Print Story Money Is Not Speech
Politics
By wiredog (Mon Jan 25, 2010 at 09:47:08 AM EST) (all tags)
The First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So in relation to speech, it doesn't say anything about people, it just bans Congress from making any laws abridging freedom of speech.



Via Glenn Greenwald at Salon, a few proposed laws to try out on the "money is not speech" crowd:
  • It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent.
  • It shall be illegal for anyone to spend money advocating Constitutional rights for accused terrorists; all citizens shall still be free to express their views on such matters, provided no money is spent.
  • It shall be illegal for anyone to spend money promoting a candidate not registered with either the Democratic or Republican Party; all citizens shall still be free to advocate for such candidates, provided no money is spent.

Because if money is not speech, then those laws would be perfectly acceptable under the First Amendment since they restrict money rather than speech.

< Dogged resistance | Grumble grumble. >
Money Is Not Speech | 71 comments (71 topical, 0 hidden) | Trackback
not sure I get you by sasquatchan (2.00 / 0) #1 Mon Jan 25, 2010 at 10:09:32 AM EST
are corporations really people ? The constitution is silent on that, and the last judicial review was some 140 years ago. That's a different precedent I'd be curious about the ramifications if it were changed.

It doesn't matter by wiredog (4.00 / 2) #2 Mon Jan 25, 2010 at 10:11:14 AM EST
The Amendment doesn't say that Congress can't restrict the speech of people. It says that Congress can't restrict speech.

Earth First!
(We can strip mine the rest later.)

[ Parent ]
The *freedom* of speech by ShadowNode (4.00 / 3) #10 Mon Jan 25, 2010 at 12:45:54 PM EST
Congress certainly can restrict speech. It can punish slander, restrict your neighbour from yelling at 3 am, jail you if you incite a riot and many other things.

You have the right to say your piece. You do not have the right to say it so loudly that no one else can say theirs.



[ Parent ]
Ignorant by debacle (2.00 / 0) #3 Mon Jan 25, 2010 at 10:16:51 AM EST
Because these would abridge freedom of the press.

IF YOU HAVE TWO FIRLES THOROWNF MONEY ART SUOCIDE GIRLS STRIPPER HPW CAN YPUS :OSE?!?!?!?(elcevisides).

How so? by wiredog (2.00 / 0) #4 Mon Jan 25, 2010 at 10:18:46 AM EST
The press can do anything it wants, as long as no money is spent. Because money is not speech.

Earth First!
(We can strip mine the rest later.)

[ Parent ]
Paper costs money by debacle (2.00 / 0) #6 Mon Jan 25, 2010 at 10:38:15 AM EST
You're being ignorant or facetious, and not really moving at all towards proving a point.

IF YOU HAVE TWO FIRLES THOROWNF MONEY ART SUOCIDE GIRLS STRIPPER HPW CAN YPUS :OSE?!?!?!?(elcevisides).

[ Parent ]
. . . by ammoniacal (4.00 / 1) #57 Tue Jan 26, 2010 at 03:58:34 AM EST

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

[ Parent ]
Exactimundo by ucblockhead (4.00 / 1) #5 Mon Jan 25, 2010 at 10:37:17 AM EST
If you think that allowing people to spend unlimited funds spreading their speech has negative social effects then there is something you can do: ammend the constitution.

Just don't use sophistry to try to pretend it says something it doesn't.

(Note: this applies to the 2nd and 4th amendments as well.)
---
[ucblockhead is] useless and subhuman

That's the Scalia argument. by ad hoc (2.00 / 0) #8 Mon Jan 25, 2010 at 12:21:40 PM EST
It's the argument he uses for everything.
--
[ Parent ]
Counter by ShadowNode (2.00 / 0) #11 Mon Jan 25, 2010 at 01:06:44 PM EST
If you think blasting white noise at 100db across the country has negative social effects then there is something you can do: amend the constitution.


[ Parent ]
The trouble with that argument by ucblockhead (4.00 / 1) #23 Mon Jan 25, 2010 at 03:18:25 PM EST
Is that it easily follows that anything with "negative social effects" can therefore be banned.
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[ucblockhead is] useless and subhuman
[ Parent ]
Regulated, perhaps by ShadowNode (2.00 / 0) #27 Mon Jan 25, 2010 at 03:59:11 PM EST
It proves that you cannot have unregulated free speech. If I'm free to shout you down, then only the loudest actually has the freedom of speech.


[ Parent ]
In that case by ucblockhead (2.00 / 0) #32 Mon Jan 25, 2010 at 05:09:56 PM EST
We need to amend the constitution.
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[ucblockhead is] useless and subhuman
[ Parent ]
time, manner, and place regulations by aphrael (4.00 / 1) #39 Mon Jan 25, 2010 at 07:00:03 PM EST
have been accepted as legal since the 1920s.

they have to be content-neutral, but cities can pass laws prohibiting loudspeakers after 10pm.

If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
How about reversing the argument on them? by MartiniPhilosopher (2.00 / 0) #7 Mon Jan 25, 2010 at 12:02:17 PM EST
If the funding of political speech is a 1st amendment right then the withholding of funding of a government must also be a protected form of speech. If anything, it should be an even more pertinent form of political speech since it goes straight to what a government is doing with the funds that is the source of the protest.

Whenever I hear one of those aforementioned douche bags pontificate about how dangerous [...] videogames are I get a little stabby. --Wil Wheaton.

You can actually do that by ShadowNode (2.00 / 0) #28 Mon Jan 25, 2010 at 04:01:12 PM EST
There is procedure for renouncing your citizenship.


[ Parent ]
the catch is by garlic (2.00 / 0) #30 Mon Jan 25, 2010 at 04:49:35 PM EST
you have to leave the US as one of the steps.


[ Parent ]
And what's wrong with that? by lm (4.00 / 2) #42 Mon Jan 25, 2010 at 07:34:46 PM EST
It seems a bit odd to expect to continue to receive benefits from the state (labor laws, roads, interstate highways, protection from foreign nations, police, hospitals, etc.) while at the same time renouncing that state.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
nothing. by garlic (2.00 / 0) #59 Tue Jan 26, 2010 at 06:35:08 AM EST
it's worth noting. Many high profile cases of trying to declare oneself not a citizen consist of people who do want to continue to live within the US borders.


[ Parent ]
I think I get it now by lm (2.00 / 0) #60 Tue Jan 26, 2010 at 07:41:29 AM EST
I misinterpreted your point for bringing it up.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
Having spent a whole 5 minutes by codemonkey uk (2.00 / 0) #9 Mon Jan 25, 2010 at 12:38:24 PM EST
Working out what on earth you're talking about; it is now my well informed opinion that: The issue is not the control of how money is spent.  The issue is who or what has rights.  The argument is not that laws can/cannot be made to decide what can/cannot be done with money, but wether or not a corporation has the same rights to constitutional protection that the individuals have.

That is to say, the constitution protects Mr Bill Gates and Mr Steve Jobs, and will not limit how they spend their money, be it in opposition to the government or otherwise.  The argument goes, however, that the constitution does not afford the same protection to Microsoft and Apple, and laws may be enacted that limit the rights of those corporations.

I look forward to your correcting my hastily formed conclusions.

:)

--- Thad ---
Almost as Smart As you.

You got it backwards. by wiredog (2.00 / 0) #12 Mon Jan 25, 2010 at 01:07:34 PM EST
Not surprising. From reading comments elsewhere many people did.

Greenwald is saying that money is speech, and is using restrictions on spending money as an example of that.

Earth First!
(We can strip mine the rest later.)

[ Parent ]
interesting read by codemonkey uk (2.00 / 0) #18 Mon Jan 25, 2010 at 02:43:06 PM EST
thanks for the link,, thanks

--- Thad ---
Almost as Smart As you.
[ Parent ]
the issue is both. by aphrael (2.00 / 0) #14 Mon Jan 25, 2010 at 01:37:15 PM EST
(a) is speech by corporations entitled to protection under the first amendment?

(b) is spending money on a political campaign a form of speech?

legally speaking, the answer to both is currently 'yes'.

but both questions were implicated in the opinion handed down last week.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
Remember.... by wiredog (2.00 / 0) #16 Mon Jan 25, 2010 at 02:16:30 PM EST
The ACLU is a "corporation." So are the various groups opposing Prop 8.

So is the NRA...

Earth First!
(We can strip mine the rest later.)

[ Parent ]
I think you're forgetting by ad hoc (2.00 / 0) #37 Mon Jan 25, 2010 at 06:52:30 PM EST
what the constitution actually is.
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[ Parent ]
A similar line of argument was tried with by anonimouse (2.00 / 0) #13 Mon Jan 25, 2010 at 01:34:49 PM EST
"Separate but equal" in terms of racial segregation. The Supreme Court didn't buy that attempt to run circles around the law either....


Girls come and go but a mortgage is for 25 years -- JtL
Which line of argument was that? by wiredog (2.00 / 0) #15 Mon Jan 25, 2010 at 01:37:32 PM EST


Earth First!
(We can strip mine the rest later.)

[ Parent ]
The 14th amendment dealt with that. by ad hoc (2.00 / 0) #35 Mon Jan 25, 2010 at 06:28:28 PM EST

--
[ Parent ]
Troll harder by wumpus (4.00 / 2) #47 Mon Jan 25, 2010 at 08:54:06 PM EST
The phrase "Separate but equal" came from a Supreme Court decision allowing segregation.

Wumpus

[ Parent ]
Correct by anonimouse (2.00 / 0) #58 Tue Jan 26, 2010 at 06:06:11 AM EST
Plessey v Ferguson IIRC

But Brown v Board of Education showed that separate but equal was anything but equal.

What I was trying to say is that proposals which attempt to address a problem through indirection end up on the rocks - eventually



Girls come and go but a mortgage is for 25 years -- JtL
[ Parent ]
Money isn't speech by lm (2.00 / 0) #17 Mon Jan 25, 2010 at 02:35:35 PM EST
But spending money is necessary to engage in some forms of speech.

Consequently, limitations set on money being spent has the consequence of limiting some forms of speech.

But that doesn't mean that money is speech.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
right by aphrael (2.00 / 0) #19 Mon Jan 25, 2010 at 02:46:19 PM EST
but limiting spending in a way which limits speech is probably still an infringement of freedom of speech.
If television is a babysitter, the internet is a drunk librarian who won't shut up.
[ Parent ]
Simple solution by Herring (4.00 / 1) #20 Mon Jan 25, 2010 at 03:06:45 PM EST
If anyone spends any money on "speech" they have to give an equal amount of money to an opposing organisation to spend on opposing speech.

That way you are not limiting anyone's speech on the grounds of having too much/too little money.

Obvious really.

christ, we're all old now - StackyMcRacky

[ Parent ]
nonsense. by aphrael (2.00 / 0) #21 Mon Jan 25, 2010 at 03:10:13 PM EST
then you're saying that, if i want to spend money promoting my ideas, i must also spend money promoting ideas which apall me.

that's pretty anti-speech. it works only if you believe the content of speech is irrelevant - which it isn't, to the speaker.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
Yes by Herring (4.00 / 1) #22 Mon Jan 25, 2010 at 03:13:33 PM EST
And I acknowledge that it's a fucking ridiculous idea. It just appealed to me.

What it would mean is that arguments would have to stand on their own merits. You spend $100 promoting creationism, you have to spend $100 promoting science. Let's see who's the most persuasive.

christ, we're all old now - StackyMcRacky

[ Parent ]
What if you think creationism is science. by wiredog (2.00 / 0) #24 Mon Jan 25, 2010 at 03:19:54 PM EST
In the latin meaning, "knowledge"?

Earth First!
(We can strip mine the rest later.)

[ Parent ]
Then you're a fucking moron by Herring (3.40 / 5) #26 Mon Jan 25, 2010 at 03:22:58 PM EST
Next question.

christ, we're all old now - StackyMcRacky
[ Parent ]
One rep is trying to address that by ad hoc (2.00 / 0) #36 Mon Jan 25, 2010 at 06:35:29 PM EST
by, among other things, putting an excise tax on corporate political contributions of 500%.

Alan Grayson

btw, he's the guy who told Dick Cheney to "just shut up."
--

[ Parent ]
Despite being a stupid idea by Herring (2.00 / 0) #38 Mon Jan 25, 2010 at 06:59:41 PM EST
it actually has some semblance of merit. If you really believe that what you are saying makes sense, then you shouldn't worry about giving the other side extra funds.

The main side effect though would be to encourage people to just not bother. Which I'm OK with as well.

christ, we're all old now - StackyMcRacky

[ Parent ]
Not people by ad hoc (2.00 / 0) #43 Mon Jan 25, 2010 at 07:54:49 PM EST
"corporations".

Though I admit, I'm don't know what "corporation" means in this context. Does it include non-profit corporations? PACs? Trade associations? Things like AARP or ACLU? Charities?
--

[ Parent ]
The trouble by ucblockhead (2.00 / 0) #44 Mon Jan 25, 2010 at 07:59:21 PM EST
If the CEO of Blue Cross spends $50 million out of his own bank account on an ad campaign attacking nationalized health care, does this run afoul of restrictions on "corporate speech"?

If so, haven't you restricted an actual person's speech?

If not, isn't there a loophole large enough to make any corporate spending limits moot.
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[ucblockhead is] useless and subhuman

[ Parent ]
Which is why it should apply to people, too by ShadowNode (2.00 / 0) #48 Mon Jan 25, 2010 at 09:22:37 PM EST
As it is here in Soviet Canuckistan (and we have <a href="http://laws.justice.gc.ca/en/charter/1.html#anchorbo-ga:l_I-gb:s_2">something similar</a> to the first amendment).


[ Parent ]
Applies to people by ucblockhead (2.00 / 0) #50 Mon Jan 25, 2010 at 10:45:29 PM EST
So how do you choose which speech has a dollar limit?
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[ucblockhead is] useless and subhuman
[ Parent ]
It's really not that hard by ShadowNode (2.00 / 0) #53 Mon Jan 25, 2010 at 11:22:18 PM EST
If it's political, and around an election, it's political spending.

It helps that we don't have the near constant campaigning you do, even with the near yearly elections we've had during the naughties. With the scheduled bi-yearly elections, and the long delay between the election and commencement, you're hardly ever not in the middle of a campaign. In Canada the writ is dropped with little or no forewarning, and 6 weeks later it's over and settled.


[ Parent ]
So... by ucblockhead (2.00 / 0) #54 Tue Jan 26, 2010 at 01:01:34 AM EST
If I spend $50 to put up a website attacking the "public option" in an non-election year, is that "political spending"?
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[ucblockhead is] useless and subhuman
[ Parent ]
Under Canadian law? No. by ShadowNode (2.00 / 0) #56 Tue Jan 26, 2010 at 02:37:25 AM EST
Unless it was specifically to advocate for or against a specific party, and even then it would just have to be properly accounted for as a contribution.


[ Parent ]
Oh ok, then by ucblockhead (2.00 / 0) #63 Tue Jan 26, 2010 at 11:39:24 AM EST
So I can spend $50 million on an ad campaign warning that "the public option" will cause the nation to fall into ruin.
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[ucblockhead is] useless and subhuman
[ Parent ]
Personal contribution cap is $1,100 by ShadowNode (2.00 / 0) #67 Tue Jan 26, 2010 at 04:16:13 PM EST
So you'd have trouble with Elections Canada if you were seen to be advocating for one party over the other.


[ Parent ]
But I'm not by ucblockhead (2.00 / 0) #68 Tue Jan 26, 2010 at 07:13:04 PM EST
I'm just spending $50 million attacking "the public option".
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[ucblockhead is] useless and subhuman
[ Parent ]
Well, not in Canada by ShadowNode (2.00 / 0) #69 Tue Jan 26, 2010 at 10:22:51 PM EST
Since no political party would dare take that position. In the US you'd be pretty blatantly supporting one party and condemning the other.


[ Parent ]
Really? by ucblockhead (2.00 / 0) #70 Tue Jan 26, 2010 at 10:24:29 PM EST
But some Democrats are against the public option...
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[ucblockhead is] useless and subhuman
[ Parent ]
The only thing that makes any sense to me by ad hoc (2.00 / 0) #49 Mon Jan 25, 2010 at 09:36:27 PM EST
is to define what is and is not allowed to be deducted from your taxes. There is well established precedent for the IRS to say that "this can be deducted, this cannot, this can be deducted at 50%" and so on. The rules are different for people (1040) and corporations (1120).

My company doesn't give any donations of any kind to anyone, for the most part, so I'm not that familiar with that area of the tax code*. But for personal taxes, political donations are not deductible. If that's the case for corporate (1120) taxes, then it's up to the shareholders to get involved and say whether they want to allow that or not.

Then again, there's probably very little to prevent contributions to a "trade/lobbying group" that takes that hit.

I don't really have a good idea of how to address it.

* It doesn't make any sense to do that, for reasons not relevant here
--

[ Parent ]
Taxes by ucblockhead (2.00 / 0) #51 Mon Jan 25, 2010 at 10:51:03 PM EST
The trouble is that a corporation will tend to pass costs on to the consumer, especially those who are in a monopolistic position.  (Insurance companies, telecoms, power companies.)  You'd have to do something like couple a requirement that all political speech have to be from some individual's cash coupled with a highly aggressive tax rate on the high end.

Really, the crux of the problem is this: you tax or ban "political" speech, yet you can hardly do either to Fox News.
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[ucblockhead is] useless and subhuman

[ Parent ]
You could have /some/ effect by ad hoc (2.00 / 0) #52 Mon Jan 25, 2010 at 11:21:28 PM EST
from shareholder pressure if a corp is giving vast sums for political causes. If it starts to affect the bottom line, there might be an uproar.

Corps fought tooth and nail to prevent executive stock bonuses from showing up on balance sheets because it would show, in black and white, that all corporate profits were being given to the C level executives.

But it immediately gets complex. Does lobbying count as political speech? Do contributions to trade associations (say, like, RIAA or MPAA for example)?
--

[ Parent ]
Constitutional approaches by ucblockhead (2.00 / 0) #55 Tue Jan 26, 2010 at 01:04:58 AM EST
It is likely entirely constitutional to require complete transparency of who is paying for what.
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[ucblockhead is] useless and subhuman
[ Parent ]
Complete transparency is an illusion by ad hoc (4.00 / 2) #62 Tue Jan 26, 2010 at 10:13:44 AM EST
It's far too easy to set up a shell game of corporations that could obfuscate any contribution.

When a development project goes wrong, look how much trouble the courts have even trying to find out who owns a thing. It's so easy to set up LLC's that there's no hope of complete transparency.

For example, you could set up a LLC specifically to "speak" against the public option. Big Pharma pays into it either directly or through a subsidiary. Full disclosure would probably require the LLC contributors to be revealed, but how far down the chain do you go?
--

[ Parent ]
That's what Greenwald is getting at. by wiredog (2.00 / 0) #25 Mon Jan 25, 2010 at 03:20:25 PM EST


Earth First!
(We can strip mine the rest later.)

[ Parent ]
That would follow by lm (2.00 / 0) #29 Mon Jan 25, 2010 at 04:47:43 PM EST
I thought it was so obvious that I didn't bother pointing it out.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
it's not *so* obvious by aphrael (2.00 / 0) #34 Mon Jan 25, 2010 at 05:51:04 PM EST
i mean, four out of nine supreme court justices and any number of op-ed writers seem to have missed it.
If television is a babysitter, the internet is a drunk librarian who won't shut up.
[ Parent ]
Really? by lm (2.00 / 0) #41 Mon Jan 25, 2010 at 07:13:02 PM EST
Well, the op-ed writers, I would believe.

I've not read the dissenting opinions in the case but I would be surprised if the main counter-argument centered on money not being speech. Rather I suspect that the centered on whether corporate speech is the same as speech by individuals and whether or not there are other factors that are applicable such as the proverbial lack of fire in a crowded theatre when someone yells `fire.'


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
Actually,the 4 justices did get it. by wiredog (2.00 / 0) #61 Tue Jan 26, 2010 at 08:34:32 AM EST
From Greenwald, again:
To the contrary, all 9 Justices -- including the 4 in dissent -- agreed that corporations do have First Amendment rights and that restricting how money can be spent in pursuit of political advocacy does trigger First Amendment protections.

...

As Justice Stevens says: "of course . . . speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation," and "no one suggests the contrary." The fact that all nine Justices reject a certain proposition does not, of course, prove that it's wrong. But those who argue that (1) corporations have no First Amendment rights and/or (2) restrictions on money cannot violate the free speech clause should stop pretending that the 4 dissenting Justices agreed with you. They didn't. None of the 9 Justices made those arguments.



Earth First!
(We can strip mine the rest later.)

[ Parent ]
fair enough by aphrael (2.00 / 0) #64 Tue Jan 26, 2010 at 12:42:02 PM EST
It was the by wiredog (2.00 / 0) #65 Tue Jan 26, 2010 at 12:44:44 PM EST
"compelling State interest" argument. Which makes some sense.

Earth First!
(We can strip mine the rest later.)

[ Parent ]
I disagree. by aphrael (4.00 / 2) #66 Tue Jan 26, 2010 at 12:48:55 PM EST
I don't think that a 'compelling state interest' is sufficient to overcome an outright ban in the first amendment --- that line of reasoning is just wrong.

well accepted by the courts, but it should be consigned to the dustbin of history.

i understand compelling state interest when applied to equal protection, and i understand compelling state interest when applied to due process (so i can see how, for example, a state could restrict speech given a law narrowly tailored to meet a compelling state interest), but when applied at the federal level to things the constitution says the congress may not do, it's bullshit.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
I know what you are talking about by garlic (2.00 / 0) #31 Mon Jan 25, 2010 at 04:54:13 PM EST
but I have no idea what you are saying.


Here's another one by ObviousTroll (2.00 / 0) #33 Mon Jan 25, 2010 at 05:18:24 PM EST
Editors of the NY Times are free to express political opinions, as long as no money is spent.

In other words - the NY Times Corporation can't print editorials in its newspapers - because that costs money. 

An Angry and Flatulent Pig, Trying to Tie Balloon Animals
right. by aphrael (2.00 / 0) #40 Mon Jan 25, 2010 at 07:00:49 PM EST
the law in question exempted 'media companies', which is really problematic - what's the basis for classifying companies as media companies or not?
If television is a babysitter, the internet is a drunk librarian who won't shut up.
[ Parent ]
Corporation vs Individual by jimgon (2.00 / 0) #45 Mon Jan 25, 2010 at 08:09:31 PM EST
What's the difference between a corporation spending money and an incredibly rich person from spending money?  Both have near limitless resources. 

Doesn't mean I agree with SCOTUS.  I think the majority five are a bunch of fascist motherfuckers who did this to advance a fascist agenda. 




---------------
Technician - "We can't even get decent physical health care. Mental health is like witchcraft here."
IAWTP by lm (4.00 / 2) #46 Mon Jan 25, 2010 at 08:41:48 PM EST
Even a stopped clock is right twice a day.

Whether or not this was the right decision is an entirely different question from whether the motives of the majority were correct in deciding this opinion.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
Absolutely true by jimgon (2.00 / 0) #71 Sat Jan 30, 2010 at 11:16:14 AM EST
I have absolutely no doubt they did not do this for "free speech."  This is not a discussion on free speech.  Democracy in the United States will not end at the point of a gun, but by ruling of the Supreme Court.




---------------
Technician - "We can't even get decent physical health care. Mental health is like witchcraft here."
[ Parent ]
Money Is Not Speech | 71 comments (71 topical, 0 hidden) | Trackback