The Left's War on the First Amendment - Part I

The Left's War on the 1st Amendment, Part 1

During President Obama's eight years, his left-leaning administration made at least three serious efforts to undermine the First Amendment's guarantee of free speech.

Two were unsuccessful. The third, for a critical time, succeeded.

In January 2008, Citizens United released a 90-minute documentary, "Hillary: The Movie," about

Mrs. Clinton, who then was a candidate in the 2008 Democrat Presidential primary. The film featured interviews -- mostly critical -- with political commentators and others.

It was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video on-demand within 30 days of the 2008 primary elections. Fearing it would be prosecuted for violation of the Bipartisan Campaign Reform Act of 2002, it sued to have the act declared unconstitutional.

In the 2010 Citizens United decision, Justice Anthony Kennedy, for the majority, wrote, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

In Citizens United, the court overruled or distinguished its earlier decision which prohibited "corporations from using their general treasury funds to make independent expenditures for speech defined as an 'electioneering communication' or for speech expressly advocating the election or defeat of a candidate."

The BCRA had allowed such speech only out of "special funds" raised by "political action committees," and not within 30 days before a primary election.

President Obama denounced Citizens United, asserting that it:

A. Allowed corporations to make unlimited donations to candidates or political parties, and

B. Allowed foreign corporations the same rights as domestic corporations.

Mr. Obama knew better. 

In the court's own words, the only issue before the court was whether a corporation could use its "general treasury funds to make independent expenditures for speech defined as an 'electioneering communication' or for speech expressly advocating the election or defeat of a candidate."

And as regards "foreign corporations," the court specifically wrote, "We need not reach the question whether the government has a compelling interest in preventing foreign individuals or associations from influencing our Nation's political process."

In Citizens United, none of the parties were "foreign corporations."

Two years later, in 2012, in U.S. v. Alvarez , the Obama administration prosecuted a liar for falsely saying, "I was awarded the Congressional Medal of Honor. I got wounded many times." The government made no claim the liar lied for material gain, or to harm any person. The Obama administration prosecuted the liar for simply lying -- nothing more.

President Obama's Justice Department argued "that false statements have no value and hence no First Amendment protection." The court disagreed:

"Were the court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.

"Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home.

Had the court upheld the Obama administration's contention, Congress would have been green-lighted to criminalize parental lies to their children -- in the privacy of their own home: "Yes, Virginia, there is a Santa Claus," could carry a fine or jail time.

Then, of course, the third effort was the Obama administration's misuse of the IRS was to destroy the political effectiveness of the tea party groups. This was done by slow-walking or denying the requests of the groups for 501(c)(3) tax exempt status. Without the ability to receive tax-free donations, and without their donors receiving deductions for their donations, some 400 conservative organizations, representing tens of thousands of Americans, were gagged for the 2010 and 2012 elections.

In the words of Chief Justice John Marshall, "The power to tax is the power to destroy." The refusal to grant the tea party groups tax-free status also meant they had to pay taxes on any moneys they raised. The tactic worked. Tea Party groups were a non-factor in the 2012 presidential election.

President Trump's 2016 electoral victory removed power from the hands of the Democrats power to use the machinery of government to limit the speech of the conservative opposition. Now the battle to over free speech has moved from the White House, the IRS and the courts to the streets.

Posted: QCOline.com September 13, 2017
Copyright 2017, John Donald O'Shea

Corporate vs.Iindividual Speech, Part II

(Editor's note: This is the second of two parts examining the Supreme Court's Citizens United decision.)


              “The Democrats have the ultimate super PAC, it is called the mainstream media.”
                             -- Marco Rubio, CNBC Republican Debate, Oct. 28.

In Part I of this piece, I discussed what the U. S. Supreme Court in Citizens United said about the political speech rights of individuals vs. corporations. In Part II I discuss what the Court said about political speech rights of ordinary corporations vs. media corporations.
In the case, the court began by setting out the law:

"Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited -- and still does prohibit -- corporations and unions from using 'general treasury funds' to make (1) direct contributions to candidates, or (2) independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections."

BCRA amended federal law "to prohibit any electioneering communication' as well. ... An electioneering communication is ... 'any broadcast, cable, or satellite communication' that 'refers to a clearly identified candidate for Federal office' and is made within 30 days of a primary or 60 days of a general election."

In Citizens United, the court recognized that while ordinary corporations, large and small, were barred from political speech" while giant (as well as "small")  media corporations were universally recognized as possessing that right. NBC, CBS, ABC, CNN and the New York Times, etc., have it within their power to campaign day after day, right up to the day of the election, against McDonald's serving unhealthy fried foods, and to call for the passage of laws prohibiting the sale of Big Macs right up until election day. At the same time under the campaign reform act, as amended, the McDonald Corp. would face fines or imprisonment if it paid for ads on TV opposing the election of a candidate promising to implement the NY Times' views.

So, should media corporations have a monopoly on political speech, or should ordinary corporations and labor unions -- both of which are "associations of citizens" --- have the same right to protect and/or advance their interests?

Consider the following: On Oct. 28, CNBC "moderated" the third Republican debate.

Given the questions asked, I was expecting the moderators to eventually ask, "Why are you still beating your wife?" The questions themselves were either intended to assassinate the candidates (regardless of the answers given), or to cause Republican candidates to eviscerate each other, while keeping the moderators hands seemingly blood-free. Did you hear a single open-ended question such as, "How exactly are illegal immigrants harming the country?"

Under the BCRA, no ordinary corporation could expend its corporate funds to rebut the perceived harm done to its favorite candidate by the CNBC moderators.

What happened on CNBC conclusively demonstrates that every corporation and union -- that is, every "association of citizens" (including Republicans and Democrats associations ) has to have the same right to engage in political speech possessed by media corporations and conglomerates, and that Citizens United was providently decided.

The court in Citizens United saw that the BCRA "interferes with the 'open marketplace' of ideas protected by the First Amendment.... It permits the Government to ban the political speech of millions of associations of citizens. ... Most of these are small corporations without large amounts of wealth.

"By suppressing the speech of [many] corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of 'destroying the liberty' of some factions  is 'worse than the disease'” The Federalist No. 10, p. 130 (J. Madison). Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false."

In America  all individual and "associations of individuals" need to be able to engage in political speech. As stated in Part I, the Citizens United court did not create PACS. It merely struck down the provisions of the BCRA that gave a monopoly on political speech to the PACs and to the media corporation, so as to put all corporations, unions and PACs on equal footing.

In taking a second look at it, the Citizens United court saw the real and inherent danger in its earlier Austin decision. The court saw the lurking danger of the Austin holding to America's free press -- to its media corporations:

"The chilling endpoint of the [Austin] Court’s reasoning is not difficult to foresee: outright regulation of the press. ... Media corporations have 'immense aggregations of wealth,' and the views expressed by media corporations often have little or no correlation to the public’s support for those views. ... Thus, under the Government’s ['antidistortion'] reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment."

Simply put, if the political speech of some corporations can be barred, why not that of the media corporations?

Posted: Saturday, November 14, 2015 12:00 am. QCOnline.com

By John Donald O'Shea

Copyright 2015

John Donald O'Shea

Corporate vs. Individual Speech, Part I

(Editor's note: This is the first of  two-parts examining the Supreme Court's Citizens United decision.)


"An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment." 
                                       Justice Hugo Black, concurring opinion,  New York Times Co. v. U.S.

Bill Gates is a wealthy individual. His net worth was $79.2 billion as of Nov. 2. Gates can use his entire $79.2 billion, anytime and anywhere, to engage in political speech -- that is, to create political ads for or against causes and candidates. And if you and your friends disagree with what Gates is saying, you can pool your individual resources to engage in counter-speech. But could you set up a not-for-profit corporation and use its corporate funds to engage Gates in political speech?

Before, the U.S. Supreme Court decided the Citizens United case, the answer was an unequivocal "NO!" In the court's words, "Wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures. ... Yet certain disfavored associations of citizens -- those that have taken on the corporate form -- are penalized for engaging in the same political speech."

The court saw a problem with that because whatever else a corporation is, it is an "association of citizens." The Citizens United court then criticized its own earlier decision in the Austin Case.
"The Austin majority undertook to distinguish wealthy individuals from corporations on the ground that '[s]tate law grants corporations special advantages -- such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.' ... This does not suffice, however, to allow laws prohibiting speech. 'It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.'”

So, what associations of citizens do you think should be allowed to engage in political speech to influence elections in America? All associations? Or, only some associations? Should citizens who have associated to form National Rifle Association prohibited from expending NRA corporate funds (general treasury funds)  to create political ads to defeat a candidate who campaigns on a platform of abolishing the 2nd Amendment and confiscating all guns?

Should Planned Parenthood be prohibited from placing TV ads on behalf of pro-choice candidates? Should a movie maker be prohibited from showing his film on a cable channel if the film places the entire blame for the Benghazi fiasco on Hillary Clinton? Should the Catholic or Baptist churches be prohibited from airing on TV political ads supporting candidates who support traditional marriage, or oppose abortion?

All of these are associations of citizens, and all, because they were corporations, prior to the Citizens United decision of the U. S. Supreme Court, were barred, under the threat of criminal prosecution by the provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA), from using their corporate funds to engage in the sorts of political speech enumerated above.
That same BCRA, however, and not the Supreme Court, created what we have come to know in America as PACS -- political action committees. (Those who blame the court for creating them are simply uninformed and wrong.)

In the BCRA, Congress also forbade ordinary corporations (excluding media corporation) and labor unions from using their general treasury funds to engage in political speech for or against political causes and/or candidates, during certain time periods preceding primary and general elections (e.g., buy radio and TV ads, or make movies, etc.).

The BCRA, however, at the same time authorized corporations, unions and others to set up new entities -- PACs,  to use “separate segregated funds," and to raise and expend those funds to engage in political speech for or against the political causes and/or candidates, without any time constraints. That which was forbidden to corporations and unions, was permitted to the PACs.

But in the Citizens United decision of the U.S. Supreme Court, the court explained the problem of being required to set up PACs in order to engage in political speech.

"As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC [Federal Election Commission] enforcement must ask a governmental agency for prior permission to speak. ... These onerous restrictions thus function as the equivalent of 'prior restraint'  by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England -- laws and governmental practices of the sort that the First Amendment was drawn to prohibit."

Recent history shows that if the IRS can be used to silence tea party organizations who apply for tax-exempt status, there is no reason to believe that tea party organizations who ask the FEC to "speak" will receive any better treatment.

For those willing to take time to read  Citizens United, the issue is no more complicated than this:
If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.

Posted: Friday, November 13, 2015 12:00 am. QCOnline.com

By John Donald O'Shea  

Copyright 2015
John Donald O'Shea 

Religious 'Free Exercise" vs. Discrimination

What happens when one person’s First Amendment rights of freedom of religion, free speech or freedom of association run head-on into a second person’s First Amendment rights? Or when one person’s free exercise of religion results in discrimination against that second?

That is what the furor is over Indiana’s Religious Freedom Restoration Act (RFRA). The gay community fears that a business owner, operating a “place of public accommodations,” could as part of his right to freely exercise his religion, discriminate against a gay couple by refusing to cater the gay couple’s wedding. As such, the gay community and others have objected to the Indiana RFRA.

In enacting the federal RFRA, Congress recognized that laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.

It provided that “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the substantial burden to the person -- is in furtherance of a ‘compelling governmental interest;’ and is the ‘least restrictive means’ of furthering that compelling governmental interest.”

State RFRAs track federal law.

Unquestionably, the concern with discrimination is real. But protestors have selected the wrong target. The bottom line  is this: When the government legislates “in furtherance of a compelling governmental interest” (e.g., to outlaw “invidious discrimination”), if that legislation substantially burdens the free exercise of a person’s religion, the government must choose the “least restrictive means” of achieving its interest. But least restrictive, at least to me, presupposes an alternative. What if there is no “alternative”? In such a case, it seems the RFRA provides no guidance.

Assume, hypothetically, that the owner of a pizzaria in Nowheresville, Ind., believes gay marriage is sinful, and that in catering a gay wedding he would make himself complicit in sin. Can he be compelled to do so? If not, isn’t he discriminating against the couple? Is there a middle ground?

The U.S. Supreme Court case of Hurley v. Irish American Gay, Lesbian ... of Boston (1995) -- a rare unanimous Supreme Court opinion — probably provides the best answer that can be found.

In Hurley, the South Boston Allied War Veterans Council organized and conducted the annual St. Patrick’s Day Parade. In 1992 a number of gay, lesbian and bisexual descendants of Irish immigrants formed GLIB to march in the parade as a way to express pride in their Irish heritage as openly gay, lesbian and bisexual individuals. The council refused to admit GLIB. It sued and prevailed in all Massachusetts state courts.

“GLIB did not claim the council’s action amounted to ‘state action’ that denied them ‘equal protection of the laws’ in violation of the 14th Amendment.”

In that regard, the Supreme Court noted, “the guarantees of free speech and equal protection guard only against encroachment by the government” and “erect no shield against merely private conduct.”

The court then explained how 1st Amendment rights of the participants are implicated by a parade.

“Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches.

“Our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so) ... wearing an arm band to protest a war ... displaying a red flag ...  and even ‘marching, walking or parading’ in uniforms displaying the swastika.”

The court then acknowledged the state’s competing interest in preventing discrimination.

“The Massachusetts public accommodations law under which respondents brought suit has a venerable history.

“At common law, innkeepers, smiths, and others who ‘made profession of a public employment,’ were prohibited from refusing, without good reason, to serve a customer.

“... the rule was that ‘the innkeeper is not to select his guests; he has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants.”

The court then noted the Massachusetts anti-discrimination statute “does not, on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods ...  and services on the proscribed grounds.”

Nevertheless, the court held that the Council’s collective 1st Amendment rights prevailed over GLIB’s  similar 1st Amendment collective rights, and its right not to be discriminated against.

“All speech inherently involves choices of what to say and what to leave unsaid. ... One important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’

“The Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another.

“The message it disfavored (GLIB’s) is not difficult to identify.”

The Court then noted:

“On its face, the object of the (anti-discrimination) law is to ensure by statute for gays and lesbians desiring to make use of public accommodations what the old common law promised to any member of the public wanting a meal at the inn, that accepting the usual terms of service, they will not be turned away merely on the proprietor’s exercise of personal preference.

“(But) When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own.”

As such, the question seems to be whether the celebration of the gay marriage in my hypothetical  amounts to “expressive activity.” If the ceremony amounts to “expressive activity” or “advocacy of a cause,” the pizzaria owner probably can, as a matter of freedom of religion, speech and association, decline to associate himself with the ceremony -- just as he could decline to march in a gay rights parade. But if the marriage amounts simply to a private exchange of vows, rather than “expressive activity” in support of a cause, the gay couple may well prevail.

Posted Online:  April 24, 2015 11:40 pm - Quad-Cities Online

by John Donald O'Shea

Copyright 2015

John Donald O'Shea

How Town Meeting Prayers, and Marriage Are Related

On June 22, I concluded my summary of the U.S. Supreme Court's holding in Town of Greece v. Galloway by saying, "I think the reasoning in this case could be of great importance in other areas of constitutional law. My thoughts on the importance of the case will follow."

So, here they are.

The right of a man to marry a woman, and vice versa, nowhere appears in the U.S. Constitution. Nevertheless, it has been an undoubted right of all adult men and women living in America -- both before and since the adoption of the U. S. Constitution.

And it wasn't a right of just one group of colonists. All male and female colonists, whether English, French, Spanish, Dutch, Swedish, etc., enjoyed the right whether they resided in English, French or Spanish colonies. Indeed, even the native peoples, Iroquois, Huron, Sioux, etc., enjoyed the right. For that reason, the right to marry seems to be one of those rights retained by the people and reserved to the people or states by the Ninth and 10th amendments.

-- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." -- Amendment IX

-- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" -- Amendment X

And while the right to marry is nowhere mentioned in the U.S. Constitution, neither does the Constitution give Congress or the federal government any power to regulate marriage. In the powers of Congress enumerated in Article I, Section 8, there is nothing whatsoever about "marriage."

Historically, marriage in America has been between one man and one woman. The U. S. Supreme court holding Reynolds v. U. S. (1878) makes that patently clear:

"Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. ...

" ... from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I., it was punished through the instrumentality of those tribunals ...

"By the statute of 1 James I. (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies.

"In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the "act establishing religious freedom," and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included."

The argument can be made that a 14th Amendment (1868) "equal protection" argument was not advanced in Reynolds v. U.S. But it can also be argued that it wasn't made because nobody seriously believed that the 14th Amendment was enacted to guarantee polygamous marriages equal rights with marriages between one man and one woman.

Town of Greece v. Galloway (2014) was not a case about marriage. Rather, it concerned the constitutionality of opening a town meeting with a prayer. But look at what the court said:

"The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. ...

"When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. ...

"In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society."

Now, change a few words and you can see what the court could easily say if it opts to hold that non-traditional marriages do not get the same constitutional protection as traditional marriages:

"In light of the unambiguous and unbroken American history of more than 500 years, there can be no doubt that marriage is between one man and one woman, and that that practice has become part of the fabric of our society."

The point is simply this: For 500 years, nobody who came to America believed as a matter of law that marriage was anything other than a union between one man and one woman, except perhaps the Mormons.

But if marriage is reserved to the people and the states, then the decision to expand or not to expand the meaning of marriage resides with states and not with the federal government.

And that leads me to consider another new U.S. Supreme Court holding, Schuette v. BAMN, which may also have significant bearing on the non-traditional marriage question. So get ready for one more op-ed.

Posted Online:  June 30, 2014 at 2:20 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Congress Heard Prayer before Backing "Establishment Clause"

On May 5, the U. S. Supreme Court decided Town of Greece v. Galloway.
In the case, Galloway sued Greece, claiming that the town, by opening its monthly meeting with a prayer, created an unconstitutional "establishment of religion."

The town did not prescribe or approve the prayers to be said. A town employee simply called ministers listed in a directory, until one volunteered (without pay) to say the opening prayer.

Justice Anthony Kennedy, writing for the majority, held that the town's practice was permissible and did not constitute an unconstitutional First Amendment violation. The court relied on its 1983 precedent in Marsh v. Chambers.

"In Marsh ... the Court found no First Amendment violation in the Nebraska Legislature's practice of opening its sessions with a prayer delivered by a chaplain paid from state funds."
The court then explained its holding in Marsh.

"Marsh is sometimes described as 'carving out an exception' to the Court's Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to any of the formal 'tests' that have traditionally structured' this inquiry. ... The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. ...

"When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. ... Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent ... 'In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.'"

In short, the legislative opening prayer was sustained because the very Congress that had just passed the First Amendment during that same session began the practice of opening its sessions with an opening prayer said by a paid chaplain.

Obviously, if they felt that the practice amounted to an improper "establishment of religion," they wouldn't have done it.

"That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society."

But while the Greece court sustained the legislative prayer practice, it did add a caveat:

"Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted "by reference to historical practices and understandings."

On the other hand, the court instructed that the "content of the prayer (opening legislative sessions) is not of concern to judges," provided "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief."

The court further explained, and rejected the plaintiff's argument that public prayers must be "non-sectarian."

"Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior (Engel v. Vitale). It would be but a few steps removed from that prohibition for legislatures to require chaplain to redact the religious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.... 'The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.'

"The government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer-giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian."

The court then gave guidance as to what has been historically typical legislative prayer.

"It is thus possible to discern in the prayers offered to Congress a commonality of theme and tone. While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws."

Rejecting the notion that some citizens might find such prayer offensive, or compulsive, the court said, "Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith."

Finally, the court indicated it would look to see that the entire body of the prayers offered -- rather than a single prayer -- was consistent with how legislative prayers have been done traditionally.

"Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer."

Space limitations prevent me from doing more than summarizing the opinion. But I think the reasoning in this case could be of great importance in other areas of constitutional law.My thoughts on the importance of the case will follow.

Posted Online:  June 21, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

If We Punish People for their Beliefs, Freedom Is Dead

At common law, all crimes consisted of two elements: an "intent" element and an "act" elements.

It was not a criminal conspiracy for two men to plan to rob a bank. The plan to rob the bank became a crime only when one or both did an act to further that intent, such as buying a hand gun to be used in the robbery.

Similarly, words alone do not constitute murder. If a man writes in his diary "I'm going to kill my neighbor," it is not murder, absent an act that effects the killing and a homicide.

The same principle is found in the First Amendment to our U. S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech."

In the words of our Supreme Court, "the Amendment (as it pertains to religion) embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be" (Abington v. Schempp, 1963).

The First Amendment absolutely guarantees one's right to believe that God wants all men to be cannibals. It does not, however, guarantee one's right to act on that belief. While you have an absolute right to believe that its okay to eat your neighbor, if you act upon that belief, you will face murder charges.

The amendment also guarantees free speech. And if Americans -- except within narrow exceptions -- have a right to voice their opinions publicly, they certainly have a right to have private conversations.

A man can express his bigotry in a private conversation in his home or with his wife without fear of prosecution. (I am talking here of private conversations expressing opinions. I am not talking about words used to discriminate or bully, or the yelling of "fire" in a crowded theater. Words that are used to work discrimination, or to bully or to libel move beyond the realm of opinion or belief, and become "verbal acts.")

Our first Amendment was a reaction to the intolerance of medieval prosecutions of opinions and beliefs deemed "heretical." It was also fashioned as a check on the religious intolerance of colonial America, as evidenced in The Colony Laws of the Massachusetts Bay Colony, Chapter 39.

It guarantees Americans both the right to speak as well as the right not to speak.

No man, for example, can be prosecuted for refusing to take an oath that he is not a member of the Communist party or Nazi party.

Jefferson and Madison saw the danger of trying to control people's beliefs. That's why Madison wrote the First Amendment which Jefferson explicated in his 1802 letter to the Dansbury Baptist Association:

"Believing with you that religion is a matter which lies solely between man & his god, -- that he owes account to none other for his faith or his worship, -- that the legitimate powers of government reach actions only, and not opinions, -- I contemplate with sovereign reverence that act of the whole American people (the 1st Amendment) which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state."

America came to this position knowing that no man was safe if he could be prosecuted for his thoughts -- his beliefs. Twenty-first century America seems to be rejecting that Jefferson/Madisonian notion.

To me, it is one thing to be a bigot. If you hate blacks or whites or Asians, or atheists or Catholics or Protestants or Jews or Muslims, etc., that may be wrong, evil, immoral or even reprehensible. But I fear punishing bigots solely on account of their beliefs. If people can be jailed, or be made to surrender their property, or be ostracized or deprived of their free speech rights for holding a belief deemed "politically incorrect" today, then they can just as well be deemed "bigoted" for holding the diametrically opposed "bigoted" belief tomorrow.

If today a man can be destroyed for holding traditional Catholic beliefs on marriage and homosexuality, recall that only a few hundred years ago that he would have been hauled before the Inquisition for not holding those same beliefs.

On the other hand, when a person acts upon his beliefs and wrongfully discriminates against and harms his neighbor, at that point rights must be balanced, wrongful discrimination punished and appropriate remedies fashioned.

But if people are going to be punished solely for their personal beliefs -- without acts in furtherance of those beliefs --— we are back to the days of the Inquisition -- an institution equally well-suited for enforcing the "orthodox beliefs" of whoever controls the government.

And if it is a crime to believe, others can be compelled to testify to prosecute that crime. In Nazi Germany, children were encouraged to report anything their parents said critical of the Nazi government. Parents went to concentration camps for their beliefs and political opinions.

The "establishment of religion" clause of the First Amendment is premised on the notion that as long as a man does not act to hurt his neighbor and only believes, that he should be left alone. Supreme Court Justice William O. Douglas said, "The right to be let alone is indeed the beginning of all freedom."

If America reaches the point where a man can be punished for his thoughts, his beliefs and his private conversations -- with no discriminatory act in furtherance thereof -- we will live in a police state, and suffer a reign of terror.

When men are punished for their beliefs, albeit repugnant beliefs, freedom is dead.

The First Amendment which protects both freedom of religion and speech, protects both favored and disfavored beliefs and speech. It also protects truthful as well as untruthful beliefs and speech. The alternative, requires thought-police," and a police state.

The proportional and appropriate remedy for bigoted beliefs or speech is counter-speech: Speech that informs, enlightens and holds the bigot's beliefs up to scrutiny - Speech that educates in the marketplace of ideas.

Posted Online:  May 17, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Congress, not Court, Opened Big-money Floodgate

For liberals/progressives, the U.S. Supreme Court's Citizens United decision is the devil incarnate. Articles and letters litter these pages erroneously claiming that the court's 2010 decision "allowed unlimited money to flow to super PACs."

But that is not what Citizens United held. Nor is it what Citizens United was all about. It is a pathetic mischaracterization by people who either haven't bothered to read the case or, if they had, were clueless as to what they were reading. Justice John Paul Steven's dissenting opinion (in which all four liberals concurred) made this unmistakably clear.

"The real issue in this case concerns how ... (Citizens United) may finance its electioneering. Citizens United is a wealthy nonprofit corporation (not a PAC) that (also) runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used (the PAC's assets) to televise and promote 'Hillary: The Movie' wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the ... primary election. ... All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period."

Justice Steven's remarks make crystal clear that Citizens United was not about allowing unlimited money to flow to super PACS. It was about allowing ordinary corporations that were not political action committees to use "funds from the general treasury," to engage in political speech without pre-approval from the Federal Election Commission or any other government entity right up to the election.

The Citizens United corporation (not a PAC) sued to void the ban on "independent expenditures" by the corporation saying it violated the First Amendment.

In January 2008, Citizens United released "Hillary: The Movie," a 90-minute documentary about then-Sen. Hillary Clinton, a 2008 Democrat presidential primary candidate. It depicts interviews with political commentators and other persons, most quite critical of Sen. Clinton. It was released in theaters and on DVD, but Citizens United wanted to make it available through video-on-demand within the 30-day time period prohibited by FEC rules made pursuant to campaign reform law.

At trial, the U.S. District Court had found "there is no reasonable interpretation of Hillary other than as an appeal to vote against Senator Clinton." It was "susceptible of no other interpretation than to inform the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her."

Again in the words of dissenting Justice Stevens, "Under the Bipartisan Campaign Reform Act of 2002, (Citizens United) could have used (its PACs assets) to televise and promote Hillary ... wherever and whenever it wanted to. As such it was the BCRA itself -- and not the Supreme Court -- that allowed PACs to spend 'wherever and whenever it wanted to' except during the 30 days before the election. Citizen United simply gave corporations that were not PACS the same rights as BCRA gave corporations that were PACs, as well as striking down the '30 day period' prohibition."

To repeat, Citizens United was about allowing a corporation, not a PAC, to engage in political speech at any time without government pre-approval.

What liberals have made no effort to understand is that while PAC corporations and media corporations were allowed to "speak" by BCRA, business corporations and unions were prohibited from speaking (from making expenditures for "electioneering communication" or for speech "expressly advocating the election or defeat of a candidate") at any time. The Supreme Court simply held that business corporations, and unions, have the same political rights under the First Amendment as corporate PACs.

The court noted that media corporations (radio, TV and cable) have "immense aggregations of wealth," accumulated "with the help of the corporate form." The court's holding gives non-media corporations the same right of free speech as media corporations. In doing so, the court noted the perversity if BCRA:

"The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations -- including nonprofit advocacy corporations -- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election."

Thus, the following acts would all be felonies under that section: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a website telling the public to vote for a presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship."

Yet at the same time, BRCA permitted PACs, non-corporate billionaires, and corporate mega-media conglomerates to do the same.

The bottom line of the court's analysis is this: The First Amendment "'has its fullest and most urgent application' to speech uttered during a campaign for political office. ...

"Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution."

In a country where special interest groups can use their wealth and speak on behalf of candidates who promise to pass laws to ameliorate perceived "corporate excesses," corporations must be able to speak to defend themselves, and to oppose candidates and legislation that they see as destructive of their interests and the public interest. If the President can vilify corporations, the First Amendment " requires that they have an equal right to vilify him.


Posted Online:  April 22, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea