Category Archives: Free Speech

Happy Birthday to the Supreme Court! #SCOTUS #history cc: @oyez

This day in history, 1789, the Judiciary Act of 1789 establishes our first Supreme Court (warning: link opens to an auto-play video). John Jay would preside as our first chief justice.


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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with First Class Title, Inc., a Maryland title insurance and settlement company. Rob is also a licensed title insurance agent in Florida, Maryland, Pennsylvania, and Virginia.


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Filed under Constitutional Law, Copyright Law, Establishment Clause, Free Exercise Clause, Free Speech, History, Patent Law, Philosophy, Politics, Privacy, Voting Rights

Avvo Doesn’t Get It #law #defamation #freespeech

Angry Birds is intellectual property of Rovio Entertainment.

I’ve received several calls from trying to get me to pay for advertising on their site. Well, they just shot themselves in the foot in that regard.

As I’ve mentioned earlier, defamation is not completely-protected speech, so the law should (and in several states, does) provide a means to expose people that criticize your business anonymously if they weren’t actually clients of yours. Recently, a lawyer was defamed by an anonymous poster to Avvo, which is essentially Yelp for lawyers. Like Yelp, Avvo allows its users to post anonymously. The lawyer asked the court to force Avvo to reveal the identity of the poster, but the court denied the request.

I’m not willing to criticize the court. I haven’t read the brief or the court’s order, so there may be a legitimate reason the request was denied. I also don’t know the Washington state law governing these cases, so it may be that the court had no choice in the matter (in which case Washington state needs to catch up with technology). I share this only to point out how self-destructive Avvo’s policy is. Avvo should have within its policy an agreement to disclose identities not only where a court orders them to do so (which is probably in there terms of service), but also where a lawyer jumps through certain procedural hurdles to identify a legitimate need to learn that identity (which clearly Avvo doesn’t currently do). If they don’t change their policy, they might lose a lot of business.

In the mean time, they certainly aren’t getting my business.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with First Class Title, Inc., a Maryland title insurance and settlement company. Rob is also a licensed title insurance agent in Florida, Maryland, Pennsylvania, and Virginia.

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Filed under Constitutional Law, Defamation, Free Speech, Internet, Social Media, Tort Law

The #Internet and #Defamation: Jumping to Conclusions #tort #law #yelp

This is a bit of a diversion from matters of property law, but recently I’ve been involved in writing some letters to various Yelp users about their defamatory comments towards a couple of my clients. In the course of my research, I’ve read many people criticizing defamation lawsuits are as being designed to silence people simply because they’re writing bad reviews. While this is possible in any particular case, legitimate defamation lawsuits are not designed to do that, and illegitimate ones have little chance of succeeding. Understanding the distinction between legitimate and illegitimate claims of defamation is important, because far too many of you are applying that criticism to legitimate cases.

Defining Defamation

For the purposes of this post, a simple three prong test will do. Defamation is 1) telling a lie to the general public about a person or company, 2) under circumstances in which the general public would believe it, and 3) therefore the lie harms that person or company. This three prong test is by no means a complete statement of defamation law. It’s just one I made up off the top of my head that’s grounded in the real law but simplified. There are all sorts of twists and turns to defamation law, but I don’t want to bog you down in too many details that aren’t directly relevant to this post. Just keep in mind this basic test as you read the rest of this post.

Statements of Opinion Are Not Defamation

Let’s say I make the statement, “I love ABC Corporation,” when in fact I hate it. This is a reasonable possibility, because this is a positive statement of opinion. I might be trying to protect someone’s feelings. However, it’s clear this I’m not committing defamation here either because I don’t satisfy the third prong (#3) of the test. Moreover, no one would ever want to sue for a positive statement of opinion, so we can just ignore them going forward. The real issue is a negative statement of opinion.

If you’re clever, you already realize that negative statements of opinion are rarely lies. If I say, “I hate ABC Corporation,” I’m probably not lying because I rarely have the motivation to do so. If I really liked ABC, I wouldn’t be doing myself any favors by criticizing them, so it’s unlikely I’d lie about that. More to the point, if I really hated ABC, then the statement is objectively true, even if everyone else in the world likes them. All I’m stating is my opinion, and if I honestly don’t like them, then , “I hate ABC Corporation,” is objectively true. So, if I’m stating a negative opinion, in almost all situations, I’m not committing defamation because I don’t satisfy the first prong (#1) of the test.

Now consider this hypothetical situation as an example. Let’s say that I was in ABC Shoe Store on a very busy day, and it took 30 seconds for an employee to greet me and ask how he could help me. Almost all of us would agree that this is pretty fast under the circumstances. However, what if I disagree? What if I then post on Yelp, “ABC Shoe Store was slow to respond”? Is that defamation?

No, it isn’t. Even if I’m being completely unfair, it’s not defamation if I’m still honestly stating my opinion. Of course, I could still be lying. Maybe the only reason I’m upset is that I thought the clerk looked at me strangely, and I was offended, but I thought it’d be more believable to accuse ABC of being slow. Proving that I’m lying, though, would be virtually impossible, so statements of opinion are simply excluded from defamation.

So, to summarize, if I’m simply telling you my opinion, I’m not guilty of defamation even if my opinion is ridiculous.

False Statements of Fact Are Defamation

So now we know what defamation isn’t. What is it?

Objectively false statements are defamation. If, in the hypothetical above, instead of saying, “ABC Shoe Store was slow to respond,” I said “ABC Shoe Store took 5 minutes to respond, and I was the only customer in the store,” then that’s defamation. Why? Because there are two objectively false statements in there: “5 minutes” and “only customer in the store.” In other words, it’s not my opinion; it’s an outright lie.

You might say that this particular example wouldn’t justify a $1,000,000.00 award for damages, and I hope you’re right. What if instead, I falsely accused the store of stealing expensive jewelry from my backpack while I was being helped? What if instead I falsely accused the store of poor customer service, racial discrimination, and physically hitting small children, but the only reason I did so was because they fired me from my position there 6 months ago? Do you think I should be able to say those things?

The First Amendment

Well, actually, yes, I should be able to say that, and as a free speech zealot, I personally have no objection to that fact and hope you don’t either. However, the real question is, “Should I be able to say those things and not deal with any consequences?” The answer to that question is no, and even I don’t have a problem with that.

Even the First Amendment has its limits. We all know the classic example: You can’t yell fire in a crowded room (under circumstances that might cause a panic and consequently serious bodily harm or death). Defamation is also one of those circumstances. If you say something defamatory, you can be punished. However, even defamatory speech has its protections. The doctrine of “prior restraint” demands that the speech be proven harmful by a trial (civil or criminal) before the government can interfere. So, the government can’t put a piece of tape over your mouth to prevent you from saying something harmful, but if you say it, then you’ll be punished.

But here’s the important point: When ABC Shoe Company sues me for telling those lies, they aren’t trying to suppress bad reviews; they’re trying to suppress lies. They’re trying to suppress statements made that do not accurately review them, and as a consumer that wants to know which businesses are actually good and which businesses are actually bad, you should be happy with that.

A Real Example from the Headlines

Prior restraint came up in a well-publicized case that took place here in the DC area. Deitz Construction was working on a home, and the owner, Ms. Perez, claimed that its employees stole jewelry from her home. Deitz (and its owner) sued for defamation. As part of the legal complaint, Deitz asked that the court grant a preliminary injunction to force Ms. Perez to take down the defamatory comments immediately. Normally, a preliminary injunction will be granted to a party if a court looks at the legal documents and concludes that there’s a pretty good chance the party will win at trial. However, that’s unavailable where speech is concerned. Remember, prior restraint demands that the words be proven at trial to be wrongful before they can be restricted in any way. So Deitz lost on that minor issue, but the trial is far from over. If the claim of theft turns out to be false – and it currently looks like it was – Ms. Perez will likely find herself on the losing end of the lawsuit.

And if those are the facts of the case, she should. “Deitz sucks” and “Deitz is incompetent” are statements of opinion. “Deitz employees stole my jewelry” is not. It could be true or false, so it’s the proper subject of a lawsuit. If it’s false, she hurt Deitz unfairly and should be punished.

Unrealistic Statements

Just for the heck of it, let’s go back to the test for defamation, and in particular, that second prong of believability (“under circumstances in which the general public would believe it”). What does that mean?

Let’s say I state, “The president of ABC Corporation is a necrophiliac.” That’s it. That’s the entire online statement; one sentence. Let’s also assume that this statement is a lie. Most people will look at that and say, “Rob is being ridiculous.” (They’d probably say that even if it weren’t a lie.) If so, then my statement doesn’t represent defamation because I don’t satisfy the second prong (#2) of the test. Sure, I’m lying, and people might even believe that I honestly believe it, but it’s such an outlandish statement that the general public is unlikely to believe it. Keep in mind, however,  that whether or not this statement will be assumed to be ridiculous may depend on the specific facts of the case. If ABC Corporation is a funeral parlor, suddenly this statement becomes a bit more believable, and the second prong of the test might be satisfied.

What Should We Have Learned?

  1. Statements of opinion are not punishable.
  2. Believable lies that harm are punishable, but only after trial.

When evaluating the merits of a defamation lawsuit, don’t jump to the conclusion that the suit is designed to suppress legitimate negative reviews. Instead, look at what was said. If it’s not just opinion, but it’s a claim of a fact that could be a lie, then the only way you know  the lawsuit is frivolous is if you’ve researched the case. If you haven’t, don’t form an opinion. Let the courts do their job.


I fully expect some to respond to my last sentence by saying, “But the courts don’t do their job!” I personally don’t do trial work anymore because I’m far too frustrated with the injustice I see in the courts, but on what are you basing that claim of courts not doing their job? Are you basing it on all the other times you made assumptions about cases you haven’t researched? That’s faulty reasoning that if enough of you follow, good businesses and their customers – including you – suffer, and the bad guys win.

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Filed under Constitutional Law, Defamation, Free Speech, Internet, Social Media, Tort Law

Another Reason to Understand Your Social Media Privacy Settings

If you’re one of those people (i.e., if you’re a human being) that just glosses over the privacy settings for your social media platform, you might want to read US v. Meregildo, 11 Cr. 576 (WHP) (S.D.N.Y., Aug 10, 2012). Judge William H. Pauley III refused to suppress the government’s evidence obtained through viewing a Facebook profile. The “Memorandum & Order” is only four pages long (page five is a one-sentence conclusion), so you should click on the link above and read it.


The defendant, Melvin Colon, had a Facebook account, and he didn’t enable strict privacy settings. The result was that all of Colon’s “Facebook ‘friends’ [could] view a list of all of [Colon’s] other Facebook ‘friends,’ as well as messages and photographs that Colon and others posted to Colon’s profile.” One of Colon’s Facebook friends (“witness”) decided to cooperate with the police and allow them to view the contents of the witness’s account, which included a lot of information from Colon’s account due to Colon’s settings. As a result, the police learned that “Colon posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of Colon’s gang.” This formed the basis of probable cause, and a magistrate granted the search warrant.

The Court’s Analysis

The court noted that while people have a reasonable expectation of privacy in their home computers, they lose it when they transmit information over the Internet or by e-mail (citing United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004); Guest v. Leis, 255 F.3d 325,333 (6th Cir. 2001)). If Colon had adjusted his privacy settings to restrict public access to the information, he might have had an argument under the Fourth Amendment (i.e., a “reasonable expectation of privacy), but because he “disseminate[d] his postings and information to the public, they are not protected by the Fourth Amendment.”

My Analysis

Presumably because of the use of technology, the court analogized this to allowing the government to listen in on a phone conversation when the person on the other end of the telephone line consents to the call, which was allowed in United States v. Barone, 913 F.2d 46,49 (2d Cir. 1990), but in my opinion, that’s not even the strongest analogy available because the audio from phone calls aren’t available to the entire public. This is probably an even easier case than that (though I haven’t read Barone in about a decade). Posting publicly to Facebook is more like placing an announcement on an electronic billboard on interstate highway I-95. It’s using technology, and it’s a public announcement. To be honest, though, I feel the use of technology is a red herring here anyway, as this is really no different than the police simply talking to the witness and asking, “What do you know?” If the witness has incriminating information, then the police are just doing good police work to get it. Regardless of where the best analogy lies, the point is that this is an easy case.

There are two important caveats to this analysis. First, this was a district court case in New York and thus doesn’t apply to you unless you live in that district. However, I fully expect this to be how most courts rule on this issue, and even if you don’t agree with that prediction, you must recognize that there’s a danger that your district court judge will rule this way. Second, it’s important to note that the Court recognized there could exist theoretical fact patterns that made the government’s actions illegal. The point was simply that law enforcement going through public Facebook data shared on the internet voluntarily is not, in and of itself, inappropriate.

What Should We Have Learned?

For me, the moral of this story is broader than criminal law. Neither the judicial courts nor the court of public opinion will allow you to be as lazy or stupid as you think you have a right to be. If you don’t read the fine print or take the time to protect your information, you have no right to complain when it’s made public. If you insist on engaging in social media, you have two choices, and both require a modest work ethic and moderate amount of intelligence:

  1. Restrict access to your Facebook information to people you’ve already “friended,” and “friend” (as a verb) only people you actually know; or
  2. Watch what you post (i.e., always asked yourself whether what you’re posting could be embarrassing, controversial, or incriminating), and use “lists” to restrict certain information to a limited viewing audience.

If that’s too hard, delete your account(s) or accept the consequences. Ignore Meregildo at your own peril.

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Filed under Constitutional Law, Criminal Law, Free Speech, Internet, Search and Seizure, Social Media

Protection from Chaos, Part IV: Fair Use

This is a repost of the article appearing in my article series, Protection from Chaos, on Loremaster. That series addresses general principles of intellectual property law as it relates to the gaming industry.

Image courtesy of Mount Futurama, though they probably don’t have permission to use it either.

Planet Express Ship: “Bender, don’t lie. I saw you at Elzar’s with those two ladies of the evening. Explain that!”
Bender: “Well, I love a challenge. Um… no… I’ve got it. I’m gonna be completely honest with you, Planet Express ship. Those women you saw me with were my accountants.”
Planet Express Ship: “Your accountants? Oh, I would dearly love to believe that were true . . . so I do.”

If I sound annoyed in these articles, it’s because I am. Although my goal is to help everyone understand copyright law and stay out of trouble, my inspiration comes from being inundated with unknowledgeable statements grounded in nothing more than wishful thinking. Example: Fair use.

If you surf the Internet, you can get all sorts of misinformation from people that really want to believe that it’s okay to commit a certain act because they really wish it were true, just like the Planet Express ship. In the same way that they tell themselves what they want to hear, they’ll tell you what you want to hear, so you’ll be convinced it’s a fair use no matter what a level-headed, knowledgeable attorney tells you. What the latter will tell you is that fair use is determined on a case-by-case basis referencing four statutory factors found in 17 U.S.C. § 107:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

Because all of these cases require a detailed analysis of the facts, and a set of four vague factors will determine whether a use is fair, no sane attorney will give you a definitive answer as to whether your use is fair, and the attorney’s best guess will come only at a price. Here’s what I will tell you though: It’s dangerous to rely on fair use even if you’re convinced your use of copyrighted material is fair.

Fair use is what’s called an “affirmative defense.” Affirmative defenses fall into two categories: excuses (e.g., insanity), and justifications (e.g., self-defense). Fair use is a justification for copyright infringement, claiming that your infringement was okay because there was a good reason for it, just like when a murder suspect claims the homicide was okay because it was performed in self-defense.

Did you catch that? In order to claim fair use as a defense, you must first admit that you committed copyright infringement, which not only makes you instantly liable civilly (and maybe criminally as well) by default, but you’ve also now shifted the burden to yourself to prove your justification is valid. So, this is basically what you said:

I did it! I’m liable civilly for stealing from someone else, and likely owe a ton of money to them. Also, there’s a small chance that I’m also liable criminally, so I might be taking up harmonica lessons soon. Oh, and did I mention that I kind of sort of think I might be right?


Think you can live with this? Well, it gets worse. Because of this risk, there are relatively few cases on which you can rely for further guidance. So, if you think you can predict whether your use is fair, you’re kidding yourself . . . which is kind of my point. (Note: There are some relatively well-settled examples of fair use, but even those aren’t absolute, so some risk remains.)

Now, imagine that you’re the murder defendant in the hypothetical homicide case I referenced above. How comfortable would you feel relying on a self-defense justification in which you have to prove that you were right despite little legal guidance on the matter?

Oh, but Rob. Isn’t that situation completely different?

Well, yes, it is. In a legitimate self-defense case, you had no choice but to commit the homicide first and worry about the jury later. Otherwise, you (and perhaps others) would be dead. In a fair use case, though, you have a choice. You can choose not to commit the (admitted) copyright infringement and just pay a few bucks to the author. Are you going to run out and pick a fight with some guy, hoping to be given the chance to commit a justified homicide? Seems kind of reckless, doesn’t it?

Yes, yes, Rob, but unlike homicide, if we don’t raise the issue, we’ll never formulate the boundaries of fair use, so it’d be like never giving the law the opportunity to define self-defense.

Absolutely true, but did you read my first three articles in this series? I’m glad you’re willing to take one for the team by forking out big bucks for your legal defense and taking the risk of civil and criminal liability. Huh? You aren’t? Then buy the damn book and leave the pioneering legal efforts to Luther Campbell, et al.

Luther Campbell was the defendant in the fair use case most cited by law school professors. He was the leader of 2 Live Crew and penned an obscene version of Roy Orbison’s Pretty Woman (clean version by 2 Live Crew here: In Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court held that the song was a fair use because it was a parody of the original. I can assure you that any case going to the Supreme Court will be expensive, and the other side isn’t going to give up until they at least ask the Supreme Court to hear the case. Even if you win, you’re in it for the long haul. If you lose, you’ll wish you were in it for the long haul.

So, remember kids, if you ever claim fair use, you just admitted that you infringed a copyright, and as we’ve covered before, that’s an expensive admission even if you wind up winning. Considering that, for many of you, your wishful thinking is grounded in an unwillingness to spend a few extra bucks on your hobby, I’d say you should think twice before running to the banner of fair use.

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Filed under Constitutional Law, Copyright Law, Free Speech, Intellectual Property Law

My Take on the Citizens United Decision

Care of @RobertEBodine over on Rob’s Blog of Controversy.

The public reaction to Citizens United v. Federal Election Commission , 558 U.S. 50 (2010), is another shining example of what’s wrong with political discourse in America, and as such, the soundest argument ever made won’t sway people’s views. Americans view the decision as favoring Republicans, which means Republicans love it, and Democrats hate it. As with most political issues, the “why” of the decision is irrelevant to most of us. We believe what we want to believe, logic be damned! Nevertheless, I’m going to give my take on it, hoping that only those that actually care about the “why” will respond (and also hoping I don’t violate item #3 in the list to which I linked in the prior sentence). A man can dream, can’t he?

What pains me the most about those that comment on Citizens United isn’t their substantive viewpoint. Reasonable minds can disagree, and – contrary to what most Americans appear to think – with the issue in play, there’s really no objectively correct answer. This isn’t a scientific question as much as it is a philosophical question, and that’s a key point lost on everyone. I’m not talking about methods for constitutional interpretation, though, so I promise you won’t be getting a lecture on that.

Aside (for context): While there is always a “political” conflict among members of the Supreme Court, it’s not – again, contrary to what most Americans appear to think – a Republican v. Democratic conflict. Instead, it’s a conflict as to how to interpret the Constitution. While there’s clearly a favorite method among each of the political parties, those favorites were picked for historical reasons, and those choices have probably influenced party positions more than the party positions influenced the choice if method. The point of this aside is simply to say that, while there’s a serious philosophical divide between the justices, this isn’t a case of favoring one political party over the other, so the justices really aren’t “playing politics.” I’ve been outspoken in my criticism of various Supreme Court cases (Eldred v. Ashcroft, anyone?), and it’s okay to do that, but we all really need to get past this political scapegoating of the Supreme Court. That scapegoating is motivated by our own political zealotry more so than by knowledge or reason.

So, what kinds of cases get to the Supreme Court? As you probably know, the Supreme Court is free to ignore most cases brought to it. That is, you usually have to request permission for your case to be heard. With the overwhelming number of cases requesting Supreme Court review, a small percentage (currently about 0.8%) actually gets heard.

Easy Cases

Sometimes, cases before the Supreme Court are easy, and the result is a unanimous (or near-unanimous) decision. One of the many reasons a case might be easy, yet the Supreme Court has granted permission for it to be heard anyway, is that the case is very important, dealing with a Constitutional right. If the lower courts got it wrong, that’s all the more reason the Supreme Court will take it. For example, in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), Jerry Falwell sued Hustler magazine for an advertisement in which, among other things, Falwell was portrayed as having engaged in a drunken sex with his mother in an outhouse. So, what was at stake? On the one hand, you had the fundamental, First Amendment right to freedom of speech, a right that prevents democracy from becoming a sham by allowing us to complain whenever we think it’s appropriate.

On the other hand, you had a public figure whose feelings were hurt. 😕

Needless to say, the Supreme Court ruled unanimously in favor of a magazine that probably all of the justices found distasteful. Why? Simply put, free speech is pretty damned important. Their personal views, political leanings, and even methods of constitutional interpretation were irrelevant. This was just too easy, and Falwell’s loss in the case was total.

Another great example is a bit more recent. In United States v. Jones, 565 U.S. ___ (2012), the police exceed the scope of their warrant by monitoring a suspect’s movements by way of a GPS device installed in his wife’s car without their knowledge (that is, without the suspect’s knowledge or the wife’s knowledge). So, what was at stake? On the one hand, you had the fundamental, Fourth Amendment right to be free from unreasonable searches and seizures, a right that protects us from intrusions into our privacy and lessens the ability of the government to plant evidence in places where such evidence would be most damning.

On the other hand, the cops really wanted to get their guy. 😕

Again, the Supreme Court ruled 9-0 in favor of the suspect. It was another really easy case, and so the loser (i.e., the cops) suffered total loss, just like Falwell.

To summarize, cases involving fundamental, constitutional rights pitted against some lesser interest are easy and usually result in unanimous or near-unanimous rulings by the Supreme Court. It’s also important to remember that the loser in both cases suffers total loss. It’s just the way things usually go in Constitutional cases.

Citizens United Is Not an Easy Case

Sticking with this theme, what about constitutional cases involving two Constitutional rights in conflict with one another? Which one wins? If a case arose in which the right to free speech and the right to be safe from unreasonable searches and seizures, which would you choose? This question is impossible to answer without me giving you a set of facts, so don’t try. My point is that, considering one side is most likely going to suffer total loss, and that “side” is a Constitutional right, there’s a lot at stake here, isn’t there?

So how do you strike that balance?

If that seems like a tough question, it’s because it is, and that’s no minor point. I’ll revisit it later. For now, think of this as a pendulum. If we swing it to the right, free speech wins. If we swing it to the left, the right to vote wins. (Do you see that I did there?)

What does the Constitution say about how we should handle this? Let’s say we were able to bring the Constitution to life as a human being and ask him, Fred Constitution, how we should handle Citizens United. Here’s how that conversation would go.

Justice Kennedy:  Hey, Fred. Glad you could stop by. We have a case and need your help.
Fred Constitution: Sure. I’ll do what I can.
JK: Well, these guys are trying to dilute the right to vote . . .
FC: Are you kidding? You can’t do that! The existence of the right to vote defines democracy!
JK: Oh, sure. That’s obvious. So, we can infringe the right to speak one’s . . .
FC: Whoa! Stop right there. How dare you suggest that! The right to speech is in the First Amendment. The first one! Without free speech, all the other rights are a sham! It defines the American concept of democracy!
JK: Yeah, so it’s important, but it’s going to trample over the right to vote, and . . .
FC: Why aren’t you listening to me, Tony? Voting is a sacred right, and you’re going to allow it to be trampled? Who appointed you to the bench?
JK: Wait, you’re not listening. Political speech is the problem . . .
FC: Political speech is a problem? Are you out of your mind? That’s the entire point of the Free Speech clause. Sure, it’s a broad right, but ultimately, its purpose is to protect political speech!
JK: You’re not helping.
FC: That’s not possible. They’re my rules.

This would go on until Justice Kennedy put a gun to Fred’s head or to his own. Either way, someone’s coming out of this maddening conversation dead. In other words, the Constitution, by itself, isn’t going to help. It tells us what’s really important, but it doesn’t tell us how to balance those things when they come into conflict. Moreover, it’s become somewhat accepted in legal circles that no one constitutional right is more important than another, so as interpreted, the Constitution would just say, “Both are equally important. You’re screwed either way.”

Why do I feel the Supreme Court was correct in choosing free speech over the right to vote?


The key is that the right to free speech, while no more important than any other constitutional right, is more sensitive to infringement than the others. That is, if we take away (or just chip away) the right to free speech, the effect will be permanent, while taking away (or chipping away) at other rights can be only temporary thanks to, not surprisingly, our continued right to free speech. That’s confusing as hell, so let’s try a couple of examples.

Scenario #1: It’s September 12, 2001, and we’re all pissed off at Muslims because 19 out of 1.5 billion of them participated in a terrorist attack on United States soil. What do we do? We repeal the Fifteenth Amendment. The next day, September 13, 2001, Congress passes a (now-Constitutional) law saying, “Muslims can’t vote.” So what happens on September 14, 2001? Every single Muslim American says, “Hey, I’m a US citizen! Why can’t I vote?” Because we’re angry, and by assumption our emotion is getting better of us, we tell them to go to hell, and nothing changes. However, on September 15, and on every day after that, we still hear them complaining, until finally we come to our senses and repeal the law.

Scenario #2: It’s September 12, 2001, and we’re all pissed off at Muslims because 19 out of 1.5 billion of them participated in a terrorist attack on United States soil. What do we do? We strike the Free Speech clause from the First Amendment. The next day, September 13, 2001, Congress passes an unconstitutional law saying, “Muslims can’t vote,” and a now-Constitutional law saying, “Muslims can be executed for complaining about the US government.” (Let’s just ignore the Eighth Amendment’s prohibition against cruel punishment for now.) So what happens on September 14, 2001? Every single Muslim American says . . . nothing. Why? Because without the right to free speech, any Muslim that opens his or her mouth will be beheaded. By September 14, 2001, the issue is out of sight and out of mind, and may not ever be corrected. Do Muslims still have a Constitutional right to vote? Yes, but it doesn’t matter. They can’t complain when we take it from them.

Clearly, these are extreme and over-simplified examples, but given enough time, even the infringement of our Constitutional rights become accepted (see, e.g., that our economic rights that were devastated by FDR’s New Deal, and most of you don’t seem to care because you’ve always lived like that). The only thing that could possibly stop this atrocity is our right to speak our minds. The right to dissent prevents us from ever losing sight of the injustice. As long as we can speak, we can remind our leaders and each other of our rights, or at least of what our rights should be. All of these rights are important, but free speech prevents them from being reduced to a sham.

To further strengthen this point, it’s advisable to note that the Framers of the US Constitution knew what they were doing. When they identified a potential problem – for example, King George loving to punish his critics – they didn’t just address the problem directly. They knew that every government could cleverly get around a specific restriction, including the limited nature of federal power (see my New Deal comment). In other words, as an example, the purpose of the Free Speech clause was to protect political speech, but having the “right to political speech” wouldn’t be enough. The government would find away to punish political speech by characterizing it as non-political. Accordingly, they had only one solution: grant a broad right of protecting all speech. That way, while we’re bickering over whether Larry Flynt can say “fuck” in Hustler magazine, the right to political dissent would be safely hidden at the center of the free speech right. Put another way, as long as we can say “fuck,” we can certainly say, “fuck the President.”

Citizens United dealt with political speech that was directly under attack. The Court had to protect it. At the risk of trivializing the simultaneous attack on our right to vote, I’ll mention that the attack on our right to vote was indirect. No one was being told, “You can’t vote anymore.” This is yet another reason the Court should have gone the way it did.

Of course, reasonable, informed minds could disagree, but not on an objective level. This is why I said that the real issue is more philosophical than scientific. You can’t add up a bunch of numbers, solve a differential equation, and calculate whether I’m right or you’re right. This is a matter of what you subjectively think is more important: protecting the right to vote or protecting the right to free speech. I’ve formed my opinion; feel free to form and share yours.

One thing you shouldn’t be doing, though, is claiming this case was trivial, and that’s the first lesson of this post. This was a difficult balancing act to perform, and you shouldn’t be trivializing that difficulty.

Questions Presented

You might be asking, “But Rob, why do we have to swing that pendulum so hard? Why couldn’t the court just nudge it a little, letting free speech win, but only a little bit? After all, the pendulum is just a metaphor.”

The problem is in how the Supreme Court works. When you request their permission to appeal your case, you submit questions for them to answer (the “Questions Presented”). These are questions that have to be phrased such that the answer is “yes” or “no.” So, when answering the questions you’ve presented to them, the court, in a very real sense, answers with either a “yes” or “no.” Of course, I’m oversimplifying a bit – the PDF of the Citizens United case is 183 pages long – but it’s certainly true that while their analysis justifying their yes/no answer may be long, and may be helpful in predicting the outcome of future cases, ultimately it answers a simple question in a single case. This results in a massive swing of the pendulum in the winning direction.

This could be mitigated by way of the Supreme Court adding hypothetical situations, going outside the case on hand to explain how the case should be applied in the future to other fact patterns. This would be an unrealistic expectation to have of the Court. There are simply too many hypothetical cases for the court to address, some of which may never arise at all, and even the known important ones would take up too much space. (If you support that idea anyway, I guess a 183-page document is too short for you, so don’t complain that my posts are too long.) Also, keep in mind that many of these hypothetical cases are based on fact patterns the court couldn’t necessarily anticipate. Their decision in the present case was necessary in order for these new circumstances to come into existence.

The Future

The result in Citizens United is that the right to vote in this country has been trampled, and it’s shameful that those that support the decision don’t seem to recognize that. The First Amendment trampled on it, so the offense taken by those opposing the decision is greatly overblown, but it has been trampled, and it’s a pretty important right, so we really shouldn’t be celebrating our free speech victory. So, now we have a mess. What can we do about it?

Well, despite the average American’s (unfounded) accusations that the Supreme Court plays politics, the truth is that each of the nine Justices is well aware of what’s happened. They see the damage done to the right to vote, and you can bet your ass that at least a couple of majority justices are chomping at the bit for a case that will allow them to swing the pendulum back towards the left drain some of the water from our diluted voting rights. (It may surprise you to know that I believe Alito, the one that shook his head during President Obama’s Citizens United rant, is one of those justices.)

This will happen.

The ACLU and others will look at the current state of things and say,

Okay, Citizens United led to 7 bad things: A, B, C, D, E, F, and G. If we took away C and F, would that be in violation of Citizens United? In other words, would A, B, D, E, and G be enough to provide for an adequate avenue for political speech even without the presence of C and F? Yes? Then let’s sue!

The result would be a swing of the pendulum back to the left. While the sensitivity of free speech would always give it an advantage, thus leaving the pendulum hanging a little bit to the right, the result of subsequent Supreme Court cases should undo the massive damage done to voting rights. Of course, everyone will still be left unsatisfied, but only because they’re giving way to political zealotry without respecting that both sides of the argument have an important interest at heart, and these are interests we all share.

This is the second lesson I want you to take away from this post: The Supreme Court will eventually strike a balance, because there are two fundamental rights at stake.

Aside: As I always reminded the judges in my moot court competitions in law school, constitutional rights “are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” Miller v. California, 413 U.S. 15, 24-25 (1973). I loved this case because it was about pornography, which I found amusing to cite in a formal discussion on constitutional rights, but it’s an important point nonetheless. Shit happens, and there’s no way to avoid it, but if you’re patient, the Supreme Court will eventually set things straight. Usually, it does, especially where the First Amendment is concerned.

An Example

What could A, B, C, D, E, F, and G be in the example above? I’m not confident I know all the aspects to this issue that those letters could represent, but one obvious example is transparency. Behind every dollar spent must be the name of a human being (or several). If company A donates $1,000, then its shareholders should be named. If the shareholder of company A is company B, then company B’s shareholders should be named. We could play this game ad infinitum, but eventually, at least one human name will have to be disclosed for every company in the chain. Companies can own companies, but eventually that chain of ownership must end with a human being (or several). Every human being with an ownership interest anywhere in the chain could be exposed, though I could see alternate ways to deal with publicly traded companies “owned” by thousands of people.

Would this chill free speech? Yes, a bit – people might be less willing to speak politically if they knew they’d be identified – but free speech isn’t absolute, and undoing some of the damage done to the right to vote would certainly be a noble cause justifying that slight infringement on free speech. Remember, this is a balancing act.

The Lesson

I want to remind you of the very difficult question I raised earlier:

So how the hell do you strike that balance? (The “balance” in question is between two Constitutional rights.)

If it’s such a tough question, why are you so angry/happy at the outcome? To those that support the decision, I remind you that your right to vote has been seriously diluted, even if you’re a Republican. Corporations don’t speak for you as individuals, even if you’re one of their employees. In such a case, your financial contribution to a company (through your hard work) might be used to support causes you oppose. Why is that anything to cheer?

To those that oppose the decision, the Supreme Court would like to say, “You’re welcome,” because they just protected not merely your First Amendment right to free speech, but your right to free political speech, which is the whole point of having a right to free speech in the first place. Why are you so enthusiastic about giving up that right? Is it because you perceive this particular speech to oppose your own? That’s called hypocrisy, and if that’s the way you think, you really don’t support free speech, so I couldn’t care less what you think. That’s a very un-American way to think.

I place everyone who claims this was an easy decision (whether good or bad) falls into one or more of the following three categories.

1. Stupid (there are plenty of people not capable of grasping these concepts; it’s not their fault);

2. Ignorant (you haven’t educated yourself on the case, but insist on talking about it like you have); or

3. Dishonest (i.e., a political zealot, industry member, or other person who has something to gain directly from the outcome of the case).

The future of the Supreme Court?

As an example of category #2, many of you complain that Citizens United 1) gave personhood to corporations; or 2) gave free speech rights to corporations. Those are ignorant positions. Corporate personhood was first recognized in 1819 in Trustees of Dartmouth College v. Woodward, and free speech rights were first recognized when my mother was in first grade, with the relevant test for whether speech was “corporate” in character being created two years before A Flock of Seagulls released “I Ran (So Far away)”). Those that have ever uttered either of those claims squarely fit in category two, leaving them with no justification for taking offense to the decision.

As for category #3, if you truly understand the issues and consequently have formed a knowledgeable opinion on that matter, that’s great, but if you’ve done so and are still oversimplifying what’s at stake or predicting gloom and doom for the future, that suggests you’re in category three.

People falling in either category #2 or #3 are part of the problem with public discourse, but category #3 people are helping to maintain that sad state of affairs, making them bad people as far as I’m concerned. There’s too much at stake here for you to make your money by maintaining America’s level of ignorance. You’re a bad man. A very, very bad man.

Babu would not approve.

This was not an easy case, and it was probably correctly decided, but eventually, things should level out to some extent. You need to be patient and stop acting as if the system has failed you.

Follow me on Twitter @PropertyAtty
Hat tip to @RobertEBodine

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Filed under Constitutional Law, Free Speech, Voting Rights