Category Archives: Constitution

A new political era…

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The recent events surrounding Rush Limbaugh’s “phony soldiers” comment have caught my particular attention this week. For those of you who are unaware, Rush Limbaugh recently said two words, “phony soldiers”, in passing, to a caller in response to a discussion about soldiers who lie about their service for either personal or partisan advantage.  He immediately followed up the phone call about on particular phony soldier, Jessie MacBeth, who’s lies about American atrocities in Iraq have been damaging our reputation in the middle east. However you choose to classify this short comment… a segway or a generalization about lying soldiers… whatever you want to call it… it certainly NOT what some have chosen to describe as an attack on all soldiers who disagree with the war. It was at most an accurate description of soldiers who lie about atrocities they never saw … while claiming to be soldiers they never were. If there is a more accurate label to describe this kind of a person, I am not aware of it.

Within days, MediaMatters.org , a liberal, media-watchgroup funded by Hillary Clinton, picked up on those words and picked up this statement and ran with it, claiming that he “called service members who advocate U.S. withdrawal from Iraq phony soldiers.” — an obvious misrepresentation.

Within days, (and without bothering to check his facts) Senate Majority Leader Harry Reid went before the floor of the Senate and called on Limbaugh to apologize for his 2 words.

REID: That’s why Rush Limbaugh’s recent characterization of troops who oppose the war as “phony soldiers” is an outrage. Our troops are fighting and dying to bring to others the freedoms that many take for granted. It is unconscionable that Mr. Limbaugh would criticize them for exercising the fundamental American right to free speech. We call on you to publicly repudiate these comments that call into question their service and sacrifice and ask Mr. Limbaugh to apologize for his comments.

Mr. Reid, who daily makes it is mission to undermine the success of our troops is trying to use the power of his elected office to silence via intimidation a public media figure by selectively pulling two words of a much larger conversation out of context and imposing his own interpretation on them.  He is claiming that Mr. Limbaugh (a host who expresses deep gratitude to every military figure who calls in to his show) is now being unsupportive of the troops because he called soldiers who lie “phony”. How ironic; the man who threatens anyone who challenged his patriotism is now challenging Mr. Limbaugh’s…. patriotism. Quite the double-standard.

And if this were not enough, Mr. Reid sent a letter to the CEO of Clear Channel Communications which calls on him to “publicly repudiate these comments that call into question their service and sacrifice and ask Mr. Limbaugh to apologize for his comments.” I’m sorry, but if this is not Government surpression of free speech, I don’t know what is. He is trying to use political force to frighten a private entity from expressing opinions (which he has to fabricate) that he disagrees with. It is clear that Mr. Reid is reverting to personal attacks on his political opponents in order to divert attention from his shameful record as leader of the Senate. His incredibly low approval rating and his failure to end the Iraq war…despite his own promises that it would end under his leadership… amount to nothing more than a record of incompetence.

Allow me to ask my liberal friends a question. Is this the kind of people you want running our country? Politicians who will slander private citizens for personal interests; politicians who use their coercive power to silence speech they disagree with; politicians on whom facts have so little impact? I hope not. Can you imagine the outrage if BUSH tried to attack Democrats for not supporting the troops? Can you imagine the hell that would ensue? How is it that such acts are acceptable… if coming from the mouths of Democrats and not Republicans? Is this not a horrible double-standard?

“Popular Democracy and Judicial Review”

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I just finished listening to a really great podast compliments of the official Stanford podcast (side note: I highly recommend adding this to your itunes podcast selection for the content quality and variety alone).

The speaker was Larry D. Kramer and he was speaking about his new book, “Popular Constitutionalism“. The basic thrust of his book is that the constitution’s interpretation should be left to the legislative and executive branches–or, at the very least, not so dependent on the unquestionable “final say” of the judicial branch.

In fact, he makes some great points:

1) The Revolutionary War (and, more broadly, the reason for America’s division from Great Britian was actually a dispute about the failure of the British government to uphold the BRITISH constitution–one that guarenteed rights of representation which the colonists were not able to exercise.

2) After having a war fought for the right of self-determination, would the founding fathers suddenly be willing to give up that right to a handful of unaccountable, unelected judges?

3) The Supreme Court was never intended to be the final arbitrar of CONSTITUTIONAL RIGHTS… it was not until Marbury v. Madison that the Supreme court took on this role. On a broader level, the courts were only to be one voice in a loud chorus of voices that debated the constitutionality of laws.

After listening to his speech, I must admit I felt challenged in my “originalist” tendencies. It seems that originalism isn’t necessary a very “originalist” method of constitutional interpretation. Nevertheless, we can’t pretend that ‘populist’ interpretation can co-exist with an entrenched judiciary that still commands absolute fealty when determining constitutionality.

I don’t have hours to touch-up this post and fully develop many of these thoughts… but hey, that’s what the comments section is for!

The Commercial Speech Doctrine – Past and Future.

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Commercial speech has been uniquely categorized in American law. In fact, this process of splitting speech into various categories has been a hallmark of American Constitutional jurisprudence. Pulling from both British common law and more modern doctrines, the Supreme Court has established a rather complex hierarchy of under-protected categories of speech. As a result, commercial speech has been subject to a much greater amount of regulation than its more-protected forms. This essay examines the doctrine’s foundation and also its future in light of more recent cases.

Our first inquiry is what is meant by the term “Commercial Speech”? The doctrine, as we are familiar with today, originated with Central Hudson v. Public service Commission of New York. The issue in this case was whether the state could constitutionally prohibit Central Hudson (an electric-company) from advertising the use of electricity in an attempt to curb energy usage. Much of the debate in revolved around the economic interests of the state of New York in maintaining the supply of electricity for its citizens. In order to protect supply (and by extension, the interests of the public at large), the city had created a restriction on Hudson’s ability to advertise energy use. The state’s economic interests were considered substantial enough to warrant the suppression of Central Hudson’s First Amendment protections.

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Concurrence to Red Lion… if I were writing it.

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In this case, I concur with the majority in result, but would rather decide the case on less questionable grounds.

I concur with the majority on the issues of spectrum scarcity and licensing. It is clear that the F.C.C. must allocate frequencies if the broadcast media is to exist in the form in which we have become accustomed. The public nature of the airwaves necessitates a licensing scheme in order for the available frequencies to be allocated in a market competing for those frequencies. Furthermore, there is no compelling reason why government licensing of airwaves should be any different than its involvement in many other marketplace where resources are scarce. In fact, were it not for the failure of the private sector to divide up the broadcast spectrum, government regulation would not have been necessary. The right of any party to use the airwaves should be looked at with no more or less favor than the rights of someone to pollute a stream or river; government regulation is needed in both instances in order to allow the most people to have the most access.

In addressing the issues arising from technological advances in distribution and digital compression, the majority correctly reasoned that the mere lack of a current demand for every available frequency neither negates the possibility that those frequencies could be filled nor solves the problem of frequency allocation. Licensing is still required to prevent spectrum “overlap”, regardless of total availability. We are increasingly becoming a media-centric society; to assume that demand will never outpace supply is, in my opinion, shortsighted.

It is after this point that I disagree with the majority’s reasoning, and concur in outcome only. It seems clear that Red Lion does not have a cause of action, given the nature of its broadcast license. I find no reason why, given the F.C.C’s authority to limit spectrum use, it may not also create time limitations on the use of of the spectrums in question. Red Lion’s argument seems to imply that they have a constitutional right to 24 hour control over the content broadcast over their frequency for the duration of their license term. I find no reason to conclude that the license granted by the F.C.C. confers this privilege.

If the broadcast license granted by the F.C.C. granted a complete bundle of rights, then Red Lion would have standing because the government would be forcing them to publish a particular viewpoint. This court held, in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, that the freedom of the press was bound by 2 things: a sufficient number of readers, and the journalistic integrity of its editors and publishers. Again, in Tornillo, we held that, “The choice of material to go into a newspaper… and treatment of public issues and public official–whether fair or unfair–constitute the exercise of editorial control and judgment.” I see no reason to alter our holdings in either case.
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“off the gutter and into the sewer”

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You know, sometimes the utter ignorance of our members of congress is stunning. I just read on Yahoo News that Nancy Pelosi, House majority leader said,

“I do believe that Congress should assert itself, though, and make it very clear that there is no previous authority for the president, any president, to go into Iran.”

Shocking. Nancy Pelosi has obviously never read Article II of the United States Constitution where it says, “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States”. Its not as if there is some difficult question of interpretation here; the commander of the United States military requires no outside authority by which his acts are “authorized”. It is his, and his decision alone whether or not to use military force. Period.

But as if this weren’t enough, the democrats have decided not to defund the Iraqwar–and I realize this is somewhat of a digression.?Ǭ† Being the spineless cowards they are, they have decided to “force a slow end” to the war instead of de-funding it outright.

As described by participants, the goal is crafted to circumvent the biggest political vulnerability of the anti-war movement — the accusation that it is willing to abandon troops in the field. That fear is why many Democrats have remained timid in challenging Bush, even as public support for the president and his Iraq policies have plunged.

So basically, in order to obviate themselves of any responsibility for the negative consequences of leaving Iraq, they will force bush to choose between a failed Iraq and the sacrifice more American troops without any certainty they will be able to finish the job after his term is over. This essentially forces Bush to both impliment the democrat’s policy, and yet still take responsibility for any outcomes that may ensue (which cannot possibly be good). They, of course, would risk too much politically if their decision to pull out of Iraq causes another terrorist attack… so this is the way to wash their hands of any responsibility for their policies. As one of my favorite editors at the Wall Street Journal said in a recent email column,

So the idea is to keep the troops in harm’s way but take all steps possible to prevent them from prevailing, in the hope that the Democrats will benefit politically from American defeat.

It’s sickening… This entire Iraq issue has turned into nothing more than a partisan battle to win political power at home and ruin the presidency of their opponent–all the while letting our men and women die to ensure this end is reached. As Hitchens would say, they’ve fallen off the gutter into the sewer.

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update: the Wall Street Journal Editorial Page
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The motion at issue is plainly dishonest, in that exquisitely Congressional way of trying to have it both ways. (We reprint the text nearby.) The resolution purports to “support” the troops even as it disapproves of their mission. It praises their “bravery,” while opposing the additional forces that both President Bush and General David Petreaus, the new commanding general in Iraq, say are vital to accomplishing that mission. And it claims to want to “protect” the troops even as its practical impact will be to encourage Iraqi insurgents to believe that every roadside bomb brings them closer to their goal.

Two competing sets of values…

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The Supreme CourtIn my mass media class we discussed the seeming contradiction in two supreme court decisions: Tornillo and Red Lion. In Tornillo, the Miami Herald was challenging a state statute granting a political candidate the right to reply to any criticism by a newspaper. Allow me to quote the relevant passages…

we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views [in newspapers]

The Power of a privately owned newspaper to advance its own political , social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers … and second, the journalistic integrity of its editors and publishers.

a newspaper or magazine is not a public utility subject to “reasonable” governmental regulation … we prefer “the power of reason as aplied through public discussion” and remain intensely skeptical about those measures that would allow government to insulate itself into the editorial rooms of this Nation’s press.

As my instructor continually reminds us, if you know the values the Judge finds important, you can almost always predict the outcome of the case. Here, it is clear that three values influence the justices’ decisions: editorial autonomy, the unregulated marketplace of ideas, and limited government power. These values cause the court to find in favor of the newspaper instead of the government. Now compare this to the Red Lion case involving BROADCAST MEDIA…

Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the government limit the use of broadcast equipment. The [right of a broadcaster] does not embrace a right to snuff out the free speech of others.

There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community…

There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all…

Now, how does one reconcile these two cases? Is not editorial autonomy in direct competition with the unlimited private censorship of speech? How can one protect against the private censorship of speech and yet protect the editorial judgment of private newspapers at the same time?

Fortunately, the Supreme Court is not the final arbiter of truth, and its not the end of the world if their cases contradict… but one wonders what rationale is available to explain such a seeming contradiction. Does the limited nature of the broadcast spectrum warrant government protections for the fair use–just as it may restrict an electric company who monopolizes a limited electric network? What are the values espoused in the Red Lion case? Equality of opportunity for speech? Efficient use of a scarce resource? Fairness? A Complete public debate??? Should those values win in the end?

I really don’t have answers, just more questions…

“Judicial Independence”

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Sandra Day O'ConnorI’ve been contemplating this blog for over a year now… and in that time, I’ve collected a number of articles I wanted to specifically comment on. One of them was an op-ed by former Supreme Court Justice Sandra Day O’Connor titled “The Threat to Judicial Independence”.

This article was written in response to a number of proposed state amendments–at least one of which was named “JAIL 4 Judges”–which would allow special grand juries from ‘censuring’ judges for unpopular decisions. The text of the proposed Amendment is not really important for our purposes, it is sufficient to say the article was focused on threats to judicial independence generally; the proposed amendment was simply a good reason for the Wall Street Journal to publish an article on the topic.

A number of things struck me about the article. First, to lay a groundwork, O’Connor warns that,

We must be more vigilant in making sure that criticism does not cross over into intimidation… Judges who are afraid–whether [for their] jobs or fear for their lives–cannot adequately fulfill the considerable responsibilities that the position demands.

Examples of this “intimidation” include, but are not limited to,

Measures that would forbid judges from citing foreign law when they are interpreting the Constitution… the proposed creation of an inspector general to investigate and monitor the federal bench… [and] legislation [that] would prohibit the Supreme Court from considering whether the Pledge of Allegiance’s inclusion of the words “under God” violates the First Amendment…

Perhaps I’m missing something but what is so wrong with congressional oversight? Isn’t congressional oversight what allows Supreme Court Justices to be confirmed? Is not impeachment the ultimate congressional veto? What would be SOO wrong with this? I think it could be reasonably argued that Congress’ hesitance to play the impeachment card warrants a new and more tangible form of oversight? Perhaps.

Next, what is so “intimidating” about limiting the Jurisdiction of the Federal Courts? Is this not a power the Constitution expressly reserves to Congress? Does O’Connor mean to imply that the Constitution is “intimidating”? I hope you can sense my disbelief.

Regarding the foreign law, I am inclined to take issue with her, but perhaps this post is not the best opportunity for such a discussion.

Why the courts should be immune from “intimidation” or “criticism” is beyond me. Intimidation does not occur because of a critic’s veracity but results from the insecurity of the accused. O’Connor’s concerns that the lives of Justices will be threatened is, in my opinion, completely unwarranted. In fact, as a causal observer, it almost looks as if she is using that hypothetical to instill fear and intimidation into voters minds… as if voting for one of these proposed amendments will lead to judicial assassinations or some other evil.

Judicial criticism is not something to be feared, but something to be practiced in a democratic society.

is the press “free”?

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What exactly does the “of the press” clause in the 1st Amendment mean? Does it contain within it a separate bundle of rights in addition to those given to individuals or does it simply delimit oral and written speech as two categories of speech that get protection?

“Congress shall make no law … abridging the freedom of speech or of the press”

As I was in my mass media class today, the question was raised “why is it OK for the press to publish illegally obtained information about a politition but a politician cannot release illegally aquired info about an equally juicy story involving a reporter–especially if say, a reporter was taking money from a politician’s rival”. While we haven’t yet discussed current court precedent in this area, I still think it is a fascinating question… and If I had to take a position on the matter today, I’d be inclined to say that “the media” (which is nothing more than a business, after all) should not be entitled to any more protection than your average citizen simply because they wear a “press badge”.
If you have a more (or less.. I’m not picky) educated opinion on the matter, feel free to post to the message boards!