The Supreme Court granted certiorari in three cases for its term starting this fall, including one involving a $5 million jury verdict against the fiercely anti-gay group led by Kansas preacher Fred Phelps. SCOTUSblog's Lyle Denniston writes that in Snyder v. Phelps, the high court will focus on "a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting." Phelps and members of his Westboro Baptist Church, which consists largely of his relatives, picket funerals of soldiers as part of their campaign attacking America for allegedly being tolerant of lesbians and gay men. That campaign involves posting invective on a Web site called "godhatesfags.com," and hoisting signs at soldiers' funerals with messages like "God Hates the USA," and "Semper fi fags." When Phelps and members of his outfit picketed the funeral of Marine Lance Corporal Matthew Snyder several years ago in Maryland, his father, Albert, lodged a lawsuit against Phelps, winning a $5 million jury verdict.

But that verdict was overturned by the U.S. Court of Appeals for the Fourth Circuit. Even though the appeals court found Phelps' messages "utterly distasteful," it said they were protected by the First Amendment. The Fourth Circuit, as noted by the Religion Clause blog, also concluded that Phelps' Web site postings concerning the dead solider were "imaginative and hyperbolic rhetoric intended to spark debate."

The justices added two other cases to its next term - NASA v. Nelson and Bruesewitz v. Wyeth. Denniston also has details of those cases here. 

At times during oral argument in Holder v. Humanitarian Law Project, it appeared that several of the Supreme Court justices were inclined to conclude that the federal government's "material law" support law, which bans aid to foreign terrorist groups, "may go too far," writes SCOTUSblog's Lyle Denniston. But Denniston reported that as the questioning proceeded in the hearing, it appeared far from clear how the high court would end up on what Justice Anthony Kennedy called "a difficult" case.

The case involves several American individuals and groups who want to help segments of Turkey's Kurdish population in peaceful protests, but have not done so for fear of being prosecuted under the material support law. Georgetown law professor David Cole argued before the justices that the material law is so broad that it violates the First Amendment rights of the groups he is representing, hindering humanitarian work that does not support terrorist activity. But, as Denniston notes, Justice Antonin Scalia "wondered if any kind of aid to such a group necessarily can be turned into a benefit for its violent activities."

Solicitor General Elena Kagan told the justices that the material support law was one of the government's primary tools in countering terrorism and urged the justices to uphold the law against the First Amendment challenge. 

The New York Times editorial page urged the high court to "modestly" adjust the law. "It should affirm that Congress has broad leeway in limiting assistance to terrorist groups, and in making these groups anathema, while at the same time ensuring that the most fundamental speech rights are protected, including advocacy in court, journalism, and speech that is truly independent of these groups." 

With the Senate Armed Services Committee's hearing on "Don't Ask, Don't Tell" scheduled for tomorrow, another hearing on a controversial issue is being overlooked by many.

The Supreme Court's recent campaign finance ruling in Citizens United v. FEC has drawn the ire of some on Capitol Hill. That case -- and how Congress might blunt its force before the mid-term elections -- is the topic of tomorrow's hearing before the Senate Committee on Rules and Administration, entitled "Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections."

The witness list includes two ACSblog guest contributors: Professor Heather Gerken of Yale Law School and Democracy 21's Fred Wertheimer, whose immediate reaction to the decision is available here. 

[image via www.yellowdoggereldemocrat.org]

On "The Daily Show with Jon Stewart," Stewart and correspondent Jon Oliver examine the Supreme Court's recent decision in Citizens United.

"If you've got Justice Anthony Kennedy on your side, you can pretty much do what you want. Without him, you're the author of an angry dissent," reports The AP's Mark Sherman.

Some fear "huge openings" for foreign corporations to sway elections.

Prof. Nate Persily asks, "What will the Supreme Court's campaign finance ruling really change?"

Possible legislative responses are assessed at SCOTUSblog.

"Money isn't speech, and corporations aren't people," says Prof. David Kairys.

Judging the Environment is collecting scores of op-eds from across the country here.

[Image via TheBronze Blog.]

For those concerned about special-interest spending in elections, today's Citizens United ruling was an unmistakable setback. This ruling pours gasoline on an already raging bonfire that will affect all federal and state elections. And it will pose an especially grave threat to the integrity of elected state courts.

But today's Citizens United ruling does have a silver lining: it explicitly says that corporations that pay to play in elections can be forced to disclose their financial sources. Companies running so-called independent campaigns can literally spend infinite amounts. But they do not have a constitutional right to do so anonymously.

The ruling thus gives clear guidance to state and federal lawmakers that they can pass disclosure laws, to provide desperately needed sunlight in a new era of runaway election spending. Moreover, it is a hopeful sign that First Amendment attacks, which have been used as a battering ram against legitimate election laws, may have reached their upper limit with the Citizens United case.

In today's ruling, the U.S. Supreme Court said businesses can spend directly from their treasuries on federal elections-a ruling that could unleash a tsunami of campaign cash. And that's clearly just the beginning. As quickly as they can be cranked out, new lawsuits will demand equal rights for unions-and for spending on state and local elections, not just federal campaigns.

It's easy to imagine where this will lead, especially for those who focus on the specialized area of judicial elections.

Just last year, the Supreme Court faced all the potential worst-case scenarios when it issued a landmark ruling in Caperton v. Massey. In that case, a coal executive spent $3 million to elect a new justice to West Virginia's high court, as his company sought to overturn a $50 million jury award.

The U.S. Supreme Court forced the judge off the case, but it got a powerful sneak preview of what Citizens United could spawn. Remarkably, the money spent in the West Virginia election all came out of the executive's private finances. Now it's likely that he and other CEOs, as well as union chiefs, will ultimately turn business treasuries into personal election-campaign piggy banks.

Justice John Paul Stevens clearly had the Caperton case in mind when he wrote the following in his eloquent dissent:

The consequences of today's holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O'Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps "Caperton motions" will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.

Given the historic purpose of campaign finance laws -- to prevent large concentrations of money from corrupting officials and undermining public trust in government -- that's hardly an inspiring prospect. And it might have been avoided had the court decided only the original question, of whether federal election law should apply to a video-on-demand documentary that criticized a presidential candidate.

So where are the silver linings in Citizens United v. Federal Election Commission? Where are election reformers now that the ruling has been handed down?

The disclosure ruling is significant, and it potentially affects all elections, federal and state. While it struck down Austin v. Michigan Chamber of Commerce's 1990 ban on corporate spending, the Supreme Court reaffirmed multiple Supreme Court rulings that campaign disclosure laws are consistent with the First Amendment. The Roberts Court, which is skeptical of campaign regulation, upheld rulings dating back to Buckley v. Valeo in 1976, which found that disclosure of election spending provides vital public information and helps combat corruption. Significantly, this ruling covers expenditures by independent campaigns whose goal is to influence election outcomes.

Lawmakers can and should now move without any fear of meaningful litigation to start a new era of sunlight on special-interest spending in all elections. And these laws should specifically bring a public accounting to the many groups that have used "independent" ad campaigns to skirt reporting rules.

One also can hope that this vote will leak some air out of a First Amendment overreach that has besieged courts in recent years. Despite statements to the contrary, federal courts have upheld most campaign finance laws against First Amendment challenges, choosing only to carve out specific exceptions, such as the "millionaire's amendment" in Davis v. FEC.

With the Supreme Court now rejecting the simplistic argument that all forms of campaign regulation violate free-speech, perhaps courts everywhere will pause and look more skeptically at the continuing assault on public financing and other laws.

This is especially true in the area of court elections. A second silver lining recent years is that the Supreme Court and lower tribunals recognize that courts have special constitutional obligations, which must be weighed against free-speech claims. In Caperton, for instance, the court said there is no First Amendment right to the judge of one's choice. A citizen can support any candidate for the bench. But if he goes to court, the Fourteenth Amendment may, for due process and fairness, require that another judge hear the case. Justice Kennedy, in the majority opinion, reaffirmed that in Citizens United.

Similarly, the conservative Fourth Circuit of Appeals unanimously upheld North Carolina's public financing law for appellate court races. In its 2008 ruling in Duke v. Leake, which the Supreme Court declined to hear, the Fourth Circuit wrote: "The concern for promoting and protecting the impartiality and independence of the judiciary ... dates back at least to our nation's founding," adding that the provisions "to protect this vital interest in an independent judiciary are within the limits placed on the state by the First Amendment."

Even if courts continue to chip away at specific campaign regulations, an argument can still be made that rulings such as Caperton and Duke v. Leake should provide a special protective shield around elections involving the courts.

No matter what, those who care about keeping courts impartial need to turn bad news into good news, by moving to enact real reforms-including disclosure, recusal, public financing and appointive systems - to make sure justice is not for sale.

[Image via HatCityBLOG.]

Today, the Supreme Court announced that corporate campaign spending is protected by the First Amendment. That is, the Federal government and states may not restrict corporations' use of corporate money -- money that corporations got by charging customers more than they had to or paying employees, suppliers, and investors less than they could have -- to influence elections. Obviously, business corporations will be forced by the pressures of competition to use their funds to try to use politics as a new forum for competition. Producing a better product is far less likely to be profitable than winning legislative changes in the rules of the game that advantage companies that are already profitable and hinder potential threats to those profits, whether in the form of competing products or health, safety, anti-pollution or other efforts to support the common good.

The decision turns the First Amendment on its head. The First Amendment has two main purposes: first, to protect republican and democratic politics by ensuring that citizens are free to criticize the government, and second , to create a space free from government intervention where people can follow their own idiosyncratic whims regardless of the taste of others. This decision is a major set-back to both purposes.

Most importantly, if corporations -- which are not citizens and many of which are multi-national organizations with interests that may be radically opposed to those of ordinary Americans -- are allowed to freely intervene in our elections, then each citizen must have a corresponding decrease in influence. My contribution means less if I must compete with BP-Amoco and not just my fellow Americans' money.

Moreover, at least for the managers who will now view themselves as required by law and market competition to spend corporate money to influence elections, the Supreme Court's radical revision of the Constitution forces them to use the corporations they run to advocate policies they may well know are wrong for the country.

When business corporations "speak," the reality is that a manager has made a decision that the corporation's interests -- which the manager may or may not believe are national interests -- would be furthered by spending corporate money to influence the votes of real citizens. Managers are required by corporate law to act in the interests of their employer regardless of what they personally think would be best for the country. So the Supreme Court's "free speech" is actually compelled: managers are required by law to spend money that isn't theirs in support of positions that they may or may not hold. Worse yet, if managers are doing their job as many of them understand it, they may well feel compelled to spend corporate money to elect politicians who they KNOW will be bad for the country. It is often quite profitable -- and therefore 'in the corporation's interest' according to some -- to be legally permitted to pollute, not spend money on safety precautions, exploit employees, defraud investors or suppliers, advertise deceptively, monopolize, discriminate and otherwise compete unfairly. The Supreme Court's decision, left unchallenged, will force corporate managers to compete by trying to force legislatures to allow this kind of bad behavior.

We need immediate action to reverse this decision. Even with the Supreme Court's appalling re-write of the First Amendment, the Congress and the state legislatures are free to change corporate law. Every state and the Congress should immediately enact legislation to guarantee that corporate decisions to affect government are made according to democratic and republican norms. This would do it:

Any corporate decision or expenditure that might affect the American political process, or the rules governing corporate behavior, which is made in this State or would affect the political process in this State, must be approved by a majority vote of every human corporate stakeholder who is a US citizen and might be affected by the decision or expenditure, including directors, managers, employees, human investors (or the human beneficiaries of institutional investors), customers, suppliers and taxpayers who might have to pay additional taxes to replace taxes corporate taxpayers avoid or to clean up messes that such decision might allow. The human beings involved may delegate this decision to elected representatives, including the board of directors of a corporation, so long as the elections of those representatives are held on a fair basis according to democratic norms including one human one vote, limited terms of office, and enfranchisement of all adult humans who are seriously affected by the representatives' actions.

[Image via springstone.]

Today or soon the Supreme Court will decide Citizens United v. FEC and, possibly, hold that the government cannot prohibit nonprofit advocacy corporations - and perhaps also business corporations and unions - from using their regular treasury accounts (and not just their individual-funded federal PACs) for explicit "vote-for" and "defeat"-type electoral messages to the general public. If the Court does that, then no person or group - except, possibly, foreign nationals - could be precluded from undertaking so-called "express advocacy" "independent expenditures" about federal or state candidates.

Much commentary on the case overstates how significantly that holding - overruling the Court's 1990 Austin v. Michigan Chamber of Commerce decision - would change constitutional law. The First Amendment already empowers businesses, nonprofit corporations, unions and other groups to publicly convey all but the most explicit election-influencing messages, and further protects their issue advocacy and lobbying. And, as a practical matter, corporations, unions and other groups only episodically exercise their substantial electoral communications rights, due to budgetary pressures, institutional culture, averseness to controversy, federal tax disincentives and sensitivity to shareholder, member and public opinion. Those constraints won't disappear.

Progressives would do well to pay equal attention to what might happen if the Government wins this case. Rather then simply trying to preserve the status quo, the FEC and its amici - groups that lobby for more campaign finance regulation - are urging the Court to dramatically reduce First Amendment protections for independent speech. They argue that independent political speech can be outlawed on the theory that it "corrupts" candidates and officeholders because it is intended to "curry favor" with them and might cause them to "feel indebted." But the Court has consistently rejected that as a rationale to restrict speech, as distinct from political contributions that plainly risk a quid pro quo - the purchase of official favors - and only indirectly implicate free-speech interests.

It would be distasteful enough if politicians' "feelings" could trump group free-speech rights in the electoral sphere. But it is hard to discern how even non-electoral speech that discusses public officials could avoid the same fate. Although the Government has backed off from its previous contentions in Citizens United that federal election law can ban books, its First Amendment posture in the case remains aggressively censorial.

Citizens United also implicates important First Amendment questions about the relative electoral speech rights of different kinds of groups, but public commentary on the case has all but ignored them. Since the union-busting Taft-Hartley Act of 1947, federal campaign finance law has largely equated unions and other nonprofits with business corporations, restricting them all in much the same ways. This has hardly created a "level playing field." Under current law, billionaires can make unlimited express-advocacy independent expenditures using wealth transferred from their businesses. And, despite their own commercial interests, huge media corporations - including those owned and controlled by non-media corporations - are exempt from political-speech restrictions, yet they profoundly influence public perceptions of candidates and officeholders and routinely editorialize explicitly for their favored candidates. Progressives should reject these disparities and seek comparably unfettered electoral-advocacy rights for unions and other nonprofits at least.

The Government defends Austin in part by arguing that shareholders need protection from corporate political spending that they do not authorize. Perhaps the Court will accept that as a constitutionally sufficient rationale to ban business express advocacy, but it has no application to nonprofits, which lack shareholders and are often membership-controlled. Austin itself explicitly acknowledged that its shareholder-protection rationale does not apply to unions, which - unlike most other kinds of groups - are always democratically run by their members, and whose represented workers always may forgo financing union political activities and lobbying.

In Citizens United, however, the government endorses speech restrictions on unions in order to prevent "the use of compulsory union dues for political purposes" - a startling echo of National Right to Work Committee propaganda. Justice Ruth Bader Ginsburg disputed this equation of union members with shareholders during September's Citizens United argument, prompting Solicitor General Elena Kagan to admit that Justice Ginsburg was "right about that." But Ms. Kagan insisted that the "anti-corruption" rationale justifies criminalizing independent union political speech.

Maintaining restrictions on business express advocacy instead might require revisiting some very old constitutional doctrines that treat business corporations are "persons" with constitutional rights. Justice Sonia Sotomayor suggested as much at the argument, but that prospect seems remote. Meanwhile, imposing speech restrictions on businesses in order to enhance other political voices has been a constitutional non-starter since Buckley v. Valeo in 1976; even Austin rejected that notion, and the Government eschews it in Citizens United.

Plainly, then, the Court's rationale in Citizens United for upholding or overruling Austin (if it doesn't duck it entirely, another possibility) will be as, if not more, important than its immediate disposition of current electoral-speech restrictions. And, that ruling's implications for the constitutional future of politics and advocacy will merit as close consideration as its practical consequences for the intense election year that looms ahead.

[Image via [nati].]

According to one judge, "Thou shall not tweet," is a prohibition properly inferred from Federal Rule of Criminal Procedure 53. And this is not an unconstitutional violation of the First Amendment, the judge determined.

Here's Rule 53 in its entirety:

Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

District Judge Clay D. Land looked to Webster's Third New International Dictionary for the definition of "broadcast," which includes "casting or scattering in all directions" and "the act of making widely known."

Judge Land has yet to limit any ACS "broadcasts." Get the latest legal and policy news via Twitter from @ACSLaw.

(H/T: Volokh Conspiracy.)

"God bless America!" That's all I could think to say when I heard the story of Pennsylvania State Representative Daryl Metcalfe, a veteran of the U.S. Army who last week branded as traitors anyone with the temerity to disagree with him on policy. I sought God's blessings as a plea for divine intervention to save us from our worst-selves.

The email from Representative Metcalfe has been circling the Internet since he sent it. It is breathtaking. At once he dismisses climate change as nothing more than "leftist propaganda." Then he asserts that any veteran advocating action on climate change is "a traitor. . . . " He then goes on to remind readers that Benedict Arnold-the Revolutionary War general who sought to betray West Point to the British-was a veteran too.

I'm assuming that Mr. Metcalf is talking about the kind of treachery obvious in quotes like this:

By increasing our American energy supply and decreasing the long term demand for oil, we will be well positioned to address the challenge of climate change and continue our longstanding responsibility for stewardship over the environment.

Or maybe it's this:

The same human economic activity that has brought freedom and opportunity
to billions has also increased the amount of carbon in the atmosphere.

Or maybe it's this:

. . . Common sense dictates that the United States should take measured and reasonable steps today to reduce any impact on the environment. Those steps, if consistent with our global competitiveness will also be good for our national security, our energy independence, and our economy.

I can understand why Mr. Metcalf would want to expose the purveyors of this kind of "leftist propaganda." So let's expose them right here-on this blog. The propagandists who cobbled together the above are none other than the Republican National Committee. (See page 35 to be precise.)

So let's take this head-on. Climate change or global warming is real. Mankind is contributing to it significantly. The consensus of the scientific community is overwhelming in this regard. Even Mr. Metcalfe's fellow Republicans concede the reality of climate change.

Furthermore, the impacts of climate change will be felt around the world and in the United States as well. Lives, property, economies, and the stability of governments are at stake making this worthy of consideration as a national security issue. (For more on the national security consequences of climate change, please visit Secure American Future.)

My heart breaks, and my concern for the republic grows, however, every time a Representative Daryl Metcalf demonizes someone for disagreeing with him about a policy. The veterans he maligned and insulted are not traitors. They are patriots whose love of country led them to serve America in harm's way. They happen to disagree with him on a major issue. That's fine. But our democracy works not because we all agree-but because throughout our history we have confronted epic challenges with resilience and a spirit that we are all in this together.

Frankly, when I read the 2008 Republican Party Platform, I see that same spirit on the issue of climate change. Apparently Mr. Metcalf sees something treasonous.

I run a think-tank -- the American Security Project -- that tries to forge a bipartisan consensus on complex issues. A year ago, we did just that on climate change in a report titled, A New American Arsenal. Our board concluded:

Changes to the Earth's climate pose a threat to humanity on an epic scale. Climate change, unabated, has the potential to alter the Earth's topography; turn currently productive farmland into arid wastelands; expand the areas of the globe affected by tropical diseases; and displace hundreds of millions of people globally due to rising sea levels or extreme water shortages. It is difficult to overestimate the potential impact of climate change on this country's national security posture.

This was not a one-and-done kind of exercise. Republicans, Democrats, and retired military officers met and, in good faith, negotiated a document that reflected their concerns-both over the threat posed by climate change and the appropriate response.

I don't believe anyone got exactly what they wanted out of that exercise-but I am confident that the document they drafted will stand the test of time because it avoided excesses, because it avoided insults, and because it rested on reason and science.

I've never met Representative Metcalfe. I don't know if he simply seeks attention, has a tough political fight in front of him, or was simply having a bad day. But I do know that when he stoops to calling people with a different point of view "traitors" and "Benedict Arnolds," then he weakens our democracy and cheapens the debate.

The issues we face are serious. They require serious debate. And people of good-will will disagree. That is the genius of our system. But let's make sure the debate remains full of good-will, not name calling. There's simply too much at stake.