride.

steve simels said...

I find your lack of faith in the sexual implications of onion rings and carrot sticks....disturbing.

More vegetable porn, please.

B said...

As long as money from "big business" is seen as favoring Republicans, there will be attempts by liberals to curtail the political spending of it as much as possible.

As long as people entering the US illegally are part of a demographic that heavily favors the Democrats, there will be no real effort to curtail people from entering the US illegally.

As long as teacher's unions control the schools - and the Democratic party - there will be no improvement in the public school system in America.

The Editorial Room at New York Times must be seething today.

steve simels said...

As long as money from "big business" is seen as favoring Republicans, there will be attempts by liberals to curtail the political spending of it as much as possible.

You need to finish this one:

As long as the Republican Party remains from stem to stern a criminal enterprise, there will be...

Peter Palladas said...

"...the constitutionality of which we upheld three Terms ago...

See that's where it all starts to go wrong with you people. Once you have a written constitution you take away the lawful authority of the elected legislature and plonk it into the hands of the judiciary, appointed by the political executive.

We Brits of course will have no truck with such nonsense. Well we didn't anyways for a thousand years until the EU bureaucrats decided to force feed us a revised treaty, which is a constitution in all but name.

You crazed Oregon libertarian survivalists - find me a decent clearing in the woods somewhere I can pitch my tent.

Seven Machos said...

Steve -- This is a topic about McCain-Feingold and a recent Supreme Court case. Let's stay on topic. Stop wasting everyone's precious time.

Dewave said...

The other case in the news today is that the DC pants suit was decided against the plaintiff, and the defendants got court costs.

Excellent. Plaintiff was a total jerk, and the defendants need to be awarded attorney's fees as well.

And TMink: Trent Lott epitomizes everything that is wrong with the political 'class' in this country.

The most liberal dem senator and the most conservative republican senator have more in common with each other than they do with you or I.

Anyway, the GOP is doomed as long as it's led by folks like Trent Lott, so hopefully he won't be around too much longer.

Seven Machos said...

Agreed about Trent Lott. He's simply corrupt. He'd be a Democrat pre-Reagan, because that was the thing to be in Mississippi. He's a Republican now because that is the thing to be in Mississippi.

Trent Lott is a disgusting, sad, corrupt, unprincipled, and not very bright hack. And I am happy to buy an ad that says that the day before election day if it helps get American politics rid of Trent Lott and his ilk.

steve simels said...

Steve -- This is a topic about McCain-Feingold and a recent Supreme Court case. Let's stay on topic. Stop wasting everyone's precious time.

So what you're saying is that vegetable porn is a time waster?

I think not!!!!

Seven Machos said...

Steve -- This is a topic about McCain-Feingold and a recent Supreme Court case. Let's stay on topic. Stop wasting everyone's precious time.

MadisonMan said...

and the defendants need to be awarded attorney's fees as well.

They were.

Internet Ronin said...

Seven - you are wasting your time. Click on his profile and see from whence he came. (Do the names Thersites and NYMary ring a bell?)

Ann Althouse said...

Jim Hu said..."I'll be interested to see why you expect not just more issue ads but also more lawsuits about them. Doesn't this make the lawsuit route less likely to succeed?"

This opinion lays down the new rule. Everyone wanting to affect the elections now has new information about how far they go, so they will spawn at least as many lawsuits (unless the FEC backs off). Also, there is the incentive to produce the case that will be the vehicle for getting the overruling Alito has expressed some interest in.

Linc Steele said...

Richard Posner once wrote a book about Benjamin Cardozo, and specifically, the first sentences of some of Cardozo's more famous opinions, and linked them to a general study in judical reputation. Scalia's first line is indication that he has read both Posner and Cardozo, with profit.

Mr.Murder said...

Unless the free speech issue ad is about Bong hits for Jesus, courtesy of a high school student.

Then it's prohibited.

Consistency is the hobgoblin of little democracies...

AlphaLiberal said...

Some entities have more free speech than other entities. The amount of free speech is determined by the size of your wallet.

Seven Machos said...

The amount of free speech is not determined by your wallet. The amount of audience for your free speech is determined by your wallet. Here, economic and political rights collide. The left, and our dear old John McCain, as usual, duck and cover.

Revenant said...

No, Seven, Alpha's basically right -- if we consider television broadcasts to be speech (which those of us who think McCain-Feingold violates the First Amendment do) then the amount of money you have roughly determines how much of that speech you can engage in.

Where Alpha goes astray is that he thinks there's something wrong with that, which is (of course) ridiculous.

Seven Machos said...

I just don't think there are money restrictions on free speech in a completely free market. I'm here on Ann Althouse's comment section, speaking freely all I want. I grant that there are money restrictions on effective free speech and speech in certain mediums, but not on the speech itself.

Parker Smith said...

If someone speaks freely in a blog comment section and there's no network coverage, does it make a sound?

Seven Machos said...

If a person yells "Bong Hits 4 Jesus" in a dense forest with no living creature around for a thousand miles, did the person make a sound?

It sounds to me like people are confusing free speech, which we all have, with free listening, which we also all have. You can't shut up my free speech if you are the government. No one has to listen to your free speech.

John McCain and Russ Feingold want limited speech and, were they to vote for "equal time," more forced listening. Tyrants.