Anti-Whistleblower 'Ag-Gag' Law Ruled Unconstitutional

from the go-free-speech! dept

Tue, Aug 4th 2015 7:10am — Mike Masnick

We've written a few times about the ridiculousness of so-called ag-gag laws, that prohibit photographing or videotaping farms (sometimes even from public land). These laws were pushed for heavily by large industrial farmers who were sick of animal rights advocates getting images and videos of the conditions in farms and slaughterhouses that were questionable. Whatever you might think of the practices of those advocates, banning taking photographs or videos seemed like a really questionable move -- which would have a chilling effect on whistleblowers of all kinds. It seemed like it had to be unconstitutional -- and a court in Idaho agrees, declaring that state's law unconstitutional.

The court does not mince words, noting that under this law, Upton Sinclair's The Jungle would likely have been illegal:

The story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating expose of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act.... Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042.

The State responds that § 18-7042 is not designed to suppress speech critical of certain agricultural operations but instead is intended to protect private property and the privacy of agricultural facility owners. But, as the story of Upton Sinclair illustrates, an agricultural facility’s operations that affect food and worker safety are not exclusively a private matter. Food and worker safety are matters of public concern. Moreover, laws against trespass, fraud, theft, and defamation already exist. These types of laws serve the property and privacy interests the State professes to protect through the passage of § 18- 7042, but without infringing on free speech rights.

With this background and context, the Court finds that § 18-7042 violates the First Amendment right to free speech. In addition, the Court finds that § 18-7042 violates the Equal Protection Clause because it was motivated in substantial part by animus towards animal welfare groups, and because it impinges on free speech, a fundamental right.

The ruling also highlights how the politicians behind this bill barely hid their desire to shut up those darn animal rights activists, who they sometimes referred to as "terrorists" in explaining why this bill was necessary.

A review of the legislative record in search of a legitimate purpose does nothing to help the State’s cause.... The overwhelming evidence gleaned from the legislative history indicates that § 18-7042 was intended to silence animal welfare activists, or other whistleblowers, who seek to publish speech critical of the agricultural production industry. Many legislators made their intent crystal clear by comparing animal rights activists to terrorists, persecutors, vigilantes, blackmailers, and invading marauders who swarm into foreign territory and destroy crops to starve foes into submission. Other legislators accused animal rights groups of being extreme activists who contrive issues solely to bring in donations or to purposely defame agricultural facilities.

As the Supreme Court has repeatedly said, “a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest if equal protection of the laws is to mean anything.” ... As a result, a purpose to discriminate and silence animal welfare groups in an effort to protect a powerful industry cannot justify the passage of § 18-7042.

It also points out that, for all the talk of animal rights advocates "misrepresenting" things on farms, there's a perfectly good solution to that: counterspeech.

The State has not shown why counterspeech would not suffice to achieve its interest of protecting agricultural production facilities from interference by wrongful conduct.... If an undercover investigator “staged a video” at an agricultural production facility, as some Idaho legislators fear, ... not only could the facility owner sue the investigator for fraud or defamation, but the facility owner could launch its own public relations campaign to refute the video.

The remedy for misleading speech, or speech we do not like, is more speech, not enforced silence....

The court also laughs off the idea that the bill was narrowly tailored or that this particular law was necessary. In fact, the court points out ridiculous things that are illegal under the law:

Indeed, § 18-7042 not only restricts more speech than necessary, it poses a particularly serious threat to whistleblowers’ free speech rights. To convict a whistleblower under the statute, the State does not need to prove that the whistleblower entered a production facility under false pretenses or trespass. Thus, as discussed above, if a diligent and trusted longtime employee witnesses animal abuse or life-threatening safety violations and records it without authorization, the employee could face up to a year in jail and be forced to pay damages to agricultural production facility owner for “twice” the economic loss the owner suffers because of the employee’s whistleblowing activity, even if everything depicted on the video is true and accurate.... In other words, the statute circumvents long-established defamation law and whistleblowing statutes by punishing employees for publishing true and accurate recordings on matters of public concern. The expansive reach of this statute is hard to reconcile with basic speech, whistleblower, and press rights.

And finally, with all the questionable reasons for this bill to exist, one of the least commented on is the fact that this is clearly the state picking industries to give special protections to -- and the court doesn't even let that point slide:

Likewise, the State fails to provide a legitimate explanation for why agricultural production facilities deserve more protection from these crimes than other private businesses. The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.

Of course, there are still seven other states with ag-gag laws on the books, and hopefully they're about to go down as well. There is still a decent chance that the state will appeal and waste more taxpayer money defending an unconstitutional bill that spits on the First Amendment, but it's difficult to see how the courts could come to any conclusion different than the one here by Judge Lynn Winmill.

Idaho Ag Gag Decision (PDF)Idaho Ag Gag Decision (Text)

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Filed Under: activists, ag gag, ag-gag, farms, first amendment, idaho, upton sinclair, whistleblowers

62 Comments

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Mason Wheeler (profile), 4 Aug 2015 @ 7:41am

it's difficult to see how the courts could come to any conclusion different than the one here by Judge Lynn Winmill.

Is it really, in a world where Citizens United is a thing?
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- Anonymous Coward, 4 Aug 2015 @ 8:20am
  
  Citizens United [was Re: ]
  … in a world where Citizens United is a thing?
  You do recall the facts of Citizens United?
  
  In any event, the present case [PDF] relies in some small part on Citizens United. See page 13:
  Audio and visual evidence is a uniquely persuasive means of conveying a message, and it can vindicate an undercover investigator or whistleblower who is otherwise disbelieved or ignored. Prohibiting undercover investigators or whistleblowers from recording an agricultural facility’s operations inevitably suppresses a key type of speech because it limits the information that might later be published or broadcast. See, e.g., Citizens United v. Federal Elections Comm’n, 130 S.Ct. 876, 896 (2010) (“laws enacted to control or suppress speech may operate at different parts in the speech process.”).
  [ link to this | view in chronology ]
  - Anonymous Coward, 4 Aug 2015 @ 8:21am
    
    Re: Citizens United [was Re: ]
    Corporations are people my friend
    [ link to this | view in chronology ]
    - Anonymous Coward, 4 Aug 2015 @ 8:28am
      
      Re: Re: Citizens United [was Re: ]
      Corporations are people my friend
      Well, of course you read that case and understand the roots upon which it rests.
      
      In your considered opinion, was NAACP v Button (1963) rightly decided?
      [ link to this | view in chronology ]
    - Anonymous Coward, 4 Aug 2015 @ 8:39am
      
      Re: Re: Citizens United [was Re: ]
      Well, in this case, yes, Citizens United was a corporation made up of people.
      
      It never ceases to amaze me that progressives think that companies made up of a group of people should not have the right to free speech.
      
      And yet almost everyone agrees that if you own a business making movies or publishing books or whatever that its stupid not to incorporate.
      [ link to this | view in chronology ]
      - tqk (profile), 4 Aug 2015 @ 10:38am
        
        Re: Re: Re: Citizens United [was Re: ]
        I'm not a "progressive", whatever that word means these days.
        It never ceases to amaze me that progressives think that companies made up of a group of people should not have the right to free speech.
        
        The individual people in that group certainly have a protected right of free speech. Why an organization made up of those people is allowed to sidestep campaign finance laws is the problem. You're allowed to donate X many dollars to support a candidate. That group is allowed to accept gazillions from one or many supporters, then spend it on behalf of its special snowflake.
        
        That's stupid.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Aug 2015 @ 10:53am
        
        Re: Re: Re: Re: Citizens United [was Re: ]
        From the boards perspective, they can donate to a political campaign using the companies money, rather than their own, and even claim that that is serving the shareholders interests.
        [ link to this | view in chronology ]
        
        Mason Wheeler (profile), 4 Aug 2015 @ 11:00am
        
        Re: Re: Re: Re: Re: Citizens United [was Re: ]
        Funny how that works out. They can unilaterally claim that they're serving the shareholders' interests without actually having to ask the shareholders about their positions on the political issues in question. Meanwhile, a subsequent ruling "clarified" that unions--which theoretically were supposed to receive the same privileges under Citizens United--must actually hold a vote and receive approval from the union members in order to do the same.
        
        If it wasn't already clear what the real purpose of the Citizens United ruling was, that made it about as clear as it can possibly be: to deliberately tilt the playing field as far in favor of large corporations as possible, at the expense of everyone who might possibly disagree with them.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Aug 2015 @ 11:29am
        
        Re: Re: Re: Re: Citizens United [was Re: ]
        Transcipt of Oral Argument, Mar 24, 2009
        
        JUSTICE ALITO: That's pretty incredible. You think that if -- if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?
        
        MR. STEWART: I'm not saying it could be banned. I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its -
        
        JUSTICE ALITO: Well, most publishers are corporations. And a publisher that is a corporation could be prohibited from selling a book?
        
        . . .
        
        JUSTICE KENNEDY:Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60 -- 90-day period -- the 60 -- the 30-day period?
        
        MR. STEWART: If the book contained the functional equivalent of express advocacy. That is, if it was subject to no reasonable interpretation -
        [ link to this | view in chronology ]
      - Anonymous Coward, 4 Aug 2015 @ 11:13am
        
        Re: Re: Re: Citizens United [was Re: ]
        "Corporations are made up of people"
        Well, thank your luck stars the SCOTUS told us that otherwise we would remain ignorant.
        
        "progressives" ... what does that mean?
        Someone who thinks in a progressive manner rather than regressive?
        
        Companies were not give 1st amendment rights simply because a company has people working there as that would be silly.
        
        "Everyone agrees" this is a first- I have never seen anything to which everyone agrees. this is monumental!
        [ link to this | view in chronology ]
        
        tqk (profile), 4 Aug 2015 @ 11:36am
        
        Re: Re: Re: Re: Citizens United [was Re: ]
        
        "progressives" ... what does that mean?
        
        Someone who thinks in a progressive manner rather than regressive?
        
        Are you really that stupid? I'm sure Hitler, Stalin, Franco, Mussolini, Amin, Pol Pot, and Mao all believed themselves "progressives" in their own way.
        
        Pro-this or Anti-that mean something. Progressive? Not much. One individual or group's progressive is another tyrant's regressive, and vice versa.
        [ link to this | view in chronology ]
        
        Mason Wheeler (profile), 4 Aug 2015 @ 12:12pm
        
        Re: Re: Re: Re: Re: Citizens United [was Re: ]
        "Progress means getting nearer to the place you want to be. And if you have taken a wrong turning, then to go forward does not get you any nearer.
        "If you are on the wrong road, progress means doing an about-turn and walking back to the right road; and in that case the man who turns back soonest is the most progressive man."
        -- C. S. Lewis
        [ link to this | view in chronology ]
        
        tqk (profile), 4 Aug 2015 @ 2:04pm
        
        Progressive.
        All of you who use that word that way are instilling it with a positive value that is not there. You can progress towards death, and physicians talk of the progression of a disease. It means movement towards an end, whether that end is good or bad for the progressor. When I was younger, we often heard it used pejoratively. "That's progress for you. Going to hell in a handbasket!" Shakespear used it to describe tears running down one's cheek, not evaporating up to heaven.
        
        The framers of the constitution called themselves liberal. Conservatives vilified it for political reasons, and those liberals then started calling themselves "Classical Liberals." That didn't match up with FDR style big gov't liberalism. "Progressive" was invented by those desperate to re-brand and get away from the pejorative connotations of "FDR liberalism."
        
        It's just marketing-speak or Newspeak.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Aug 2015 @ 2:15pm
        
        Re: Re: Re: Re: Re: Citizens United [was Re: ]
        Yeah, I'm really that stupid. Apparently so are many others including yourself.
        [ link to this | view in chronology ]
    - Bergman (profile), 4 Aug 2015 @ 12:26pm
      
      Re: Re: Citizens United [was Re: ]
      Corporations are like Soylent Green -- they're made of people.
      
      People have rights -- you don't lose your human rights just because you stand in a crowd of people instead of all by yourself.
      [ link to this | view in chronology ]
      - tqk (profile), 4 Aug 2015 @ 2:30pm
        
        Re: Re: Re: Citizens United [was Re: ]
        Corporations are like Soylent Green -- they're made of people.
        
        Ground up, chopped and formed, cooked, with artificial flavoring ... Are you really attempting to defend corporations with that?
        People have rights -- you don't lose your human rights just because you stand in a crowd of people instead of all by yourself.
        
        Those people shouldn't gain any rights just by all standing together in a crowd either. They all have their individual rights. Why does their incorporation gain them yet another voice?
        
        Because money, corporations, bribed politicians, and credulous, partisan, SCOTUS appointees.
        [ link to this | view in chronology ]
  - Mason Wheeler (profile), 4 Aug 2015 @ 8:31am
    
    Re: Citizens United [was Re: ]
    You do recall the facts of Citizens United?
    
    I recall that it equated money with political speech and declared that, under the First Amendment, such "speech" could not be limited, and also, just to make things worse, declared that corporations--which due to their nature as conglomerate entities have far more resources available than individual human beings--have such a First Amendment right that must not be infringed upon.
    
    I recall that it's already become one of the most infamous and obviously evil Supreme Court cases of all time, on par with the Dred Scott and Roe v. Wade decisions, both of which took a class of entities that are human beings and denied them basic protections of human rights. Citizens United is abominable for the opposite reason: it takes a class of entities that are not human beings and grants them human rights, to the detriment of actual human beings.
    
    In any event, the present case [PDF] relies in some small part on Citizens United.
    
    Irony of ironies. That still doesn't make it a good ruling.
    [ link to this | view in chronology ]
    - Anonymous Coward, 4 Aug 2015 @ 8:38am
      
      Re: Re: Citizens United [was Re: ]
      
      You do recall the facts of Citizens United?
      I recall …
      Citizens United is a nonprofit corporation. . . .
      
      In January 2008, Citizens United released a film entitled Hillary: The Movie. We refer to the film as Hillary. It is a 90-minute documentary about then-Senator Hillary Clinton, who was a candidate in the Democratic Party's 2008 Presidential primary elections. Hillary mentions Senator Clinton by name and depicts interviews with political commentators and other persons, most of them quite critical of Senator Clinton. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video-on-demand. . . .
      [ link to this | view in chronology ]
      - Mason Wheeler (profile), 4 Aug 2015 @ 8:44am
        
        Re: Re: Re: Citizens United [was Re: ]
        Yes, I'm well-aware of the original issue that the case was supposedly about. I'm also aware that certain Justices used it as an excuse to issue a pro-corporatist ruling that went far beyond the scope of what was actually being litigated.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Aug 2015 @ 8:52am
        
        Re: Re: Re: Re: Citizens United [was Re: ]
        … far beyond the scope…
        What the Supreme Court actually did—
        The judgment of the District Court is reversed with respect to the constitutionality of 2 U.S.C. § 441b's restrictions on corporate independent expenditures. The judgment is affirmed with respect to BCRA's disclaimer and disclosure requirements. The case is remanded for further proceedings consistent with this opinion.
        
        It is so ordered.
        Article III, Section 2
        The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States . . . .
        [ link to this | view in chronology ]
        
        Mason Wheeler (profile), 4 Aug 2015 @ 10:16am
        
        Re: Re: Re: Re: Re: Citizens United [was Re: ]
        So a single paragraph with no context somehow means that the Supreme Court "actually did" something other than they actually did?
        
        Extraordinary claims require extraordinary evidence, not vague citations with no context.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Aug 2015 @ 10:43am
        
        Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        So a single paragraph with no context somehow means that the Supreme Court "actually did" something other than they actually did?
        Just a little bit ago, you wrote: “I'm also aware that certain Justices used it as an excuse to issue a pro-corporatist ruling that went far beyond the scope of what was actually being litigated.”
        
        So I got that “excuse” is supposed to connote some illegitimacy. And “pro-corporatist” is most probably pejorative.
        
        But, after that, what's your beef? Merely that the court (partially) ruled for the (non-profit) corporation against the FEC?
        
        Perhaps you were really in love with 2 U.S.C. § 441b?
        [ link to this | view in chronology ]
        
        Mason Wheeler (profile), 4 Aug 2015 @ 10:55am
        
        Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        But, after that, what's your beef? Merely that the court (partially) ruled for the (non-profit) corporation against the FEC?
        
        Perhaps you were really in love with 2 U.S.C. § 441b?
        
        OK, dude, make up your mind. Are you playing dumb or are you bloviating and obfuscating and pretending to be really smart? Because you just did both right after each other, and it's a bit jarring.
        
        You appear to be trying to put this ruling, or very small parts thereof, in a box, isolated from context and from the broader reality of political campaigning in the USA, in order to sow doubt as to what this ruling was or what its effects were or... something. Your comments are so full of questioning innuendos, and so utterly bereft of actual claims and substantial arguments, that I'm not sure exactly what it is you're trying to cast doubt upon.
        
        Would you mind actually stating a clear position? I stated mine--my "beef," as you put it--several posts ago.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Aug 2015 @ 11:24am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        Would you mind actually stating a clear position?
        Amendment XIV, Section 1
        No state shall . . . nor deny to any person within its jurisdiction the equal protection of the laws.
        
        Earlier, you mentioned in passing that you felt Citizen's United, was “obviously evil” ranking right up there with Roe v Wade. That latter case, of course, traces back through Griswold v Connecticut (1965) and its infamous “penumbra” language.
        
        The Fourteenth Amendment, textually does not guarantee “equal protection” beyond state action. Textually, there's no guarantee of “equal protection” under federal law.
        
        But, of course, when the Supreme Court makes a ruling in one case, we expect that similarly situated parties are entitled to equal protection in their cases as well, whether decided under state or federal laws.
        [ link to this | view in chronology ]
        
        Mason Wheeler (profile), 4 Aug 2015 @ 12:21pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        ...which brings us right back to my point. The 14th amendment requires equal protection for every person. When you take an entity that is not a person and create the legal fiction that they are, and place it in a context that leaves said fake person able to wield greater power and influence than any real person, this is a very serious problem. Particularly when said fake person has a long and well-established history of outright hostility towards the well-being of real persons.
        [ link to this | view in chronology ]
        
        Bergman (profile), 4 Aug 2015 @ 12:33pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        The problem with that is that a group of persons remain persons.
        
        How many people have to be standing next to you before you lose your human rights? A thousand? A hundred? Ten? One?
        
        Some people incorporate their business with themselves as the sole corporate officer and sole employee. Why do you believe that they shouldn't have human rights, despite being a person?
        
        There were two ways the court could reasonably rule on Citizens United, once they took up the case. If they had ruled the other way, it would have abolished organizations like the EFF and ACLU.
        [ link to this | view in chronology ]
        
        Mason Wheeler (profile), 4 Aug 2015 @ 12:45pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        Some people incorporate their business with themselves as the sole corporate officer and sole employee. Why do you believe that they shouldn't have human rights, despite being a person?
        
        I believe nothing of the sort. I believe that this hypothetical person should retain all of their human rights, but that the corporate entity that this person is the sole-officer-and-employee of should not have any human rights, because it is not a human being.
        
        Is that distinction really so difficult to understand?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Aug 2015 @ 1:02pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        Why do you believe that they shouldn't have human rights, despite being a person?
        
        The idea of corporations, and limited liability companies was to limit the liability of the shareholders, i.e. owners, to the money that they had invested into the company. Being a shareholder, or even a sole proprietor of a company does not remove the persons human rights, and neither does being a board member, but granting those rights to a company creates an artificial person, and increases the influence of some individuals.
        To follow you argument to its logical, but absurd conclusion, a person can increase the number of votes they have, and constituencies that they have votes in by incorporating as many companies as wish to have votes.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Aug 2015 @ 2:11pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        No one is removing their human rights, they still have the human right... the corporate entity does not. In the case of political contributions they can still contribute as themselves, not as the corporation.
        [ link to this | view in chronology ]
        
        tqk (profile), 4 Aug 2015 @ 2:39pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        Some people incorporate their business with themselves as the sole corporate officer and sole employee. Why do you believe that they shouldn't have human rights, despite being a person?
        
        Who's saying that, other than you?
        
        They didn't lose any rights through incorporating. They shouldn't gain any either, other than tax, legal, and financial limitations.
        
        Do corporations get a vote when they incorporate? No? You've been robbed! I suppose that's next on the agenda, or perhaps we'll just do away with all that election sillyness, and go back to being "equals." Feudalism, here we come.
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 4 Aug 2015 @ 3:06pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        "The problem with that is that a group of persons remain persons."
        
        A corporation is not just "a group of persons". It is something more. It is a legal entity that is separate and distinct from the people who work for it.
        [ link to this | view in chronology ]
        
        tqk (profile), 4 Aug 2015 @ 3:54pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        A corporation is not just "a group of persons". It is something more. It is a legal entity that is separate and distinct from the people who own it.
        
        FTFY. It's a money making machine designed to distance the shareholders (its owners) from the legal and tax obligations of the business (the money making machine that they own).
        
        Prior to the invention of corporations, when a business failed, its creditors could go after and bankrupt its owners, including taking all of their property for the business' debts.
        
        Corporations allowed business owners to be paid by the corporation, but not be legally or financially liable in the event of the business' failure.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Aug 2015 @ 9:42pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Citizens United [was Re: ]
        ...which brings us right back to my point. The 14th amendment requires equal protection for every person.
        NAACP v Button (1963)
        Petitioner challenges the decision of the Supreme Court of Appeals on many grounds. But we reach only one: that Chapter 33 as construed and applied abridges the freedoms of the First Amendment, protected against state action by the Fourteenth. More specifically, petitioner claims that the chapter infringes the right of the NAACP and its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights. We think petitioner may assert this right on its own behalf, because, though a corporation, it is directly engaged in those activities, claimed to be constitutionally protected, which the statute would curtail.
        (Emphasis added.)
        
        Wrongly decided on this point?
        
        Note from Citizens United—
        . . . This protection has been extended by explicit holdings to the context of political speech. See, e.g., Button . . .
        
        Was NAACP v Button wrongly decided in 1963?
        [ link to this | view in chronology ]
      - Anonymous Coward, 4 Aug 2015 @ 11:15am
        
        Re: Re: Re: Citizens United [was Re: ]
        In January 2008, Citizens United released a film entitled Hillary: The Movie
        
        I'm sure it is beyond reproach wrt factual representation.
        [ link to this | view in chronology ]
    - Chris Rhodes (profile), 4 Aug 2015 @ 11:12am
      
      Re: Re: Citizens United [was Re: ]
      I recall that it's already become one of the most infamous and obviously evil Supreme Court cases of all time, on par with the Dred Scott
      Yes, a ruling stating that the government cannot stop groups of people from expressing their political opinions close to an election is "evil" and "on par" with a ruling stating that black people can't be citizens.
      
      Get a grip.
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Aug 2015 @ 11:16am
        
        Re: Re: Re: Citizens United [was Re: ]
        "groups of people from expressing their political opinions"
        
        ... with other people's money totally devoid of permission.
        [ link to this | view in chronology ]
      - Mason Wheeler (profile), 4 Aug 2015 @ 12:17pm
        
        Re: Re: Re: Citizens United [was Re: ]
        A ruling that states that "people" who are not actually people can enjoy greater rights than any and all real citizens, black, white, or otherwise? And that they are free to wield that influence in ways that deliberately goes against the interests--and frequently against the basic health, safety, and fundamental rights--of real citizens?
        
        Yes, absolutely, that's at least as bad as Dred Scott if not worse.
        [ link to this | view in chronology ]
      - Anonymous Coward, 4 Aug 2015 @ 4:55pm
        
        Re: Re: Re: Citizens United [was Re: ]
        "cannot stop groups of people from expressing their political opinions"
        
        ... so long as those opinions match theirs - otherwise, that's a tazing.
        [ link to this | view in chronology ]
- Bergman (profile), 4 Aug 2015 @ 12:25pm
  
  Re:
  You realize, don't you, that if the court had ruled the other way on Citizens United, it would have turned groups like the ACLU and EFF into illegal organizations?
  
  The decision in Citizens United was, basically, that groups of people don't lose their human rights just because they speak together.
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  - Mason Wheeler (profile), 4 Aug 2015 @ 12:46pm
    
    Re: Re:
    Yeah, you keep making this claim. Do you have anything to back it up with?
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  - Anonymous Coward, 4 Aug 2015 @ 2:18pm
    
    Re: Re:
    This claim needs supporting evidence or factual data, otherwise it is complete bunk.
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  - tqk (profile), 4 Aug 2015 @ 2:20pm
    
    Re: Re:
    The decision in Citizens United was, basically, that groups of people don't lose their human rights just because they equate speech with money.
    
    FTFY. If we had real freedom of the press, everyone would need to own a press to avail themselves of said freedom. Instead, we free those with presses to use them because we all benefit if they do, in theory. Nowadays, you need a television network that can broadcast attack ads, for your snowflake to not look like an asshole while still vilifying you.
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  - Zonker, 4 Aug 2015 @ 5:01pm
    
    If money is speech, and we have the right to free speech, then where is my free money?
    Bergman, your argument rests on a false premise. Citizens United was not a ruling on the legality of unions or non-profit organizations, it was a ruling on the legality of exceeding the limit for individual campaign contributions by a single legal entity. Note that the legal entity is not a person, it is a legal construct intended to limit the personal liability of individual members of a group from the actions of the group as a whole while still functioning as a single legal entity with one voice.
    
    As others you ignore have repeatedly stated, the people who form a partnership/organization/corporation retain the same rights now that they held before Citizens United. What changed is that now that group, under the exclusive control of an executive officer and maybe a small board of directors, can spend as much money (conflated with speech in order to abuse the First Amendment against its own purpose) as they want to influence a political candidate or campaign without any regard to the political opinions of the majority of its members.
    
    The Declaration of Independence states that all are created equal before it establishes our inalienable rights. Legal entities made up of many people are not equal to an individual person; they are far greater in size, power, and resources. In a way, their structure is not much different from that of a small government in its own right, most often either an autocracy or oligarchy.
    
    So essentially, Citizens United didn't just repeal campaign contribution limits intended to limit corruption in politics and level the playing field so everyone could participate; it granted a new virtual personhood to legal entities formed around large groups of people where all the decisions made by no more that a handful of people at the top. What's more, there is no restriction on how many of these legal entities one person can control, effectively granting one person multiple virtual personhoods under the law.
    
    So much for equality. Hypothetically, how do I fight my own CEO's speech with more speech if I worked at Walmart with an average $16K/year salary while the CEO has an annual revenue of $486 billion to speak with not including his own personal income or any other legal entity he may control. Why does he get so much more speech than me if we are supposed to be equal?
    
    If I have the right to free speech, then why do I have so much less of it than the CEO of Walmart?
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    - Anonymous Coward, 4 Aug 2015 @ 7:47pm
      
      Re: If money is speech, and we have the right to free speech, then where is my free money?
      … your argument rests on a false premise. … it was a ruling on the legality of exceeding the limit for individual campaign contributions by a single legal entity
      Along with actually reading the case, you should never, ever forget to read the text of the statute.
      
      Then, after you've read the text of the statute, why don't you amend your rant to bring it into conformity with the actual facts, which do happen to be set forth in the court's opinion.
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      - Zonker, 5 Aug 2015 @ 12:54pm
        
        Re: Re: If money is speech, and we have the right to free speech, then where is my free money?
        You're right that originally the case was a simple free speech matter over when a political segment featuring a candidate could air (not within 30 days of primary or 60 days of election). Also that the limit for corporate/non-profit campaign contributions in effect at the time was a total ban.
        
        Unfortunately, rather than keep to the narrow ruling and pass the buck standard the rest of us receive from the Supreme Court, Kennedy pushed for and succeeded in expanding the ruling beyond the parties initial dispute to repeal prior rulings in Austin (a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments) and a portion of McConnell (upheld BCRA's restriction of corporate spending on "electioneering communications") removing all limitations on corporate contributions to political campaigns (though still not directly to candidates or political parties) under the color of free speech.
        
        Read Justice Stevens' dissent on just how outrageously this case was handled. Kennedy actively intervened to resurrect Citizens United's facial challenge of BCRA §203 which both parties had already agreed to dismiss during motions for summary judgement. The majority "changed the case to give themselves an opportunity to change the law".
        
        If you don't have the time to read all 90 pages of Stevens dissent, Wikipedia has a decent summary. One notable quote from Wikipedia:
        Legal entities, Stevens wrote, are not "We the People" for whom our Constitution was established. Therefore, he argued, they should not be given speech protections under the First Amendment. The First Amendment, he argued, protects individual self-expression, self-realization and the communication of ideas. Corporate spending is the "furthest from the core of political expression" protected by the Constitution, he argued, citing Federal Election Commission v. Beaumont, and corporate spending on politics should be viewed as a business transaction designed by the officers or the boards of directors for no purpose other than profit-making. Stevens called corporate spending "more transactional than ideological". Stevens also pointed out that any member of a corporation may spend personal money on promoting a campaign because BCRA only prohibited the use of general treasury money.
        So the court, under Kennedy's direction, actively litigated issues not properly before the court (not raised by either party in the appeal) and overturned two prior court rulings to grant legal entities rights beyond those of individuals without the liabilities that go with them.
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        Zonker, 5 Aug 2015 @ 1:14pm
        
        Re: Re: Re: If money is speech, and we have the right to free speech, then where is my free money?
        Furthermore, prior to Citizens United unions could donate to political campaigns because they required a vote to decide how to spend the members money while corporations/non-profits had no such mechanism. Now corporations/non-profits can donate freely without a vote or representation of their members while unions are still restricted to such.
        
        We could debate whether it was fair to allow unions to donate before, but now that balance has reversed almost entirely.
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Anonymous Coward, 4 Aug 2015 @ 7:41am

The remedy for misleading speech, or speech we do not like, is more speech, not enforced silence....

This is the single greatest quote of all time. It should be enshrined and put in every public place, every government office, and every place of business.

In the last few decades, every where we turn there is another group trying to shut some one else up. Both sides of the aisle do it. If some one says something you don't like, prove how stupid they are in the arena of ideas. There is no need to silence anyone.
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- xebikr (profile), 4 Aug 2015 @ 8:08am
  
  Re:
  I agree. Pay attention, European courts.
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- Anonymous Coward, 4 Aug 2015 @ 8:25am
  
  Re:
  "Both sides of the aisle" hardly accounts for all the idiots who think censorship is a good idea.
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- Anonymous Coward, 4 Aug 2015 @ 8:54am
  
  Re:
  Agreed. The judge should get Techdirt's Most Insightful Comment highlight this week.
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pcdec, 4 Aug 2015 @ 7:54am

Finally. Anyone who thought these laws were constitutional is a moron. There should be some way for the courts to punish the people who make and pass unconstitutional laws. Shouldn't we hold lawmakers to a higher standard in these cases? Shouldn't they be required to know the constitution and like make laws that conform to it's standards or something. Do you realize how much taxpayer money is wasted by an unconstitutional law? From conception of the bill to it getting struck down in court. I don't know if it's even possible to quantify the amount of money wasted in these cases.
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- Anonymous Coward, 4 Aug 2015 @ 8:04am
  
  Legislative privilege [was Re: ]
  There should be some way for the courts to punish the people who make and pass unconstitutional laws.
  Perhaps the court could vote against the incumbent in the next election?
  
  Certainly, at the enirely federal level, a federal judge would be bound by the Article I, Section 6 speech or debate clause. Most states have analogous clauses in their state constitions, which would present a similar bar to action by a state judge against a state legislator for legislative acts.
  
  I suppose that does leave open a slight possibility of a federal judge having power to hold a state legislator responsible for legislative acts.
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  - Anonymous Coward, 4 Aug 2015 @ 9:01am
    
    Re: Legislative privilege [was Re: ]
    ...Perhaps the court could vote against the incumbent in the next election?...
    
    In my area we vote only for low level judges; the rest are appointed. We do have retention elections for those judges up to the state supreme court, but how many people actually know who's OK and who's not?
    
    It's the federal level judges that we sorely need retention voting for, but since the US Constitution provides for lifetime appointment we likely won't see that barring an amendment. And yes I would like to have retention voting for the Supreme Court.
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- Bergman (profile), 4 Aug 2015 @ 12:38pm
  
  Re:
  That would be a job for Congress, not the courts.
  
  All it would take is amending the treason statute to include willfully and reasonably knowing (and doing anyway) enacting legislation that is unconstitutional.
  
  As an added benefit, it would make it a LOT more hazardous for lawyers to run for public office, since they would not be able to claim a lack of knowledge. This would likely lead to much more easily understandable laws.
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Anonymous Coward, 4 Aug 2015 @ 8:02am

A judge with common sense. They do exist!
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- David, 4 Aug 2015 @ 9:35am
  
  Re:
  No thanks to "common sense". That leads to stuff like "civil asset forfeiture" because "bad people should not have the protection of the law".
  
  This judge instead has a grasp of what's written in the Constitution for what reason. That's not "common sense" but legal acumen. Far too many judges can be cajoled by the prosecution or government into nonsensical word games not reflecting the intent of the law.
  
  It does take some guts for a simple District Court to make a statement about unconstitutional laws and hand them back to their makers.
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- Anonymous Coward, 4 Aug 2015 @ 4:21pm
  
  Re:
  I'm thinking someone wants to retire from the judiciary and run for office... and if I lived in Idaho, I'd vote for him.
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Ambrellite, 4 Aug 2015 @ 8:29am

Thanks, Judge Lynn Winmill! It's great to know there are judges with integrity who genuinely try to be good stewards of the law. Though it's disturbing that Gov. Butch Otter vehemently disagrees: http://blogs.idahostatesman.com/otters-blast-at-judge-winmill-hes-not-one-of-us/
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- David, 4 Aug 2015 @ 9:51am
  
  Re:
  How do you figure that Butch Otter disagrees with Winmill having integrity and being a good steward of the law? Otter explicitly states "he's not one of us". The comment section on the article you link makes rather clear why this can hardly be considered anything but good.
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  - JoeCool (profile), 4 Aug 2015 @ 12:19pm
    
    Re: Re:
    Otter didn't realize it (or worse, he DID), but saying the judge was not "one of us" was an indictment of the group he was referring to as "us". The judge is as Idaho-an as you could possibly get, with nothing to indicate he was acting against the people of his state. That means that by Otter's own admission, he and like-minded people are not for Idaho, but for someone else, most likely themselves first, and big business second.
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Anonymous Coward, 4 Aug 2015 @ 8:41am

Awesome
This is great. Now hopefully this will help put an end to Judges blocking more anti abortion videos from being released!
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Get off my cyber-lawn! (profile), 4 Aug 2015 @ 12:54pm

Don Quiote would be proud
of these fools as they go jousting at Winmills!
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