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ACLU defends Freedom of Speech: that of yours, mine, Nazis or corporations

COLORADO SPRINGS- The local Springs ACLU chapter is challenging the national office’s position on the recent Citizens United victory and I’m torn. I am as anti-corporate as the next rabid class-war insurgent, but the longstanding corporate personhood abomination is a separate abuse than the oppression of civil liberties. It’s clear that one impacts the other, but until we clarify who’s a “who,” the ACLU is determined to exclude no one from First Amendment protection. Make sense?

When and if the immortality advantages of corporate trusts can reigned in, the political power of the individual will be more secure. But an opposite Citizens United verdict would have left American individuals with limits on their speech. You don’t pass respiratory restrictions in Pigville just because the Big Bad Wolf is in town. You charge him with threatening illegal acts, etc, before you abridge the rights of all citizens in the name of security.

In social justice type affinity groups, I certainly believe there are times when the grassroots have to wag their dog gone somnolent. More often however, dissension generates from a malignant insurrection against the founding principles with which the provincial members have lost sight. My experience has been that local ACLU groups, Denver included, are exaggeratedly vigilant about asking “is this a civil liberties issue?” for fear of being seen to address a problem that has become politicized.

Defenders of the last administration for example were desperate to prevent activists from getting the support and sponsorship of established advocacy groups like the ACLU.

Lamentably, believe it or not, some ACLU self-obstructionists differentiate human rights abuses from civil liberties. They see the issue as “partisan.” Because critics of the Patriot Act are often Democrats, Republicans find themselves tasked with defending it. Likewise, illegal war, war crimes, rendition, illegal detention, etc, are also too partisan to address, even as they constitute affronts to the civil liberties of all.

It’s become very clear to me that both Denver and Colorado Springs chapters are dominated by conservative voices who restrict local ACLU activities to conducting public discussion groups, as opposed to speaking out about federal and local abuses which are usual targets of the national office.

The upcoming forum on Corporate Personhood, this Thursday night at Shove Chapel at Colorado College, is clearly outside the purview of civil liberties, but may have escaped our local ACLU’s conservative corporatists explicitly because it goes against the ACLU leadership.

To my mind however, the event will serve two goods. One, we take on corporations, and two our action alerts ACLU Washington about the rotten apples in our midst. Obstructionists are perhaps ever present, but headquarters might generate some guidelines about how to further root them out. A simple essay test about “what are civil liberties” would suffice for me. The next member who points to an ACLU talking point and avers “I don’t see how this is a civil liberties issue” gets the boot.

The most pathetic recurring argument is that the ACLU should only concern itself with the Civil Liberties of “Americans.” The National ACLU has of course argued for the rights of foreign nationals, even those living overseas who have been targets of extradition, as well as peoples of foreign lands under the jurisdiction of American authority; leased properties such as oversees bases for example, and entire nations we’ve invaded. Where should borders demarc free-of-liberties-zones?

The same critics of course show no qualms about US military forces subjugating other peoples in the name of “Freedom” without thought that our liberation of capitalist forces should come with some protections. Pax Americana minus the Americana Bill of Rights.

Challenged about its public support of the Citizens United case, the ACLU offered this unapologetic explanation:

“The ACLU has consistently taken the position that section 203 is facially unconstitutional under the First Amendment because it permits the suppression of core political speech, and our amicus brief takes that position again.”

The fallout has been heated, but I’ve enjoyed the parallels drawn to the infamous occasion when the ACLU protected the right of Nazis to march in the predominantly Jewish Chicago suburb of Skokie Illinois. Yes the ACLU will fight for NAMBLA, Nazis and corporations, and no one bats an eye at the affinity of the three.

The 2009 Amicus Brief which the ACLU filed in support of Citizens United is viewable online (PDF), here are the preface sections:

AMICUS CURIAEBRIEF OF THE AMERICAN CIVIL

LIBERTIES UNION IN SUPPORT OF APPELLANT

ON SUPPLEMENTAL QUESTION

INTEREST OF AMICUS

The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan organization with more than 500,000 members dedicated to the principles of liberty and equality embodied in the Constitution and our nations civil rights laws.

For the past three decades, the ACLU has been deeply engaged in the effort to reconcile campaign finance legislation and First Amendment principles, from Buckley v. Valeo, 424 U.S. 1 (1976), where we represented our New York affiliate, to McConnell v. FEC, 540 U.S. 93 (2003), where the ACLU was both co-counsel and plaintiff, to Randall v. Sorrell, 548 U.S. 230 (2006), where we were lead counsel. In addition, the ACLU has appeared as amicus curiae in many of this Courts campaign finance cases, including FEC v. Wisconsin Right to Life, Inc. (WRTL), 551 U.S. 449 (2007).

As framed by the Courts reargument order, 2009 WL 1841614 (2009), this case presents fundamental questions concerning the constitutionally permissible scope of campaign finance regulation that this Court first confronted in Buckley and subsequently revisited in McConnell and WRTL. The proper resolution of that delicate balance remains an issue of substantial importance to the ACLU and its members.

SUMMARY OF ARGUMENT

The broad prohibition on electioneering communications set forth in 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U.S.C. 441b(b)(2), violates the First Amendment, and the limiting construction adopted by this Court in WRTL is insufficient to save it. Accordingly, the Court should strike down 203 as facially unconstitutional and overrule that portion of McConnell that holds otherwise.

This brief addresses only that question. It does not address the additional question raised by this Courts reargument order: namely, whether Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), should be overruled. However, if Austin is overruled and the ban on express advocacy by corporations and unions is struck down, then the ban on electioneering communications in 203 would necessarily fall as a consequence.

Even if Austin is not overruled, 203 is unconstitutional precisely because it extends beyond the express advocacy at issue in Austin. The history of the McConnell litigation, as well as campaign finance litigation before and after McConnell, demonstrates that there is no precise or predictable way to determine whether or not political speech is the functional equivalent of express advocacy.

The decision in WRTL correctly recognized that the BCRAs prophylactic ban on electioneering communications threatened speech that lies at the heart of the First Amendment, including genuine issue ads by nonpartisan organizations like the ACLU. But the reformulated ban crafted by this Court in WRTL continues to threaten core First Amendment speech. Its reliance on the hypothetical response of a reasonable listener still leaves speakers guessing about what speech is lawful and what speech is not. That uncertainty invites arbitrary and discriminatory enforcement. It will also lead many speakers to self-censor rather than risk sanctions or undertake the expense of suing the FEC prior to speaking, especially since most suits will not be resolved until long after the speech is timely and relevant.

In short, 203 was a poorly conceived effort to restrict political speech and should be struck down.

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