Wednesday, September 22, 2021

Roe v Wade is under attack from an unexpected direction.

While the country is focused on Texas with its heartbeat abortion ban, and SCOTUS will hear arguments December 1 on Mississippi's abortion rules, the First Circuit, in Gaspee Project v Mederos, has ruled that privacy is dead.

Citizens might not be able to name all or any of the Supreme Court Justices, but one thing they know, or think they know, is that they have the right to remain silent.

The right to privacy that Roe is based on stems largely from a 1958 case, NAACP v Alabama ex rel. Patterson, which held that Alabama could not force the NAACP to give up its membership lists. The Court found rights of privacy and association, related to the right to petition which is in the text of the First Amendment, along with Speech, Press, freedom of religion, and freedom from religion. Alabama resisted the ruling for years, while the case bounced up and down the courts, but eventually the state gave in.

On July 1st of this year, the Court again endorsed the NAACP case, in Americans for Prosperity v Bonta, about whether California could make this group disclose its donors to the state. First on that list would have been Charles Koch, a rich white dude who is a major funder of conservative and libertarian organizations. The court added a "narrow tailoring" requirement to a means-ends test that had been used for disclosure cases since 1976, when another Charles Koch funded case, Buckley v Valeo, became a landmark.

So in Bonta, the six conservative members of the court strengthened the right to privacy which underlies Roe v Wade, while the three liberal members dissented, perhaps unaware of what they were doing.

The NAACP case was not alone. In Talley v California, 1960, the court held that a Black activist could not be fined $10 for forgetting to put "paid for by manuel talley" on his flier urging a boycott of racist businesses. Free speech includes the right not to say what you'd rather not say. The speaker, not the government, is the editor-in-chief.

The court has upheld this principle from Talley many times, such as in McIntyre v Ohio Elections Commission, Tornillo v Miami Herald, Buckley v ACLF, Watchtower v. Stratton, Janus, and Becerra.

But the state of Rhode Island refuses to follow the rule, and requires some speakers to put "Paid for by __" on their documents. The penalty is not just a $10 fine, but includes a threat of prison, severely chilling such speech. The Gaspee Project wants to put out a voters guide informing Rhode Islanders of how their legislators voted on certain issues, and they want to edit the document themselves instead of having the government choose their speech.

Rhode Island here is attacking the constitutional right of privacy, undercutting Roe v Wade. The First Cicuit a few days ago agreed with Rhode Island, influenced by an amicus brief by a "reform" group encouraging censorship. The case is now headed to the Supreme Court.

The Court of Appeals held that the censorship passed the new "narrowly tailored" test of Bonta, so the Supreme Court may take the case to continue to explore this new test.

I am seeking people and groups to cosign an amicus brief urging the court to take the case. The idea that the constitution protects a right to privacy matters, and we should not let it be taken from us without a fight.

- Arbitrary Aardvark, gtbear at gmail.

[this was submitted as an op/ed to the providence journal, which probably won't run it.]

Comments: Post a Comment

This page is powered by Blogger. Isn't yours?