First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
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.

Friday, April 4, 2014

The McCutcheon hangover. Take two aspirin, America. It's not so bad.

Relax.  It's going to be OK.

Two days ago, in McCutcheon v. FEC, the US Supreme Court struck down limits on what individuals can give, in the aggregate every two years, to candidates for federal office, political parties and political action committees (PACs).  That means an individual is still limited in how much he or she can give to particular candidates, parties and PACs, but is not limited in how much he or she can give overall in each two-year cycle.

Does McCutcheon mean the sky is falling?  No. 

Look, the decision is not surprising.  After Buckley v. Valeo (where the Court held that money equals speech), First National Bank of Boston v. Belloti (holding that corporations have political speech rights) and Citizens United v. FEC (striking down limits on spending money for electioneering independent of campaigns) there was no real doubt that a majority of this Court would make sure that individual donors can contribute to as many federal candidates as their bank accounts will allow.

The chorus in America is hoarse from screaming disdain for the decision.  I think the hand-wringing over this particular case is overdone.

I respond to some of the most common reactions to McCutcheon below:

Reaction #1:  The McCutcheon decision means there will be even more money in politics!

Response:  Maybe.

First note:  more money was spent on the 2008 presidential race (pre-Citizens United) than the 2012 presidential race (post-Citizens United); although more was spent on congressional races in 2012 than in 2008.  Which brings us to whether the McCutcheon decision will bring more money into politics.

There are fewer than 700 people in the entire country who bumped up against the aggregate limits (what McCutcheon addresses) in the last election cycle.  Is it likely that all 700 of those individuals will max out now that the aggregate limits are gone?  Is it likely that thousands more people will exceed what would have been the aggregate limits pre-McCutcheon?  I doubt it because those same people already could have donated even more to SuperPACs.

Remember that after Citizens United was decided in 2010, SuperPACs were created, which allow unlimited donations and unlimited spending independent of candidates' campaigns.  A lot of money poured into SuperPACs.  In fact, there was approximately $1 billion in spending by independent groups in the 2012 election cycle, but it could have been even more because SuperPACs can take an unlimited amount of money.  Of that $1 billion, 63% came from the top 1% of donors (the top 1%, by the way, is a lot more than 700 people).  It seems just as likely that high-rollers will simply shift their massive donations from SuperPACs to candidates and parties, than that there will be a marked influx of money -- i.e., "more money" -- overall in the long run.   

Reaction #2:  More money in politics is terrible!

Response:   This has evolved into a truism we hear all the time without much articulated support.  I start from the position that discussion of political issues is the highest, most prized form of speech. 

Whether I am right or wrong about the total amount of money that will flow into politics after McCutcheon, I am not convinced that more money in politics is an inherently bad thing.  The money we're talking about will be taken out of the accounts of wealthy people and given to media companies of various types for advertising (good for a struggling industry and borderline national economy (read jobs)) in order to discuss political issues.  Discussing and engaging on political issues is not the worst way to spend our money.

In the first election cycle after Citizens United, Americans spent around $6 billion on politics, which is less than we spend every year on potato chips.  We spend more than twice as much on pornography.  And, we spend over $100 billion per year on beer.  Is a lot -- albeit a whole lot -- of campaigning an inherently worse way to shuffle around funds in society? 

Reaction #3: More money in politics means only the rich will have a voice!

Response:  So, you admit that money equals speech ...?

Just because the rich can spend more on politics (and they have always been able to do that, by the way) doesn't mean they will get the political results that they want.

Reaction #4:  More money in politics means bigger donors will get whatever they want!  

Response:  Please give voters a little more credit.

The non-partisan, non-profit Center for Responsive Politics found that, in the 2012 election cycle (i.e., post-Citizens United), the candidate with the outside money advantage lost in seven out of the ten congressional races that garnered the most outside spending. 

In California's last gubernatorial election, Republican Meg Whitman spent $177 million and Democrat Jerry Brown spent $36 million.   Brown won.

In 1992 and 1996, billionaire Ross Perot spent tens of millions of his own money running for president.  Perot's portrait is not hanging in the White House.

Reaction # 5:  More money in politics means Republicans will sweep into power!

Response:  See my response to Reaction #4.

According to the New York Times, in the 2012 presidential race, Obama's camp raised more money than Romney's camp, but Obama spent less than Romney.  SuperPACs attacking Obama wildly outspent those attacking Romney.  Among SuperPAC donors (no limit, remember), 49% of those supporting Obama gave $1 million or more, compared with 42% of those supporting Romney.  Obama won.       

Perhaps the best response to Reaction #5 came from Matt Canter, deputy executive director of the Democratic Senatorial Campaign Committee, who said that the McCutcheon decision would "significantly boost our efforts to keep control of the Senate."

Oh yeah, that reminds me ... the Democrats also kept control of the Senate after Citizens United.
Reaction #6:  More money in politics means more corruption!

Response:  Not to sound too Clintonesque, but it depends what you mean by "corruption."

First, there can only be corruption if the candidate you supported wins.  (See my response to Reactions #4 and #5.)  If a donor hedges his or her bets and supports more than one candidate in the same race, then won't voters just hear more voices?  Isn't that a good thing in political debate?

There is concern among many that McCutcheon limits the idea of corruption to quid pro quo (Latin for "something for something") dealing, and discounts the purportedly corrupting effects of influence and access.  But, if corruption gets defined too broadly then any efforts by any constituent who gave any money to get a politician to act could be considered corrupt.  I like the idea of our representatives listening to us.  I know that means that big donors may get more time, but they don't get more votes than we do.  Again, see my response to Reactions #4 and #5.

Reaction #7:  More money in politics is not what the Founders would have wanted!

Response:  Really?

Hey, I have a great admiration for a great many things that the Founders imparted to us, but their concept of who should have influence in politics is not one of them.  In the Founders' era, only white males who owned land could vote and hold office.  A battle against McCutcheon is not the right time or place to invoke the Founders.

Reaction #8:  This decision will lead to more bad rulings on campaign finance issues!

Response:  Again, apologies to Clinton, but it depends what you mean by "bad".

Maybe McCutcheon will open the door to even more money in politics in later decisions.  That is very possible.  The Court could one day strike down the ban on "soft money" contributions to political parties and the individual limits on donations to particular candidates.  The concurring opinion by Justice Thomas in McCutcheon was ready to do away with all of those limitations.   But, I find it significant that no one else on the Court joined Thomas' opinion.

Also, the Chief Justice's controlling opinion in McCutcheon reemphasized the importance of disclosure requirements -- i.e., encouraging transparency of the very donations at issue.  I like the idea advanced by the Sunlight Foundation that there ought to be real-time transparency for hard money contributions in politics.  That would mean we could instantly see, on the Internet, who is giving what to whom.  Such immediate transparency would further our democratic principles, further address many of the reactions noted above and be consistent with the First Amendment.

Monday, January 27, 2014

US Supreme Court's first defamation case in nearly a decade has high points

Earlier today, the US Supreme Court issued its decision in Air Wisconsin Airlines Corp. v. Hoeper.  It is the first defamation case before the Court since 2005.

The Air Wisconsin case involved statements made by an airline regarding Hoeper, a pilot the airline was on the verge of firing.  The airline expressed its concern to TSA that Hoeper, who was about to board a flight as a passenger, was "unstable" and might possibly be armed because Hoeper was someone with clearance to carry weapons on planes (he was not carrying a weapon).  Hoeper sued for defamation and won a large judgment from a jury, which was later affirmed by the Colorado Supreme Court.  The airline said it was protected from the lawsuit by a relatively new federal law that gives extra protection for statements intended to aid in airline safety.

The US Supreme Court's decision is notable for a few reasons.

First, it reaffirmed that substantially true statements cannot support a claim for defamation.  According to some, there was an open question whether even true statements, spoken without sufficient knowledge of whether they are true or false, could support a claim for defamation.  In other words, there was some theorizing that even true statements could support a defamation claim if the speaker acted recklessly toward whether the statements were true (or even if the speaker incorrectly believed them to be false).  We've all heard the phrase "truth is a defense to defamation."  Setting aside my firm belief that it should be more than just a defense -- i.e., that defamation plaintiffs should always have to prove falsity -- a result that would have imposed liability on true statements in a case like Air Wisconsin would have been a terrible blow for the First Amendment ... not to mention airline safety.  Thankfully, the Court ruled the right way.

Second, a corollary to the first point is that the Court reaffirmed that it is not possible to establish actual malice (knowledge of falsity or reckless disregard for the truth) without showing that the allegedly defamatory statement was false[Disclosure:  I was counsel of record on the First Amendment Coalition's amicus curiae (friend of the Court) brief in this case, arguing that every context where the actual malice standard appears (including this one) requires a showing a falsity.  It is heartening to know that the Court agreed with that position!]

Third, the Court independently reviewed the jury's decision whether the statements were materially true or false.  That important decision should guide other, lower appellate courts that they ought to do the same thing under similar circumstances.

Fourth, the decision uses the phrase "materially" true and false repeatedly, emphasizing that only "materially false" statements -- i.e., statements that leave a different effect on the mind of the reader or listener than that which the truth would have produced -- can support a defamation claim such as Hoeper's.  That phrase originates from the second-to-last defamation case before the Supreme Court, decided in 1991, but the doctrine is more commonly referred to as "substantial truth" by practitioners.  In fact, that is how I referred to it above.  I think the principle being set forth is the same, but it remains to be seen whether there will be a shift in nomenclature as a result of this decision.  

Fifth, the biggest (pleasant) surprise was that the Court reviewed the jury's verdict on material falsity, and then reversed the jury's decision.  The airline and Hoeper asked the Court to decide whether the jury's decision on falsity should be reviewed by an appellate court.  The Court conspicuously excluded that issue when agreeing to hear the case.  But, a majority (6-3) went on to not only rule that the Court should evaluate that issue, but that the jury got it wrong.  The dissenters, Scalia, Thomas and Kagan -- interesting bedfellows! -- thought that a jury should take another look with proper instructions from the trial court.

Saturday, January 18, 2014

New Decision About Blogger's Speech Rights Is Not As Exciting As Reports Suggest

Yesterday, the U.S. Court of Appeals for the Ninth Circuit (the federal appellate court covering most of the West) issued a decision at the crossroads of blogging and the First Amendment.  The case is called Obsidian Finance Group v. Cox.  The result was correct: the blogger won when she should have.  From some of the press coverage, it is tempting to believe the decision is monumentally amazing or at least unexpected.  It is neither. 

My favorite headlines about the decision announce that bloggers have First Amendment rights.  Of course they do.  That is not worth much more discussion.  Moving on ...

The decision held the plaintiffs had to show negligence in order to hold Cox (the blogger) liable for defamation.  For those unfamiliar with defamation law, that might sound like a big deal, but the reality is that all defamation claims involving speech on a matter of public concern (as the speech in this case did) require at least a showing of negligence, and many require much more, such as actual malice (which means knowledge of falsity or reckless disregard for the truth), in order to establish liability and recover damages.  That rule, laid down by the US Supreme Court in Gertz v. Robert Welch, Inc., is forty years old. The fact that the Ninth Circuit finally got around to applying the Gertz rule to the Internet is pretty unremarkable and really could not have come out any other way without directly contradicting US Supreme Court precedent.  The trial court's conclusion that the plaintiffs did not even need to show negligence was obviously wrong, and the Ninth Circuit really was compelled to reverse that decision. 

Some also seem very excited by the Court's contention that, up until this decision, neither the US Supreme Court nor the Ninth Circuit had previously held that the "institutional press" has the same basic rights in a defamation case as "individual speakers."  I think that is just plain wrong ... because the issue has come up before.  For example, in the grand-daddy defamation case of them all, New York Times v. Sullivan, the Supreme Court held that its First Amendment-based rulings applied to protect the "individual petitioners" in the companion case, Abernathy et al. v. Sullivan, as well as the New York Times.  Moreover, yesterday's Ninth Circuit decision acknowledges that US Supreme Court precedent requires treating the institutional press the same as individuals in defamation cases.  And, the Court notes, it helps that "sister circuits" come to the same conclusion.   (BTW - I recognize that this case was decided under Oregon law which claims that Gertz only protects media defendants, but Oregon's take on the First Amendment simply can't be squared with US Supreme Court precedent.)

There is another reason the decision is less than exciting.  The Court held that the plaintiffs were not public officials who would have had to prove the higher actual malice standard to establish liability.  I disagree with the Court's conclusion on this point because the plaintiffs were appointed by another court to serve as bankruptcy trustees, making their status as public "officials" at least a close call.  But, apparently the blogger (Cox) also argued in the trial court that the plaintiffs were public figures (in addition to being public officials), even though she seemed to abandon that argument in the appellate court.  That's too bad, because I don't think it is a close call to say that the plaintiffs -- who were appointed by the court and subject to the court's review and control -- were at least limited purpose public figures (meaning they would have to prove liability under the onerous actual malice standard). 

Also, some are concerned that the Ninth Circuit considered some of the defendant's blog postings to be constitutionally protected opinion, particularly in light of their hyperbolic context.  That is not cause for concern.  Context has long been a hallmark of determining whether a statement is constitutionally protected opinion in the Ninth Circuit and the US Supreme Court.  Since the advent of Internet cases, courts recognize that things move faster and looser on the Internet, lending statements toward constitutionally protected opinion. 

Monday, January 13, 2014

Polar Vortex In Legal Hell Before Satanists Get Monument In Oklahoma

Satan worshipers want to put a 7-foot monument to Satan (technically a horned dude named Baphomet) on the Oklahoma capital grounds.  They say it will complement a privately-funded 10 Commandments monument that was possessed and installed by the Oklahoma Legislature a few years ago.  The ACLU sued to have that monument exorcised from the capital.  It was a bad omen for the Satanists that, pending the ACLU's suit, legislators collectively said "no damn way," putting a pitch fork in any plans to put up any other monuments.

"Like H-E-double-hockey-sticks," say the Satanists and the Church of the Flying Spaghetti Monster (no, I'm not making that up ... here is their website in case you want to join ... you can become an ordained Pastafarian minister for only $20!). 

So, do the Satanists have a legal shot in hell at getting their monument?  The devil is in the details, but -- basically -- no, they don't. 

The US Supreme Court recently held unanimously in City of Pleasant Grove v. Summum, that a local government may choose to put up a 10 Commandments monument, but decline to put up another religiously-oriented monument in a public space.  Although the Pleasant Grove case was technically decided on Free Speech Clause grounds, a majority of the Court stated that they saw no violation of the First Amendment's clause forbidding the establishment of religion.

There is a better chance that the ACLU will succeed in showing that there ought to be no new religiously-based monument on the Oklahoma state capital grounds ... not even one of the 10 Commandments.  Ah ... maybe that's the point!!! Maybe the Satanists are really just the devil's advocate.  They may lack soul, but they are fiendishly clever! 

PS - Please forgive me.  Am I going to burn for all the bad puns in this post?  You know who made me do it ...

Friday, January 10, 2014

I'm back!

I took a hiatus from this blog for a few months to start a new law firm.  A few of my handful of followers (mostly blood relatives) occasionally asked, "Whatever happened to that blog you were doing?  It was OK."  Once the administrative adventures of starting a new firm subsided, I decided to jump back in.  I am teaching First Amendment law at UC Irvine's law school this semester so I will not post as often while that is happening, but I am excited to wax on about the marvelous and (sometimes) mundane world of First Amendment issues ...