Mediaboss Marketing

An intra-congregational dispute over control of church bank accounts led the Wakefield Missionary Baptist Church to a schism that forced out a senior pastor, saw church doors locked, and resulted in competing factions worshipping under the banner of a once-united unincorporated association. In McKnight v. Wakefield Missionary Baptist Church, Inc., 2022 NCBC 10, the Business Court confronted a tangle of disputes between dissident church factions largely out of its reach given the First Amendments edict that the judiciary may not resolve ecclesiastical questions or resolve controversies over religious doctrine and practice.

The Court found a path under which neutral principles of law would allow it to determine whether a purported vote of the churchs congregation to approve the pastors dismissal and reorganize itself as an incorporated entity was valid. Over its 150-year existence, Wakefield had been a congregational church that was self-governing and that in a more recently adopted constitution and bylaws entrusted that authority in its members. Id. 3. But when the congregation approved movement of Wakefields property into the new incorporated form, a dissident faction challenged and sought to undo the splintering.

A challenge to that action in North Carolina faced long odds given that the congregation has the right to control the church, including the authority to change its customs and rule upon earlier church decisions. Graham v. Lockhart, 42 N.C. App. 377, 379 (1979). Thus, the Business Court determined that when the incorporated entity re-opened and its 37 members in attendance unanimously ratified its change in form, the movement of Wakefields property, and the termination of its pastor, the churchs governing body had declared the matter closed. NCBC 10, 7, 18.

But even that deference to the boundaries of North Carolina law left the Court resolving a dispute using neutral principles that could not fully resolve even the underlying controversy over the propriety of the congregations action. For instance, congregants who didnt join the group which incorporated thought they still constituted Wakefield, and that those who voted for ratification had ceased to be church members. Judge Conrad noted that [t]he Court has no business rendering a decision that would, in effect, excommunicate church members for siding with one faction over another in matters of church governance. Id. 17.

Yet, even in ruling that the Court could not overrule the congregations edict, a neutral decision about who constituted the churchs governing body was weighted with the baggage of which of Wakefields congregants could continue to worship under a dearly held 150-year-old church banner and which could not. Id. 20.

Trade Name Infringement

The Business Courts decision was also freighted with the responsibility to tackle which of Wakefields dissident groups could appropriately use its name. Judge Conrad observed that, too, posed tricky First Amendment issues because [w]hat a church or other house of worship chooses to call itself is, after all, an expression of its religious identity. Id. 58. Perhaps that is why, the Court noted, the North Carolina Supreme Court has avoided resolving whether an injunction may be issued to forbid one church to use a name similar to that of another church. Id. (quoting Bd. Of Provincial Elders v. Jones, 273 N.C. 174, 184 (1968)). The issue was resolved, ironically enough, on the principle that:

[t]he right to use the name inheres in the institution, not in its members; and when they cease to be members of the institution, use by them of the name is misleading and, if injurious to the institution, should be enjoined.

Daniel v. Wray, 158 N.C. App. 161, 173 (2003). Here, then, the power of the congregations members fueled the change in corporate form, but it was then the newly formed entity that controlled use of the Wakefield name as its organizing label.

Takeaways

[View source.]

Read more:
A Business Court Finds There is Little Neutral Ground in Disputes Over Church Business - JD Supra

These remarks were delivered by Jeffrey Rosen, president and CEO of the National Constitution Center,at a May 2, 2022, celebration of the newly installed marble First Amendment tablet, donated to the National Constitution Center by the Freedom Forum. Its design and installation was made possible through the generosity of Judge J. Michael Luttig and Elizabeth Luttig.

Thank you, Judge [J. Michael] Luttig, for your gift to America in bringing the First Amendment Tablet to Philadelphia. Its fitting that the 45 words of the First Amendment will shine forever over Independence Hall, where the Declaration of Independence and the Constitution were drafted. As we prepare to dedicate the Tablet, lets gaze together at Independence Hall and then turn our attention back to the words of the Tablet that are shining before us. Holding these two images in our minds is illuminating, because the First Amendment shows us the connection between the Declaration and the Constitution. It protects freedom of conscience, which the Founders considered first among the unalienable rights enshrined in the Preamble to the Declaration and first among the blessings of liberty enshrined in the Preamble to the Constitution.

How do we know that the rights of conscience, as the Founders called them, were first among the unalienable rights and the blessings of liberty recognized by the Declaration and the Constitution? We know that from two other sacred texts Id like to talk to you about now, as we dedicate the First Amendment Tablet together. Those text are Thomas Jeffersons Bill for Establishing Religious Freedom in Virginia, drafted in 1777, and Justice Brandeiss opinion in Whitney v. California, drafted in 1927.

Jefferson drafted his bill in Virginia months after he returned Philadelphia, where he had just completed the Declaration of Independence. He considered his Religious Freedom Bill among the three accomplishments of his life important enough to be inscribed on his tombstone, along with his having drafted the Declaration and founded the University of Virginia.

Under Virginias colonial religious code, all dissenters were required to support and attend the Established Anglican church. Presbyterians and Baptists could be arrested for practicing their faith or preaching the gospel. Quakers, Jews, and other dissenters could be denied the freedom to marry or to have custody of their children. Jefferson proposed not only to disestablish the Anglican Church and remove all criminal punishments for dissent, but also to prohibit all compelled support for religion of any kind. He concluded that because freedom of conscience is a fundamental right, government can regulate overt acts against peace and good order, but it lacks all power to intrude into the field of opinion.

Jeffersons Bill sets out four reasons why government can make no law that constrains our freedom of speech, conscience, or opinion. Those four reasons were summed up by Justice Brandeis in Whitney, and they have been further developed by the Supreme Court since then:

1. Freedom of conscience is an unalienable right because people can only think for themselves;

2. Free speech makes representatives accountable to We the People;

3. Free speech is necessary for the discovery of truth and the rejection of falsehood;

4. Free speech allows the public discussion necessary for democratic self government.

Lets review each of Jeffersons four reasons.

1. Freedom of conscience is an unalienable right

Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds, Jefferson wrote in the first sentence of his draft, God hath created the mind free,and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint. In other words, Jefferson argued, freedom of conscience is, by definition, an unalienable right one that cant be alienated or surrendered to government because our opinions are the involuntary result of the evidence contemplated by our reasoning minds. We cant give presidents, priests, teachers, or fellow citizens the power to think for us, even if we wanted to, because we are endowed as human beings with the capacity to reason and therefore cant help thinking for ourselves. We know that Madison, the drafter of the First Amendment, shared Jeffersons views because he echoed them in his Memorial and Remonstrance in 1785, which persuaded the Virginia legislature to pass Jeffersons bill. The rights of conscience are unalienable, Madison wrote, because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men.

2. Free speech makes representatives accountable to We the People.

In his Religious Freedom Bill, Jefferson emphasized that its crucial in a democracy for citizens to be able to criticize public officials because legislators and religious leaders, being themselves fallible and uninspired, will always try to impose their own opinions and modes of thinking on others. His prediction came to a head in the controversy of the Alien and Sedition Acts of 1798, where the Federalist Congress made it a crime to criticize the Federalist President, John Adams, but not the Republican Vice President, Thomas Jefferson. And Madison, once again, echoed Jeffersons views in his Virginia Resolution, which said the Sedition Act ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures which is the only effectual guardian of every other right.

3. Free speech is necessary for the discovery and spread of political truth.

Jefferson concludes his Religious Freedom Bill with words expressing his unshakeable faith in the power of reasoned deliberation to distinguish truth from error, words that are inscribed in marble on the Jefferson Memorial in Washington: truth is great and will prevail if left to herself; she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate.

4. Free speech allows the public discussion necessary for democratic self-government.

Jefferson believed that in a democracy, all citizens have an equal right and responsibility to exercise their rights of conscience. As Jefferson put it in his Virginia Bill, proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right.

On the Supreme Court, in the greatest free speech opinion of the twentieth century, Justice Louis Brandeis distilled Jeffersons four reasons for protecting free speech into a few inspiring paragraphs. In the case, Whitney v. California, we see the first Jewish Justice insisting on the right of Anita Whitney, a white woman, to make a speech defending anti-lynching laws, which were designed to protect the life and liberty of African Americans. Whitney made her speech at a Communist Party meeting, and she was convicted under a California law that made it a crime to associate with organizations that advocated doctrines that might lead to people to break the law. In 1926, Brandeis had read Jeffersons original draft of the Virginia Bill for Establishing Religious Freedom. In his Whitney opinion in 1927, Brandeis adopted and refined Jeffersons standard for ensuring that government could only punish overt acts of lawbreaking, not the expression of dangerous opinions.

As Brandeis put it in Whitney, Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. [And] There must be reasonable ground to believe that the danger apprehended is imminent.

Brandeiss inspiring test government can ban speech only if its intended to and likely to cause imminent and serious injury was based on his Jeffersonian faith in the power of what he called free and fearless reasoning to expose falsehood through public discussion. As Brandeis put it, If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Brandeiss test was finally adopted by the Supreme Court in 1969. As a result, the United States Supreme Court now protects free speech more vigorously than any other judiciary in the world.

Brandeis went on to summarize Jeffersons four reasons for why government cannot make laws designed to restrict what Jefferson called the illimitable freedom of the human mind. And in the process he achieved a kind of constitutional poetry. I will now read Brandeiss central passage listen closely for each of Jeffersons four reasons: freedom of conscience, democratic accountability, discovery of truth, and democratic self-government.

Those who won our independence believed that the final end of the state was to make men free to develop their faculties and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. [Thats a quotation from Pericles funeral oration]. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

But as this paragraph shows, all four of Jefferson and Brandeiss reasons for protecting free speech are based on an Enlightenment faith in reason itself. The First Amendment is based on a faith that people will take the time to develop their faculties of reason, through education and public discussion; that public deliberation will check arbitrary and partisan demagogues rather than enable them; that more speech will lead to the spread of more truth rather than more falsehood; and that people will, in fact, take time for discussion and deliberation, rather than make impulsive decisions.

This founding faith in reason is being questioned in our polarized age of social media. Twitter, Facebook, and other platforms are based on a business model thats now being called enrage to engage. They have accelerated public discourse to warp speed, creating virtual versions of the mob. Inflammatory posts based on passion travel farther and faster than arguments based on reason. Rather than encouraging deliberation, mass media undermine it by creating bubbles and echo chambers in which citizens see only those opinions they already embrace. For these reasons, some are calling for Americas free speech tradition to be reconsidered or abandoned.

Here at the National Constitution Center, by contrast, we are proud to reaffirm the faith in reasoned deliberation by consecrating the 45 words that will shine forever in this hallowed space. As a vital platform for non partisan education and debate, we bring together Americans of different perspectives to cultivate their faculties of reason. Only by listening to the best arguments on all sides of the constitutional questions at the center of American life can all of us exercise our right and duty to make up our own minds. Like Jefferson and Brandeis and Frederick Douglass and Ruth Bader Ginsburg and all of the great free speech heroes of America history, we are dedicated to preserving, protecting, and defending what Jefferson called the illimitable freedom of the human mind. May the shining words of the First Amendment Tablet inspire future generations with this self-evident truth: reason will always combat error as long as individuals are free to follow the dictates of conscience wherever it boldly leads. On behalf of all of us at the National Constitution Center, thanks again to Jan Neuharth and Judge Luttig for making this memorable ceremony possible, and thanks to all of you for joining us.

Download Speech Transcript

Read more here:
From Jefferson to Brandeis: The First Amendment, the Declaration, and the Constitution - National Constitution Center

The fictional character Bill Lumbergh of Office Space is pictured alongside New York Gov. Kathy Hochul

If New York Governor Kathy Hochul (D) could go ahead and read up on the First Amendment, that would be great.

During interviews with reporters in the days following Saturdays horrific mass shooting in Buffalo, New York, Hochul summarized free speech jurisprudence with a disastrous inaccuracy seriously unbecoming a sitting government official.

In the video below, Hochul can be seen in an interview with ABCs George Stephanopoulos in which she remarked that depraved ideologies of white supremacy are fermenting on social media and spreading like a virus. Hochul called on tech companies to do more to monitor and shut down dangerous individuals on social media platforms. Without distinguishing between private action (such as the kind of user-monitoring Hochul was suggesting be undertaken by private companies) and government action, Hochul ended the interview by summarizing her take on government power to regulate speech.

Ill protect the First Amendment any day of the week, Hochul pledged. But you dont protect hate speech. You dont protect incendiary speech. Youre not allowed to scream fire in a crowded theater. There are limitations on speech

Theres a lot to unpack in Hochuls statements a bit of which is correct, but most of which is dead wrong.

Lets start with some First Amendment basics. Under the First Amendment, freedom of speech is a protected right. Like other rights, however, free speech is not absolute. Certainly, government regulation of speech is to be viewed with suspicion, because there are stringent limitations within which the government is authorized to intrude on free speech.

Over the decades, an enormous amount of jurisprudence has developed that carves out specific rules for how the government (both local and national) may legally regulate speech. Some categories of speech have been deemed unprotected by the First Amendment, such as defamation and perjury. Of course, to ascertain whether a particular statement amounts to defamation or perjury (and thus loses First Amendment protection), one must engage in an independent analysis. The same is true for speech that is unprotected because it constitutes obscenity or fighting words.

When Hochul referenced the ever-misunderstood fire-in-a-theater example, she likely did so as a shorthand way of making the point that there are plenty of circumstances in which it is absolutely legal for the government to regulate and even prohibit speech. The point was accurate (though Hochuls example is woefully bad at making it).

As an aside, my Law&Crime colleague Aaron Keller discussed the theater-fire example at length in 2021 when President Joe Biden clumsily tried to make the same point in the same way that Hochul did. Keller explained:

Biden said, in essence, that the Constitution doesnt protect the right to yell fire in a crowded movie theater. Hes wrong. People can constitutionally yell fire in crowded gatherings if there is an actual fire. The often-misquoted phrase usually fails to acknowledge that key distinction.

Because Biden and Hochul left out the key falseness aspect of the quote, the meaning isnt quite correct. Some speech is protected and therefore essentially untouchable by government regulation. Other speech is fair game for government regulation. The distinction has zero to do with theaters and everything to do with danger.

Besides, as Keller pointed out, there have been broader jurisprudential shifts that have long ago rendered as obsolete the well-worn and tired fire in a crowded theater trope. The theater/fire analogy is rooted in an Oliver Wendell Holmes, Jr. line in Schenck v. U.S., a 1919 case that was mostly overturnedbyBrandenburg v. Ohio in 1969. The quote somehow stuck around long after the law attached to it did not.

What about incendiary or hate speech?

Hochul listed incendiary and hate speech as two more categories that you dont protect. Once again, she has listed two more categories, neither of which are categorically unprotected under First Amendment law.

Brandenburg v. Ohio sets out the basic analytical framework courts use to evaluate free speech claims. Under Brandenburg,speech can be prohibited if it is both (1) directed at inciting or producing imminent lawless action and (2) likely to incite or produce such action. In other words, what matters is the risk of danger. When speech is likely to create immediate lawbreaking or immediate danger, the government may indeed step in and prohibit that speech. This is why prohibitions against falsely alarming people in a crowded place in which a dangerous stampede may result would likely withstand constitutional scrutiny.

That said, however, proving that government action targeted only the kind of speech that would satisfy the Brandenburgrequirements is not a simple matter. Rarely does speech rise to the level of being likely to incite or produce imminent lawless action such that restriction of that speech can withstand a First Amendment challenge. Even when it does, the regulation in question cannot be overbroad, and must instead prohibit the unprotected speech without infringing on protected speech.

Indeed, the test is very, very strict: Brandenburg held that a speech at a Ku Klux Klan rally could not result in criminal punishment because the law which criminalized the speech didnt afford leeway for rhetoric however unpopular that didnt incite or produce imminent lawless action.

[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, the Court wrote of the KKK speech, is not the same as preparing a group for violent action and steeling it to such action. (Most of the quote actually came from an earlier case.)

Hochul used the word incendiary, perhaps meant to be a synonym for incitement. At best, the usage leads to an incomplete statement. At worst, its just wrong.

Merriam-Webster defines incendiary as tending to excite or inflame. While it is certainly possible that some incendiary speech might rise to the level of risk set out by Brandenburg, the two concepts are surely different. One could easily imagine speech that tends to excite or inflame that does not necessarily threaten immediate lawlessness. Thus, Hochuls misspeak on this point creates its own standard by throwing in a legally irrelevant term and mischaracterizing one of the very narrow circumstances in which speech is unprotected.

Hochuls use of hate speech, though, is a far worse legal sin.

Hate speech is not a legal designation with a specific definition. Rather, it is a conversational term usually meant to characterize speech that is overtly offensive, and usually refers to racist, sexist, homophobic, or anti-Semitic slurs. Many use the term hate speech as a kind of corollary to the term hate crimes (the history of which I detail at length here) a lack of precision that often leads to a misunderstanding about the legal status of hate speech.

The U.S. Supreme Court has never ruled that hate speech constitutes a new category of unprotected speech. Some hate speech may be obscene, while some may incite violence; on those bases, such speech could be denied First Amendment protection. However, deeming speech as hateful or hate speech does not independently make that speech a proper target for government action.

Take the KKK speech that was the crux of the Brandenburg test: if a piece of so-called hate speech does not produce or incite imminent lawless action, but rather stands on its own as a vile and loathsome thought in the marketplace of ideas, then it cant be prosecuted.

Often, when the First Amendment is discussed in legal circles, hate speech is used as a primary example of the kind of speech that is loathed but still legally protected. Against that backdrop, Hochuls declaration that she will protect the First Amendment any day of the week, but that you dont protect hate speech, is a truly pitiful statement on the governors understanding of her own responsibility as an executive official.

On Wednesday, Gov. Hochul held a press conference announcing an executive order to establish a unit to combat domestic terror. Hochul slammed the mainstreaming of hate speech, particularly online.

Hochul, announcing a threat assessment management program, said the dedicated domestic terror unit would develop best practices to address the homegrown rise in extremism.

Hate just breeds more hate, Hochul said. Think of all the people who saw the livestream of the Buffalo shooting.

They witnessed this in real time, she added. The suspect wanted people to see this.

That is a direct threat to New Yorkers, Hochul continued. The governor said she also made a referral to the New York Attorney Generals Office to investigate the social media platforms (see: Twitch) that broadcasted the horrific attack in Buffalo and legitimized replacement theory.

Were watching you now. We know what youre up to, Hochul said, addressing would-be domestic terrorists.

New York Attorney General Letitia James (D) issued a statement of her own Wednesday afternoon, announcing the very investigation of social media platforms that Hochul requested. Jamess office specifically mentioned Twitch, 4chan, 8chan, and Discord.

The terror attack in Buffalo has once again revealed the depths and danger of the online forums that spread and promote hate, Jamess statement said. The fact that an individual can post detailed plans to commit such an act of hate without consequence, and then stream it for the world to see is bone-chilling and unfathomable. As we continue to mourn and honor the lives that were stolen, we are taking serious action to investigate these companies for their roles in this attack. Time and time again, we have seen the real-world devastation that is borne of these dangerous and hateful platforms, and we are doing everything in our power to shine a spotlight on this alarming behavior and take action to ensure it never happens again.

[Images via YouTube/screengrab, ABC News screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

Read the rest here:
If Our Government Officials Understood the First Amendment That Would Be Great - Law & Crime

Sen. Ted Cruz, R-Texas, on Monday won a significant First Amendment victory from the U.S. Supreme Court inFederal Election Commission v. Ted Cruz for Senate.

Its not the first time Cruz has been successful at the court, but it was his first time as an actual plaintiff in a case, rather than as solicitor general of Texas. The latter is a position he held prior to becoming a senator, one in which it was his job to represent Texas before the Supreme Court.

Mondays ruling was a 6-3 decisionthe typical conservatives vs. liberals splitwith Chief Justice John Roberts and his colleagues throwing out a particularly troublesome provision of federal campaign finance law as a violation of the First Amendment.

The liberals on the court almost never uphold the First Amendment when it comes to restrictions on political speech and activity.

When Cruz ran for reelection in 2018, he loaned his campaign $260,000. All federal candidates can loan money to their campaigns under federal law, and campaigns can also borrow from third-party lenders.

As Roberts wrote in the decision, this loan provision is important because it allows candidates to jumpstart a fledgling campaign or finish strong in a tight race.

Cruz had just such a tight race in 2018, when hedefeatedBeto ORourke by only 2.6 percentage points, the closest Senate race in Texas in 40 years and, according to the court, the most expensive Senate race in history at that time.

Keep in mind that individual contributions to a campaign are limited to $2,900 for the primary and the same amount for the general election.

To repay such loans and other campaign debt, candidates can continue to raise money in contributions from donors after the election.However, Section 304 of the Bipartisan Campaign Reform Act of 2002 (codified at52 U.S.C. 30116(j))the federal law I helped enforce when I was a commissioner at the Federal Election Commissionprovides that a candidate who loans money to his campaign cannot be repaid more than $250,000 from contributions made to the campaign after the election. (Pre-election contributions can be used to pay off a loan no matter how much it is.)

The FEC issued a regulation enforcing this provision, including a rule saying that to the extent the loan is more than $250,000, a campaign can only use pre-election contributions to repay the portion of the loan above that amount if the repayment occurs within 20 days of the election. Cruz was repaid $250,000 by his campaign after the 20-day deadline but was still out $10,000.

The FEC went to great lengths to try to argue that the candidate and senator who had actually lost money because of this statutory provision and the FEC regulation did not have standing to sue, in part because his injury was self-inflicted.

But the court quickly dismissed that claim, saying that it has never recognized a rule of this kind and instead has made it clear that an injury resulting from the application or threatened application of an unlawful enactment remains fairly traceable to such application, even if the injury could be described in some sense as willingly incurred.

But the substantive question, according to the court, was whether a law that increases the risk that candidate loans over $250,000 will not be repaid in full, inhibiting candidates from making such loans in the first place violates the First Amendment by limiting political speech and activity.

As the court said, the First Amendment has its fullest and most urgent application precisely to the conduct of campaigns for political office.

It safeguards the ability of a candidate to use personal funds to finance campaign speech, protecting his freedom to speak without legislative limit on behalf of his own candidacy. Furthermore, this broad protection reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.

Although this isnt discussed in the courts opinion, thecensorship,wokeism,cancelculture,speech codes, and persecution of conservativespeakersoccurring everywhere across America show that the left doesnt agree that public debate should be uninhibited, robust, and wide-open.

According to the court, the burden on First Amendment expression by this limitation is evident and inherent. Even though the statutory provision does not limit the amount of personal funds a candidate can use for his campaign, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right.

What is that penalty? The court says it is the significant risk that a candidate will not be repaid if he chooses to loan his campaign more than $250,000.

And that risk in turn may deter some candidates from loaning money to their campaigns when they otherwise would, reducing the amount of political speech.This ability to loan money to a campaign is especially important for new candidates and challengers, and early spendingand thus early expressionis critical to a newcomers success.

As the court has said on numerous occasions, the only justification for campaign restrictions that burden the First Amendment are those that prevent quid pro quo corruption or its appearance, i.e., candidates promising to take certain actions in exchange for contributions.

The court has rejected other justifications frequently used by so-called reformers, such as reducing the amount of money in politics, leveling electoral opportunities by equalizing candidate resources, or limiting the general influence a contributor may have over an elected official.

Here, the Biden administration tried to argue that the contributions at issue raise a heightened risk of corruption because of the use to which they are put: repaying a candidates personal loans and that postelection contributions are particularly troubling because the contributor will knownot merely hopethat the recipient, having prevailed, will be in a position to do him some good.

The court met those arguments with skepticism.

It pointed out that the government was unable to produce a single case of quid pro quo corruption in this contexteven though most States do not impose a limit on the use of postelection contributions to repay candidate loans.

Moreover, contribution limits even postelection are still capped at $2,900 under federal law, the amount considered to not risk the problem of possible corruption.

Furthermore, if that was really a risk, why does the $250,000 restriction apply to losing candidates, too?Obviously, they are in no position to grant official favors, and the government did not provide any anti-corruption rationale to explain why postelection contributions to those candidates should be restricted.

The only evidence the Biden administration produced to justify this statute was a scholarly article, a poll, and statements by members of Congress claiming that these contributions carry a heightened risk of at least the appearance of corruption.

The court pointed out major defects in both the article and the poll and said that a few stray floor statements [by members of Congress] are not the same as legislative findings that might suggest a special problem to be addressed.

All of this was pretty meager in the courts opinion, given that we are considering restrictions on the most fundamental First Amendment activitiesthe right of candidates for political office to make their case to the American people.

The dissentauthored by Justice Elena Kagan and joined by Justice Sonia Sotomayor and outgoing Justice Stephen Breyermakes the nonsensical claim that this loan repayment limit is acceptable because postelection contributions are a gift that enrich the candidate personally, allowing him to buy a car or make tuition payments or join a country club.

That last claim is especially humorous since in the minds of many liberals, being a member of a country club seems to be theultimate sinand a sign of corruption.

However, as the chief justice wrote, This forgets that we are talking about repayment of a loan, not a gift. If the candidate did not have the money to buy a car before he made a loan to his campaign, repayment of the loan would not change that in any way.Such contributions simply restore the candidate to the status quo ante he had before the election.

The Supreme Court, Roberts wrote, has the role to decide whether a particular legislative choice is constitutional. Here, the Government has not shown that Section 304 furthers a permissible anti-corruption goal, rather than the impermissible objective of simply limiting the amount of money in politics.

So, Cruz won a First Amendment victory not just for himself, but also for other candidates (and their supporters) who want to run for office so they can make a difference in the political life of our country.

This piece originally appeared in The Daily Signal

Continued here:
Sen. Ted Cruz, First Amendment Win at Supreme Court in Campaign Finance Case - Heritage.org

A federal judge ruled Monday that North Carolina's beer bureaucrats violated the Constitution when they tried to ban a beer because they disliked the art on the label.

The offending label was wrapped around bottles of Maryland-based Flying Dog Brewery's Freezin' Season Winter Ale, and appears to show a tiny appendage between the legs of a Ralph Steadman cartoon character. Last year, the North Carolina Alcoholic Beverage Control (ABC) Commission told Flying Dog that the beer could not be sold in the state due to the "inappropriate" and "in bad taste" label design.

But there's no accounting for taste in the First Amendmentindeed, the most fundamental aspect of the constitutional protections afforded to free speech is that government officials can't prohibit expression or art simply because they dislike it.

On Monday, Judge Terrence Boyle confirmed as much, writing that prior court rulings regarding commercial speech "should have placed any reasonable state liquor commissioner on notice that banning a beer label based on its content would violate the First Amendment."

"The challenged regulation is facially unconstitutional because it is overbroad and otherwise not narrowly tailored to achieve North Carolina's proffered substantial interest," Boyle concluded.

Jim Caruso, CEO of Flying Dog, calls the ruling "a resounding victory for the First Amendment."

"With the First Amendment seemingly under attack from all sides, it is heartening to see court decisions like this that protect the freedoms that it embodies," says Caruso, who is a financial supporter of Reason Foundation, the nonprofit that publishes this website. "The First Amendment is the last defense against authoritarian and arbitrary government and it must be protected against any and all threats."

The North Carolina ABC argued in court documents that its beer label regulations are meant to protect shoppers' eyes from vulgar and sexual content. If Flying Dog wants to sell its beer in North Carolina, the ABC argued, then "it can do so in ways other than showing a naked cartoon figure with a naked cartoon penis."

A surprising amount of the legal back-and-forth in the case revolved around the question of whether the cartoon figure on the label is, in fact, sporting a tiny member between its legs. While the label "shows a small protrusion that is where one would expect to find a penis on most male humans," it is "otherwise not at all identifiable as one. There are no constituent parts of a penis, no testicles, and it is not engorged. It is a small nub that merely suggests a penis. It is certainly not sexually explicit," the brewery's lawyers wrote in court documents.

At one point, Flying Dog's lawyers entered a "super-zoom of the 'penis'" into the court record.

"It may not have all the bells and whistles, but it's a penis," attorneys for the North Carolina ABC wroteyes, reallyin response.

But Boyle noted that the state's rules are, in fact, far more expansive than merely policing sexual or pseudo-sexual content. And the judge sided with Flying Dog's contention that those rules are not only vast but also inconsistently applied.

AsReasonhas previously covered, the North Carolina ABC has blacklisted about 230 beer and wine brands since 2002 for having labels or names that offended the board's sensibilities. Ironically, the North Carolina ABC reportedly told Utah-based Wasatch Brewery that its "Polygamy Porter" could not be sold in the state because "polygamy is illegal." But the board also banned a beer named "Kissing Cousins" despite the factthat it isliterally legal to marry your first cousinin North Carolina.

Boyle concluded that the North Carolina ABC's rules prohibiting speech that regulators deem "undignified, immodest, or in bad taste" could give the state "vast" power over the type of advertising allowed.

"Indeed, the Supreme Court has recently reaffirmed 'the bedrock First Amendmentprinciple [that] Speech may not be banned on the ground that it expresses ideas that offend,'" wrote Boyle, citing the landmark 2017 Supreme Court ruling Matal v. Tam.In that case, the court found that that the federal Patent and Trademark Office (PTO)could not prevent all-Asian dance-rock band The Slants from trademarking its name, even if the name violated PTO rules against disparaging "persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." Restrictions on commercial speech must serve a "substantial" government interest and must be "narrowly drawn," the court held inMatal.

It's obviously silly for alcohol regulators to be concerned with what images appear on beer labels, but Monday's ruling leaves no doubt that it's unconstitutional too.

Read the original:
The First Amendment Protects the Right To Put a Tiny Penis on a Beer Label - Reason