Check out Melissa Dizon’s and Lela Gray’s articles on the Supreme Court decision, Citizens United v. Federal Election Commission.
Lela Gray, Government Law Review member
The U.S. Supreme Court (Supreme Court) decision in the case Citizens United v. Federal Election Commission is causing fireworks throughout the nation weeks after New Years. In a heavily split 5-4 decision, the Supreme Court held that the First Amendment prohibits Congress from barring corporate and union general funds to support or oppose political candidates.[1] Disclaimer and disclosure requirements, however, do not offend the First Amendment.[2]
Court watchers had the outcome of this case already predicted–that Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas would strike down restrictive corporate campaign spending laws as unconstitutional.[3] Yet, the sharp reactions to the opinion, the ongoing public debate, and the ninety-page dissent written by Justice Stevens seem to signal that this issue is all but settled. So which side is right? Was this judicial activism, or was it a long overdue check against Congressional infringement on the most fundamental of our freedoms?
Background
Congress has prohibited corporations from giving money directly to federal political candidates for over a century.[4] The Bipartisan Campaign Reform Act of 2002 (Campaign Reform Act) strengthened this tradition by prohibiting corporations and unions from applying their general treasury funds to pay for any form of media or “electioneering communication” aimed at advocating for the election or defeat of a candidate in certain federal elections.[5] An “electioneering communication” is defined as “any broadcast, cable, or satellite communication” referring to an identifiable candidate for federal office, and which is “publicly distributed” within thirty days of a primary or sixty days of a general election.[6]
Citizens United (Citizens) is a conservative non-profit advocacy corporation with an annual budget of $12 million, most of which is derived from individual donations with a small portion stemming from contributions by for-profit corporations.[7] In January 2008, Citizens released a ninety-minute documentary entitled Hillary: The Movie (Hillary), which casts a critical shadow over Hillary Clinton’s character and much of her political career.[8] The film was released in theaters and on DVD, but Citizens wanted to advertise the film and make it viewable to cable and satellite subscribers at no charge via video-on-demand.[9] To ensure their ability to do so without fear of criminal penalties under the Campaign Reform Act, the corporation sought declaratory and injunctive relief against the Federal Election Commission (FEC).[10] The District Court held that the Campaign Reform Act was facially constitutional and denied Citizens’ request, instead granting summary judgment in favor of the FEC.[11] Citizens then appealed directly to the Supreme Court.[12]
Posted in Constitutional Law | Tagged 11 CFR 100.29a2, 2 USC 434F3A, 2 USC 441b, Citizens not united, Citizens United v. Federal Election Commission, Erwin chemerinsky, Hillary: The Movie | Leave a Comment »
Melissa Ann Dizon, Government Law Review Member
The Supreme Court, in a 5-4 decision, recently held that corporate funding of political broadcasts in candidate elections cannot be limited because to do so would run afoul of the First Amendment.[1] This ruling stemmed from the non-profit corporation Citizens United’s case before the court regarding its documentary Hilary: The Movie.[2] The group wanted to air the documentary during the 2008 presidential primary season through a cable television video-on-demand service and to advertise for it on television.[3] However, the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold Act (hereinafter “MFA”) prohibits certain corporate-funded television broadcasts, such as this documentary, in the sixty days before a general election (or the thirty days before a primary).[4] The law also requires disclosure by the funders of election-related broadcast advertising, such as these ads.[5] Citizens United argued against the prohibitions on corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or speech that expressly advocates the election or defeat of a candidate.[6]
In so holding, the Supreme Court overturned its prior decision in Austin v. Michigan Chamber of Commerce,[7] as well as part of the ruling in McConnell v. Federal Election Commission.[8] The Court rejected the very idea that the government can decide who gets to speak and that the government can actually ban some from speaking at all, particularly those doing their speaking through associations of members who share their beliefs. Austin was a case in which the Supreme Court held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and Fourteenth Amendments.[9] The Court upheld the restriction on corporate speech based on the notion that “[c]orporate wealth can unfairly influence elections,” and also rationalized that the Michigan Act still allowed the corporation to make contributions from a “segregated fund.”[10] Over a decade later, the Supreme Court in McConnell upheld the key provisions of the MFA: (1) the aforementioned “electioneering communication” provisions; and (2) the “soft money” ban, which prohibits federal parties, candidates, and officeholders from raising or spending funds not in compliance with contribution restrictions, and prohibited state parties from using such “soft money” in connection with federal elections.[11] For almost twenty years, the Supreme Court has erred on the side of fairness with respect to our democratic election process, by upholding these restrictions on corporate expenditures. The intent of these pieces of legislation has not been to block free speech; rather, it has been to block the use of large amounts of money as a means of unevenly influencing the political process.
And now? Bring on the corporations.
Posted in Constitutional Law, Election Law, Judges, Uncategorized | Tagged 2 USC 441b, Adam Liptak, Austin v. Michigan Chamber of Commerce, Citizens United v. Federal Election Commission, corporate funding elections, First Amendment, Hilary: The Movie, Justice Kennedy, McConnell v. Federal Elections Comm'n, McGain-Feingold ACt, Supreme Court | Leave a Comment »
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Lauren Palmer, Government Law Review member
On January 27, 2010, the U.S. Court of Appeals, Second Circuit, held that another type of speech is not protected under the First Amendment. Public employees’ speech made “pursuant to . . . official duties” is not a protected speech.[1] The case, Weintraub v. Board of Education, involved a teacher who was denied the opportunity to pursue a retaliation claim against a school.[2] The U.S. Court of Appeals found that filing a grievance was pursuant to one of his official duties as a public school teacher, maintaining discipline, and thus was not protected speech.[3] This holding rests solely on the court’s broad interpretation of a recent case, Garcetti v. Ceballos, [4] and a narrow interpretation of public employees’ First Amendment protections.[5] In this author’s opinion, the dissent was correct–a more appropriate reading would be a less expansive one. The definition of speech made “pursuant to . . . official duties” should be read more narrowly, as this would preserve the “delicate balancing” required by the First Amendment freedom of speech for public employees.[6]
Background
Petitioner-Appellant David H. Weintraub, a former elementary public school teacher, sued the Board of Education of the City of New York for wrongful termination.[7] He claimed that Respondent-Appellees violated his First Amendment rights by retaliating against him, and ultimately fired him, after he filed a formal grievance with his union representative.[8] Weintraub filed the grievance to challenge the school administration’s refusal to discipline a student who threw a book at him during class on multiple occasions.[9] He felt it was the matter was of public concern; that it was “not an environment a teacher would want to go to where a child is allowed to throw a book at teachers.”[10] Weintraub alleged that the school officials retaliated through acts of intimidation and harassment against him because of his complaint.[11] He also alleged that after his complaint, he received “unfounded negative performance reviews and evaluations,” wrongful criminal accusations, “and was ultimately terminated.”[12]
The Eastern District Court, in an April 28, 2006 opinion, originally held that Weintraub’s First Amendment claim was valid because the content of the speech related to a public concern regardless of his status as a teacher and thus his complaint was protected by his First Amendment rights.[13] Over a year later, on May 29, 2007, the district court reconsidered the plaintiff’s First Amendment claim in light of the subsequent Garcetti decision which raised new issues and redefined protected and non-protected speech in schools.[14]
Posted in Constitutional Law | Tagged Board of Education of the City of New York, David H. Weintraub, Eastern District, First Amendment, Garcetti v. Ceballos, official duties, Pickering v. Board of Education, Public school teacher, Second Circuit, Stephen Gillers, Supreme Court, US Court of Appeal, Weintraub v. Board of Education | Leave a Comment »
Fatin Haddad, Government Law Review member
According to FOX News, a commercial that is approved to air during the Super Bowl is stirring up quite a controversy.[1] College football phenomenon, Tim Tebow, and his mother are scheduled to appear in a pro-life commercial during the Super Bowl.[2] The commercial is being funded by a conservative, Christian group—known to the public as Focus on the Family—and the message is a recounting of Mrs. Tebow’s decision between her life and the life of her unborn child, which turned out to be her Heisman Trophy winning, star quarterback and heartthrob son Tim Tebow, despite doctors’ suggestions to abort the pregnancy due to the serious risk of death she faced in carrying the child to term.[3]
While Mrs. Tebow was pregnant with her son Tim she went on a mission trip to the Phillippines and contracted a serious infection which doctors feared would kill her if she did not abort the pregnancy.[4] She made the choice to carry the child to term, despite the risk of her own death, but yet her son was born and grew to be one of the most talented college football quarterbacks of his time. This true story will be the content of the commercial, and the underlying message is said to be—by Focus on the Family—focused on “celebrating families.”[5] Pro-choice women’s groups, such as Women’s Media Center, however, seem to think differently as they have voiced concerns that this commercial may lead to anti-abortion retaliation in the form of violence towards “reproductive health providers and their patients,” and should therefore be banned.[6] Several groups have joined the cause, rallying together to petition CBS to ban the commercial as well.[7]
The argument made by the women’s groups, who are protesting against the commercial, is primarily based on the fact that CBS has had a “long history” of banning political advertisements; however, CBS replied that it has changed its policies recently and thus the commercial is consistent with its current standards.[8] In light of the current dilemma regarding the highly controversial topic of abortion—which has historically divided Courts, politicians, and even every day citizens—there are Constitutional considerations that make for an interesting perspective on which way the scale of freedom of speech should tip between the women’s rights groups and the Tebows.
Posted in Constitutional Law, Health Law, Religion | Tagged 395 US 44, 553 us 285, abortion, anti-abortion, Brandenburg v. Ohio, CBS, clear and present danger, colts, First Amendment, freedom of speech, Heisman Trophy, pro-choice, pro-life, saints, super bowl 2010, super bowl commercials, tebow commercial, tim tebow, United States v. Ohio, Women's media center | 1 Comment »
Alicia Dodge, Government Law Review Member
I. Background
The vast advancements in technological capabilities have greatly changed traditional jurisdictional principles. No longer is it sufficient for a state’s laws to only apply to persons and property solely within its territory, a concept known as the “territorial principle.”1 A state’s jurisdiction must now be able to extend extraterritorially in order to comport with the technological advancements of today. States have realized this necessity, sparking the prevalence of international law documents aimed at resolving disputes between states. However, international law also raises questions of internal legitimacy in regards to political, judicial, and societal differences between states.
II. The Hague Convention on the Civil Aspects of International Child Abduction
Increased divorce rates coupled with advancements in technology, which make travel much easier, spurred the need for an international treaty to regulate child abductions.2 The resulting document is known as The Hague Convention on the Civil Aspects of International Child Abduction (hereinafter The Hague Abduction Convention), the purpose of which is to establish judicial guidelines for states to follow after a child has been wrongfully abducted.3 Time is of the essence in child abductions, as the abductors typically will attempt to drag out the process, lengthening the time that the child is separated from the parent. The signatory countries are bound to follow the treaty, making the return much smoother and expedited. In order to maintain the legitimacy of international law, the states must comply with their treaty obligations or risk damaging their reputation with other states.4 According to UN Charter Article 2(2), “[a]ll Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them . . . .”5 In order to state a claim under The Hague Abduction Convention, it must be demonstrated that
[The] child was habitually [a] resident of the country from which the child was abducted; [the] petitioning parent had either sole or joint rights of custody of the child either through a custody order or du jure (by operation of law), and at the time of wrongful[] removal, [the] petitioning parent was exercising those rights.6
The petitioner bears the burden of proof by a preponderance of the evidence, and then the responding party may attempt to prove an affirmative defense to oppose the child’s return.7 There are four such affirmative defenses, two of which must be proven by clear and convincing evidence, which are “that ‘there is a grave risk that the child’s return would expose the child to physical or psychological harm[,] . . .’” or that the return would violate fundamental human rights norms.8 The other two affirmative defenses require proof by a preponderance of the evidence, and they “are either that judicial proceedings were not commenced within one year of the child’s abduction and the child is well-settled in the new environment, or that the Appellant was not actually exercising custody rights at the time of removal.”9
Posted in International Law, Uncategorized | Tagged Battle over Child, Brazil, Bring Sean Home, Bruna Bianchi Carneiro Ribeiro, Charter of the United Nations', Child Abduction, David Goldman, Drummond, Edecio Martinez, Elian Gonzalez, Hague Convention, HCCH, International Child Abduction, International Law Norms, Jeffrey L. Dunoff, Joano Paulo Lins e Silva, Kirk Semple, NY Divorce and Family Law, Rafael romo, Sean Goldman, The Goldman Controversy, Tim Padgett, United States | Leave a Comment »
Brittany Grome, Government Law Review Member
Background
In Indianapolis, Indiana, two sophomore girls at Churubusco High School were punished by the school district for posting sexually suggestive photos on their MySpace pages.[1] According to the complaint, the girls dressed in lingerie and pretended to lick “penis-shaped” lollipops.[2] These photos were taking during their summer break at a sleepover party.[3] The school district banned the girls from participating in extracurricular activities for one full year, which was later reduced to a quarter of the volleyball season.[4] As a result, the American Civil Liberties Union (ACLU) filed a federal lawsuit on the girls’ behalf, arguing that the Churubusco School District violated the girls’ constitutionally protected First Amendment right to free speech.[5] The ACLU also argues that the school district went too far and publicly embarrassed the girls when it forced them to apologize to an all male coaching board and mandated that the girls undergo counseling.[6]
Currently, there is no set standard of how school districts should address student online activity that occurs outside of school. This is a growing controversy and teens that have done similar things in the past have faced prosecution. In March of this year, a fourteen year old New Jersey student was arrested on child pornography charges when she posted nude pictures of herself on her MySpace profile.[7] Other students have been expelled or lost scholarships.[8] Similarly, in 2006, a seventeen year old student in Pennsylvania was suspended for creating a parody website that made fun of his principal on MySpace.[9] The district court ruled that his off campus actions did not “disrupt school operations.”[10]
“From the standpoint of young people, there’s no real distinction between online life and offline life . . . it’s just life.”[11] The decision to punish these sophomore girls is drawing a lot of attention and raising many questions. Should students be punished for online activities that take place outside of school? Did the pictures placed online have a substantial effect on school activities? Was the school district justified in its actions and does it have a right to regulate student out of school online behavior? Does a student shed her First Amendment right to free speech simply because she participates in an extracurricular activity, such as a sports team?
Posted in Constitutional Law, Criminal Law, Municipal Law, Uncategorized | Tagged ACLU, American Civil Liberties Union, Churubusco High School, Facebook, First Amendment, internet regulation, MySpace, school regulation, student online activity, substantial disruption, Tinker v. Des Moines Independent Community School District | Leave a Comment »
