What did Mann win?

Popehat explains:

The DC Circuit adopted the standard that the vast majority of states use for their anti-SLAPP statutes — the plaintiff only has to produce admissible evidence which, if accepted, is legally sufficient to win. That's the same standard courts apply to motions for summary judgment — motions in which the defendant argues that there's not enough evidence for the case to go to a jury. Practically that means that if the complaint is bogus as a matter of law (for instance, if it targets speech that is clearly just hyperbole or opinion), or if the plaintiff has no evidence to support it, the defendant wins — but if the complaint is legally plausible, and the plaintiff has any evidence to support it, the plaintiff wins.

....

Steyn's and CEI's Articles: The DC Court of Appeal held that the trial court was correct to deny the anti-SLAPP motion by Steyn, CEI, and Simberg. Mann won, and Steyn, CEI, and Simberg lost, that part of the appeal. The result is notable and, for several reasons, concerning.

There are two key elements to this part of the decision: the distinction between opinion and fact, and the question of what constitutes proof of malice.

Once again, only false statements of provable fact may be defamatory. Opinions, arguments, and hyperbole may not unless they imply false provable facts. "Ken is a jerk" can't be defamatory because it's not objectively provable; "I hacked Ken's email and he's a crook" might conceivably be defamatory because it could imply false facts.

Here, both Steyn's and Simberg's articles were replete with hyperbole, rather strongly signalling opinion. Moreover, they both disclosed the facts that they were relying upon — the hockey stick that another scientist [edited to correct: not Mann] called a "trick" to "hide a decline." I think — like others — that the better and more reasonable interpretation of these writings is that Steyn and Simberg were offering overt argument and opinion based on disclosed facts. You might disagree with the fairness of their conclusions — for instance, you might accept Mann's explanation of what the other scientist [edited: not Mann]meant by "trick," or believe that it's unreasonable not to agree with academic institutions that exonerated Mann — but conclusions based on data aren't defamatory even if they are unfair or unreasonable. That's classic protected speech.

The DC Court of Appeals, however, focused on a lack of overt signals like "in my view" or "in my opinion" or "I think" — silly formalism, in my view, but a pointer to practitioners of how one can manage libel risks. The court also focused on the fact that calling something "fraudulent" or "data manipulation" could possibly be interpreted as a statement of provable fact. The problem with this argument, I think, is that it is very selective about what context it considers. Steyn and Simberg are overtly operating in the context of a scientific culture in which someone has talked about a "trick" in presenting data in support of an argument to "hide" an inconvenient fact. That is the underlying fact framing their opinion. The fact is undisputed even if the interpretation of it is not. Their use of vivid and argumentative language helps establish that they are drawing conclusions, not asserting new (and unspecified) facts.

It's important to understand what the Court of Appeals found, though. It didn't find that Steyn's and Simberg's articles stated facts, let alone false ones. It simply found that Mann presented evidence that, if believed, could allow a jury to conclude that the articles stated facts rather than opinions. The court found he created an arguable issue, in other words. I don't agree, but that's much different than deciding that the articles were factual rather than opinion.

Next, the Court of Appeals found that Mann had presented evidence that was legally sufficient to show that Steyn and Simberg acted with malice. Malice, in this context, doesn't mean ill will — it means with knowledge that statements were false or recklessness about whether or not they were false. Mann has to meet that standard because he's a public figure — only false statements about him made with malice are defamatory. The court found that Mann had presented evidence of widely circulated studies and findings exonerating him, and that the existence of those studies could be accepted by a jury as adequate proof of knowledge that the factual allegations were false.

I think the Court's decision here was, at a minimum, badly framed. The entire point of Steyn's and Simberg's posts was quis custodiet ipsos custodes — that the scientific and academic community's policing of alleged wrongdoing by its own is incredible and unreliable when it is defending ideologically cherished consensus.

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies | Popehat

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies | Popehat

Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.

When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?


Trope One: "Hate Speech"

Example: "hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it." CNN Anchor Chris Cuomo, on Twitter, February 6, 2015.
Example: "I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would." Edward Schumacher-Matos, NPR, February 6, 2015.

In the United States, "hate speech" is an argumentative rhetorical category, not a legal one.

"Hate speech" means many things to many Americans. There's no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no "hate speech" exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase "hate speech" had a recognized legal definition, it would still not carry legal consequences.

This is not a close or ambiguous question of law.

When the media frames a free speech story as an inquiry into whether something is "hate speech," it's asking a question of morals or taste poorly disguised as a question of law. It's the equivalent of asking "is this speech rude?"

Trope Two: "Like shouting fire in a crowded theater"

Example: " There is no freedom to shout 'fire' in a crowded theater." Prof. Thane Rosenbaum, Daily Beast, January 30, 2014.

Nearly 100 years ago Justice Oliver Wendell Holmes, Jr., voting to uphold the Espionage Act conviction of a man who wrote and circulated anti-draft pamphlets during World War I, said"[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

That flourish — now usually shortened to "shout fire in a crowded theater" — is the media's go-to trope to support the proposition that some speech is illegal. But it's empty rhetoric. I previously explained at length how Holmes said it in the context of the Supreme Court's strong wartime pro-censorship push and subsequently retreated from it. That history illustrates its insidious nature. Holmes cynically used the phrase as a rhetorical device to justify jailing people for anti-war advocacy, an activity that is now (and was soon thereafter) unquestionably protected by the First Amendment. It's an old tool, but still useful, versatile enough to be invoked as a generic argument for censorship whenever one is needed. But it's null-content, because all it says is some speech can be banned — which, as we'll see in the next trope, is not controversial. The phrase does not advance a discussion of which speech falls outside of the protection of the First Amendment.

Trope Three: "Not all speech is protected"

Example: "Not all speech is protected by the First Amendment." Ann Coulter, Townhall, August 2, 2001.

Example: “Not all speech is protected if there is hate speech and it is intended to ridicule another religion,” he said. “I don’t believe it is a free speech matter.” Archbishop Paul Coakley, quoted on FoxNews.com, August 8, 2014.

The media routinely prefaces free speech discussions with the bland and inarguable statement "not all speech is protected." That's true. In fact it's not in serious dispute. The problem is that the media routinely invokes this trope to imply that the proposed First Amendment exception it is about to discuss is plausible or constitutional because other exceptions already exist. Not so. Though First Amendment analysis can be complicated at the margins, the core exceptions to First Amendment protection are well-known and well-established. The Supreme Court — in the course of rejecting a proposed new exception — articulated them recently:

"From 1791 to the present," however, the First Amendment has "permitted restrictions upon the content of speech in a few limited areas," and has never "include[d] a freedom to disregard these traditional limitations." Id., at 382-383. These "historic and traditional categories long familiar to the bar," Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)–including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254-255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447-449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)–are "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942).

The observation "not all speech is protected" adds nothing to a discussion because it offers no mechanism for determining whether the speech at issue falls into a traditional exception or not.

To see what I mean, consider the utility of equivalent rhetoric. You've been bitten by an unfamiliar snake, and you'd like to know if you need treatment.

You: Doctor, was the snake that bit me poisonous?
Doctor: Actually snakes are usually venomous. Though some are both venomous and poisonous.
You: Great. What about this snake here? I caught it in a bag for you to look at.
Doctor: There are both harmless and venomous snakes in North America.
You: Yes, thank you. Which is this?
Doctor: That snake has rings!
You: Yes. Yes it does.
Doctor: Some venomous snakes have rings.
You: Is there anyone else on duty I could see?

Trope Four: "Line between free speech and [questioned expression]"

Example: "Texas Shooting Sheds Light On Murkiness Between Free, Hate Speech." NPR.com Headline, May 5, 2015.
Example: "Texas attack refocuses attention on fine line between free speech and hate speech." LA Times Headline, May 4, 2015.

Journalists and pundits talking about free speech disputes love to frame their stories as being about "the line between free speech and X," where X is the controversial expression in question.

This trope can be invoked accurately when there is a legally meaningful line separating protected speech and the type of speech called out. For instance, "the line between free speech and true threats" isn't misleading because "true threats" are an actual category of unprotected speech and there's a line between them and protected speech.

Too often, though, the "line" is invoked to imply a nonexistent legal distinction. The "line between free speech and hate speech" rhetoric from the examples above is misleading and meaningless because, as noted in Trope One, "hate speech" is not a legal thing. "The line between free speech and bullying" — another recently popular line — is another example. It implies, falsely, that there is a legally meaningful category of speech called "bullying" that lies outside of First Amendment protections. In fact there isn't — there are traditional exceptions to free speech (true threats, for instance) and some of that conduct could sometimes be described as "bullying," but that's not the same thing.

"The line between free speech and X" is often the rhetorical equivalent to "the line between vegetables and rutabagas": the author doesn't have a coherent argument that rutabagas aren't vegetables, but doesn't like rutabagas and thinks you shouldn't either.

Trope Five: "Balancing free speech and [social value]"

Example: "The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment." Washington Post, March 3, 2015.

The media's love of "balancing" stories is a variation on its love of "line between" stories, only more misleading.

"Balancing," when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don't weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn't, balancing of its "value" against other interests is almost always prohibited. As the Supreme Court recently said in rejecting the government's request to create new categories of unprotected speech through balancing:

The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178 (1803).

Courts occasionally engage in something that faintly resembles "balancing" when they apply different levels of scrutiny to speech restrictions. For instance, the Supreme Court said that Congress could prohibit the burning of draft cards because the government had a substantial interest in the draft system and the law was narrowly addressed to that legitimate interest, and aimed only at the non-communicative element of the conduct (destroying the card) and not the communicative aspect (doing so to protest the draft). But that analysis doesn't purport to assign a value to the speech. It considers only whether the government has a sufficiently compelling interest in its goal. Moreover, there's very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based — that is, premised on dislike of the speech — no matter how strong the government's interest. The Court has repeatedly rejected calls to do just that, and a focus on the content of disfavored speech (when it's not within an established exception) is almost certainly fatal to the proposed restriction.

Trope Six: "This isn't free speech, it's [category]"

Example: "It’s not free speech. It’s bullying and intimidation. It’s a horror show." Mary Elizabeth Williams, Salon, February 17, 2015.

The First Amendment is, in a way, categorical: there are well-defined categories of speech that are not protected, as I discussed above. But media commentators often abuse categorical thinking by inventing new categories of speech outside the First Amendment. "This isn't free speech, it's hate speech." "This isn't free speech, it's discrimination."

The trope can be used correctly — "this isn't free speech, it's an unprotected death threat." But usually it's not. Usually it's invoked as shorthand for "I don't want to address First Amendment analysis so I'm just going to say in conclusory fashion that it doesn't apply at all."

Our response to the trope should always be the same — does this supported not-speech category exist, and is it one that's actually outside the First Amendment?

Trope Seven: "Fighting words"

Example: "There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte." McClatchy.com, May 4, 2015.

No discussion of controversial speech is complete without some idiot suggesting that it may be "fighting words."

In 1942 the Supreme Court held that the government could prohibit "fighting words" — "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." The Supreme Court has been retreating from that pronouncement ever since. If the "fighting words" doctrine survives — that's in serious doubt — it's limited to face-to-face insults likely to provoke a reasonable person to violent retaliation. The Supreme Court has rejected every opportunity to use the doctrine to support restrictions on speech. The "which by their very utterance inflict injury" language the Supreme Court dropped in passing finds no support whatsoever in modern law — the only remaining focus is on whether the speech will provoke immediate face-to-face violence.

That's almost always irrelevant to the sort of speech at issue when the media invokes the trope.

Trope Eight: "[Professor] explained . . . ."

Example: "The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said."

The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.

Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts.

Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.

Trope Nine: "This speech may be protected for now, but the law is always changing."

Example: "'The way we interpret the constitution is always changing. The supreme court can change the rules, and does do so,' he said." The Guardian, quoting Eric Posner, May 6, 2015.

When existing American law clearly protects questioned speech, the media sometimes resorts to finding someone to say "the law can change, and maybe it should."

Yes, American law can change. Constitutional interpretation can change in breathtaking ways inside a generation.

But the United States Supreme Court has been more consistently protective of free speech than of any other right, especially in the face of media sensibilities about "harmful" words. Fred Phelps and the Westboro Baptist Church are universally reviled and held up as an example of the worst sort of speech; the Court found their speech protected by a margin of 8-1. The Court struck down an overbroad law prohibiting "crush videos" of animals being killed by the same margin. There is no sign of any movement towards the proposition that speech may be restricted because it is hurtful or disfavored — the sort of speech that provokes this banal media observation that law changes.

Pointers to more tropes are always welcomed, as are particularly good examples.

Citizen journalists don’t need “Press Credentials” — but that badge may help

Citizen journalists don’t need “Press Credentials” — but that badge may help

...The ACLU also cautions against breaking any unrelated laws, like trespassing, while photographing or videotaping. Pretty simple, right?Yet the police harassment of citizens with cameras or video recorders continues. About the only thing that police will respect– sometimes – is a display of press credentials.& Enter the Constitution First Amendment Press Association, or CFAPA. Started by James Rawles, survivalblogger and author of several
post-apocalyptic best-selling books, the CFAPA website will issue free press credentials and a press badge.
Here is how it works: go to the CFAPA website, found at cfapa.org, read and agree to the Constitutional Journalist’s pledge and member terms. These essentially spell out ethical rules for journalists and provide indemnity for CFAPA. Then download and fill in your name and date of issuance for your press credentials and badge. The press badge would also need a recent photo before you laminate it. That’s it!
Even for someone who does not intend to seek and record the actions of the police in public, it is good to have the CFAPA press credential and press badge handy, just in case. And besides, they are free. CFAPA operates on donations, or sales at its Amazon store, which, humorously, lists for sale trench coats and fedora hats. Presumably, wearing this will enable the citizen journalist to look like one of the reporters in the movie His Girl Friday. “We don’t take ourselves too seriously,” Rawles told me.
But the CFAPA Amazon store also contains more serious items like press badge holders, cameras, voice recorders, books on reporting style and dealing with the police.

Free Speech Is Winning, Thanks to Citizens United

Free Speech Is Winning, Thanks to Citizens United

A new study, “The Business of American Democracy: Citizens United, Independent Spending and Elections,” analyzes state legislative elections that have occurred since the decision and finds that "Citizens United v. FEC was associated with a six percentage-point increase in the likelihood that a Republican candidate would win a state legislative race."

The authors are quick to attribute this Citizens United bump to corporations exercising their First Amendment rights and making expenditures that benefit Republicans, while unions have failed to increase their spending on behalf of Democrats. Don’t forget that for decades unions have had an ability to invest in elections, while corporations have been largely restricted. The Citizens United decision ensured that any speaker--whether an individual, small business, large corporation, or labor union--had a First Amendment right to engage in political speech.
Ultimately, this study shows that the liberals who have spent the past few years demonizing the decision and calling for constitutional amendments to curtail political speech have missed the point and missed the boat. I have no doubt that they’ll seize on this study as a reason to demand more regulation of speech. Certainly, as liberal senators like Chuck Schumer, Patrick Leahy, and Dick Durban plod forward with their short-sighted attempt to amend the Constitution, they will inevitably cite this study as evidence of the need to restrict the First Amendment.
I say to those liberals hell-bent on restricting speech: rather than trying to silence voices and viewpoints you disagree with, join the debate.

Dear Emptyheaded Left Wing Writers

Dear Emptyheaded Left Wing Writers

Please stop saying that a corporation is a "fictitious person" as part of your case in chief against the Hobby Lobby decision.
For one thing, you sound stupid. Not because this is untrue, but rather because it is obviously true, and 90% of all literate people not only know "corporations are fictitious people" but in fact have known this since long before you apparently did.

Secondly, and here I fear I will lose you completely because this is going to get slightly abstract and logical, the fact that "corporations are fictitious persons" actually destroys your arguments, rather than strengthens them, which, if you'd bother to have read the Hobby Lobby case, which you have not and will not, ever, you'd already know.
See, a corporation is a fictitious person. It is a made-up designation, created by state law, to permit business concerns to live longer than the lifespan of a natural person.
It is a fictitious person. It is not a real person. Fictitious -- an imaginary construct of the law.
Think about what that means.
This means that in a closely-held corporation -- where five or fewer people control the majority of shares (and in fact usually control all of it) -- the "corporation" does not exist in any real way, except for its listing in the tax records of a state.
In a small closely-held corporation, "the corporation" only means "these five guys right here."
The Supreme Court did not acknowledge that corporations quacorporations (look up "qua" on your own time, idiots) have "religious freedoms." Rather, it recognized the obvious -- that in the case of a closely-held corporation, the corporation being a fictitious entity and all, an imposition of a duty on "the corporation" is in reality just an imposition of a duty on the five or fewer people (often one or two) who own it.Thus, when we say the Hobby Lobby corporation must provide abortifacient drugs to its employees, this is precisely the same as laying this responsibility on the five or fewer individual persons (who definitely have the right to religious freedom) to provide abortifacient drugs to their employees.Given that the corporation is a fictitious entity of no tangible presence (something you seem so delighted to have recently learned), forcing the corporation to provide abortions is precisely the same as forcing the family who owns Hobby Lobby to provide them.
You see? You see what your problem is here?
I mean, one of your problems. You have many, beginning with the facts that 1 you are not terribly well educated and 2 you seem to believe you are extremely well educated.
Now, in a very large corporation, what we call a "publicly traded" corporation, wherein many thousands (or even millions) of persons might have shares and thus ownership interests in this fictitious person, one could very easily make the case that each individual shareholder is so attenuated from actual control of the corporation that to impose a duty on the corporation does not implicate the individual shareholder at all, or implicates him so slightly, so trivially, that we can round down and simply say "Forcing Exxon to provide abortion drugs should not offend the conscience of Exxon's thousands of owners."
We could say in that case that an imposition on the corporation has no real implication for the individual owner. He would own, what, one thousand shares out of over ten million shares of the decision to provide abortion services?
A very diffuse responsibility indeed.
But you cannot make this claim when a family of four owns almost all of the stock in a corporation. In that case, the burdens placed on this fictitious entity are actually burdens on the people -- Unless you idiots want to make the case that this fictitious entity that has so mesmerized you actually has the tangible quality of being areal person whose actions do not implicate its real-person owners.But then in that case you shouldn't keep saying it's a fictitious person-- you should be arguing it's close enough to a real person to be treated as such.You should be arguing that a corporation is so close to real that we should say a burden on it means nothing at all to its owners-- who are just third-parties with barely anything at all to do with the real person being burdened. The real person being burdened (in this argument) is the corporation, which is basically a totes real person, and no other people are burdened at all.

And it seems to me if the courts had ruled that a corporation is a legal human being, it would be illegal to own one.

Link: http://www.washingtontimes.com/news/2014/feb/28/brucethe-veto-of-arizonas-religious-freedom-bill-i/?page=all#pagebreak

Why would the Gay Gestapo suddenly need to convince everyone that any act of faith must be viewed suspiciously as discrimination and “hate?” Forcing a bakery, Hobby Lobby, Chick-fil-A or a photographer to either violate their religious beliefs or be destroyed is simply a test run. The real target is the church and temple. If the left can convince our society to force people of faith to violate their sacraments in the name of “equality,” why would we allow that to stop at the church door?
This is why bills like Arizona’s protecting individual Christians from lawsuits will have to return, because the left has a mission, and this is only the beginning. It was clear Mrs. Brewer had no choice but to veto the bill, considering the left had completely smeared the state in the process of its media frenzy. Add to that the fact that liberals would like nothing better in this election year than to have this be the discussion in the media instead of Obamacare and the economy. Still, it will have to be confronted eventually if we are keep tyranny from eating away at the fabric of our culture.
Ultimately, the Arizona bill had nothing to do with gays and everything to do with protecting the right of individuals to live their lives in ways that may not include others, or may even offend certain groups. As Americans, we did not go through the growing pains of the civil rights movements only to capitulate to 21st century bullies who have the gall to use the importance of minority rights as a weapon to extinguish those with whom they disagree.

7 Myths About Arizona's Religious Freedom Law

Here, then, are 7 myths the left has told about the Arizona religious freedom law – and why they’re myths:

Arizona’s Law Loosens Discrimination Against Gays and Lesbians in The State.
Adam Serwer of MSNBC says that “‘religious freedom laws could be a license to discrimination.” That’s nonsense. Arizona state law has no provision currently barring discrimination against gays and lesbians. So what does the law do? It actually narrows the law with regard to supposed discrimination against gays and lesbians. The law only provides religious people with an excuse to pick and choose clients if they can prove actual religious adherence (which, by the way, should offend atheists, who should have the same First Amendment right to associate as religious Americans).
The law also makes clear what should be clear from the text of the First Amendment: religious practice is not restricted to your church or your home. Individuals operating businesses have a right to act in accordance with their religion at work. The law also states that religious businessowners can defend lawsuits using the law against other private parties, not merely government prosecution.
This is the essence of American religious freedom. The disgusting attempt to use government to run roughshod over that religious freedom is blatantly unconstitutional. The law, which simply reinforces that, should be unobjectionable to anyone who actually believes in freedom of religion. Unfortunately, many on the left simply do not.

The Government’s Recognition of a Right to Religious Practice “Allows” Discrimination.
“I strongly support religious freedom,” Kansas state Rep. Patricia Sloop (D) explained with regard to a similar law being considered in her state, “but this bill is not about religious freedom. In my opinion, this is about legalized discrimination, and I cannot vote in support of this.”
The logic here is deeply flawed. My right to religious practice does not spring from the government; therefore, it is not up to the government to “allow” me to do anything with regard to my practice of religion. The question is whether government has a right to invade my religious practice in the name of some majority-determined or court-determined or regulator-determined social good. If the answer is yes on any sort of broad level, the Constitution is rendered meaningless. Rights can be balanced with communal needs, and are generally done so through the mechanism of the market. Once you hand the club of social enforcement to the government, however, rights are no longer balanced with communal goods. Communal goods win. Individuals lose.
The right to practice religion is not unique in this respect. My right to associate does not spring from the government; the government’s protection of that right – not violation of that right – is the purpose for the institution of government. My right to be free of unreasonable search and seizure is not subject to the government’s decision that suspicion of racism justifies violation of that right.

Allowing Private Businesses to Discriminate Among Customers Is Like Jim Crow.
On Tuesday evening, NBC’s Brian Williams made this comparison explicit, stating, “Good evening. It’s just one state out of our 50, but tonight what’s happening in Arizona is being compared by some to the epic battles this nation has fought over lunch counters, separate drinking fountains and restrooms.” Outspoken gay activist and former actor George Takei has called Arizona a “Jim Crow state” thanks to the law. Even Fox News’ Andrea Tantaros has jumped on the bandwagon, stating, “I don’t know why you want to bring Jim Crow laws back to the forefront for homosexuals,” prompting host Martha MacCallum to state, “I mean, that’s exactly what it sounds like.”
No, it doesn’t. Private discrimination may be nasty and evil, but it is not and was not Jim Crow. Jim Crow laws mandated segregation in public areas. Here, for example, is Alabama’s Jim Crow law with regard to those “lunch counters:”

It shall be unlawful to conduct a restaurant or other place for the serving of food in the city, at which white and colored people are served in the same room, unless such white and colored persons are effectually separated by a solid partition extending from the floor upward to a distance of seven feet or higher, and unless a separate entrance from the street is provided for each compartment.

State-compelled discrimination is not the same as private citizens discriminating.
As to suggestions that the Civil Rights Act of 1964 would be overthrown by the act, the supremacy clause of the US Constitution prevents any state from superseding federal law.

Immorality and Illegality Should Be Identical.
Many opponents of the bill have argued, in absurd fashion, that if you support the right of religious Americans to discriminate, you therefore support discrimination. That line of argument is as wrong as it is dangerous. You can believe that something is immoral and yet agree that it should not be illegal. I think that Mein Kampf is an evil book. But I don’t think we should ban it in the United States, because I think people have a right to print it and read it. Does that mean I’m an advocate for the dissemination of Mein Kampf?
Ironically, this line of argumentation cuts against gay rights. If we now believe that anything the majority believes to be immoral should be illegal, regardless of countervailing rights, what exactly is the problem with anti-sodomy laws? Where exactly is the objection to segregation by this twisted logic?
Of course, we don’t feel that way in the United States. We believe that people have rights to activity of which we don’t approve. Otherwise, we’re living in a tyranny in which we elect the tyrants.

Race and Homosexuality Are Analogous.
Any analogy between refusing to service same-sex weddings to refusing to serve black customers is fatally flawed. Race is an immutable characteristic; homosexuality is only publicly known due to homosexual behavior. No matter how much you may be attracted to a member of the same sex, no one will ever know unless you choose to divulge that fact, or to engage in sexual activity with someone of the same sex. That means that discrimination against homosexuals would actually be discrimination against either homosexual activity, or against evidenceless perception of homosexuality. The former is entirely within the purview of religious morality (it should be and always has been my choice whether or not to participate in a gay wedding); the latter is entirely outside logic (if someone throws you out of his store because you wore a pink shirt, he’s a moron).
The same is not true for race. If you are black, you are black. Blackness is not behavior-linked, despite what some racists on the left may believe. That means that discrimination based on race is entirely morally unjustified in any religious universe. The same is not true of behavior; homosexual activity falls under a behavioral classification.
This distinction is vital, because we have decided (rightly) as a society that immutable characteristics should not be the basis for discrimination – but we continue to believe that behavior can be the basis for discrimination. It would be wrong for you to refuse me service based on my last name being Shapiro. It would not be wrong, however, for you to refuse to photograph my future son’s religious circumcision if you are an anti-circumcision activist. The same holds true with regard to race versus homosexuality.

America Is a Nasty Place.
If an alien were to land on earth today and watch the media coverage of the Arizona law, he would likely believe that the American people are incredibly homophobic, and that only the massive bulwark of government prevents Americans from routinely lynching gays and lesbians. That, at least, is the implication the media look to make when they label America on the verge of another Jim Crow era – the idea is that religious Americans can’t wait to erect separate straight and gay sections of their cigar bars.
That’s bull. No business has ever used Arizona’s current religious freedom law to defend against charges of discrimination. Hate crimes against gays and lesbians, while heinous and evil, are thankfully remarkably rare. In 2012, according to FBI statistics, there were a grand total of 1,376 hate crimes based on sexual-orientation bias. According to the Williams Institute at UCLA, there are approximately 9 million LGBT people in the country. By way of contrast, there are approximately 6.7 million Jews in America, and 836 Jews were victims of hate crimes in 2012. That means that approximately one out of every 6,540 LGBT people in the United States was victimized by a hate crime in 2012; one out of every 8,014 Jews in the United States was victimized by a hate crime in 2012. America is not an anti-Semitic country; America is not a gay-bashing country.
But it is in the interest of those in the gay rights movement to continue to maintain that America is just moments away from an anti-gay outbreak. Such feelings prompt government action to crackdown on religious opponents of homosexuality. Which is, of course, what this entire debate is about.

The Left Will Leave Your Church Alone.
Even those who oppose the Arizona law maintain that they simply want individual religious businessowners to face a crackdown by the state. But that’s patently false. What, exactly, would be the justification for stating that a business, which is privately held and for-profit, would have to service same-sex weddings, but that a church, which receives non-profit privileges from the state, would not? Where is the left’s internal logic? If a religious person – a person who by definition acts in accordance with religious values in the entirety of his or her life, not just inside the four walls of the church – can be forced to violate religious values, why not a pastor?
A religious person is a religious institution. Anyone who fails to understand that has never met a religious person. Religion starts at home, not in the church. It reaches to businesses, not just to the pews. The left knows that. And that’s why the left will not stop.

On Free Speech, Sarah Palin and Mark Steyn are Right | National Review Online

http://www.nationalreview.com/corner/366989/free-speech-sarah-palin-and-mark-steyn-are-right-david-french

A legal victory is hollow indeed if no one chooses to exercise his right to free speech because he lives in an atmosphere of intimidation and reprisal. It's even more hollow when the intimidation and reprisals are so effective that they've banished formerly mainstream thought to the outer edges of public life.
Stigma tends to defeat dogma. In other words, mockery and condescension tend to defeat sincere statements of belief. Our kids are literally mocked into liberalism. So in the battle to maintain the free exchange of ideas, I wholeheartedly endorse the Palins, Steyns, and others who retreat not an inch and instead stigmatize the stigma — and by doing so show other conservatives there's nothing to fear.

Patterico's Pontifications � Ken White on Free Speech

http://patterico.com/2013/12/21/ken-white-on-free-speech/

6. Companies make decisions about hiring and firing based on both money and company culture. Sometimes these decisions are "right" in the sense that the decisions accurately predict what outcome will please the most customers and advertisers and keep revenues up. Sometimes the decisions are New Coke. Often the stated reasons for the decisions are hypocritical bullshit, as in the case of A&E. That's the way it works. Discussions about corporate decisions in the wake of controversy are dominated by (1) people who normally excoriate corporate decision-making but suddenly applaud it when the outcome suits their political beliefs, and (2) people who normally celebrate the market and promote the privilege of corporate decision-making but suddenly find it unpalatable when it produces a result that offends their politics. Some of the people applauding A&E are people who last week were furious at the concept that companies have First Amendment rights. Some of the people trying to conflate A&E and the government are people who last week were vigorously arguing that companies should not have to insure birth control if it offends their religious sensibilities.

6 Ways to Defeat the Campus Censors

Link: http://www.mindingthecampus.com/originals/2013/04/6_ways_to_defeat_the_campus_ce.html (via shareaholic.com)

1. Tie Speech Protections to Federal Funding.

2. Legally End the Slippery Debate about What "Harassment" Really Means.

3. Litigate Aggressively.

4. Make Colleges Certify Free Speech Protection.

5. Not Just Sticks: Provide Carrots to Colleges that Behave.

6. The Broader Job: Let's Work to Change the Culture.

....

Finally, and most broadly, we must seek ways to overcome the "echo chamber" effect that is prevalent in academia and increasingly in our society at large. This is not something that Congress or lawyers can fix: the change must necessarily be cultural. But if a way can be found to promote the idea that truly educated people seek out discussions with smart people with whom they disagree, it could go a long way to overcoming groupthink both on and off campus.

Too often, people succumb to the temptation to dismiss their political and cultural opponents as ignorant or stupid. And there are many ignorant and/or stupid people out there in all walks of life. If you're looking for one to take on in order to make yourself feel better about your beliefs, you'll find one. But nearly every idea in American discourse that is not utterly fringe has hundreds or thousands of advocates who are perfectly capable of making solid cases for their beliefs. The fact is, if you can't find a person who is capable of making rational arguments on behalf of the Tea Party or Occupy Wall Street, you didn't really try, especially in the age of the Internet.

But you might not get this impression on a college campus. As Penn professor Diana C. Mutz discussed in her 2006 book Hearing the Other Side, the more education you have, the less likely you are to have exposure to people with different points of view.

MercatorNet: Same-sex marriage ten years on: lessons from Canada

Link: http://www.mercatornet.com/articles/view/same_sex_marriage_ten_years_on_lessons_from_canada1 (via shareaholic.com)

...it makes sense to consider the Canadian experience since the first Canadian court established same-sex marriage a decade ago. There are, of course, important cultural and institutional differences between the US and Canada and, as is the case in any polity, much depends upon the actions of local political and cultural actors. That is to say, it is not necessarily safe to assume that Canadian experiences will be replicated here. But they should be considered; the Canadian experience is the best available evidence of the short-term impact of same-sex marriage in a democratic society very much like America.

Civil rights and freedom of expression:

But the legal and cultural effect was much broader. What transpired was the adoption of a new orthodoxy: that same-sex relationships are, in every way, the equivalent of traditional marriage, and that same-sex marriage must therefore be treated identically to traditional marriage in law and public life.

A corollary is that anyone who rejects the new orthodoxy must be acting on the basis of bigotry and animus toward gays and lesbians. Any statement of disagreement with same-sex civil marriage is thus considered a straightforward manifestation of hatred toward a minority sexual group. Any reasoned explanation (for example, those that were offered in legal arguments that same-sex marriage is incompatible with a conception of marriage that responds to the needs of the children of the marriage for stability, fidelity, and permanence—what is sometimes called the conjugal conception of marriage), is dismissed right away as mere pretext.

Religious freedom:

At first glance, clergy and houses of worship appeared largely immune from coercion to condone or perform same-sex marriages. Indeed, this was the grand bargain of the same-sex marriage legislation—clergy would retain the right not to perform marriages that would violate their religious beliefs. Houses of worship could not be conscripted against the wishes of religious bodies.

It should have been clear from the outset just how narrow this protection is. It only prevents clergy from being coerced into performing marriage ceremonies. It does not, as we have seen, shield sermons or pastoral letters from the scrutiny of human rights commissions. It leaves congregations vulnerable to legal challenges if they refuse to rent their auxiliary facilities to same-sex couples for their ceremony receptions, or to any other organization that will use the facility to promote a view of sexuality wholly at odds with their own.

Neither does it prevent provincial and municipal governments from withholding benefits to religious congregations because of their marriage doctrine. For example, Bill 13, the same Ontario statute that compels Catholic schools to host “Gay-Straight Alliance” clubs (and to use that particular name), also prohibits public schools from renting their facilities to organizations that will not agree to a code of conduct premised on the new orthodoxy. Given that many small Christian congregations rent school auditoriums to conduct their worship services, it is easy to appreciate their vulnerability.

Slippery slope arguments:

Once one abandons a conjugal conception of marriage, and replaces it with a conception of marriage that has adult companionship as its focus, there is no principled basis for resisting the extension of marriage licenses to polygamist and polyamorist unions.

In other words, if marriage is about satisfying adult desires for companionship, and if the desires of some adults extend to more novel arrangements, how can we deny them?
....
a society that institutionalizes same-sex marriage needn’t necessarily institutionalize polygamy. But the example from British Columbia suggests that the only way to do so is to ignore principle. The polygamy case’s reasoning gave no convincing explanation why it would be discriminatory not to extend the marriage franchise to gays and lesbians, but not discriminatory to draw the line at polygamists and polyamorists. In fact, the judgment looks like it rests on animus toward polygamists and polyamorists, which is not a stable juridical foundation.

Marriage as an institution:

There are approximately 21,000 married same-sex couples in Canada, out of 6.29 million married couples. Same-sex couples (married and unmarried) constitute 0.8% of all couples in Canada; 9.4% of the 64,575 same-sex couples (including common-law and married) have children in the home, and 80% of these are lesbian couples. By contrast, 47.2% of heterosexual couples have children in the home. Canada stopped tracking divorce after 2008, and has never provided data on same-sex divorce.

What we can gather from these data is that same-sex marriage has not, contrary to arguments that it would, powered a resurgent marriage culture in Canada. Nor are there any census data (one way or the other) for empirical arguments tying the institutionalization of same-sex marriage to marriage stability.

The Totalitarian Impulse Rears Its Head

The Totalitarian Impulse Rears Its Head

via Power Line by John on 9/8/10

John
Gateway Pundit, via Glenn Reynolds, presents another story of suppression of free speech by liberals:

School officials at Palm Beach State College kicked members of the Young America's Foundation off campus after they saw anti-Obama literature at their table.

There is much more to the story, as reported by the Orlando Political Press:

On Tuesday September 7, 2010 at around 11:00am one Palm Beach State College (PBSC) student and two Young Americans for Freedom (YAF) members, state chairman Daniel P. Diaz and state vice chairman Eddie Shaffer, were shut down and had campus police called on them after tabling and recruiting during club rush at the College. The PBSC student, Christina Beattie, had received prior permission from college administrator Olivia Ford-Morris to promote her organization on campus via telephone and email communication.
On the day of club rush, officials approached the group and after seeing information about the organization and its ideals criticizing Barack Obama's economic policy. Ms. Ford-Morris was visibly disturbed by the material presented, published by the Heritage Foundation, criticizing President Obama's administration. College officials then called the campus police to assure the group left campus. Ms. Ford-Morris denied having ever talked to Ms. Beattie about giving permission to the organization to be a part of PBSC club rush.

This reminds me of an episode years ago, when Scott and I were just becoming politically active. There was a freshman orientation at the University of Minnesota, and campus organizations were invited to set up booths and pass out literature to solicit incoming freshmen to join. The Young Republicans had a booth and passed out anti-Clinton literature--it seems like only yesterday! Students who were running the event disapproved of the presence of conservatives, ordered the Republicans out and confiscated their literature. Their obviously illegal action was backed up by the then-Dean of Students, who wrote a rather astonishing letter to the effect that because the University of Minnesota is devoted to diversity, there is no room there for Republicans. Seriously. (BTW, it is a reasonable guess that most of the tax money that supports the University of Minnesota is paid by Republicans.)
Our friend Peter Swanson, at that time the President of the Republican group at the U of M, came to Scott and me, and we represented the college Republicans in pursuing claims arising out of the obvious infringement of their First Amendment rights. We won hands down, and one of the remedies we negotiated was that the head of the Minneapolis campus of the University of Minnesota was required to attend First Amendment sensitivity training at the hands of a law school professor.
We have fond memories of that occasion, but the underlying reality is chilling. I really don't think most liberals have any respect for free speech as such, and if they had the opportunity, they would shut us all up or throw us in jail.

MercatorNet: Marriage, religious liberty, and the “grand bargain”

Link: http://www.mercatornet.com/articles/view/marriage_religious_liberty_and_the_grand_bargain (via shareaholic.com)

It was only yesterday, was it not, that we were being assured that the redefinition of marriage to include same-sex partnerships would have no impact on persons and institutions that hold to the traditional view of marriage as a conjugal union? Such persons and institutions would simply be untouched by the change. It won't affect your marriage or your life, we were told, if the law recognizes Henry and Herman or Sally and Sheila as "married."

Those offering these assurances were also claiming that the redefinition of marriage would have no impact on the public understanding of marriage as a monogamous and sexually exclusive partnership. No one, they insisted, wanted to alter those traditional marital norms. On the contrary, the redefinition of marriage would promote and spread those norms more broadly.

When some of us warned that all of this was nonsense, and pointed out the myriad ways that Catholics, Evangelicals, Mormons, Eastern Orthodox Christians, Orthodox Jews, Muslims, and others would be affected, and their opportunities and liberties restricted, the proponents of marriage redefinition accused us of "fearmongering." When we observed that reducing marriage to a merely emotional union (which is what happens when sexual reproductive complementarity is banished from the definition) removes all principled grounds for understanding marriage as a sexually exclusive and faithful union of two persons, and not an "open" partnership or a relationship of three or more persons in a polyamorous sexual ensemble, we were charged with invalid slippery-slope reasoning. Remember?

No one, they assured us, would require Catholic or other foster care and adoption services to place children in same-sex headed households. No one, they said, would require religiously affiliated schools and social-service agencies to treat same-sex partners as spouses, or impose penalties or disabilities on those that dissent. No one would be fired from his or her job (or suffer employment discrimination) for voicing support for conjugal marriage or criticizing same-sex sexual conduct and relationships. And no one was proposing to recognize polyamorous relationships or normalize "open marriages," nor would redefinition undermine the norms of sexual exclusivity and monogamy in theory or practice.

That was then; this is now.

Citizens United v. FEC

Text of the ruling
http://www.supremecourt.gov/opinions/09pdf/08-205.pdf


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The Wheel of the Year: Now available on Amazon Kindle

The Official Manual for Spice Cadets: Now available on Amazon Kindle

Kimberlin Threatens Even More Unconstitutional Peace Orders Against Aaron Walker

Brett Kimberlin Threatens Even More Unconstitutional Peace Orders Against Aaron Walker

via Patterico's Pontifications by Patterico on 6/27/12

Kimberlin, in a letter to Aaron Walker's attorney yesterday:

Again, I want to be left alone by your client. That is my demand as required by Galloway and the criminal harassment statute. His false narrative that I framed him is defamatory and inciting extremists to threaten me. He is responsible for their conduct. I will not hesitate to seek additional peace orders or criminal harassment charges if he does not leave me alone.

The trouble is, Brett Kimberlin defines "leave me alone" as "don't blog about the lawfare I have waged on you." He wants the right to engage in dishonest and abusive litigation, but he demands more: the right to do it without criticism. As you can see from his response to Aaron's filing for an emergency stay, Kimberlin continues to assert that he has the right to an email inbox free from Google Alerts relating to posts written by Aaron about Kimberlin:

Mr. Walker, contrary to what he says in his motion, did, as Judge Vaughey found, contact Petitioner directly in order to harass him. In his blog posts andon his Twitter page, he addressed Petitioner directly. He knew that his posts and tweets would end up in Petitioner's email box, and taunted Petitioner to turn off "his Google alerts." This is akin to telling someone to shut off their phone or stop their mail service if they did not want to receive harassing calls or mail.

Um, no, it's not. If you set up a service where your phone rings every time someone talks about you in public, I am not "phoning" you if I talk about you in public. If you set up a service where you receive a piece of snail mail every time someone talks about you in public, I am not "mailing" you if I talk about you in public. Having a Google alert for your name is YOUR choice. It cannot be used as a sword to force people to stop talking about you — and it is not "taunting" for Aaron to say: if you don't want your email inbox filled with notifications about Aaron's posts, turn your Google alerts off.
And Aaron Walker is not responsible for the reaction of other people to his peaceful speech, in which he repeatedly disclaims any intent to have people harass Kimberlin in any way whatsoever. (As do I.)
The thing is, Kimberlin has been told all of this before — and he still goes back and gets peace orders. And the judges in the Maryland court system give them to him. These judges feel bound by their own rules instead of the rules set by the Supreme Court, as Judge Vaughey famously made clear.
So when Kimberlin makes a threat like this, it is not idle.
He is not going to stop, until someone (morally and legally) forces him to stop.

George Will on the People’s Rights Amendment

George Will on the People’s Rights Amendment

via The Volokh Conspiracy by Ilya Somin on 5/5/12

(Ilya Somin)

George Will recently published a good Washington Post column on the ill-conceived People's Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:

Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions….

Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government's power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern's proposal vindicates those who say that most campaign-finance "reforms" are incompatible with the First Amendment…

His "People's Rights Amendment" declares that the Constitution protects only the rights of "natural persons," not such persons organized in corporations…

McGovern stresses that his amendment decrees that "all corporate entities — for-profit and nonprofit alike" — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern's amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern's amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern's scythe would mow down the Fourth and Fifth Amendments, as well as the First.

One can argue for the constitutionality of campaign finance regulations on several grounds. But doing so on the basis that people organized into corporate entities have no constitutional rights does indeed lead us down the dangerous path dramatically illustrated by the Peoples' Rights Amendment.

Jeffrey Toobin on Citizens United

Jeffrey Toobin on Citizens United

via The Volokh Conspiracy by Jonathan H. Adler on 5/14/12

(Jonathan H. Adler)
The latest New Yorker has an extensive excerpt of Jeffrey Toobin's forthcoming book, The Oath: The Obama White House vs. the Supreme Court, focusing on the Supreme Court's Citizens United decision. The story, "Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision," is everything you'd expect from a Toobin piece. It's engaging and informative, with exclusive behind-the-scenes reporting of how the decision came to be. This stuff is catnip for court watchers. Yet the article also contains plenty of subtle (and not-so-subtle) spin in service of Toobin's broader narrative of an out-of-control conservative court. As a consequence, Toobin paints a somewhat misleading picture of the case and the Court.

The heart of Toobin's article tells the story of how Citizens United metastasized from a narrow case about the application of federal campaign finance law to an obscure conservative documentary to a significant decision vindicating the First Amendment rights of corporations. As Toobin tells the tale, after the case was first argued Chief Justice Roberts drafted a narrow opinion that would have held for Citizens United on statutory grounds, but leaving the statutory regime intact. The vote would still have been 5-4, but it would have been a far less significant case. Justice Kennedy was not happy with this result, however, and authored a concurrence calling for a broader holding that would rest on First Amendment grounds. Kennedy's concurrence apparently swayed enough of the court's conservatives that Roberts initially acquiesced. Such a broad ruling would be improper, the court's liberals complained, as the broader First Amendment questions had not been briefed and were not properly before the Court. Yet as there was no interest in a narrower holding, the Court ordered a reargument with supplemental briefing that would place the First Amendment question front and center.

Toobin dwells on Justice Stevens' complaint that the Court's broad holding in Citizens United was unnecesary, as the Court could have held for the petitioners on narrower, statutory grounds. Yet as Toobin's own reporting confirms, no one other than Chief Justice Roberts had any interest in resolving the case on such grounds. Even when the case was first argued, not a single liberal justice was prepared to side with Citizens United, in no small part because the statutory argument was so weak.
Toobin criticizes the Deputy Solicitor General Malcolm Stewart for a concession at the first oral argument that may have sealed the government's fate.

Since McCain-Feingold forbade the broadcast of "electronic communications" shortly before elections, this was a case about movies and television commercials. What else might the law regulate? "Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?" Alito said. Could the law limit a corporation from "providing the same thing in a book? Would the Constitution permit the restriction of all those as well?"

Yes, Stewart said: "Those could have been applied to additional media as well."

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

"That's pretty incredible," Alito responded. "You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?"

"I'm not saying it could be banned," Stewart replied, trying to recover. "I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—" But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign. . . .

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

Yet here it is Toobin who is wrong, not Stewart. The statutory provision at issue was limited to broadcast, cable and satellite communications, and the film at issue was to be shown as a cable on-demand program, but the government never sought to defend the law on the basis that it was limited to electronic media. After all, the point of the was to limit the role of money in campaigns, not limit television advertising. The position the government was defending was that Congress could limit corporate expenditures related to campaigns, not that it could regulate TV. Under this theory, a corporate-funded book with impermissible campaign-related content would receive no more First Amendment protection than a corporate-funded video or film, just as Stewart said. If this is an incredible proposition, that says more about the position the government sought to advance than it does Stewart's oral argument. Campaign finance activist Fred Wertheimer made the same concession when pressed by the NYT. It's true that Solicitor General Elena Kagan would back away from this position when it was her turn to argue the case at the second oral argument, but not without first acknowledging that the statute's language could apply to "full-length books" and that there would, in the government's view, be no problem with banning corporate-funded pamphlets.
Like many of the decision's critics, Toobin suggests Citizens United is best seen as the product of the "aggressive conservative judicial activism" of Chief Justice Roberts and the court's conservative majority.

Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court's own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.

As Toobin tells the tale, Citizens United is emblematic of the current Court's assault on precedent and the prerogatives of the political branches. It's a nice story, but it's not true. "Judicial activism" is a notoriously malleable charge, but if "judicial activism" is shorthand for striking down federal statutes and overturning judicial precedents, the Roberts Court is the least "activist" court of the post-war period. As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of is post-war predecessors, and it's not even close. "Activism" is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority. They just sought to move the law in the opposite direction. If Citizens United is supposed to be evidence of unprecedented "activism," it's not clear what "activism" means.

The most interesting parts of Toobin's article are those that disclose how Citizens United was handled inside the Court. This is great stuff, and testament to Toobin's skill as a reporter, but I still have some misgivings. We don't know the identities of Toobin's sources, and some of his claims are difficult to check. His story may reflect how some justices or clerks saw the case, but there may well be another side, and we won't know until such time as the relevant court documents are released. I also cannot help but wonder whether some of Toobin's sources, such as former Supreme Court clerks, may have violated their own ethical obligations in disclosing portions of the Court's internal deliberations. Even if Toobin's sources were sitting or former justices, there is something unseemly about the selective disclosure of what went on inside the Court on such a recent case.

In any event, the article is still worth reading — as I am sure Toobin's book will be as well. Some portions will just go down better with a healthy dose of salt.

UPDATE: Tom Goldstein has a similar reaction to Toobin's narrative about Chief Justice Roberts:

The theme of the piece is that Chief Justice Roberts orchestrated the case's metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.

I should disclose that I am naturally inclined towards that reading of the history. I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court's O'Connor era. I also disagree with the Citizens United decision.

But despite that, while the article is a fascinating and full accounting of the case and the background of the Court's rapid movement to the right, the facts reported by Toobin don't seem to support his conclusions about the Chief Justice.

The Movement: The Left's War on the First Amendment

The Movement: The Left's War on the First Amendment

via Breitbart Feed on 4/28/12

During this Congress, there have been at least 11 resolutions filed by Democrat lawmakers calling to amend the Constitution because of the Supreme Court's decision in Citizens United v. The Federal Election Commission. All of these amendments will chill free speech and would make the Founders cringe. As President of Citizens United, I find it quite disappointing how none of these lawmakers have a clue what the United States Supreme Court actually decided in Citizens United.
Last week, you had Nancy Pelosi saying that with Citizens United, "the Supreme Court had unleashed a predator that was oozing slime into the political system, and that, indeed, is not an exaggeration." Oozing slime – really, Nancy? Having more speech, not less, in the political process is paramount to our democracy. Without robust free speech in political discourse, incumbents have an inherent advantage. That is why President Obama and Democrats in Congress tried so hard to pass an incumbent protection bill, aka the DISCLOSE Act, back in 2010. They failed, and Nancy Pelosi was fired as Speaker of the House.
Then you have former White House Chief of Staff and now Mayor of Chicago Rahm Emanuel spouting off about the Citizens United case on MSNBC this week. Emanuel called the decision "one of the single worst decisions by a court" and said, "It will be a blemish on all of their records for allowing this decision." I'm not surprised to see Rahm Emanuel lash out against Citizens United. Quite frankly, I was a bit disappointed that in the days following our decision the ever-so-subtle Rahm did not send a dead fish or horse head to our offices.
While Rahm has singled out Citizens United, his liberal colleague Senator Charles Schumer took this assault on our decision and the Supreme Court a step further, declaring , "It is the worst decision since Plessy v. Ferguson – I believe that – of the United States Supreme Court."
The Court has made mistakes in the past. Plessy v. Ferguson and Dred Scott v. Sanford certainly stand out. But can one really argue with a straight face that Citizens United, which restored the First Amendment protection of political speech, is the modern equivalent of Plessy or Dred Scott? Bombastic statements like this are proof that liberals do not understand the fundamentals of the Citizens United case and are not interested in knowing the truth about the case.
In 2007, Citizens United sought to promote and broadcast via video-on-demand a film critical of then-presidential candidate Hillary Clinton. Under the speech-stifling provisions of McCain-Feingold, if Citizens United had broadcast "Hillary The Movie"  or run advertisements promoting the film, its officers could have been subject to prosecution and potential imprisonment for up to five years. This means I could have gone to jail for doing the very same thing Michael Moore had done back in 2004 with "Fahrenheit 9/11."   The Supreme Court struck down this piece of the McCain-Feingold law and stated in the opinion for the majority that it's "stranger than fiction for our Government to make... political speech a crime."
That is why it is so disturbing to see 11 constitutional amendments and counting trying to take away free speech. These amendments have been proposed to curtail the right to political speech that was restored by the Supreme Court in Citizens United v. FEC. These proposed amendments take one of two forms --amendments that would deny First Amendment protections to all except "natural persons" and amendments that explicitly grant Congress and the States the power to regulate, limit, or prohibit political contributions and expenditures.
Both forms of amendments, whether seeking to rewrite the First Amendment or seeking to expand the power of incumbents to regulate their challengers, are aimed at chilling political speech and reducing the number of speakers in the political arena. It is always a slippery slope when the government can decide what is free speech. When Barack Obama, Nancy Pelosi, Rahm Emanuel, Chuck Schumer, and others of the crazed left make it their high mission to defeat Citizens United, I know I've struck a chord.
It's no surprise to see liberal incumbents fighting to silence voices of dissent. It's also no surprise that a chorus of liberal special interest groups have joined their fight. Robert Weissman of Public Citizen, Fred Wertheimer of Democracy 21, and even former Republican nominee to the FEC Trevor Potter have utilized their non-profit corporations to fight to overturn Citizens United. I personally don't agree with their crusades to silence the freedom of speech, but as a staunch defender of the First Amendment, I'll fight to my dying day for them to be able to use corporate assets to voice their opinions.
I am sure in the coming weeks and months you will hear a lot of falsehoods about the Citizens United decision. The left's war will only intensify if President Obama loses in the fall, because they will need a scapegoat for their failed liberal agenda. I will wear it as a badge of honor if the Citizens United case is used as a foil by the left. In the end, we won because Citizens United was on the right side of the First Amendment.

Congressman Proposes Amendment to Strip Most Newspapers, Churches, Nonprofits, and Other Corporations of All Constitutional Rights

Link: http://volokh.com/2012/04/20/congressman-proposes-amendment-to-strip-most-newspapers-churches-nonprofits-and-other-corporations-of-all-constitutional-rights/ (via shareaholic.com)

The effects of an attempt to undo Citizens United.

...Congress could therefore ban the speech of nonmedia business corporations, it could ban publications by corporate-run newspapers and magazines — which I think includes nearly all such newspapers and magazines in the country (and for good reason, since organizing a major publications as a partnership or sole proprietorship would make it much harder for it to get investors and to operate). Nor does this proposal leave room for the possibility, in my view dubious, that the Free Press Clause would protect newspapers organized by corporations but not other corporations that want to use mass communications technology. Section 3 makes clear that the preservation of the "freedom of the press" applies only to "the people," and section 2 expressly provides that corporations aren't protected as "the people."
Congress could also ban the speech and religious practice of most churches, which are generally organized as corporation. It could ban the speech of nonprofit organizations that are organized as corporations. (Congressman McGovern confirms this: "My 'People's Rights Amendment' is simple and straightforward. It would make clear that all corporate entities — for-profit and non-profit alike — are not people with constitutional rights. It treats all corporations, including incorporated unions and non-profits, in the same way: as artificial creatures of the state that we the people govern, not the other way around.") Congress could ban speech about elections and any other speech, whether about religion, politics, or anything else. It could also ban speech in viewpoint-based ways.
State legislatures and local governments could do the same. All of them could seize corporate property without providing compensation, and without providing due process. All corporate entities would be stripped of all constitutional rights. Quite a proposal; I blogged more generally about this issue here, but it seems to me that simply listing the consequences of Congressman McGovern's proposal largely suffices to explain its flaws.

Is It Unconstitutional for Laws to Be Based on Their Supporters’ Religiously...

Is It Unconstitutional for Laws to Be Based on Their Supporters’ Religiously Founded Moral Beliefs?

via The Volokh Conspiracy by Eugene Volokh on 3/17/12

(Eugene Volokh)
This perennial question came up again on an academic e-mail discussion list that I'm on, so I thought I'd blog about it (though I said much the same thing 10 years ago, in another blog post). I think the answer is not just "no," but "hell, no" — I think it would be an outrageous discrimination against religious believers to have such a constitutional rule, and fortunately nothing in the history or the precedents of the Establishment Clause supports this position.
My most recent brush with the argument happened with regard to rules against recognizing same-sex marriage, but others have raised the same argument as to cloning bans, abortion bans, and the like: Isn't it illegitimate for the government to ban cloning, or fail to recognize same-sex marriages, when most of the arguments for that position are essentially religious? Isn't that an unconstitutional violation of the separation of church and state, or at least a violation of some democratic norm that people ought not force their religious views on others?
But most of the coercive laws that we hotly debate involve the forcing of a majority's views on the minority. That's true of laws protecting endangered species, antislavery laws, antidiscrimination laws, animal cruelty laws, environmental laws, intellectual property laws — or for that matter bans on infanticide, child sexual abuse, or more generally murder, rape, or theft. Some of these laws may be sound on the merits, and others unsound. But the fact that they force one group's views on another doesn't make them wrong.
Religious people have moral views just like secular people do, and they're just as entitled as secular people to use the political process to enact their views into law. True, religious people's moral views may rest on unproven and probably unprovable metaphysical assumptions — but the same is generally true as to secular people's moral views.
To say that religious arguments must be excluded from public debate, while equally unprovable secular moral arguments may continue to be made, would be to turn into second-class citizens those people whose basic moral views come from their religion. Neither the Constitution nor sound political morality require this.
In fact, many important political movements — the antislavery movement, the civil rights movement, and various antiwar movements — were composed in large part of religious people who acted for explicitly religious reasons, and justified their positions using explicitly religious arguments. Would we say that opposition to slavery was illegitimate because it was mostly overtly religious? If not, then we also can't condemn opposition to cloning or abortion or same-sex marriage on these grounds.
But what about the Establishment Clause? Well, the Supreme Court has explicitly held that the Establishment Clause doesn't invalidate laws simply because their supporters backed them for religious reasons. See, e.g., McGowan v. Maryland, 366 U.S. 420, 442 (1961); Bob Jones Univ. v. United States, 461 U.S. 574 (1983); Harris v. McRae, 448 U.S 297, 319-20 (1980). And for the reasons I mention above, the Court's decisions here were correct. True, the First Amendment does bar the government from teaching religion, from requiring religious practices such as prayer, and (generally) from singling out conduct for better or worse treatment because it's religiously motivated (e.g., punishing religious animal sacrifices but not secularly motivated animal killing, or giving a sales tax exemption to religious publications but not secular ones). But it doesn't bar the government from implementing religiously-motivated prohibitions on people's conduct, whether as to murder, theft, slavery, civil rights, cloning, or abortion.
Nor do I know of any evidence that the Establishment Clause was generally understood in 1791, in 1868, or any time in between or since as discriminating against religious believers this way. It may be convenient for secularists — and I myself am not religious — to have their moral reasons for lawmaking be permitted, and have their religious rivals' moral reasons declared unconstitutional or otherwise illegitimate. But there's no basis for thinking that the Constitution embodies any such discriminatory rule.
There are lots of good arguments to oppose cloning bans, abortion bans, or bans on homosexual conduct. The supporters of such prohibitions may be wrong on moral or pragmatic grounds. But the bans aren't made invalid by the fact that many of their supporters act for religiously influenced moral reasons, as opposed to secularly influenced moral reasons.