Constitution Day Remarks

Last night I had the privilege of giving the introductory remarks at A Conversation with the Constitution, a Constitution Day event at KLRN Studios sponsored by East Central Independent School District, Gemini Ink, and the San Antonio Public Library Foundation.

The text of the remarks:

Our American Constitution set the stage for an ongoing debate about what our democracy should be. There is no better way to honor that spirit than an examination 10666015_10102627616292848_5113669244400168228_nof the recent groundbreaking Supreme Court decision Citizens United v. FEC, which we will be discussing tonight.

The seeds of this case were sowed over a century ago, when the United States faced many problems that might be familiar to some of you. There was unrest throughout Europe and the Middle East. At home, the gap between the richest and poorest was widening. Enormous corporations were exerting their influence over the American political system to protect their monopoly power.

A group of Progressive Era reformers led by President Theodore Roosevelt were able to minimize the political influence of corporations by prohibiting direct corporate contributions to political candidates. While this law has stood the test of time, you still meet people every day who feel that the deck is stacked in favor of corporations and lobbyists and against folks like you and me. A lot of them will cite the Supreme Court’s groundbreaking decision in Citizens United v. FEC as evidence of this.

Just as 100 years ago, folks are beginning to lose faith in the basic American bargain: that if you work hard and play by the rules, you will have a shot at success.But there is reason for optimism and a light at the end of the tunnel because the students in this room will solve our challenges just as the Progressive reformers addressed theirs.

The Citizens United case started with, of all things, a movie. Seven years ago, Senator Hillary Clinton was the front-runner over Senator Barack Obama to become the next President of the United States. In fact, many believed her to be “inevitable.” A small nonprofit group with funding from corporations called Citizens United wanted to release what they called a “documentary” film- one that was very critical of Senator Clinton.

Unfortunately for Citizens United, there was a law on the books that prohibited corporations from engaging in “electioneering communications.” This meant that corporations were not allowed to independently spend money to put an ad on TV or in a newspaper that was meant to endorse or oppose a political candidate.

The Supreme Court was asked to answer a simple question: Was the documentary an electioneering communication? As the court considered this, the issues became deeper and cut to the heart of our First Amendment. We’ve all learned that we are guaranteed free speech, but questions remain about what that actually means:

  • Does the First Amendment guarantee free, unlimited speech in all contexts?
  • Do corporations get the same constitutional protection that you and I do?
  • Should the First Amendment guarantee equal access to free speech?

There are those who believe that the law prohibiting corporate electioneering prevented corporations from exercising free speech rights. There are others who believe that too much corporate influence in our political system will corrupt it- and that this is a compelling reason to prevent corporate expenditures.

The Court decided that corporations can independently spend as much money as they want to support or oppose candidates, as long as it is independent. Corporations still can’t give money directly to the candidates themselves.

There is an old saying- “money in politics is like water on pavement- it will find its way into every crack and crevice.” Think about it, it’s true. Tonight, we will be discussing what role the government should have in regulating the flow of money into our elections.

We will not answer these questions tonight. In fact, we will likely walk out that door with more questions than we had when we walked in. That is the brilliance of the American Constitution. Happy Constitution Day.

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“Truth Commissions” Chill Free Speech

Should the government be in the business of regulating speech in any manner? If so, to what degree? These are very heady questions that lie at the heart of how we think about our First Amendment. The American political left has long been seen as an advocate for the notion that the truth will emerge in a robust free exchange of ideas. Recent events have poked holes in this reputation.

In 2012 the Supreme Court considered a federal law that made it a crime for someone to falsely claim receipt of a military honor. They found that such a crime “chilled” free speech. At the time, I wrote:

Justice Kennedy claimed “permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable.”

This is the crux of the matter…Slippery slope is taught in college as a fallacy, but First Amendment thought is, and ought to be, filled with slippery slope paranoia.

On Tuesday the Court will hear arguments in a case called Susan B. Anthony List v. DriehausMany10056df14792ef2c9260373acd72ca58 states have adopted laws that allow the government to fine or imprison people who make false statements in political campaigns. This seems perfectly reasonable on its face. We are sick and tired of politicians and special interests lying to or misleading us. However, these states have given “truth commissions” (government bureaucrats) the authority to determine what statements are true or false.

The attorneys for Susan B. Anthony List, who sued under threat of punishment from such a law in Ohio, penned an op-ed in today’s Wall Street Journal:

The relevant question is thus not whether there is a constitutional “right to lie,” but rather whether the state may force citizens to defend the “truth” of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized. Such a regime imposes substantial burdens on core political speech and therefore chills robust political debate.

The premise of the First Amendment is that the people should decide what is “true” and what is “false” in the political arena, and punish or reward political candidates at the ballot box. Political fact-checking is not a task for courts of law. Criminal penalties should not hang over the heads of speakers who disagree with their version of political “truth.”

Laws that penalize lying in political campaigns are rooted in noble intentions. But they lead to the creation of government “truth commissions” that belong in an Orwell novel. The Court should err on the side of free speech.

The Wolf of Wall Street & Assorted Links

Erin and I saw The Wolf of Wall Street yesterday afternoon. It was a gross display of excess. Three new-wolf-of-wall-street-trailer-leonardo-dicaprio-is-the-wealthiest-stockbroker-in-the-worldstraight hours of profanity, sex, greed, drugs. There are those who say that the film doesn’t go far enough to villainize the Wall Street hucksters or moralize about how greed can breed self-destruction. I thought the bacchanalian nature of every single scene made many moral lessons self-evident. Here are some links:

The Wall Street Journal published a profile of Terence Winter, who adapted Jordan Belfort’s memoir into the film. He gives some of his own perspective:

“You, the viewer, are the sucker. You’re being duped and seduced into laughing along with these guys. And every once in a while you’ll hit a little bump in the road”—as when Belfort mentions an employee’s suicide in passing—”where you go, ‘What did he just say?'”

Not many revisions were needed to make the movie’s ’80s and ’90s-era hubris seem relevant, Mr. Winter says: “That’s the point of the movie: We don’t learn anything. Nothing changes.”

From 1905 to 1937, corporate America relied on a Supreme Court case, Lochner v. New York, to challenge most government regulations as violating a “liberty of contract” implicit in the Due Process Clause. Haley Sweetland Edwards argues in Washington Monthly that Citizens United is the new Lochner.

In the Lochner Era, big industry groups and their allies on the Court wielded the notion of “freedom of contract”—any regulation that abridged it was chucked. Today, the notion of “freedom of speech” is being used virtually the same way, just as Rehnquist worried it might be. Any rule or law that abridges a company’s claims to First Amendment-protected speech is now vulnerable to attack.

I’ve argued that generalists are undervalued in our corporate culture. Philosopher Roman Krznaric critiques the “cult of specialization” that has arisen since the Industrial Revolution.

Moreover, our culture of specialization conflicts with something most of us intuitively recognize, but which career advisers are only beginning to understand: we each have multiple selves. … We have complex, multi-faceted experiences, interests, values and talents…

smoking-pregnant-woman1Prevalence of smoking among pregnant women is still, in 2013, 10%.

These numbers are not just women who smoked a little before they realized they were pregnant — these are women who reported smoking during the last three months of their pregnancies.

I’m personally really not a fan of CEOs wearing hoodies. But a recent study profiled in The New Yorker gives some insight into why this “sartorial tactic succeeds.”

But how is nonconformity interpreted by others? Do we see it as a sign of status? New research, to be published next near in The Journal of Consumer Research, suggests that we do. The authors call the phenomenon the “red sneakers effect,” after one of them taught a class at Harvard Business School in her red Converse.

PRISM Not Shocking, Still Concerning

It is absurd that everyone is feigning shock over “recent” revelations that the national security apparatus acquires metadata from telecommunications companies and taps into the servers of internet companies. If you are shocked, you haven’t been paying attention.

The Supreme Court decided, in 1979, that we are not entitled to a “reasonable expectation of privacy” regarding the numbers we dial on a telephone and, thus, our phone records:

The Fort Meade, Maryland headquarters for the National Security Agency.
Fort Meade, Maryland

[I]t is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes.

This case essentially held that gathering “metadata” does not constitute an illegal search. Warrantless wiretaps are illegal, but the president made it clear that the government is not engaging in such behavior. The majority of Americans find the government’s use of telephone records at least somewhat acceptable.

The more troubling revelation was the existence of PRISM, the program used by intelligence officials to directly access the servers of large internet companies. This shouldn’t be a surprise either.

Please read the rest at Politically Inclined.

Stolen Valor Act

Lost in all of the excitement surrounding the health care ruling has been any meaningful discussion of the landmark First Amendment case handed down by the Supreme Court yesterday. Today, my brother can walk up to a microphone and falsely claim that he won four Purple Hearts and a Medal of Honor for his courage and valor in Afghanistan. Last week, had he made a similar false claim, my brother would have needed legal counsel and likely was headed for a short stint in federal prison. How did we get from there to here?

In 2005, Congress passed and President Bush signed the Stolen Valor Act (don’t they have a knack for naming things in Washington?), which made it a crime to falsely claim receipt of a military honor. The penalty was even worse if that false claim involved the Congressional Medal of Honor. The justification behind the law is self-evident: lies about receipt of military honors devalue, and therefore inflict harm, on actual recipients of the Medal of Honor and the general public. Lying is usually wrong, but it’s always wrong when you’re claiming reward of a medal you did not receive.

Read the rest at Politically Inclined.