The Soul of the First Amendment

“[Floyd Abrams is the] most significant First Amendment lawyer of our age.” Senator Daniel Patrick Moynihan

Floyd Abrams  prevailed in his argument before the Supreme Court on behalf of Senator Mitch McConnell as amicus curiae, defending the rights of corporations and unions to speak publicly about politics and elections in Citizens United v. Federal Election Commission and his new book reads like a thought-provoking apologia for that job. Excerpts follow:

“It is an easy step from restraining the press to making it place the worst actions of government in so favorable a light, that we may groan under tyranny and oppression without knowing from whence it comes.” Cincinnatus, one of a number of anonymous critics of the newly drafted [1787 US] Constitution. (page 6)

The words “Congress shall make no law” were chosen to introduce the First Amendment, a decision that would lead the Supreme Court throughout American history to rule that the First Amendment barred only governmental, not private, suppression of speech.” (page 9)

To conclude that the First Amendment should not fully protect the political liberties of all but only those viewed as disenfranchised would not only be inconsistent with the core concern of the First Amendment of avoiding governmental control over speech but could ultimately threaten the liberties of us all. (page 27)

not until 1925 was the First Amendment held applicable to the states; and not until 1965 was a federal statute held to be unconstitutional under the First Amendment. (page 33)

A similar divergence of approaches [between United States and Europe] exists with respect to verbal or written attacks on or mockery of religious beliefs. In Poland, for example, an article of its criminal code makes criminal “offense to religious feelings” as well as “public calumny.” In 2010, a singer was convicted of giving “intentional offense to religious feelings” for saying that she “believed more in dinosaurs than the Bible” because “it is hard to believe in something written by people who drank too much wine and smoked herbal cigarettes.” Three years earlier, a rock musician was accused of the same crime for calling the Catholic Church “the most murderous cult on the planet.” (page 43)

The reason the book about Putin could be published in the United States with little concern for libel actions following is its different, far more speech-protective path. Beginning with the momentous decision of the Supreme Court in New York Times Company v. Sullivan in 1964, at least in cases commenced by public officials (and, later, public figures), the burden is placed on the party suing to prove the falsity of the charges. A plaintiff in such a case must do still more, proving by clear and convincing evidence that the false statement was made with actual knowledge of falsity or serious doubts as to its truth – “actual malice,” in the infelicitous words chosen by the Supreme Court to describe it. If the defamatory statement was believed, however wrongly, it cannot provide a basis for liability. (page 52)

In some nations, defamation penalties are greater when the offending language is directed at public officials. (page 54)

Buckley thus held that just as individuals could speak as often as they were able to in person or in writing in support of candidates for public office, they could spend whatever amounts they chose to purchase the advertisements that contained that speech. And Citizens United, in turn, held that corporations could do the same. (pages 85-6)

But leading press entities continue to decry the rulings in Buckley and Citizens United, even as their own freedom to speak about candidates and elections as they choose and to spend however much they choose (or are able) to spend in that regard is unlimited. (page 96)

while many deeply believe that too much money spent on elections by too few people or entities is an assault on democracy itself, others believe, with at least the same good faith, that government should not and may not seek to limit the amount of electoral speech that may be permitted and that the First Amendment precludes it from doing so. (page 112)

15 responses to this post.

  1. Posted by Anonymous on May 31, 2017 at 12:53 pm

    So long as it has Trump’s blessings, otherwise it’s fake news and his Twitter account will be on fire.

    Reply

  2. Posted by steve on May 31, 2017 at 3:54 pm

    The beauty of it all is say what you want and if I believe it or not is MY choice–HC spent by record numbers and still lost- that too is the beauty of the system-thanks to the constitution –Ye of little faith !

    Reply

  3. Posted by Anonymous on May 31, 2017 at 5:46 pm

    I know no double standards, Trump says he can kill someone but his grandkids can’t sleep b/c of a bloody head resembling him. HC loss is America’s gain ? and Trump victory is America’s loss ! – talk about a no win situation.

    Reply

  4. Posted by Anonymous on May 31, 2017 at 7:55 pm

    what does this have to do with pensions?

    Reply

  5. Posted by Anonymous on May 31, 2017 at 8:22 pm

    BTW… what is the average retirement age of a 25-year employee? What? 55? and live for another what? 30 years? After 30 years of contributions and 30 years of pension payments….what is the net? what % of return is that? sounds pretty good.

    Reply

    • Posted by Anonymous on May 31, 2017 at 8:32 pm

      it has a lot do with it, ie upcoming Medicare & SS reforms/cuts…..
      BTW not much difference for State, Fed, and Military – just different pay scales and accrual rates. Except States are severely underfunded and Fed is pay/print as you go.

      Reply

    • Posted by S Moderation Douglas on June 1, 2017 at 3:59 am

      The average retirement age for safety employees is about 55. Average retirement age for other public employees is about the same as for private sector workers – somewhere between 62 and 64, depending on the state.

      Reply

      • Posted by Anonymous on June 1, 2017 at 9:25 am

        Very few Private Sector workers retire with (unfrozen) Final Average Salary DB Plans today.

        Even for the few lucky ones that do, their pensions typically have a “value upon retirement” 1/4 to 1/2 (1/6 to 1/4 for safety workers) as great as that ROUTINELY granted Public Sector workers.

        And right now, all but the 10% to 20% of the total cost those ludicrously generous Public Sector Plans actually paid for via worker-contributions, is the responsibility of the betrayed and beleaguered Taxpayers.

        Reply

  6. Posted by George on May 31, 2017 at 8:42 pm

    “defending the rights of corporations and unions to speak publicly about politics”

    Voluntary associations have a ‘natural right’ to engage in politics. Corporations are voluntary associations with a privilege, limited liability.

    Now if that privilege, limited liability, is a natural right bestowed on the citizens, who demean themselves properly (people forget the demeanor part), of the United States of America by the creator (Judeo Christian or otherwise or even nonexistent) then corporations have a ‘natural right’ to engage in politics.

    Now if that privilege, limited liability, is a creation of the government of the United States of America, then the government of the United States of America can attach any and all conditions the government of the United States of America wants to, and if you don’t like it, accept unlimited liability and form sole proprietorships, partnerships, ect which is your natural right. In this case the government of the United States of America can deny the right of corporations to engage in politics and not be violating the natural rights of man.

    At least that is the way Stanley Kowalski explained it to me. End of anonymous message board rant.

    BTW, Stanley Kowalski is a character from A Street Car Named Desire that would constantly give his imperfect understanding of the law.

    Fun fact: New Jersey was the first state to adopt an “enabling” corporate law, with the goal of attracting more business to the state,[25] in 1896. So maybe limited liability is not a right of man? Or did NJ do God’s work in ’96?

    https://en.wikipedia.org/wiki/Corporation#History

    Reply

  7. Posted by Seesaw Junior on June 1, 2017 at 4:11 pm

    Floyd Abrams prevailed in his argument before the Supreme Court on behalf of Senator Mitch McConnell as amicus curiae, defending the rights of corporations and unions to speak publicly about politics and elections in Citizens United v. Federal Election Commission
    Former US Senator Moynihan is 100% on the money-Floyd Abrams is the BEST 1st Amendment Lawyer in the country today, and maybe the best of all-time. But it is not really accurate to say “Abrams prevailed” in Citizens United case, he filed an Amicus Brief, along with many others. He was not the attorney of record in that case. And trust me, Citizens United is TIED with Kelo v. City of New London as the WORST case by the SCOTUS in the last 100 years. I am still unsure as to which one is the worst case….You have to go back to Plessy v Ferguson in 1896 to find a case as bad as either of those two.

    Reply

    • Posted by Seesaw Junior on June 1, 2017 at 4:13 pm

      And most do not know that Floyd Abrams is the FATHER of MSNBC personality Dan Abrams, who is no slouch in the legal department either (but no where near the level of his father Floyd).

      Reply

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