Matt Taibbi has bad news for Americans who still care about Free Speech and the open exchange of opinions.
When Columbia law professor Timothy Wu was appointed by Joe Biden to the National Economic Council a few weeks back, the press hailed it as great news for progressives. The author of The Curse of Bigness: Antitrust in the New Gilded Age is known as a staunch advocate of antitrust enforcement, and Biden’s choice of him, along with the appointment of Lina Khan to the Federal Trade Commission, was widely seen as a signal that the new administration was assembling what Wired called an “antitrust all-star team.”
“Big Tech critic Tim Wu joins Biden administration to work on competition policy,” boomed CNBC, while Marketwatch added, “Anti-Big Tech crusader reportedly poised to join Biden White House.” Chicago law professor Eric Posner’s piece for Project Syndicate was titled “Antitrust is Back in America.” Posner noted Wu’s appointment comes as Senator Amy Klobuchar has introduced regulatory legislation that ostensibly targets companies like Facebook and Google, which a House committee last year concluded have accrued “monopoly power.”
Wu’s appointment may presage tougher enforcement of tech firms. However, he has other passions that got less ink. Specifically, Wu — who introduced the concept of “net neutrality” and once explained it to Stephen Colbert on a roller coaster — is among the intellectual leaders of a growing movement in Democratic circles to scale back the First Amendment. He wrote an influential September, 2017 article called “Is the First Amendment Obsolete?” that argues traditional speech freedoms need to be rethought in the Internet/Trump era. …
Listening to Wu… is confusing. He calls himself a “devotee” of the great Louis Brandeis, speaking with reverence about his ideas and those of other famed judicial speech champions like Learned Hand and Oliver Wendell Holmes. In the Aspen speech above, he went so far as to say about First Amendment protections that “these old opinions are so great, it’s like watching The Godfather, you can’t imagine anything could be better.”
If you hear a “but…” coming in his rhetoric, you guessed right. He does imagine something better. The Cliff’s Notes version of Wu’s thesis:
— The framers wrote the Bill of Rights in an atmosphere where speech was expensive and rare. The Internet made speech cheap, and human attention rare. Speech-hostile societies like Russia and China have already shown how to capitalize on this “cheap speech” era, eschewing censorship and bans in favor of “flooding” the Internet with pro-government propaganda.
— As a result, those who place faith in the First Amendment to solve speech dilemmas should “admit defeat” and imagine new solutions for repelling foreign propaganda, fake news, and other problems. “In some cases,” Wu writes, “this could mean that the First Amendment must broaden its own reach to encompass new techniques of speech control.” What might that look like? He writes, without irony: “I think the elected branches should be allowed, within reasonable limits, to try returning the country to the kind of media environment that prevailed in the 1950s.”
— More ominously, Wu suggests that in modern times, the government may be more of a bystander to a problem in which private platforms play the largest roles. Therefore, a potential solution (emphasis mine) “boils down to asking whether these platforms should adopt (or be forced to adopt) norms and policies traditionally associated with twentieth-century journalism.”
That last line is what should make speech advocates worry.
The kind of media environment favored by Wu (and other radical leftists) “that prevailed in the 1950s” is a regulated monopoly of three network sources all in complete agreement on the Overton Window, the range of acceptable political discourse, i.e. No Rush Limbaugh, no Fox News, no right-wing blogs.
The Confederate Flag is a popular graphic icon in America, North and South, East and West. It is historically associated with the Civil War, of course, being the Battle Flag of the Army of Northern Virginia and all that, but actually its contemporary display usually has only the dimmest possible connection to the War for Southern Independence.
The Confederate flag has genuine Confederate associations when used to decorate graves in Civil War cemeteries or when displayed at war memorials, but such cases represent only a tiny minority of instances of its appearance.
One sees the Confederate flag much more commonly on cars, pick-up trucks, tractors, ATVs, and motorcycles, on key-rings, sports team mascots, lunchboxes, and on souvenir coffee cups, and every variety of tourist kitsch.
Left-wing hysterics are presently screaming that Confederate flag must be taken to symbolize the “malignant spirit” of slavery and white supremacy, but this is all a bunch of entirely subjective nonsense really represent their own personal demons, hatreds, and obsessions.
The Confederate flag is almost always seen today simply as an attractive graphic device taken by popular culture as a symbolic expression of a generalized Southern or Appalachian, or even merely rural, regional identity, or as a symbol of some kind of elusive and indefinable spirit of masculine rebelliousness. The Confederate flag is about as popular in rural Oregon and Pennsylvania as it is in Alabama. West Virginia came into being as separate state because the residents of Virginia’s Western mountains were Unionist and against Secession, but West Virginians happily display Confederate flags as regional (and class) identity symbols.
The Confederate flag, as near as I can tell, has today far more intense and intimate associations with a passion for the internal combustion engine than it does with States’ Rights. All the talk about black people recoiling from Confederate flags, like vampires from crucifixes, is simply a very recent activist invention.
If you want to read a bunch of complete malarkey and poppycock served up as agitprop by a hate-filled American Studies professor from the University of Massachusetts at Amherst, try this bunch of dreck out of Salon. Its author, Nick Bromell, wants to repeal the First Amendment and make any display whatever punishable as a hate crime.
These people like playing a seriously nasty game. The way it works is your race-baiting agitator, democrat pol, or radical leftist prof gets to define what you mean when you display a symbol. His interpretation is lurid, colorful, and spectacularly uncomplimentary. When you put that Confederate flag on the side of your Harley, you meant to say that you are some kind of a rebel. But Professor Bromell and Congressman John Lewis and Al Sharpton will jump in, and put words in your mouth for you. According to them, you are saying: “I hate black people. I want to restore Slavery.”
These left-wing troublemakers are not just having fun at your expense either. Their game is serious. They are angling for power. If they can define what you mean by your symbols, then they hope they can ban them, and along with them any and all of your beliefs and ideas that they don’t like.
First the liberal elites represented by the Kos himself and PBS anchor Glenn Ifill gleefully pounced on that bone-headed Sarah Palin for a tweet warning conservatives to continue working to win the upcoming election rather than partying “like its 1773.”
Obviously, thought the great big leftwing brains, she must mean 1776. After all, nothing of any significance happened in 1773. (Except the original Boston Tea Party, of course.)
Then, as William Jacobsen describes, liberal America was laughing itself sick over Christine O’Donnell ‘s ignorance of the First Amendment’s wall of separation between church and state.
[At] Widener Law School …as soon as O’Donnell questioned whether “separation of church and state” was in the First Amendment, the crowd erupted with gasps of disbelief and mocking laughter.
And if O’Donnell’s imperfect — or perhaps nuanced? — understanding of the First Amendment w[as] so outrageous, how about the inability of Chris Coons, a Yale Law School graduate, to identify the other freedoms protected by the First Amendment, and his misquoting the text of the First Amendment in his challenge to O’Donnell:
“Government shall make no establishment of religion,” Coons responded, reciting from memory the First Amendment to the U.S. Constitution. (Coons was off slightly: The first amendment actually reads “Congress shall make no law respecting an establishment of religion.”)
Ann Althouse has more on how Coons simply was wrong in his quotation of the First Amendment which led to O’Donnell’s supposed major gaffe about the Establishment Clause, and how the press has taken O’Donnell’s comments out of context:
O’Donnell reacts: “That’s in the First Amendment?” And, in fact, it’s not. The First Amendment doesn’t say “government.” It says “Congress.” And since the discussion is about what local school boards can do, the difference is highly significant.
Also, it isn’t “shall make no establishment of religion.” It’s “shall make no law respecting an establishment of religion.” There’s a lot one could say about the difference between those 2 phrases, and I won’t belabor it here. Suffice it to say that it was not stupid for O’Donnell to say “That’s in the First Amendment?” â€” because it’s not. Coons was presenting a version of what’s in the cases interpreting the text, not the text itself.
A literal reading of O’Donnell’s comments reflects that she was correct, but of course, the press and the blogosphere don’t want a literal reading, they want a living, breathing reading which comports with their preconceived notions.
In an age of an increasingly sophisticated public in which alternative information channels, like Fox News, AM talk radio, and the blogosphere exist, it is becoming more and more difficult to succeed in winning debates on the basis of crude sloganeering and oversimplification of complex issues and the leftwing mob winds up looking stupider and stupider when it tries relying on its traditional tactics.
Mr. Obama noted that as Solicitor General her “passion for the law” had led her make this year’s landmark campaign finance case, Citizens United v. FEC, her first argument before the Supreme Court.
“Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case,” Mr. Obama said, Elena Kagan took it on bravely. “I think it says a great deal about her commitment to protect our fundamental rights,” he continued, “because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was â€œnot sympatheticâ€ toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol. …
The manâ€™s â€œsole contention is that the District of Columbiaâ€™s firearms statutes violate his constitutional right to â€˜keep and bear arms,â€™â€ Kagan wrote. â€œIâ€™m not sympathetic.â€
But her recently unearthed college thesis shows that she once thought a lot more highly of socialism.
In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness.
Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties? Through its own internal feuding, then, the SP [Socialist Party] exhausted itself…
The story is a sad a but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. … In unity lies their only hope.”
Kenneth Vogel, at the Politico, notes that Sonia Sotomayor is burdened by a prominent record of hostility toward First Amendment campaign speech rights.
Sonia Sotomayor may not have a long paper trail on hot button social issues, but in one area of the lawâ€”campaign financeâ€”she has staked a position that could have far-reaching political consequences.
The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.
â€œThere hasnâ€™t been one with as vigorously expressed policy views on campaign finance as this one that I am aware of, and Iâ€™ve been pretty aware for a number of years,â€ said James Bopp, a leading conservative attorney who has won four Supreme Court cases challenging campaign finance regulations.
â€œI canâ€™t think of anybody who has had such a track record,â€ said Bob Stern, president of the Center for Governmental Studies and a follower of battles on the issue since the early 1970s. â€œThere are clearly going to be cases coming before the court that will be challenges to the law, and there will be some very important cases.â€
Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implementâ€”enthusiastically, according to her cohortsâ€”one of the most comprehensive campaign finance laws in the country.
In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and â€œbribes,â€ calling on Congress to overhaul campaign finance laws â€“ including suggesting public financing of its own elections â€“ and blasting the Federal Election Commission for not enforcing existing laws.
â€œThe continued failure to do this has greatly damaged public trust in officials and exacerbated the public’s sense that no higher morality is in place by which public officials measure their conduct,â€ she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.
On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending â€“ a law that the Supreme Court later overturned as a First Amendment violation.
The same James Bopp, Jr. mentioned in passing in Politico, who practices law in Terre Haute, Indiana with the firm of Bopp, Coleson & Bostrom, yesterday in the Election-Law listserv, discussed Sotomayor’s 1996 law review article and found her philosophy disturbing.
In 1996, the Suffolk University Law Review published Returning Majesty to the Law and Politics: A Modern Approach, by Supreme Court nominee Sonia Sotomayor. This article touches on her legal philosophy in general, as well as her understanding of the First Amendment in particular. The views expressed in this article are troubling, and should give all Americans pause.
Judge Sotomayor writes, â€œThe law … is uncertain and responds to changing circumstances.â€ It is true that some development in the law takes place as new circumstances arise. For instance, courts today are working out the contours of â€˜cyber-lawâ€™â€”a concept that was unheard of a mere thirty years ago. With the proliferation of personal computers and the Internet, however, cyber-law is now a rapidly developing body of law. Some of the old rules regarding the formation of contracts have had to be re-considered to take into account e-transactions. And laws regulating what can, and cannot, be posted on the Internet have had to be evaluated in light of First Amendment protections.
To say that the law develops as new situations arise, however, is far different than what Sotomayor is saying. She calls it a â€œpublic mythâ€ that law can be stable, or provide predictable results. Instead, she suggests that the law is in such a constant state of flux that one can never be sure what the law is, or what oneâ€™s rights or obligations under it are. What we have, she writes, is an â€œunpredictable system of justice.â€ And she believes this â€œcontinually evolving legal structureâ€ which leads to what she calls â€œthe uncertainty of lawâ€ is a good thing for society.
This is a wrong understanding of the role and function of law in our society. Law is not to be uncertain and arbitrary. Rather, it is to provide rules that all must live by, and guidance whereby we can structure our lives. Sotomayorâ€™s position, though, is that such certainty is a bad thing, and uncertainty in the law is the desired result.
This philosophy opens the door for Sotomayor, and judges who believe similarly, to avoid following what the law actually says. It allows them to place â€œempathyâ€ above impartiality. After all, if the law is uncertain and constantly changing, why shouldnâ€™t a judge rule in favor of the party that she likes best or agrees with most? Sotomayorâ€™s philosophy facilitates the type of judicial activism and legislation from the bench that decides cases according to what the judges personally believe should be the correct result, instead of what the law actually says should be the correct result. It also destroys any confidence Americans might have in the lawâ€™s fairness, if judges are free to make rulings which go against what the law says in order to benefit parties they like or agree with.
Perhaps nowhere is Judge Sotomayorâ€™s problematic philosophy better illustrated than in her approach to campaign finance law. In Returning Majesty to Law and Politics, she compares restrictions on the fundamental First Amendment right of citizens to engage in political speech and association by making contributions to candidates, with restrictions on gift-giving to politicians. Because gift-giving can be restricted, she seems to say, contributions should be restricted, too. She suggests that both gifts and contributions can function as bribes, and seems to be open to the elimination of what she terms â€œprivate moneyâ€ from politics.
The problem with that reasoning, of course, is that there is a difference of constitutional magnitude between buying lunch for a bureaucrat and making of a political contribution to a candidate. The Founders thought that the right of Americans to engage in political speech and association was so important that they enshrined it in the First Amendment to the Constitution and the First Amendment protect campaign contributions.
Our Constitution, including the First Amendment, should not be regarded as evolving. Rather, it should be understood as a constant guarantee: It is a contract between the previous generation of Americans and this one, and between this generation of Americans and the next one. It assures us, and each succeeding generation of Americans, of the nature of the Republic and our rights within it. And so, our freedom to engage in political speech and association guaranteed by the First Amendmentâ€”including our right to make contributions to the candidates whose message we agree withâ€”should be absolute. It should not be subject to the whim of a judge who believes that the law is uncertain and constantly evolving.
Judge Sotomayor, however, appears to disagree. While her thoughts regarding campaign contributions are difficult to discern from her law review article, they are more clear in a decision she signed onto in 2005. This case, known as Randall v. Sorrell when it was before the Second Circuit Court of Appeals, involved a challenge to Vermontâ€™s contribution and expenditure limits. A three-judge panel of the Second Circuit upheld the district courtâ€™s decision that the contribution limits were constitutional, but determined that the case should be remanded to the district court for reconsideration of the expenditure limits. The plaintiffs in that case asked for the full Second Circuit to rehear the case, and the Second Circuit denied that rehearing. (The plaintiffs would eventually win in 2006 at the Supreme Court when, in Randall v. Sorrell, the Court held that both the contribution and expenditure limits were unconstitutional).
Judge Sotomayor signed onto an opinion written by two other judges which concurred in the decision to deny rehearing. This opinion which she signed began by noting that the question before the Court involving whether the plaintiffsâ€™ First Amendment rights were being trampled was not important enough to justify rehearing the case. Instead, the judges noted that disputes which are highly political or partisan should not be addressed by the courts.
Thereâ€™s just one little problem with that: If the Court will not vindicate our First Amendment rights, who will? Judge Sotomayor is correct when she observes that campaign finance is partisan and politicized. Incumbents frequently enact campaign finance laws in order to protect themselves, and if they can do so in a way that benefits their political party, so much the better. Far from providing that the courts be reluctant to involve themselves in such matters, the Founders envisioned a vigorous role for the courts in upholding First Amendment freedoms.
A judge who sees the law as constantly changing and evolving, however, feels more free to refuse to vindicate Americansâ€™ rights when she personally does not think that Americans should have them. So, since Sotomayor is of the opinion that severe restrictions (or, even the elimination) on private money in politics is acceptable, she did not feel the need to consider the plaintiffsâ€™ First Amendment rights in Randall.
Such a judicial philosophy is troubling. It places all Americansâ€™ rights at risk. Judge Sotomayor should be questioned on this extensively, and should not be confirmed if this is really her view.