A good post about the recent Supreme Court decision on corporate speech
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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What are the elements of the first amendment as it pertains to a statute that is an impermissible abridgment of speech?
(1) Congress - are we talking about something Congress did?
(2) Make a law - if so did Congress make a law?
(3) Abridging - did the law abridge something?
(4) Freedom of speech - if so, was it freedom of speech that it abriged?
In Citizens United, I think it is undeniable that Congress did make a law, so (1) and (2) are established.
What about (3)?
abridge [?'br?d?]
vb (tr)
1. to reduce the length of (a written work) by condensing or rewriting
2. to curtail; diminish
3. (Law) Archaic to deprive of (privileges, rights, etc.)
[via Old French abregier from Late Latin abbreviare to shorten]
thefreedictionary.com
In the instant case, the statute makes it a felony to engage in certain activities. Short of making it a capital crime, I don't see how Congress could have done more to abridge the activities in question. I think it is clear that the statue did in fact have the effect of "abridging," so (3) is satisfied.
What about (4)? Was the thing that was abridged "free speech"?
Let's say that a week before an election the Society For The Prevention Of Asshattedness runs a full page ad in the NYT that consists of the following:
"Do not vote for John Smith, he is an asshat. This message brought to you by the Society For The Prevention Of Asshattedness"
How can you argue that this is not speech? It is text ... aside from something that consists of randomly chosen characters, I don't see how any text does not qualify as speech. So it seems to me that element (4) is also present.
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Thus, on its face the statute in question appears to violate the First Amendment.
Five of the nine justices came to that conclusion and struck down the statute. For some reason, in striking down a statute that on its face violates the First Amendment, the justices are engaging in JUDICIAL ACTIVISM.
Excuse me, but did not each of the justices, when he or she took office, not vow to uphold the U.S. Constitution, come hell or high water? Is it not a justice's JOB to strike down a statute that violates the U.S Constitution?
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What about when a justice votes to strike down a statute that restricts the availability of an abortion? In reviewing the Constitution I see no mention of abortion (unlike free speech, which is specifically addressed).
Why is it that striking down a statute that on its face violates the first amendment is JUDICIAL ACTIVISM, while striking down a statute for limiting the availability of an abortion NOT JUDICIAL ACTIVISM?
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