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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, December 24, 2003 ::
    As we prepare to stuff turkeys and geese, I offer again my annual list of things to "get stuffed":

    "Happy Holidays"
    "Season's Greetings"
    "Winter Holiday"
    "Sparkle Season"
    Frosty the Snowman
    Rudolf the Red-Nosed Reindeer
    Every Who down in Whoville
    and -- this year, just because of Lawrence v. Texas and McConnell v. FEC, I'll add the Supreme Court to the list. Helps me prepare to teach Con Law next term, don't you know.

    Now, get out your Charlie Brown Christmas ("Sure, Charlie Brown, I can tell you what Christmas is all about...."), and of course your Bible, and have a very, very merry CHRISTMAS!

    :: David M. Wagner 11:35 AM [+] ::
    In defense of the Malvo sentence

    The Virginian-Pilot's headline says "Malvo's Life Spared." I see what they mean, but still, that strikes me as an odd way to describe the fate of a man under 20 who is going to spend the rest of his many decades in the slammer.

    I don't think we estimate life-imprisonment-without-parole at its true value. We tend to react to it as if it were a week in Cancun, just because it's not the death penalty. Get real.

    I don't know how I would have voted in the penalty phase of either sniper case, but the Malvo decision is eminently reasonable.

    :: David M. Wagner 11:31 AM [+] ::
    :: Tuesday, December 23, 2003 ::
    Stuart Taylor The National Journal, on the campaign finance decision: December 10: A Worrisome Day for the Freedom of Speech

    :: David M. Wagner 6:40 PM [+] ::
    Washington Times: Majority in U.S. Opposes Same-Sex Marriage

    :: David M. Wagner 6:25 PM [+] ::
    :: Sunday, December 21, 2003 ::
    Daily Telegraph (London): Tory peers angry at Howard's stand on transsexuals
    By Colin Brown, Political Editor
    (Filed: 21/12/2003)

    Furious Conservative peers demanded last night that Michael Howard withdraw his party's support for the Government Bill to give new legal rights to people who change sex.

    :: David M. Wagner 7:12 PM [+] ::
    :: Saturday, December 20, 2003 ::
    The Model Penal Code's sexual offenses provisions were quite radical enough in their time, but radicalism has moved on since then, and it's time for the MPC to do so too. Or so it's argued here.

    :: David M. Wagner 3:38 PM [+] ::
    :: Friday, December 12, 2003 ::
    BCRA case, cont.: On running down the street hollering

    My colleague, Prof. Tom Folsom, cautions against the optimism I expressed here about the continuing freedom of this form of political speech. If the runner/hollerer is an hourly employee, the time he spends running and hollering could constitute an imputed political contribution by his employer, and be regulable as such.

    Ah, but what if he takes his clothes off? "Expressive conduct"....

    :: David M. Wagner 12:22 PM [+] ::
    More on the campaign finance decision

    On principle I don't link to the New Orc Times, but here is how Linda Greenhouse leads off her "news analysis" on the campaign finance decision:

    The Supreme Court that upheld the new campaign finance law on Wednesday was a pragmatic court, concerned less with the fine points of constitutional doctrine than with the real-world context and consequences of the intensely awaited decision.

    What do we have a Supreme Court for, if not to apply "the fine points of constitutional doctrine" when Congress is tempted to ignore them? "Real-world context" is for consideration by those leaders who face reelection; "fine points of constitutional doctrine" are for consideration precisely by those who do not.

    Anyway, since when is free speech a "fine point"? What makes it a "finer" point than, say, "privacy" and "autonomy", when free speech is in the text and privacy and autonomy are not?

    "Fine points," my "left behind".

    :: David M. Wagner 11:35 AM [+] ::
    :: Thursday, December 11, 2003 ::
    As democracy, properly so called, gives way to "managed democracy" in Russia and elsewhere, and while the punditocracy focuses exclusively on anti-terrorist measures as the active threat to democracy in this country, we need to think about what Congress and the Supreme Court have just done to the right to speak out effectively against elected politicians.

    Here is Justice Scalia's dissent in the campaign finance decision. Before I reprint excerpts, I'll just add that the First Amendment's speech and press clauses now offer blanket protection only to soft-core pornography. As for political speech, I still see a great future for running down the street hollering. As far as I know (and content-neutral nuisance laws to one side), you can still do that, for now, even within 60 days of an election!!

    OK, here goes:

    This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U.S. 514 (2001), and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort....

    [T]he present legislation targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents. Is it accidental, do you think, that incumbents raise about three times as much “hard money”–the sort of funding generally not restricted by this legislation–as do their challengers? Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? Is it an oversight, do you suppose, that the so-called “millionaire provisions” raise the contribution limit for a candidate running against an individual who devotes to the campaign (as challengers often do) great personal wealth, but do not raise the limit for a candidate running against an individual who devotes to the campaign (as incumbents often do) a massive election “war chest”? And is it mere happenstance, do you estimate, that national-party funding, which is severely limited by the Act, is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents? Was it unintended, by any chance, that incumbents are free personally to receive some soft money and even to solicit it for other organizations, while national parties are not?
    [Internal cites omitted. They are available at length in the published dissent.]

    In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. Predictably, repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas. See, e.g., Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers)....

    History and jurisprudence bear this out. The best early examples derive from the British efforts to tax the press after the lapse of licensing statutes by which the press was first regulated. The Stamp Act of 1712 imposed levies on all newspapers, including an additional tax for each advertisement. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476—1776, pp. 309—310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id., at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764—1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g., 1 D. Ramsay, History of the American Revolution 61—62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U.S. 233, 245—249 (1936); Schlesinger, supra, at 67—84....

    But what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials–which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections–especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

    ....If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said so. It did not do so, I think, because the juice is not worth the squeeze. Evil corporate (and private affluent) influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician’s fear of being portrayed as “in the pocket” of so-called moneyed interests. The incremental benefit obtained by muzzling corporate speech is more than offset by loss of the information and persuasion that corporate speech can contain. That, at least, is the assumption of a constitutional guarantee which prescribes that Congress shall make no law abridging the freedom of speech.

    But let us not be deceived. While the Government’s briefs and arguments before this Court focused on the horrible “appearance of corruption,” the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to “crack cocaine,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan).... [I]t is not the proper role of those who govern us to judge which campaign speech has “substance” and “depth” (do you think it might be that which is least damaging to incumbents?) and to abridge the rest.

    ....I cannot say for certain that many, or some, or even any, of the Members of Congress who voted for this legislation did so not to produce “fairer” campaigns, but to mute criticism of their records and facilitate reelection.... [But] “[t]he fundamental approach of the First Amendment . . . was to assume the worst, and to rule the regulation of political speech ‘for fairness’ sake’ simply out of bounds.” Austin, 494 U.S., at 693 (Scalia, J., dissenting). Having abandoned that approach to a limited extent in Buckley, we abandon it much further today.

    We will unquestionably be called upon to abandon it further still in the future. The most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

    “This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

    The system indeed. The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come–and always, always, with the objective of reducing the excessive amount of speech.

    :: David M. Wagner 4:37 PM [+] ::
    :: Wednesday, December 10, 2003 ::
    Tony Perkins, the new President of the Family Research Council, in his letter to constituents, gets it spot-on about the campain finance law and today's decision upholding it:

    It will protect incumbent Members of Congress from being defeated but it harms the public's interest, and our First Amendment right, to participate in our cherished democracy. For this reason, the law was opposed in Congress by a wide cross-section of groups, from FRC to the ACLU.

    Many will say that the Court's ruling today is a political victory for the Republican Party, and that may well be why President Bush signed BCRA into law. Republicans hold an enormous advantage in still-permitted "hard-money" donations, which allow individuals to give $1000 per candidate per election. Yet it makes a shambles of the Freedom of Speech provisions of the U.S. Constitution.

    I love it when the "far right" and the "far left" band together to protect freedom of speech. But I hate it when they lose.

    :: David M. Wagner 6:58 PM [+] ::
    The Court has upheld most of the campaign finance law. It's one of the Court's most fractured set of opinions, and that's why the blogs are being slow to tell you what it means. But at a minimum, the ban on "soft money" was upheld, and so was the most 1st-Amendment-offensive portion of the McCain-Feingold monstrosity: the ban on "issue ads" close to an election date.

    Political speech lies at the center of the core of the heart of the 1st Amendment. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 INDIANA LAW JOURNAL 1 (1971). Yet the Court is getting us to a point where political speech can get regulated into powder, but pornography and nude dancing are hedged about with protections and can be regulated only thinly if at all.

    :: David M. Wagner 2:39 PM [+] ::
    :: Tuesday, December 02, 2003 ::
    To my students: One of you asked me privately "How do I get an A," and, believe it or not, I've actually written an answer. Not a handy-dandy, no-fuss-no-muss, hotsy-totsy-worked-on-Trotsky answer, but some helpful hints.

    You can maximize your grade by doing the following. (Please note that your grade will depend on how well you do these things.)

    * Spot all the issues.

    * Allocate your space (I'd say "time," but, since this is a take-home, "space" is more relevant) so that the more important issues get more space, and the less important issues get less.

    * The two main factors that may make an issue "more important" within a given question are: (1) to what extent does this issue dominate the fact pattern as given? And (2) how much time did we spend on this issue in class? Of course, I will try to design the exam so that these two factors pull in the same direction.

    * Don't over-write on the "R" part of IRAC. There are no points available for giving details about a rule beyond those that are applicable to the fact pattern as given.

    * In dealing with major issues, you are encouraged to argue "in the alternative," i.e., giving both sides. Use the "C" part of IRAC to state briefly which argument you think is better, and why.

    * Interpret the "A" in IRAC as meaning "application," i.e., application of rule(s) to facts.

    * In areas where there's an over-abundance of alternative rules, such as the actus reus of attempt, just pick any two. If possible, pick two that lead to opposite results.

    * Don't cite cases, and don't recite the facts of cases. Just apply the rules we've studied to the facts in the exam.

    :: David M. Wagner 11:18 AM [+] ::
    :: Monday, December 01, 2003 ::
    To my students: Review sessions are now scheduled. Bring your questions: no new content will be introduced. Feel free to attend only part of the session(s).

    Criminal Law: 12/1/03 2-5pm RH 105 -- TODAY

    Con Crim Pro: 12/2/03 2-5pm RH 107

    :: David M. Wagner 12:07 PM [+] ::
    An excellent op-ed on morality as a "rational basis" for legislation

    This needed saying. Unfortunately, the headline that the Washington Post slapped on it -- "Undermining Society's Morality -- is gravely misleading: it implies that the essay is one more screed about same-sex marriage being bad for the social fabric. Well it is, and I've made a down payment on arguing that case here, but Raul is making an equally important point: notwithstanding Planned Parenthood v. Casey and Lawrence v. Texas, not only can we base legislation on moral notions -- we do so all the time.

    In fact, there's no other way to legislate. Whatever utilitarian or aesthetic justifications may be cited for a particular measure, there's always a moral justification (usually unarticulated) at its base.

    So if all legislation based on morality is unconstitutional, then, according to Casey, all legislation is unconstitutional. Alternatively, all legislation may be based on arbitrary will -- in which case it would again be unconstitutional, because "rational basis" scrutiny, whether in Lochner, in Cleburne, or in Lawrence, rules out legislation for which no justification beyond legislative will can be cited.

    Either way, all legislation would be unconstitutional. I presume this is what Scalia meant when he said in his Lawrence dissent that the Casey "mystery passage" either means nothing, or else it's "the passage that ate the rule of law."

    :: David M. Wagner 11:37 AM [+] ::

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