Unfortunately we have a 5-4 split in the Supreme Court. The liberal minority only needs a single judge to come to their side to win this. However on civil liberties the trend has been negative. I'm therefore not particularly optimistic.
It depends which civil liberties you're talking about. The Roberts court has been good for free speech and gun rights, and it wasn't just the liberals. Brown v. EMA was 7-2 for example. The pro-habeas Hamdan, Hamdi, Boumediene cases also came out under Roberts. Several positive decisions on drugs (can't ban hullucigenic teas) and search an seizure too (GPS case).
Supreme Court doctrines aren't about left vs. right in the conventional sense. The justices are very solid about the principles they claim to stick to (standards of judicial review, what constitutes limitations on commerce clause, etc...) and civil liberties aren't a left vs. right matter.
See http://en.wikipedia.org/wiki/Brown_v._Entertainment_Merchant... for example: Scalia wrote a very strong pro-free speech majority opinion, extending speech to cover violent video games. Beyer (generally thought of as liberal) dissented using logic he would use in any other decisions, Thomas again used the "en-loco parentis" argument he often makes in decisions involving children (I disagree with him, but he sees it as consistent with support of free speech). See also Thomas' dissent in Raich vs. Gonzales.
In 9th circuit, judge Alex Kozinski is probably the best example of a strongly civil liberties minded conservative/libertarian justice. I would like to see Kozinski in SCOTUS, but I'm pretty sure he'll receive The Mother of All Borkings if ever nominated.
Yes, you are correct. I wrote the comment too hastily. To expand a bit on this, the heuristic Thomas follows is "did the government simply do what a reasonable parent would do under the same circumstances?". Thomas' argument in Brown was that adults would still be able to purchase some of the violent video games, as would children with explicit adult permission -- but absent parental involvement a government would act similarly to an average parent (prohibit purchase of certain video games).
He used similar logic in case of school censorship (if a parent would reasonable want to prohibit a student from wearing a shirt with an illicit message) or search and seizure (if a parent would reasonable want to search a students' person in one case, so may a school do so).
Personally, I disagree with this logic: the government is not the parent and in all of the above cases the parent could still exercise authority without the statute at hand (a parent can prohibit a child from playing video games, wearing a certain t-shirt, etc...).
Furthermore it's often insufficient nuanced: the standard is too vague (two children of same age may differ wildly maturity wise, some children may become "emancipated minors", etc...).
I personally believe there should be a "gateway" for youth to have greater civil rights (the right to vote, emancipate themselves, work under adult labour laws, serve in the military, etc...) -- but I haven't spent much time thinking how such a gateway would work.
> I would like to see Kozinski in SCOTUS, but I'm pretty sure he'll receive The Mother of All Borkings if ever nominated.
I'm not a citizen of the United States, but as a recent admirer of judge Kozinski (because of his libertarian views and because he was born in the city I now live in, Bucharest, Romania) I'm curious why people in power wouldn't want him joining the Supreme Court.
I am a US citizen and in a similar position: I admire his libertarian views and relate to his origins (like him, I'm a Eastern European secular-Jewish immigrant).
The reason is simple: United States may be libertarian on average, but the major centers of political power (coastal California, New York, and Texas) are far from libertarian. Indeed, one think tank rated New Zealand as more free than United States in both personal and economic realms: e.g., de-criminalized drugs and gun control laws that are less harsh than some US states.
It's unfortunate, but I don't think we can see anyone more libertarian-leaning than Thomas (who has some libertarian leanings, but is anti-abortion, and can be weak on fourth amendment) in the Supreme Court any time soon (not even accomplished "economics of law" scholars like Epstein or Posner).
parenthetically, it was only recently that I realized the origin of the term 'borked' as relating to the nomination of Robert Bork to the Supreme Court.
The gist of Citizens United was that the government couldn't ban political speech near an election. The speaker in question just happened to be a company.
Morse just said that kids have limited free speech rights.
Both seem like good decisions to me and consistent with our historical practice.
The gist of Citizens United is that rights never intended by the Founders to apply to corporations now do. And spending money qualifies as speech.
You probably also think that Clapper v. Amnesty International was a good decision. And think that they should not have heard Hepting v. AT&T. Those two cases seem highly relevant to their likely attitude on this one.
The founding fathers likely never contemplated that groups of people would have different free speech rights than individual people. And Citizens United was about a political movie critical of Hilary Clinton during an election season when she was running for office. It's not "is money speech." I can't think of anything more deserving of free speech protections than political speech, especially critical political speech.
Clapper was a very sensible decision. The plaintiffs in the case couldn't even prove that they had been harmed!
Actually the founding fathers were very aware of corporations and their intertwining with political power. For example the Boston Tea Party destroyed property of the East India Company to protest laws passed by the English Parliament on behalf of that corporation, undoubtably motivated by the large monetary contributions that said corporation made to the elections for Parliament.
The result is that there is no shortage of commentary from the founding fathers on the evils of corporations. And that is why in the early days of the Republic a majority of US states had laws BANNING corporations from engaging in any kind of political activities.
It is historically absurd to maintain that the founding fathers merely overlooked the possibility that corporations would want to engage in political speech. The did not overlook it - they had seen it up close and emphatically wanted no part of it!
If you were right, then they should have explicitly and specifically carved corporations out of the Bill of Rights, which they obviously did not do. That was not an oversight.
The idea that corporations could be considered people with natural rights did not surface until a century later, and would have seemed absurd to the founders. If they had thought that such an absurd interpretation was a serious risk, I'm sure that they would have made their position clear, but the question never arose at the time.
That ruling said that contracts created by corporations, defined under the law explicitly as things that can enter into contracts, are legal and enforceable, and not able to be changed by the government.
This makes sense since enabling groups of people to enter into into and honoring contracts is the point of corporations. But the principle that corporations have natural liberties as persons is generally dated back to the 1880s and jurisprudence about the 14th amendment. At that point the founding fathers were all long dead, and the 14th amendment itself was added long after the founding fathers died.
Adam Smith himself was highly critical of corporations. I've read that the idea of granting corporations the rights of immortal people had been bandied about in his time, and his opinion of this was that it would be "barbarism".
I can't find a citation for this now, but it's completely consistent with what I know of him.
Aye. Wealth of Nations was brilliant logical analysis of the realities of markets. It was not the moral apologia and religious gospel that free marketeers pretend it is.
It's also interesting to quiz so-called Libertarians on who they think might have said this:
"[Our country has become] a pristine aristocracy of the wealthy, vested in large corporations, moneyed by the banks, and ruling over the plundered plowman."
And this:
"I believe that banking institutions are more dangerous to our liberties than standing armies. If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around the banks will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered."
I'll ask you to cite a sources for these quotes; neither sounds at all like Jefferson's writing style - especially the latter one - and the vocabulary seems to indicate a much more recent origin. (The term "corporation" wouldn't have been used in quite its modern sense during his lifetime.)
There is a similar quote by Jefferson that speaks about banking establishments being more dangerous than standing armies, but the term "establishment" there isn't a synonym for "institution" - think about what "establishment" meant with respect to religion in his era - and the position that I interpret here was one that could be described as somewhat aligned with his position on religion: that there ought to be a sort of "wall of separation" between the financial economy and the state in parallel to the wall between church and state. In other words, Jefferson is arguing against the politicization of banking, not banks themselves, which seems a strongly free-market position, and somewhat contrary to what you appear to imply.
I've found the exact quote for the first one. It wasn't exact, but close enough. It was in a personal letter from Jefferson to William Giles in 1825:
> a vast accession of strength from their younger recruits, who, having nothing in them of the feelings or principles of '76, now look to a single and splendid government of an aristocracy, founded on banking institutions, and monied incorporations under the guise and cloak of their favored branches of manufactures, commerce and navigation, riding and ruling over the plundered ploughman and beggared yeomanry.
As for the second quote, monticello.org claims that that wording is a retroquote first published in some 1937 Congressional documents and that the actual quote is:
> And I sincerely believe, with you, that banking establishments are more dangerous than standing armies; and that the principle of spending money to be paid by posterity, under the name of funding, is but swindling futurity on a large scale.
Yes I can, though it's a good question! Probably better couched as "deliberate oversight". Think in a political situation where you don't want to deal with an issue because it'll open a can of worms. 'Don't Ask Don't Tell' in the US ilitary was one such thing. Here's an example f he use of the term in a blog about Apple products: http://www.mikesouthby.co.uk/2011/12/os-x-understanding-enab...
> Clapper was a very sensible decision. The plaintiffs in the case couldn't even prove that they had been harmed!
Seems very sensible, compared to how difficult the search for a plaintiff with standing had been for the case that became Heller. If a civil rights activist (Parker) that received death threats had no standing to challenge DC's handgun ban, as he never tried to register a handgun (unlike Heller, who was arguably a less sympathetic defendant -- an anti-government "gun-nut", etc...), I don't see how Amnesty had standing in this case.
Second amendment is actually a great example of how poor plaintiff choice often hurts civil rights causes. See Miller vs. US -- a felony charge of transporting a sawed shotgun with defendant himself being killed before decision was rendered; the outcome resulted in 70 year reign of "collective rights" interpretation of second amendment.
"Standing" is horribly abused. It is used to reject plaintiffs challenging government secrecy, because they can't prove they have standing unless they win the case -- a Catch-22. Similarly, if you are banned from doing something, you don't get standing unless you do it anyway, at great personal risk. Wanting to do it is not granted standing (though it should)
Standing is the legal equivalent of launching the Challenger with known frozen o-rings just because it hadn't crashed yet
I stand with that reactionary right-wing organization, the ACLU, in declaring the Citizens United decision a victory for free speech and necessary for a strong democracy.
IMO, when "progressives" talk about Citizens United they show their true colors...
I fail to see how prohibiting groups of people from spending money on video equipment is any more justifiable than prohibiting them from spending money on a printing press. Were not presses back in 1790 very expensive?
Indeed, the Solicitor General seemed to lose the momentum of the argument right around when one of the justices got him to admit that if the government could ban the airing of the movie (of a non-profit corporation, by the way) that there was no principled way that book banning wouldn't be okay under the same powers.
Which is curious - there were, as far as I know, no restrictions on them putting the exact same ads or films out over the Internet or through any means other than TV broadcasts (which are of course a Government-granted monopoly and therefore can reasonably be argued to need more regulation).
Might've have been a better angle, not necessarily a winning one though. The trend has been to be very skeptical of speech regulations on broadcast, even if it's a government granted monopoly. The 2nd Circuit smacked down the FCC for fining FOX that year for "fleeting expletives".
How using corporation to perform speech is different? New York Times is a corporation too, does it mean the government can intervene in what New York Times is publishing and infringe their free speech rights? Of course if individual people have free speech rights, these rights do not disappear if they organize to perform this speech - be it corporation, union, non-profit, or any other form of organization. That's what SCOTUS confirmed, and rightfully so.
This is not even close to the truth. Constitutional rights of expression have always applied to corporations. That is how the New York Times has freedom of the press, not just the reporters who work there. That is how the Catholic Church has freedom of religion, not just the people who follow that faith.
What's the reasoning behind the corporation needing rights? It seems like if taken far enough my photocopier would need rights, whereas I think it would be more straight-forward to deal with the people behind the instrument rather than the instrument itself.
People join together into organizations so that they can pool resources. Explicitly exempting organizations from first amendment protections makes it easy for the government to side-step that and chill individual rights in the process.
Say the Jeb Bush administration comes along and makes it illegal for corporations to publish documentaries on environmental issues. The individuals at say the Sierra Club can still publish their own documentaries, but their ability to pool resources is gutted. They can't raise donations and store them in the corporation, because the corporation can't then use those funds to make environmental documentaries.
It's not a matter of "corporations having rights." It's a matter of allowing individuals to exercise their rights in organized groups that allow them to have more impact.
I didn't ask why we found it politically expedient to do this or that, I asked why the original poster thought rights for corporations was a fundamentally good idea.
"Because they balance various risks" (as I read your post) may be an accurate description of the world, but isn't an answer for why we don't change it.
Most everyone would agree Sturgeon was right, and doubly so about code - and the legal system is a huge pile of politically motivated spaghetti code written over centuries by people who didn't try to get a big picture. We need to decide what parts of our laws capture and define our image of ourselves and what parts are garbage.
So rather than create rights for money to prevent DEA seizures or enacting rights for corporations, recognize instead the point of a limited government. Everything that is not expressly forbidden is allowed. We can't fix our current government into that with more laws.
I'd find that argument a lot more compelling if the speech afforded the group (corporation) by its 1st Amendment rights were a reflection of the will and judgement of the members — that is, everyone at the corporation, and not, as seems so often to be the case, merely an extension of its owners speech rights.
Corporations are incredible concentrators of wealth, and consequently power, and those concentrations of wealth and power can espouse actions and principles that are frequently at odds with the well-being of that corporation's employees — the very people whose speech the Citizens United ruling purports to prevent being curtailed. Witness the allegations during the last Presidential election cycle of a mining company in Ohio (Murray Energy) requiring its employees to use an unpaid workday to attend a Romney rally — or lose their jobs.
How, exactly, is such "group speech" at all reflective of the political views of that group's membership?
Name the large group of people in an organization that DOES NOT concentrate the power hierarchically?
Corporations have CEOs and boards of directors. Non-profits do likewise. Large Newspapers have the owners and chief editors. Unions have Union Bosses and various types of decision boards. Churches have Popes, Cardinals, etc.
People often group together PRECISELY TO CONCENTRATE POWER. Why is it surprising? Why should Corporations be singled out for special treatment?
2. In our history as a species, that same (fallacious) argument could have been, and almost certainly was used to support slavery, human sacrifice, and genocide, among other charming and socially redeeming things.
I really couldn't care less whether a particular tribe-of-monkeys behavior has always been around or not. My ethical compass is pretty firmly tuned to one fundamental principle: the net increase in human freedom — freedom of action, and freedom from harm; freedom of expression, and freedom from exploitation. I care whether a particular tribe-of-monkeys behavior serves to benefit one group of monkeys at the expense of another.
To my mind, this one — the concentration of power in the hands of a few, built on the backs of many, which is then used to enact social norms or policy that are often counter to the interests of those many — does.
No one is forced to participate in a corporation. If you like freedom so much, why don't you think people should be free to choose to pool their resources, and to give some of their control of those resources up to the group's leadership?
I explicitly stated that people choose to group together to concentrate power.
The examples given were to counter your specific argument against corporations by showing you that there are many similar organizations that are acceptable concentrations of power.
The rest of your post ignored that context and furiously battled a straw man.
You changed the meaning of 'concentrate'. People don't intend to have their orgs hijacked by their leaders, and some groups have bylaws to prevent that.
The members of a corporation are the shareholders, not the employees. The employee equivalent to a corporation is a union, which also has free speech rights.
Certainly not! I'm not in a union and I give money and time to a variety of nonprofit organizations. The EFF, for instance, is a corporation that exists to concentrate the power of many people who care about online rights and freedoms. The Sierra Club is a corporation that concentrates the power of people who care about the environment. Etc.
EFF is just an example. The point is that any group of individuals can form and/or fund a corporation to concentrate their speech on whatever topic they want.
But you do lose many of your responsibilities behind the corporate veil. That's the thing that's so weird. Corporations don't merely give their constituent people a vehicle to exercise their rights. Corporations are totally separate people from any person inside the corporation.
Just looked at the largest union, the NEA. It's incorporated in many states for various reasons. Should that prevent it from participating in political discourse?
The corporate veil protects shareholders from being personally liable for the debts and obligations incurred by the corporation. Speech does not create debts or obligations, so the veil is not an issue.
Corporate speech is subject to some regulation, just like personal speech. Corporations can be sued for slander and libel, advertisements must meet certain standards of truthfulness, etc.
On top of the fact that it's practically impossible to make a libel accusation stick when political speech is even barely provable - being incorporated doesn't prevent a libel proceeding from moving forward. It just means that it's more difficult to pin it to individuals within the corporation.
Even then, there are ways that the corporate veil can be pierced to still go after individuals.
So a corporation (many individuals acting in concert) funding a movie should be unconstitutional, but a single billionaire natural person funding a movie should be constitutionally allowed?
Because free speech? That seems horribly backward.
> The gist of Citizens United was that the government couldn't ban political speech near an election. The speaker in question just happened to be a company.
Uh, no. The law in question applied only to corporations. The decision has nothing to do with individuals speaking.
Of course it has to do with individuals. It's hyper-legalistic to say that the fact that individuals are working through a corporation that they don't have individual rights. It's incredibly contrived, and it's a contrivance the Court didn't indulge.
Also, the 'corporation' in this case was non-profit. I wasn't really looking forward to a post-Citizens United-gone the other way world where the Jeb Bush administration immediately used its newfound powers to ban speech from Sierra Club, etc.
Laws restricting the political activities of corporations are as old as the nation. The key issues involved in Citizens had already been decided the other way in both Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003).
There would have been nothing newfound in restricting the spending of corporate money on political issues. Yes, even in the case of non-profits.
Your reading of the Supreme Court decision is incorrect.
Quoting from the decision:
"The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti , 435 U. S. 765 , and extended this protection to the context of political speech, see, e.g., NAACP v. Button , 371 U. S. 415 ."
"The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form."
These specifically say that while there may be a distinction between individual free speech rights and corporate free speech rights, the First Amendment applies to both. This "hyper-legalistic" argument from Supreme the Court is different than your statement, which is that corporate free speech is identical to individual free speech.
Instead, it says that all "speakers" are covered under the 1st, and that individuals and companies are examples of speakers. (" All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech." .. "That speakers may have influence over or access to elected officials does not mean that those officials are corrupt." .. " Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws.", etc.)
Your comparison to the Sierra Club is not a good one. The Sierra Club is a 501(c)(3), which means it has prohibitions on supporting political candidates and limits on lobbying. This is not changed by Citizen's United because of Regan v. Taxation With Representation of Washington, "a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right."
Citizen's United is a 501(c)(4) nonprofit, and income spent on political activities is, I believe, taxable and thus not subsidized.
You should instead use the Supreme Court's example that the ability to restrict speech for a non-profit corporation (other than for tax reasons) implies that the government could also restrict speech for a for-profit media company. I have no immediate response to that argument.
For what it's worth, I disagree with Citizen's United, and I believe that corporate rights must be subordinate to individual rights. The Court disagrees with me, and says that the only difference between a wealthy individual and a company is the limited liability, and that's insufficient to trigger a legal distinction under the First Amendment. I still disagree with that logic and believe it to be sufficient.
" All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech."
Not true for individuals. An individual does not to "fund" his speech, he simply speaks. Note that the entire decision is based on this false truth.
None of this has anything to do with the original post.
> An individual does not to "fund" his speech, he simply speaks.
If you write something on the internet, you definitely "fund" your speech. You pay someone to host your website, you pay for bandwidth, etc. If you publish a book, you definitely "fund" your speech. Etc.
Speech isn't just speaking. The freedom of speech isn't limited to just the least effectual modes of speech.
> These specifically say that while there may be a distinction between individual free speech rights and corporate free speech rights, the First Amendment applies to both. This "hyper-legalistic" argument from Supreme the Court is different than your statement, which is that corporate free speech is identical to individual free speech.
That's precisely the opposite of what it says: "The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form."
This quotation clearly treats "corporate speech" not as a distinct kind of speech, but as merely the speech of an "association[] of citizens" (individuals) in "association with a corporate form."
> Instead, it says that all "speakers" are covered under the 1st
The way to read this consistently with the previous statement you quoted is that "all speakers" means "all speakers, regardless of association."
The distinction between 501(c)(3) and 501(c)(4) non-profits here is irrelevant. First, see: http://www.asaecenter.org/Resources/whitepaperdetail.cfm?Ite.... Second, nothing in the government's argument in support of McCain-Feinghold would have been limited to speech specifically in support of or against a candidate, or in lobbying specifically. Indeed, the law at issue in Citizens United was broader than that--it prohibited speech merely mentioning a candidate. The movie at issue didn't say "vote for Hilary Clinton" or "vote against Hilary Clinton"--it was a documentary about Hilary Clinton.
501(c)(3)'s may have certain restrictions in how they use their money to lobby candidates, but the government in Citizens United was claiming a broader power than that--the power the subject of the speech of organizations of people (corporations and labor unions). I can't find a practical distinction between a prohibition on speech "mentioning a particular candidate" and a prohibition on speech "mentioning a hot political issue." The government in Citizens United was claiming the power to ban Sierra Club from talking about mountain top coal removal or the ACLU from talking about drone warfare.
When liberals talk about corporations vis-a-vis Citizens United, they only think about the "bad guys" (BP, Haliburton, etc). But guess what: the "good guys" (EFF, ACLU, Amnesty International, Sierra Club) are all corporations too! What Citizens United, rightly, says is that the government can't regulate the speech of individuals just because they are affiliated with these corporate forms.
Morse v. Frederick? Are you trolling? The Morse decision is so narrow that I don't know why you are expecting much traction by bringing it up. I'm curious are you in high school?
Edit:
There is nothing wrong if you are in high school. I was only asking because being a high school student would be a good explanation for why you think the Morse decision was so contentious.
I brought it up as a free speech decision that demonstrates that this court is not universally on the side of free speech. And yes, I think that the government should not be censoring political speech that takes place off of government property, no matter how much it dislikes the message.
As for your high school accusation, I'm in the top 50 posters on this site. You can easily check that I don't look like a high school student. In fact had I chosen to have children when I got married, they would have now been old enough to have graduated from college.)
No court is universally on the side of free speech. It was not an accusation of being a high school student. (I'm not even sure what the "accusation" would imply.) The question about high school was to assess why you thought the Morse decision was on the same level as Citizens United.
And I'm not sure what you being in the top 50 has to do with anything.
I wonder who the youngest on http://news.ycombinator.com/leaders (top 100) is. I see a few people I recognize as late-20s, at least, but most in 30s, and plenty in 40s-60s range
I doubt they'd admit it. From bitter experience, you can be as respected as you like in a community like this, but the moment you reveal you're 14, everyone will stop listening to you.
I'm not familiar with the details of Morse v Frederick, but I'm curious to know what makes it a narrow ruling other than the age restriction? It seems at first glance that it gives schools the power to restrict almost any form of protest by students in or near schools.
What makes it a narrow decision other than the issue of age and interests of a school administrator at a school function? Nothing. That seems to make it pretty narrow. Unlike other commenters in this thread I don't think "Bong Hits 4 Jesus" is political speech at a school function.
I don't care whether you consider "Bong Hits 4 Jesus" to be political speech. Did the court? I don't recall hearing that Morse v Frederick only applied to non-political speech.
And other than the age restriction, the only thing you can come up with is that it was restricted to only apply to the government agency that citizens of that age are required to interact with for most of their daily life, and can be reasonably expected to have the most cause to be protesting? That sure as hell doesn't narrow it down much more than the age restriction alone.
That's a huge restriction. School is where children are socialized.[1] It's a unique environment in our historical tradition and a unique set of rules are applicable.
[1] You might call it brainwashing, but society has historically valued this function very highly and protected it. Certainly during the founders time.
" I don't recall hearing that Morse v Frederick only applied to non-political speech."
Farther up in the thread you mention that you are unfamiliar with the Morse decision. Has this changed now? If not I recommend scanning the wikipedia article:
"Roberts rejoined that “not even Frederick argues that the banner conveys any sort of political or religious message;” “this is plainly not a case about political debate over the criminalization of drug use or possession.”" [1]
I said I was unfamiliar with the details. I certainly remember the general circumstances that were at issue, but I never read the ruling or a detailed analysis of it, so I don't know just how restrictive the wording is, which is what I'm now asking about. Your quotes seem to be very nearly on-topic, but it's not clear to me whether they imply that the school's powers would have been different had the speech been a more traditional and recognizable form of political protest. If Morse v Frederick indeed does not apply to the more coherent forms of protest, then I would certainly consider that to be significantly narrowing.
I don't know why you are taking my word or anyone else's word for it on HN. If you want to read a quick discussion of the court's ruling just look at 2.1.1-2.1.3 on the wikipedia page:
You can stop pointing me at the Wikipedia article. I've read it, and it still doesn't answer the question. I'd give more weight to a HN comment that does answer the question than to the wiki article that doesn't, even if the comment is just secondhand recollections that somebody qualified clearly said the ruling doesn't affect the legal status of speech that is clearly political. Did Morse overturn Tinker with the help of anti-drug scaremongering, or was Morse actually a narrow ruling on something not covered by Tinker?
Edit: By searching SCOTUSBlog, it appears that the answer may be that the ruling itself is pretty unclear about how broad or narrow it is, though Kennedy and Alito's concurrence clearly states that it doesn't apply to political speech. I guess we can at least agree that Morse might be a pretty narrow ruling.
The split is not so clear-cut on search and seizure issues. Remember that it was Justice Scalia who wrote the majority opinion in Kyllo, which decided that using thermal imaging devices to search for grow houses ran afoul of the 4th Amendment.
It's better than what happened in 2006, but still only requires reasonable suspicion before they can take your laptop away from you for as long as they like to search it.
Reasonable suspicion is a very low standard. It's basically more than a hunch, less than any real evidence.
Even a combination of completely insignificant things can be reasonable suspicion.
- SCOTUS declining to hear the AT&T case of warrantless wiretapping emails, texts and other communication.
-SCOTUS holding the Political Question Doctrine prohibits the Court from reviewing the Constitutionality of the President's extrajudicial targeted "Kill List" of US citizens nor can they review the Constitutionality on the criteria to get on the list.
Recently a US District Court held Indefinite Detention of US citizens without due process to be Unconstitutional. However, I think SCOTUS will uphold this ruling 5-4 prompting Congress to re-write the law with the same effect, prompting the legal process all over again.
The examples you mentioned aren't "degradation of civil liberties." They're the court punting on deciding issues they don't have to. The Court didn't hear the AT&T case because there wasn't any plaintiff that could prove they had been harmed. The Court didn't hear the "kill list" case because what the President does against enemy combatants off U.S. soil is indeed a political question, since the Constitution invests the President with primacy in international affairs.
The Court has not shied away from hearing similar issues when there was a closer nexus to U.S. soil and there were individuals with standing. The Court overturned a lot of the government's practices in Guantanamo, for example, because it was: 1) U.S. controlled soil; and 2) the people suing were actually hurt by the practices, not just people who objected to the practices.
>The Court didn't hear the "kill list" case because what the President does against enemy combatants off U.S. soil is indeed a political question, since the Constitution invests the President with primacy in international affairs.
The Court DID hear this case and they ruled on it. It just happens SCOTUS ruled SCOTUS does not have the power to review the constitutionality of the law in question.
Even during the heights of the Cold War when US citizens were working for the KGB and Soviets, including offering hand drawings of top secrete nuclear designs, the US citizens were NOT killed extra-judiciously, they were arrested and tried criminally.
There is no doubt that the Constitution invests the President power over international affairs - but you appear to suggest the President can just kill who ever he pleases outside the US (Citizen or Foreign National) as long as they are deemed "enemy combatants", is that correct? Keep in mind this is not a published Kill List, and the criteria to get on the Kill List in unknown.
Instead of me maintaining my position that the President being able to add anyone to a Kill List is a degradation of civil liberties and you maintaining it is not, is there a prior point the President maintained a Kill List of US citizens or as I content is this unprecedented in US history?
> The Court DID hear this case and they ruled on it.
Right, but either way they punted.
> It just happens SCOTUS ruled SCOTUS does not have the power to review the constitutionality of the law in question.
Well political question doctrine also has a big prudential element.
> Even during the heights of the Cold War when US citizens were working for the KGB and Soviets, including offering hand drawings of top secrete nuclear designs, the US citizens were NOT killed extra-judiciously, they were arrested and tried criminally.
Those citizens were in a framework where it was possible to subject them to process. They could be arrested, extradited and tried.
> You appear to suggest the President can just kill who ever he pleases outside the US (Citizen or Foreign National) as long as they are deemed "enemy combatants", is that correct?
That's not the power the President is claiming. It's much narrower than that.
That's not the power the President is claiming. It's much narrower than that.
The President has not stated what limits there are to his power. He has stated limits to what he will authorize. However if we accept that he can authorize it without having laid out limits to his authority, what stops another president from authorizing more?
Bear in mind, one of the most common ways for a democracy to become a dictatorship is for there to be broad emergency powers granted to the president - and then for the president to declare what effectively becomes a permanent state of emergency. Lest this seem paranoid, remember that the American experiment is 237 years old. If we assume that we are in a random point in time in the history of the USA, there is an a priori over a 10% chance that the USA will no longer exist in 24 years. There is a similar chance that the USA will survive another 2370 years. When we look across how long different types of government have lasted in different countries, the prospect of our system of government ending inside of 24 years is much more likely than its lasting 2370 years.
Does that seem absurd? I remember what the country was like 24 years ago. If you described what the USA would be like today to me back then, I'd have called it a dystopian fantasy. Democracy is more fragile than we want to believe. I'd like to keep it longer. And yes, I'm very willing to accept more trouble preventing terrorism if that is the cost. (And I'd also like to stop having to take my shoes off to get on an airplane...)
>Those citizens were in a framework where it was possible to subject them to process. They could be arrested, extradited and tried.
Necessity is the mother of all invention. However, what framework in the cold war era made it any easier to arrest, extradite and try citizens then, than it would be now? It is my understanding it has been pretty easy to "extradite" both citizens and foreign nationals into Guantanamo, so what about the "framework" makes it more difficult extend due process of the law? Suspending the rule of law, especially as a matter of convenience justified by armed conflict is a slippery slope that has generally been frowned upon by subsequent generations, such as the US rounding up Japanese-Americans and confining them to "US internment camps" during World War II - Was it constitutional? Maybe, but was it a degradation of civil liberties? Without question.
>That's not the power the President is claiming. It's much narrower than that.
To the best of my knowledge the President has not claimed any power as it relates to killing US citizens. Like any politician who wants an issue to go away he has ignored it and made the official policy not to acknowledge the targeted killing programs.
As far as the power being narrower, it might be, but no one knows because the criteria to get on the Kill List is unknown. I rather doubt it is narrow with any strict standards, based on military/CIA intelligence if it is recommended to Obama to add a name, I bet he adds a name - of course these are the same intelligence communities who knew Iraq had WMD's and knew exactly where they were.
Based on your posts I can tell you are very intelligent and have at least a minimal knowledge of these issues coming before SCOTUS. I believe extrajudicial killings is a degradation of civil liberties, you do not,and no amount of SCOTUS rulings will change either of our minds, nor should we expect it to when the Court itself is split on most issues, generally 5-4 at that.
So to clarify, you are stating that U.S. citizens should lose all right to due process the minute they step off U.S. soil? Or do you believe that any citizen deemed an enemy combatant can be killed by the executive on U.S. soil as well?
I'm not saying either of these things. I'm pointing out that separation of powers requires the Supreme Court to respect situations where the Constitution has given other branches primacy. It has never been true that the Supreme Court is the appropriate forum for redress of every possible Constitutional violation. That is to say, it can be simultaneously true that the Executive does something unconstitutional and that it is appropriate for the Supreme Court not to review the action.
The conduct of war is an area in which the Constitution invests the President with primacy. But it's not a black/white issue--it's a spectrum. The more closely a matter touches U.S. soil, the more justification the Supreme Court has for intervening. At one end of the spectrum is the President's conduct with respect to foreigners on foreign soil. The Supreme Court has no business telling the President how to kill Taliban in Afghanistan. At the other end of the spectrum is the President's conduct with respect to Americans on American soil. The Supreme Court must insert itself in such situations, as it did in Hamdi v. Rumsfeld (2004), when it declared that the government must give due process to an American citizen captured in Afghanistan being held in Guantanamo.
Between there is where it gets iffy. Hamdi, for reference, hadn't been in the U.S. since he was a child. Yet he was held to have due process rights because he was on U.S. controlled soil (Guantanamo Bay).
The kill list cases have so far all been missing that crucial nexus to U.S. soil. Do you lose all your rights when you step off U.S. soil? No, and the Supreme Court has said so (Reid v. Covert). Do you lose all your rights when you leave the U.S., actively take up arms against it, and evade all attempts to bring you to justice? The Supreme Court is quite prudent not to take up that hairy situation, especially since civil libertarians may very well not like the answer.[1]
[1] It wouldn't be unreasonable or unjustifiable for the Supreme Court to say that U.S. Citizens do retain the right to due process while off U.S. soil, even if they take up arms against the U.S., but that an administrative process is sufficient "process due" in situations where the Citizen refuses to submit himself to judicial process.
DOMA is also up for a SCOTUS ruling, which is potentially far more substantive (because full-faith-and-credit will actually have force for marriages). It'll be interesting how that shakes out.
Windsor v US (the DOMA case up for a SCOTUS ruling) only challenges Section 3 of DOMA, not Section 2.
Section 3 forbids the federal government from recognizing same-sex marriages.
Section 2 says states are not required to recognize the same-sex marriages of other states.
The full-faith-and-credit clause of the Constitution gives Congress the power to "prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof", so it's very unlikely that Section 2 will be ruled unconstitutional.
Unfortunately we have a 5-4 split in the Supreme Court. The liberal minority only needs a single judge to come to their side to win this. However on civil liberties the trend has been negative. I'm therefore not particularly optimistic.