Sunday, November 29, 2015

Citizens United: When Conduct is Speech



In his daily segment "This Day in Judicial Activism", Ed Whelan treats us to the case Rumsfeld v. FAIR. In Rumsfeld, the Supreme Court unanimously held that Congress had the power to require law schools to grant the military access to its campus for recruiting purposes. The schools had argued that the law was constitutional because it violated their first amendment rights to freedom of association and speech; they wanted to ban military recruiters because they disagreed with the military's don't ask, don't tell policy.

The Supreme Court correctly upheld Congress's power to pass the law, as Whelan notes. He writes:
Roberts makes short work of the Third Circuit’s [contrary] reasoning. The Solomon Amendment, he explains, “neither limits what law schools may say nor requires them to say anything.” Rather, it “regulates conduct, not speech,” as it “affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” 

This is sound analysis. The Solomon Amendment clearly regulated action not speech. As Congress had a clear prerogative to pass the restrictive provision on the law schools, the Supreme Court had no business overruling a duly enacted law based on a stretched reading of the First Amendment.

Which brings me to Citizens United. You know, the case in which the court's conservative majority concluded that conduct was actually speech, and struck down a duly enacted law based on a stretched reading of the First Amendment. Just as allowing a military recruiter onto your campus is conduct not speech, so is donating to a political campaign. 

Moreover, Citizens United is actually a much clearer case of judicial activism. The direct legal question in Citizens United only concerned a low budget anti-Hillary Clinton documentary. But the conservatives on the court jumped at the opportunity the case presented to take down tangentially related campaign finance laws they despised. If that isn't judicial activism, I'm not sure what is. 


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