Is the other one the more updated version that they actually intend to vote on?
If so, then it’s self-nullifying, because freedom of the press is defined thus:
Freedom of the press or freedom of the media is the freedom of communication and expression through mediums including various electronic media and published materials
That includes campaign ads.
Can we please not make federal judges’ brains explode from having to interpret this mess of an amendment created by ignorant Democrats who actually think “the press” means the media?
**The First Amendment to the U.S. Constitution reads, in part, “Congress shall make no law… abridging the freedom of speech, or of the press.” The courts have long struggled to determine whether the Framers of the Constitution intended to differentiate press freedom from speech freedom. Most have concluded that freedom of the press derives from freedom of speech. Although some cases and some legal scholars, including Justice potter stewart, of the U.S. Supreme Court, have advocated special press protections distinct from those accorded to speech, most justices believe that the Freedom of the Press Clause has no significance independent of the Freedom of Speech Clause.
The Court explained its reasoning in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). According to Chief Justice warren e. burger, conferring special status on the press requires that the courts or the government determine who or what the press is and what activities fall under its special protection. Burger concluded that the free speech guarantees of the First Amendment adequately ensure freedom of the press, and that there is no need to distinguish between the two rights:
Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination.**
Since the courts do not recognize a distinction between freedom of speech and freedom of the press, Section 3 nullifies the rest of the amendment.
It’s possible that justices who really want to accomodate this amendment could bend over backwards to create such distinctions. What do you think the chances are that the majority in McCutcheon and Citizens United would do so? I say the chances of that are nil. The Kochs or someone else would go to court, say, “We have freedom of the press”, SCOTUS would say, “Well, duh, doesn’t everyone know that?” and campaign finance laws STILL get thrown out.
Burger wrote to emphasize the difficulty in differentiating media corporations from other corporate entities.[72] He also pointed out that media conglomerates were a more likely threat than the appellants to the public interests raised by the state of Massachusetts, due to their immense influence.[73] Thus, Burger concluded that “no factual distinction has been identified as yet that would justify government restraints on the right of appellants to express their views without, at the same time, opening the door to similar restraints on media conglomerates with their vastly greater influence”.[74] Burger pointed out that as newspapers merged with global media conglomerates, separating corporations from media had become untenable.[75] Therefore, Burger argued, restrictions on speech such as the Massachusetts statute necessitated a great deal of caution.[76] “In short,” Burger wrote, “the First Amendment does not ‘belong’ to any definable category of persons or entities: it belongs to all who exercise its freedoms.”[77]
BTW, this should be a reminder that the two recent court decisions did not, as many Democrats say, reverse 100 years of precedent. Democratic politicians are apparently as ignorant about precedent as they are about the 1st amendment. The courts have been overturning campaign finance laws that ran afoul of the 1st amendment for nearly 40 years.
Well color me ignorant as well. But let the Kochs buy a news channel. Fox News has a huge effect on politics but it already exists. A 2nd partisan rightwing channel would only compete with them. If it stood to help extend the Koch’s influence they would already have themselves a channel.
The Chief Justice is not the Supreme Court. Burger’s offered his comments in a concurring opinion. It’s just that, commentary, and not precedent. That’s not to say that his opinion here isn’t valuable. He’s in a position to know what he’s saying. But his comments aren’t law because he failed to convince his fellow justices to agree. He says that,* ‘The Court has not yet squarely resolved whether the Press Clause confers upon the “institutional press” any freedom from government restraint not enjoyed by all others.’* Not “squarely resolved” meaning that the distinction has been raised in past jurisprudence but not fully decided (at least not to the former Chief Justice’s satisfaction.) Perhaps the courts have not resolved it because there was no need to distinguish it from the right to free speech given that both are equally guaranteed. If the Constitution were amended to require that distinction…
I think you make a good point that it gets complicated but it’s a legal point and not a political one. For political theater complicated reasoning is a detriment. Are voters going to understand that deciding who is the press is murky? Are they going to care given that what’s at issue (money in politics) is seemingly unrelated?
Color me skeptical that most advocates on this issue would be content with that. I recall that when Citizens United was decided, opponents of the decision said that corporations weren’t people, but that individuals could spend as much money as they wanted. Until they did, at which point it became a constitutional crisis. If the Kochs and other billionaires find ways around campaign finance law to spend millions getting their message out, I have little doubt that politicians and their supporters will start drawing up another amendment.
The Kochs influence politics in every legal way they can, and much of their money is spent in ways that this amendment would not reach. It would shut down their TV ads, but would do nothing to stop their think tanks and other advocacy. And BTW, the Kochs have already tried to buy a major newspaper. They have shown that they will do whatever it takes to have an outsized influence on public opinion.
There is room for the courts to define special rights for journalists, but leaving aside Burger’s comments they have consistently declined to do so. I’m sure the more liberal justices would do it in response to the Udall amendment being ratified, but the conservative justices would simply point out that freedom of the press= freedom of speech, and so the amendment is meaningless due to the framers of the amendment having no idea what they were doing.
The 1st amendment is a political landmine. Once you actually write an amendment and vote on it, the debate changes. Most Americans were against flag burning until they actually tried to amend the 1st amendment.
There is a way to limit TV ads if that’s what you want to do: just ban political TV ads completely. The government owns the airwaves. As long as they don’t discriminate, they have the power to do it. The main issue the courts have had with campaign finance law is that it seeks to disadvantage some groups while empowering others. Burger mentioned it in the decision above(pointing out that the media is far more influential in politics than corporations buying ads), and Kennedy mentioned it in the majority opinion in Citizens United, stating that BCRA divided speakers into “favored” and “disfavored”.
Ted Cruz fired the first volley over this amendment, stating, “Why should the NY Times have special rights to engage in political advocacy?” The NY Times spends hundreds of millions of dollars engaging in political advocacy. IF the NY Times corporation has that right, then so does everyone else, both corporate and individual.
Now of course we CAN carve out special rights for the NY Times and Fox News in an amendment to the Constitution, but good luck getting enough of the public to support it to give it a chance of being ratified, or of even being a potent political issue.
Basically, it’s an 80-20 issue that Democrats see as benefitting them, and it does, as long as it just sits there. Make the debate active, and they’ll find that there’s little enthusiasm for taking the course they want to take.
That’s not how I remember it. It’s not as if there hasn’t been opposition to unlimited individual donations all along. And I can only speak for myself, obviously, and I think issue advocacy is very different than electioneering.
I get that. It’s not as if rightwing billionaires owning newspapers is a new thing. Richard Mellon Scaife owns a paper here in Pittsburgh. Stopping that from happening isn’t the goal of campaign finance reform. It’s about stopping the bribing of politicians.
Then you have a constitutional crisis. It could happen, yes. But historically the courts have not taken it that far.
I don’t know that the issues are similar enough for a comparison. Flag burning doesn’t affect the lives of voters but the idea that politicians are corrupt and that’s ruining our country is hardly an uncommon sentiment across the political spectrum. Conservatives raise good points about the First Amendment but they are complicated and that’s not good for political rhetoric. If you say, “Free Speech! Free Speech! Free Speech!” and the other side says, “Money isn’t speech.” Then you have to stop and explain while the other side gets to keep chanting their mantra.
That doesn’t limit them, it bans them. The money will just flow elsewhere. It’s the money that needs to be regulated, not the speech.
That’s an angle. Ironically I don’t see it resonating outside of the Fox News crowd but the GOP has to try something.
Right now they do, yeah. (Regarding electioneering I mean.)
Thank you.
I disagree obviously. I think it’s smart politics and plays into the Democrats populist pivot. I think the technical issues with the amendment are of concern in that they might prevent Democratic officials from uniting behind it. If so that has to be resolved. Maybe they need to work on the exact wording somewhat. But once they do get everyone on board (even if that means jettisoning a Zell Miller or 2) the complications aren’t a problem until after the amendment is ratified. If it ever is.
Well, the right of individuals to spend unlimited money goes back to the 1976 Buckley v. Valeo decision. BCRA did not limit such spending either. So this amendment goes much further than to overturn Citizens United. It purports to do what they claim Citizens United did: overturn decades of precedent.
As for issue advocacy, I already know for sure that there is a lot of support for banning corporate advocacy on issues too. Remember the ballot initiative for GM food labelling that was defeated by massive corporate spending on an ad campaign?
Which was accomplished by limiting direct donations, which is still constitutional.
Until the first ad actually gets censored, or a station gets fined for running an “illegal” ad. Once the government actually tried to censor ads for Hillary: the Movie, even campaign finance advocates weren’t willing to see it actually done that way. The expectation is that corporations and individuals will just shut up. they are going for a chilling effect rather than actual enforcement. Which demonstrates just how untenable their position is.
Like I said, it’s an 80-20 issue that favors Democrats, UNTIL they actually try to do something about it. That’s why I compared it to flag burning. Not because the two are equivalent morally, but because it’s one of those issues where Americans mostly oppose the speech in question but react badly to attempts to actually limit it.
The money will continue to go elsewhere. TV ads are only one aspect of the issue, but it’s the only issue that the government is even close to comfortable dealing with. But they only want to ban SOME commercials. The politicians want to run their own but not let anyone else do it. Why regular folks would consent to that state of affairs is beyond me, and I don’t think they would once it’s put to them that way.
If Tom Udall has the right to spend $1 million on an ad, then so does anyone else with $1 million. Tom Udall is not special, he doesn’t have more rights than the rest of us.
There are enough liberal supporters of unrestricted political speech to use the same argument to persuade some on the left: “Why should Fox News get unlimited advocacy rights but not the ACLU?” Glenn Greenwald is firmly on the side of Citizens United and our own Lance Strongarm has also argued forcefully on the issue. It’s not just the right that opposes this type of campaign finance reform.
It’s smart politics until they vote on the amendment. Then we can say they voted to repeal the 1st amendment. Given the administration’s attacks on religious freedom, gun rights, and privacy rights, it won’t be hard to tell a narrative about a Democratic Party that’s given up all pretense of even caring about the Bill of Rights. The libertarian think tanks have also been making a lot of noise about civil forfeiture.
In the long term, the most dangerous thing the Democrats can do is cede the Bill of Rights to the right. But it seems like the only freedoms Democrats care about these days are the ones NOT in the Bill of Rights.
The central issue predates Citizens United (although that case raised public awareness of the issue). It goes back to earlier cases like Buckley v. Valeo in 1976 which said that money is a form of speech. I’m not saying that’s irrational but it’s not axiomatic either. You could have an amendment saying money is not a form of speech without undermining our civil rights. If a constitutional amendment overturned Buckley (which is perfectly legal) then Congress would have the power to regulate campaign donations in federal elections.
Sure, the Republicans can argue that this is a fundamental civil rights issue. But the Democrats can make some strong counterarguments. For example, they can bring up the point I already made - this proposal is not directed against the First Amendment. It’s directed against a 1976 court decision. The Democrats can argue they just want to go back to the original meaning of the First Amendment.
And the specific issue we’re talking about is the right to make million dollar campaign donations. The Republicans might find that this isn’t an issue that resonates with Joe Six-Pack.
They’d have the power to regulate all speech disseminated through means of mass communication. If speech loses protections once money is used to pay for it, then all speech that reaches more than like 10 people is censorable.
And the Republicans can counter that the original meaning of freedom of the press applied to Thomas Paine’s Common Sense, whereas today Democrats would limit freedom of the press to only licensed journalists.
It does if Democrats try to claim that million dollar donations are okay if they are doing it, but not non-politicians.
Democrats want to create two special classes of people who can make unlimited donations: journalists and politicians. If everyday Americans contribute their money to a cause, such as their union, or the nRA, or the ACLU, or the Sierra Club, their money may not be used for electioneering if Congress decides they shouldn’t.
Do you think the NRA should be banned from electioneering? That’s a question every Democrat will be asked this election season if this becomes the issue they want it to be. Expect almost all of them to start furiously backtracking once that question is asked. And we know it will be because the DISCLOSE Act specifically exempted the NRA.
You’re not going to find Citizens United anywhere in the original meaning of the Bill of Rights. Nobody in 1789 would have imagined the modern interpretation of their applicability. They would have said that people had rights. The idea of a business having civil rights would have seemed nonsensical in the 18th century. The concept of a corporation having a legal existence separate from its owners didn’t even exist at that time. Saying that a business had rights would have seemed to them like saying a house had rights.
I’d like to see a constitutional convention. There’s a lot to discuss, such as reining in the power of the federal government on a host of issues.
But in regards to this particular issue, these guys are idiots. “We want to get all money out of politics.” No they don’t. They want to get SOME money out of politics. The money of the undesirables. They want politicians and media corporations to continue to spend hundreds of millions pushing their point of view.
Wolfpac wants to take freedom of the press and change it from a right that we all have, to a right for the privileged few.
I’m arguing that the founders were well aware of how money in politics worked. If you had money, you had unlimited access to the printing press. Nevertheless, they guaranteed the right to unlimited access to the printing press, even though not everyone could take advantage of the right.
The concept of a freedom of the press limited only to politicians and the media would make them roll in their graves.