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Thursday, September 25, 2014

Nudging One Direction; A Response to Gerken.

http://electionlawblog.org/?p=65878

I had missed Heather Gerken, et al.,'s April 3 editorial in the Washington Post, and some subsequent back and forth with Bob Bauer.

Like many in the "reform" faction, Gerken seeks to use an onerous disclosure regime to deter speech she would prefer to ban entirely. But here, her proposed remedy wouldn't work as planned.

This is because she has misread Citizens United. Her proposal would be unconstitutional, unless scaled back to a point where it would be ineffective.

She thinks, or claims, that Citizens United approved disclaimers in general. The language of the opinion is  vague, and a person could make that mistake, but CU is an opinion limited to speech by corporations, speech that had previously been entirely banned, and is now permitted subject to disclaimer and disclosure regulations.

CU did not overrule McIntyre, Talley, ACLF, Watchtower, Tornillo, Wooley, Federation of the Blind.
See also AID v Open Society, a post-CU case which holds the government may not tell private parties what to say.

In McIntyre, Justice Ginsberg concurred saying "ïn for a calf is not in for a cow"; that in other narrow circumstances a disclaimer requirement might be upheld. CU was such a circumstance.

How do we know CU is so limited, since they did not expressly say so?
First, the overall tone of the case is one that extols and expands freedom of speech and press. It is a mistake to try to read CU as an endorsement of censorship and a rolling back of 50 years of progress in civil rights.
Second, when CU overruled Austin, it carefully explained why and how it was doing so, especially in Chief Justice Roberts' concurring opinion. If CU had been intended to overturn Talley, it would have told us how and why it was doing so.

So the regulation Gerken urges would be unconstitutional and void, unless it were limited to corporations. But, since money flows like water, those who wish to speak without this particular form of censorship could route their money though non-corporate speakers, the old wack-a-mole game again.

Alternatively, she might just be looking for a temporary solution, since even an unconstitutional and void statute can have effect for a while, as with McCain-Feingold. But it was McCain-Feingold that set up CU and undid Austin; a dangerous game.

I would have more to say, but I've managed to break my power cord and will have to get a new one tomorrow, so I will end this entry here. Back online with a new laptop.


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