Wednesday, August 27, 2014
More on defending the indefensible:
“Principles be damned” shouts Salon, in an editorial article urging passage of California bill 52, which would dictate the contents of ads for referenda.
Well, let's look at the principles.
In America, we have a principle that the people choose the government, not the government choose the people. As part of free and open elections, we have a free press and free speech.
Unlike some other countries, newspapers, even blogs, can print what they like, without having to seek government approval. Reno v ACLU.
This means that the government can't order writers to include text the government would prefer.
Wooley v Maynard, Tornillo v Miami Herald, AID v Open Society.
This includes that the government cannot require an identification disclaimer, except as to corporations.
Talley v California, McIntyre v Ohio, see also Citizens United.
This principle has been re-affirmed time and time again in California, in cases such as Drake, Canon City, Bonjiorni, and Schuster. Schuster found that both the state and federal constitutions protect anonymous speech and outlaw disclaimer statutes.
But the legislature keeps trying,and now with bill 52 they are trying again, to illegally censor political speech.
There is a principle that legislators and the governor take an oath to uphold the constitutions, but this fell by the wayside long ago.
Salon benefits from a free press. When, as here, it acts to subvert the First Amendment, it could someday end up hoist on its own petard. In theory, we have a free press. In practice, the statute books are riddled with regulations like Bill 52, and sometimes journalists go to jail, or people who would like to speak out are silenced. It is this that is indefensible.
* http://ballots.blogspot.com/2005/04/on-election-law-listserv-eugene-volokh.html something i wrote on this topic in 2005.
Cases mentioned above:
Talley v. California, 362 U.S. 60 (1960),
* http://ballots.blogspot.com/2005/04/on-election-law-listserv-eugene-volokh.html something i wrote on this topic in 2005.
Cases mentioned above:
Talley v. California, 362 U.S. 60 (1960),
Canon v. Justice Court for Lake Valley, 61 Cal.2d 446, 39 Cal.Rptr. 228, 393 P.2d 428 (1964),
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962)
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.
1980), cert. denied, 450 U.S. 1042 45. http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CCA%5CCA2%5C1980%5C19800828_0040409.CA.htm/qx
1995 McIntyre v. Ohio, 514 U.S. 334 (1995) http://www.law.cornell.edu/supct/html/93-986.ZO.html
ACLU v Heller 378 F3d 979 (9th cir. 2004) http://openjurist.org/378/f3d/979/american-civil-liberties-union-of-nevada-v-heller is the controlling 9th circuit decision.
ACLU v Heller 378 F3d 979 (9th cir. 2004) http://openjurist.org/378/f3d/979/american-civil-liberties-union-of-nevada-v-heller is the controlling 9th circuit decision.
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