Patterico's Pontifications


Why Yesterday’s Supreme Court Decision Was Right — A Rant

Filed under: General — Patterico @ 11:19 pm

I had to run out the door yesterday just after that wonderful Supreme Court decision came down, so I didn’t have time to write a little tribute to it. But it’s thrilling to see free speech reaffirmed like that, and I think I should explain why.

To sum it up: in the case the Supreme Court decided yesterday, the federal government tried to prevent a documentary about Hillary Clinton from being aired close to her election. The federal government tried to squelch political speech exactly when it was most needed and most effective. How? On the basis that the documentary was a corporate-funded television broadcast.

So? It’s speech. That’s what the Supreme Court recognized yesterday.

The scary implications of the movie-banners’ position became clear at oral argument when a government lawyer suggested the government could also ban corporate-funded books just before an election.

Now are you starting to see the problem? Of course, the government lawyer didn’t. He’s in the business of defending political censorship, after all. Why should it matter what form the speech we want to censor takes?

But this is oppressive and wrong. In America, we do not squelch political speech.

I have been a consistent opponent of this terrible, unconstitutional law forever. They passed this dog of a law back in 2002, and I have been railing against it since the inception of my blog in 2003, when I equated it to the repeal of the First Amendment.

In 2004, when the FEC wanted to regulate a Michael Moore movie, I was furious:

[A]dvisory counsel for the FEC has advised the Commission that, in his opinion, the McCain-Feingold law prevents Michael Moore from advertising his film “Fahrenheit 9/11″ after July 30, 2004.

I am not joking.

I’ll bet a lot of you thought I was being hysterical when I equated McCain-Feingold with the repeal of the First Amendment. How do you feel now? — now that there is a serious possibility that a filmmaker cannot advertise his film because it contains speech calculated to encourage people to oppose a sitting president?

I despise Michael Moore. But people like Kevin Murphy and me believe that jerks like Michael Moore have the right to make whatever ridiculous arguments they wish to make. And if those arguments are made in a film, and Moore or the distributor of his film wish to promote that film, they have that right under the First Amendment.

Now, the Supreme Court has recognized that right.

The Very Serious Law Professor Rick Hasen, quoted all over creation yesterday as bemoaning yesterday’s decision, once talked about whether government could take Stephen Colbert’s show away when he announced a tongue-in-cheek campaign for the presidency. I called his post “a very sober discussion — you can almost visualize Hasen furrowing his brow as he taps out the post — of whether someone can exercise his core First Amendment rights without running afoul of the blatantly unconstitutional obstacles that Our Caring Government has put in our way.”

This is how insane the pro-censorship crowd gets.

You have to defend these principles for the other guy — because if you don’t, you’ll lose them for yourself. Democrats tried to use this ridiculous law to squelch the speech of Swift Boat Vets in 2004. Democrats are notorious anti-free speech thugs, as they have repeatedly proven. No wonder Barack Obama is upset about yesterday’s decision. It removes the power of his Executive Branch to go around stamping out dissent — which he would sorely love to do under the rubric of “campaign finance reform.”

Sorry, Barry. Won’t wash. You’ll have to find some other excuse.

To those who claim that money is not speech, I explained in 2003:

[T]he First Amendment is incompatible with this sort of legislation.

Let me make this as clear as I can. If I want to run an ad saying George Bush (or, if I am clinically insane, Howard Dean) is the greatest thing to happen to the world since sliced bread, there is this thing called the First Amendment that says I can do that. If I want to spread that message on full-page ads in every newspaper in the United States, I can do that, no matter the cost. I don’t think any of this is subject to debate.

Of course, doing so takes money — but in the real world, it takes money to effectively communicate speech. Simon at Stubborn Facts quotes a wonderful explanation by Justice Scalia from an earlier case:

In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them.

. . . . [W]here the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

. . . .

It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a newspaper can pay its editorial staff or the amount a charity can pay its leafletters. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer.


Yesterday’s decision doesn’t cure all the ills of campaign finance reform laws. There still exist laws against speech in coordination with political campaigns — laws which the Court continues to regard as constitutional, but which I believe are not. The government still from time to time asserts a supposed power to regulate bloggers. Most recently, they have purported to require disclosure of payment for products one endorses. They talk about giving a “media exemption” for us bloggers to say what we like about political candidates without having our posts be considered political contributions. In all cases, Our Government Overlords assert the right to regulate bloggers in ways they wouldn’t dare try to regulate the press.

They can go to hell. I won’t follow their unconstitutional rules. I will do what I would do absent their rules. I will not beg for a media exemption or sign petitions begging for the rights that are already mine. I say here plainly that I won’t. Instead, I take a simple pledge:

If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues, I will not obey those rules.

I reaffirm that here.

Yesterday’s decision was a step in right direction. But it did not end the tyranny of those who seek who use government’s power to shut us up. We will have to keep fighting the battle.

But it’s a lot easier today than it was on Wednesday.

ObamaCare: A failure of leadership

Filed under: General — Karl @ 10:55 pm

[Posted by Karl]

ObamaCare is not dead, but TPM’s Josh Marshall now joins my half-joking assessment on Twitter that it is Undead. And I find myself agreeing with his estimation that “there’s nothing but Plan B” — the two-bill strategy — open to the Dems, but time is of the essence.

Top Dems do not seem to be on that page. House Dems’ hopes of settling on a strategy by the weekend seemed to fade, as they continue to sort through their options. Senate Dems are not rushing to assure the House that differences can be worked out through budget reconciliation. Indeed, Sen. Chuck Schumer said that “concerns about the political climate” make that plan less than appealing to some Democrats.

All of which brings me back to Josh Marshall:

My strongest sense however is not so much that decisions have been made to drop reform as that it’s something like a matter of survivors walking around — half dazed — after some sort of natural disaster. There is no plan. It actually seems highly, highly fluid and possibly susceptible to dramatic change if any of the key players assert themselves. But I’m not sure there’s anyone really ready to do that, unless rank-and-file Democrats and Reform supporters assert themselves.

What the dazed and confused Dems are not asking (yet) is: Why was there no plan? The possibility that a Scott Brown victory in the Senate race in Massachusetts could affect final passage of ObamaCare was being publicly discussed at least as early as January 8th. Within a week, DCCC Chair Chris Van Hollen had boasted that “even before Massachusetts and that race was on the radar screen, we prepared for the process of using reconciliation.” The events of this week show that Van Hollen was bluffing, which leaves the question on the table. How did Pres. Obama, Sen. Maj. Ldr. Harry Reid, House Speaker Nancy Pelosi and their staffs not have a contingency plan in place for a Brown win? Their membership is now beginning to wander all over the reservation, while pessimism and panic settle in.

All of the Dems who want to mock the defeated Martha Coakley for her political incompetence ought to be looking at their top leadership’s negligence at a crucial moment for their most cherished crusade. Those leaders may yet regroup. But this process has been one of the Dems’ near-religious fervor on this issue trumping public disapproval and the fact that the Dems lacked a consensus solution. That sheer political will is being sapped by the loss in Massachusetts. Unless their leaders can find that consensus solution soon, Democrats may find ObamaCare slipping from Undead to Dead.

Update: Less than an hour after I posted this at HotAir — with all of its pingbacks to Josh Marshall and TPM, Marshall offered a new post:

Martha Coakley and her campaign have been roundly, mercilessly and rightly ridiculed for getting caught off guard by Scott Brown’s rapid ascent in the Massachusetts senate race. What’s the excuse of the White House and congressional leadership for having no plan in place for what to do if Coakley lost — a live possibility going back almost three weeks?

Hey, good question! And when asked by Josh Marshall, Democrats might start thinking about it.


Liveblogging Bruckner’s 8th Symphony

Filed under: General — Patterico @ 7:52 pm

It’s Lorin Maazel conducting the L.A. Philharmonic.

Technically, I can’t really live-blog it. I mean, it’s all one performance. All I can do is say: woo-hoo! I’m here!

And maybe add a surreptitiously taken iPhone photo later.

UPDATE: I can neither confirm nor deny having taken this picture:

End 1-21-10 002

I love the way you can get right on top of the orchestra at Disney Hall.

Air America To File Bankruptcy (Updated)

Filed under: Media Bias — DRJ @ 7:13 pm

[Guest post by DRJ]

Air America is no more:

“It is with the greatest regret, on behalf of our Board, that we must announce that Air America Media is ceasing its live programming operations as of this afternoon, and that the Company will file soon under Chapter 7 of the Bankruptcy Code to carry out an orderly winding-down of the business.”

Unlike a Chapter 11 reorganization, a Chapter 7 bankruptcy is a liquidation proceeding. The goal of a business filing Chapter 7 is to liquidate (sell) its assets and cease doing business.

Air America blames the “perfect storm” of a difficult economic environment that has adversely affected advertising revenues, competition from new media, “crushing” debt, an inability to obtain new funding, and little sign of hope for the future.


UPDATE: Air America’s bankruptcy, Scott Brown’s win, Nancy Pelosi’s concession on health care –William A. Jacobson at Le-gal In-sur-rec-tion asks if this day can get any better. The Instapundit goes one better — signs of a Copenhagen collapse? Plus, from Mike Myers in the comments, today’s news also includes the Supreme Court’s McCain-Feingold decision.

But don’t get cocky, GOP. These are drops in a bucket.

Pelosi: “I Don’t See the Votes” to Pass Senate Bill

Filed under: Health Care,Obama,Politics — DRJ @ 1:52 pm

[Guest post by DRJ]

The Senate version of ObamaCare seems dead for now and maybe for good:

“In its present form without any changes I don’t think it’s possible to pass the Senate bill in the House,” Pelosi said, adding, “I don’t see the votes for it at this time.”

The announcement followed a closed-down meeting of House Democrats:

“Pelosi, D-Calif., spoke to reporters after House Democrats held a closed-door meeting at which participants vented frustration with the Senate legislation.

Many rank-and-file Democrats said the stunning defeat in this week’s Massachusetts special election — in which Republicans captured the Senate seat held for decades by the late Edward M. Kennedy — meant it was time to seek more modest health legislation.
Several Democrats said they should refocus the legislation onto popular proposals like barring insurance companies from denying coverage to sick people.

“The mega bills are dead,” said Rep. Michael Arcuri, D-N.Y. “If we didn’t see what happened Tuesday night, we have blinders on.”

It’s time the White House takes those blinders off.


Specter to Bachmann: “Act Like a Lady”

Filed under: Politics — DRJ @ 12:39 pm

[Guest post by DRJ]

Sen. Arlen Specter and Rep. Michelle Bachmann appeared together on a Philadelphia radio station yesterday and as Politico said, it got ugly (audio at the link):

“The exchange, broadcast on 1210 AM’s Dom Giordano Show [but not archived on the station’s site], began when Specter challenged Bachmann to articulate what, exactly, she stands for, according to a readout on the clash published by the Pittsburgh Post-Gazette’s lively Early Returns blog.

Bachmann first laid out her agenda — cutting taxes and killing President Obama’s health reform bill — at considerable length.

When Specter tried to counter, Bachmann, darling of the Tea Party movement, kept on talking, which didn’t sit well with the one-time Philadelphia DA, who is a stickler for politeness and protocol.

“I’m going to treat you like a lady,” Mr. Specter shot back. “Now act like one.”

Ms. Bachmann replied, “I am a lady.”

Things went on along this line for a while — with Specter later asking Bachmann to “act like a lady,” according to the PPG’s Daniel Malloy.”

Keep those Republican women in their places, Arlen.


Supreme Court Rules Portions of McCain/Feingold Unconstitutional

Filed under: General — Patterico @ 7:12 am


The Supreme Court has ruled that corporations may spend freely to support or oppose candidates for president and Congress, easing decades-old limits on their participation in federal campaigns.

I don’t think of this in terms of partisan advantage, but in terms of free speech. This is a victory for the First Amendment.

UPDATE: The ruling is here. There are several opinions. From a quick scan, it looks like they upheld disclosure requirements 8-1, with only Thomas disagreeing. Otherwise it’s your typical 5-4 with Kennedy in charge.

John Edwards: “I Am Quinn’s Father”

Filed under: General — Patterico @ 6:26 am


Former presidential candidate John Edwards has admitted fathering his former campaign videographer’s child.

In a statement released to NBC News, Edwards said, “I am Quinn’s father. … It was wrong for me ever to deny she was my daughter and hopefully one day, when she understands, she will forgive me.”

Friends of the family said that Edwards and wife, Elizabeth, have separated, NBC reported.

I’ll avoid the temptation to snark. This is sad for that kid.

Levin vs. Beck on Brown’s Daughter-Teasing

Filed under: General — Patterico @ 6:23 am

Mark Levin and Glenn Beck got into it concerning whether this is charming or creepy. Beck says creepy, Levin says charming:

I’m with Levin. I thought it was charming. The look on the one daughter’s face is priceless.

Ayla Brown Shocked

He was having a little fun with his daughters, teasing them. It’s clear they were embarrassed, but in a good-humored way.

Meanwhile, the Huffington Post is running pictures of the daughters in bikinis. Taken from Facebook, and now considered fair game to spread throughout the Internet, I guess. Sorry, no picture and no link. As Allahpundit says, the pictures were

taken at her grandmother’s birthday party, according to Ayla Brown — so if you’ve got any information that might even potentially embarrass this kid, I guess you’ll want to shoot that along to them. Her pop’s a Republican. She’s got it coming.

Yup, that’s pretty much the thinking, isn’t it?

Obama: Year Two Begins

Filed under: Obama — DRJ @ 12:00 am

[Guest post by DRJ]

Barack Obama was sworn in as President of the United States on January 20, 2009, and today marks the beginning of his second year in office (*). In an ABC interview yesterday, President Obama says he worked hard for the American people during his first year in office but he didn’t communicate enough:

“If there’s one thing that I regret this year is that we were so busy just getting stuff done and dealing with the immediate crises that were in front of us that I think we lost some of that sense of speaking directly to the American people about what their core values are and why we have to make sure those institutions are matching up with those values,” Obama told ABC News’ George Stephanopoulos in an exclusive interview at the White House.”

Meanwhile, CBS reports that in his first year in office, President Obama gave 411 speeches, comments and remarks, conducted 42 news conferences, appeared at 23 town hall meetings, 7 campaign rallies, and 28 political fundraisers, and granted 158 interviews … plus trips to 30 states and 21 nations, and meetings with 74 foreign leaders.

If that’s not enough communicating for one year, imagine what 2010 will bring.

H/T Drudge Report.


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