Coyote Blog

A lot of folks, particularly on the Left, despise the Citizens United decision that said it was unconstitutional to limit third party political speech, particularly prior to an election (even if that speech was made by nasty old corporations).  The case was specifically about whether the government could prevent the airing of a third-party produced and funded documentary about one of the candidates just before an election.  The Supreme Court said that the government could not put in place such limits (ie "Congress shall make no law...") but Britain has no such restrictions so we can see exactly what we would get in such a regime.  Is this what you want?

As Britain gears up to vote in the EU referendum later this week, broadcasters are constantly working to ensure their coverage remains impartial. One such company is Sky, which has this week been forced to delay the latest instalment of John Oliver's Last Week Tonight HBO show. Why? Because it contains a 15-minute diatribe on why the UK should remain part of Europe.

Instead of airing the programme after Game of Thrones on Sky Atlantic on Monday night, like it does usually, Sky has pushed it back until 10:10pm on Thursday, just after the polls close. Social media users are up in arms about the decision, but in reality, Sky appears to be playing everything by the book.

Sky's decision allows it to adhere to Ofcom rules that come into effect during elections and referendums. "Sky have complied with the Ofcom broadcasting restrictions at times of elections and referendums that prohibit us showing this section of the programme at this moment in time. We will be able to show it once the polls close have closed on Thursday," a Sky spokesperson told Engadget.

In March, the regulator warned broadcasters that they'd need to take care when covering May's local elections and the subsequent Brexit vote. Section Five (which focuses on Due Impartiality) and Section Six (covering Elections and Referendums) of Ofcom's Code contain guidelines that are designed stop companies like Sky from influencing the public vote. Satirical content is allowed on UK TV networks during these times, but Oliver's delivery is very much political opinion based on facts, rather than straight humour.

By the way, the fact vs. satire distinction strikes me as particularly bizarre and arbitrary.

When will folks realize that such speech limitations are crafted by politicians to cravenly protect themselves from criticism.  Take that Citizens United decision.  Hillary Clinton has perhaps been most vociferous in her opposition to it, saying that if President she will appoint Supreme Court judges that will overturn it.  But note the specific Citizens United case was about whether a documentary critical of .... Hillary Clinton could be aired.  So Clinton is campaigning that when she takes power, she will change the Constitution so that she personally cannot be criticized.  And the sheeple on the Left nod and cheer as if shielding politicians from accountability is somehow "progressive."

I think any opposition to free speech, particularly as exercised in an election, is unseemly, but Hillary Clinton's attacks on the Supreme Court's Citizens United decision are particularly so.

Why?  Well to understand, we have to remember what the Citizens United case actually was.  Over time, the decision has been shorthanded as the one that allows free corporate spending in elections, but this was not actually the situation at hand in the case.   I could probably find a better source, but I am lazy and the Wikipedia summary is fine for my purposes:

In the case, the conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or "BCRA").^[2] Section 203 of BCRA defined an "electioneering communication" as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions.

Yes, the Supreme Court generalized the decision to all corporations and unions (good for them) but the narrow issue in the case was whether an independent non-profit group could air a negative film about Hillary Clinton in the run-up to an election in which she was a candidate.

So when Hillary Clinton derides the Citizens United decision, she is arguing that the government should have used its powers to suppress a film critical of her personally.   She is trying to protect herself from criticism.

I didn't really pay all that much attention to the Supreme Court's election speech case yesterday.   But as I learn the reasoning that is driving the dissent by the four Justices on the Left, I am left deeply worried about the future of speech rights.

I really haven't put much time in understanding how Progressives justify strong speech protections for non-political activity (e.g. pornography) while eschewing them for political speech (in the form of multiple types of limits on the amount and timing of speech one is allowed prior to an election).  Justice Breyer, in writing for the minority in in McCutcheon, lays out what I suppose is the Progressive position.

First up, here is David Bernstein

But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?

Justice Breyer’s dissent today shows the way, as he revives the old Progressive conception of freedom of speech as serving instrumental purposes (which he calls “First Amendment interests”), rather than protecting individual rights or reining in potential government abuses.  And once we identify those “First Amendment interests,” we must limit freedom of speech to ensure that they are advanced.

Thus, Justice Breyer, writes, “Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.”  Just to make sure he’s not being too subtle, Breyer goes back to the source, Justice Brandeis, citing his opinion in Whitney for the proposition that freedom of speech is protected because it’s â€essential to effective democracy.”

Further showing off his affinity for the Progressive statism of a century ago (noted by Josh Blackman and me here), Breyer turns constitutional history on its head, by declaring that the purpose of the First Amendment was not to prevent government abuses, but to ensure â€public opinion could be channeled into effective governmental action.”  ...

Breyer adds that “corruption,” by which he means individuals engaging in too much freedom of speech via campaign donations, â€derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.”

This strikes me as both tortured and dangerous.  Once one posits that that there is some ill-defined, un-measurable value like "promotion of positive government action" can be balanced against free speech, then the government gets a nearly unlimited ability to limit speech.

James Taranto also highlights parts of the decision

In making the case for the constitutionality of restrictions on campaign contributions, Breyer advances an instrumental view of the First Amendment. He quotes Justice Louis Brandeis, who in 1927 "wrote that the First Amendment's protection of speech was 'essential to effective democracy,' " and Brandeis's contemporary Chief Justice Charles Evans Hughes, who in 1931 argued that " 'a fundamental principle of our constitutional system' is the 'maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" (emphasis Breyer's).

After citing Jean-Jacques Rousseau's (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment's purpose was to establish a "chain of communication between the people, and those, to whom they have committed the exercise of the powers of government." Again quoting Wilson, Breyer elaborates: "This 'chain' would establish the necessary 'communion of interests and sympathy of sentiments' between the people and their representatives, so that public opinion could be channeled into effective governmental action."

And here's how Breyer sums it all up: "Accordingly, the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters."

What is democratic "order"?  What the hell is "collective" speech?  This is the kind of thing I would expect dictators-masquerading-as-elected-officials to spout as an excuse for suppressing dissent.  After all, doesn't dissent interfere with order?  How can we have collective speech when there are these folks out there disagreeing so much?   Again from Taranto:

It's important to note that when Breyer refers to "collective" rights, what he does not have in mind is individuals exercising their rights by voluntarily collecting themselves into organizations. In fact, the prevailing left-liberal view, most notably with respect to  (2010), is that collections of individuals, at least when they take corporate form, have (or should have) no rights.

The only "collective" that matters to Breyer is the one from which you cannot opt out except by the extreme measure of renouncing your citizenship: "the people" or "the public" as a whole. In Breyer's view, the purpose of the First Amendment is to see that (in Chief Justice Hughes's words) "the will of the people" is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.

So now that the Turkish incumbents have been re-elected, the government will allow Twitter to be turned back on in the country.

I think that the vast, vast majority of Americans would agree that this turning off of a communications vehicle several weeks before an election was a pretty transparent dodge to protect incumbent politicians, and that most of us would oppose such steps -- even be outraged by them.

So why the hell was McCain-Feingold's ban on 3rd party ad-based communications 60 days prior to an election any different?   These two steps seem absolutely identical to me, but my guess is most everyone agrees the Turkish actions were bad but the Citizens United decision that overturned the McCain-Feingold restrictions was met with much wailing and gnashing of teeth.

I have had hard time parsing exactly what the intelligentsia means by "incivility."  On the one hand, they often call for more civil discourse and lament the lack of incivility in government nowadays.  But on the other hand, people like Obama very frequently argue by ad hominem attack, preferring to question the motives of the NRA or climate skeptics rather than engage their criticisms of gun control or CO2 limitations.

This has confused me, because I have always defined civility in discourse as the willingness to accept your opponent as a person of good will who merely disagrees or is misguided.  But if this is civility, why the frequent "othering" of political opponents by the same folks calling for civility?

Well, it turns out I have been using the wrong definition of civility.  As Donna Brazille makes clear, "incivility" means criticizing the President or attempting to hold him accountable for missteps of those who report to him.  She actually beings by defining civility in a way with which I mostly agree:

A government of, by, and for the people requires that people talk to people, that we can agree to disagree but do so in civility. If we let the politicians and those who report dictate our discourse, then our course will be dictated.

But then she goes on to say

We, the people, need to stay focused on facts, causes and solutions. Let's begin with the findings of the Treasury's inspector general who uncovered it: That it was bureaucratic mismanagement, but that there was no evidence of any political motivation or influence from outside the IRS.

And that, according to acting Commissioner Steven Miller, who just resigned, the problem started because the Supreme Court's Citizens' United decision created a surge of requests by political groups for tax-exempt status.

LOL - don't let politicians dictate our course - but everyone needs to shut up and take the word for two IRS officials that there is no scandal here (noting that we know from the IRS's own data that the last statement she urges us to accept in the name of civility is definitely false).    Further, she says

Why am I alarmed? Because two "scandals" -- the IRS tax-exempt inquiries and the Department of Justice's tapping of reporters' phones -- have become lynch parties. And the congressional investigation of Benghazi may become a scandal in itself.

So let's of course all be civil, and civility means calling folks criticizing a black President "lynch mobs."

By the way, a bit off-topic, but this paragraph is a textbook example of tricks editorial writers use

The IRS scandal has sparked bipartisan outrage that should require a bipartisan solution. The director who oversaw this was a Bush appointee who was confirmed by a Democratic Congress. Even Watergate reporter Carl Bernstein says he doubts very much that Obama was involved

Each sentence here as a master-stroke of the spinmeister's pen trying to defend her guy in the White House.

1. Note the effort in the first sentence to shift this to a bipartisan issue.  Both sides are upset.  It is a good government issue.    The implication we are supposed to draw is that this no longer can be a critique of this particular administration.  It has transcended.  This is how red-blue team political invective works.  If the outrage is coming from just one party, it should not stick to the President because because it is petty partisanship.  If it comes from both sides, it should not stick because it is a larger issue for all of us that transcends this particular Administration.  In fact, through the article, she actually makes both arguments simultaneously.  Brilliant!
2. It's Bush's fault.  This is just so well-worn that Obama officials simply cannot help themselves.   How can a man the Left thought to be so stupid and incompetent still be directing affairs four and half years after he left the building?
3. This one is really funny.  Is, as implied by the structure of this sentence and the world "even", Carl Bernstein the least likely imaginable person to excuse Obama of such a charge?    I think I am going to start writing this way.  Even Warren Meyer thinks climate change has been exaggerated.  Even Kim Kardashian thinks its important to get a lot of PR.  Even Tia Carrere says its OK to make a bad movie once in a while.  Hey, this is fun.

By the way, as I wrote before, it is unlikely Obama gave a specific order to harass the tea party.  However, he has created a strong culture of "othering" his political enemies and impugning their motives as evil, sending a strong signal to his supporters such that actual orders were unnecessary.  No one ordered from the top that Princeton students harass Yale at every opportunity (or even better, Penn).  The culture takes care of it.

This nifty quote from Senator Jay Rockefeller got me to thinking:

"There's a little bug inside of me which wants to get the FCC to say to FOX and to MSNBC: "˜Out. Off. End. Goodbye.' It would be a big favor to political discourse; our ability to do our work here in Congress, and to the American people, to be able to talk with each other and have some faith in their government and more importantly, in their future."

This last election demonstrated exactly what politicians don't like about election law when they complain about things like Citizens United.  No, its not the influx of campaign donations-- politicians are perfectly thrilled to be on the receiving end of more money.  The failure in the eyes of politicians was the large turnover in Congress and the losses suffered by many incumbents.  For most in Congress, election law is about maintaining their incumbency.  Any law that makes it harder for them to be criticized in the press or by challengers is good.  Anything that increases public criticism of them is bad.

A friend of mine from Princeton days writes:

... and you seem in favor of the Supreme Court decision in Citizens United vs the FEC, I was wondering how you feel about being a customer or supplier or competitor of large businesses who can spend far more than your business to influence the rules of the game.

From what I read, I am sure you have a compelling answer, but I would be scared to death. (Maybe that's why I work for a large corporation [Target] instead of attempting to run my own business.)

I thought this was a pretty good question, and I answered:

1. I try hard not to make utilitarian arguments to Constitutional and rights issues.  As an example, I am sure we might have less crime if the police were empowered to incarcerate anyone they wanted without trial, but we don't do it that way.
2. I worry most about corporate lobbying (e.g. by Immelt at GE) and this is unaffected by this ruling - it was legal before and after.   This decision allows corporate advertising, which is public and visible, which I can at least see and react to, as opposed to back room deal making.
3. Libertarians certainly worry about your question, and why many of us fear that what we are creating in this country is a European-style corporate state, rather than socialism.  To a libertarian, the answer is not less speech, but less government power to pick winners and losers in commerce.

The Washington Post writes, and Paul Cassell agrees, that the Administration screwed up by treating Umar Farouk Abdulmutallab (the underwear bomber) as a regular criminal, and should have considered some sort of administrative detention instead.

The analysis seems spot on to me.  I can't for the life of me figure out why as a society we would want to give Miranda warnings to such a high-value suspect like Abdulmutallab.  While there is debate about the extent to which Miranda warnings reduce the overall confession rate (I think it is significant, while others disagree), surely we can all agree that in the context of Abdulmutallab's interrogation such warning were not going to be helpful in obtaining information about, for example, where he trained and what other attacks might be planned.

Uh, OK, but the law of the land is to give arrested criminals on US soil Miranda warnings and an attorney.  What legislative authority (I think we are supposed to be a nation of laws) exists to do otherwise?  And if such a law did exist, what would the bright-line rule be that should be written in law so real human beings making arrests know when it is OK and when it is not to kidnap someone to Gitmo?  I have struggled to find anyone who can write such a rule -- it always comes out sounding like the old definition of pornography, "I know it when I see it."  Remember, the Patriot Act was used far more for drug and child porn cases than it ever has been for terrorism -- it is very, very hard to circumscribe new police powers, particularly when police so desperately want to keep and hold those powers.

I don't deny from a utilitarian point of view that being able to grab people off the street and lock them up without trial forever might prevent some terrorism, but wasn't it Conservatives, just the other day, that were arguing re: Citizens United that Constitutional protections can't be waived for utilitarian reasons?  I agreed with them then, what changed here?