Monthly Archives: November 2014

John and Diane Foley accept First Amendment Award
John and Diane Foley accept the First Amendment Award on behalf of their son James from the Nackey Loeb School of Communications in Manchester, NH Wednesday, Nov. 12, 2014. James was ...

By: NashuaTelegraphVideo

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John and Diane Foley accept First Amendment Award - Video

TALLAHASSEE, Fla. -

The Florida Supreme Court on Thursday unanimously rejected a Republican political consultant's efforts to keep his redistricting records private, promising to give the public its first glimpse of documents that helped lead to the state's congressional districts being thrown out this summer.

While different justices signed onto two separate opinions about the case, both found that Pat Bainter and his consulting firm, Data Targeting, Inc., waited too long to claim that releasing some of the documents would violate his First Amendment rights.

The documents were requested by voting-rights organizations challenging the state's congressional districts.

Writing for five members of the court, Justice Barbara Pariente used unusually harsh language to paint Bainter's efforts as part of a months-long stalling tactic as the battle over the congressional map played out in a Leon County court.

"We simply do not countenance and will not tolerate actions during litigation that are not forthright and that are designed to delay and obfuscate the discovery process," Pariente wrote.

In the opinion, the court ruled that Bainter tried for months to keep the documents shielded without saying that releasing them would violate his First Amendment rights. Bainter only made that claim after a Leon County judge held Bainter and the company in contempt, Pariente wrote.

"By responding to the deposition questions and acknowledging discussions with other political consultants without ever revealing the true nature of those communications or asserting a First Amendment privilege, in conjunction with the failure to timely assert this qualified privilege after the deposition testimony and months of additional hearings, we conclude that Bainter waived his ability to later claim that the documents revealing these communications were privileged on that basis," Pariente wrote.

Joining Pariente in the opinion were Chief Justice Jorge Labarga and Justices R. Fred Lewis, Peggy Quince and James E.C. Perry. In a separate opinion, Justices Ricky Polston and Charles Canady supported the outcome. It was a rare, unified decision from a court that has often splintered on redistricting opinions.

The voting-rights groups, which include the League of Women Voters of Florida, argued that the Republican-dominated Legislature drew congressional districts that violated the anti-gerrymandering "Fair Districts" constitutional requirements, approved by voters in 2010.

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By William Bennett Turner

William Bennett Turner teaches First Amendment courses at UC Berkeley, and is the author of 'Figures of Speech: First Amendment Heroes and Villains' (2011).

The biggest vote-getter on the Nov. 4 ballot in Berkeley was not the tax on sugary soda, which got 75% of the vote and national attention. Nor was it a candidate for any office. It was Proposition P, which called for a constitutional amendment to overturn the Supreme Courts 2010 Citizens United decision. Prop P got 85% of the vote.

The proposition was, as California propositions go, remarkably simple. It asked if the United States Constitution should be amended to abolish the concept that corporations are persons that are entitled to constitutional rights, and the doctrine that the expenditure of money may be treated as speech. (Berkeleyans have rarely been bothered that their principled positions on national and international affairs have little effect; the proposition was placed on the ballot by the City Council.)

The official ballot argument in favor of Prop P (no opposing argument was submitted) overstated the Citizens United decision by claiming it gave corporations the same rights and protections under the U.S. Constitution as human persons. It mistakenly added that the decision specified that donating unlimited money on campaigns should be considered free speech, and asserted the court had endorsed the slogan money equals speech. The argument ended with a ringing call to abolish corporate personhood.

Citizens United is the most misunderstood decision in the 21st century. That is partly because the opinions in the case ran to 176 pages, and very few people have read them. I doubt anyone on the Berkeley City Council has read them.

As it happens, on election day I was teaching the decision in my First Amendment class at UC Berkeley. I felt obligated to tell the students some of the ways Citizens United has been mischaracterized.

First, it did not give corporations the same rights under the U.S. Constitution as natural persons. It didnt give them the right to vote, or the right to contribute directly to a candidate. Nor did it invent the concept of corporate personhood. That was done peremptorily by the court in a railroad case in 1886, without any argument, discussion or analysis. In 1978, the court ruled that political speech in an election did not lose First Amendment protection because of the corporate identity of the speaker, and that became the main theme of Citizens United. The court also protected corporate speech in at least 24 cases before Citizens United, including cases establishing bedrock free speech principles. Those included New York Times v. Sullivan (the right to criticize government without fear of being sued for libel), and the Pentagon Papers case (no prior restraints-type government censorship), both won by the Times corporation.

At this point in our history, abolishing corporate personhood would cause all kinds of mischief. The New York Times and all other media corporations would have no First Amendment rights and could be censored at will. (Relying on the Press Clause of the First Amendment is no answer, because the court has rejected the contention that it gives whoever claims to be the press a difficult definitional question in these days of Fox News, Twitter and bloggers special speech rights not enjoyed by ordinary citizens.) Some Berkeleyans might not be unhappy if government prohibited corporate advertising, thus wiping out the Super Bowl and most media, though few would be pleased if a corporation, not being a person, could not be sued for polluting the environment.

Second, the court did not say money is speech. It simply quoted from its 1976 decision in Buckley v. Valeo to the effect that restricting the amount of money that can be spent in a campaign restricts the quantity and nature of campaign speech. This is self-evident: it costs money to print and distribute flyers and yard signs, rent billboard space, and buy television and radio time; the less money you can spend, the less you can speak. In that sense, the court now treats money as speech, but it doesnt use the slogan simplistically equating the two.

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Op-ed: Berkeley overrules Citizens United!