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After Citizens United: Big Tobacco Aims for More First Amendment Rights

In the wake of the Citizens United decision, the Supreme Court may choose to determine whether corporations have additional rights to free speech under the First Amendment. On June 24th, justices will meet to decide whether to hear a group of cases the government has brought against Big Tobacco, and the court will announce its decision the following Monday, the first day of Elena Kagan’s confirmation hearings.. At issue are a host of First Amendment issues, namely a corporation’s right to make assertions that may be fraudulent, in the interest of trying to influence public policy. To say the least, the cases are complicated. According to a lawyer representing Big Tobacco,

 “Some law clerk at the Supreme Court is probably pulling his hair out as we speak,” said Jones Day partner Michael Carvin, who represents R.J. Reynolds Tobacco Company and Brown & Williamson Holdings, Inc. before the Supreme Court. “It's like a jigsaw puzzle.”

These cases demonstrate the potentially far reaching effects of the Court’s radical decision in Citizens United, which first recognized a First Amendment right to speech for corporations in the form of independent expenditures on elections. Now, corporations are seeking even more free speech protections.

“Tobacco company briefs cite the Citizens United decision for the proposition that they too deserve First Amendment protection for statements they made about the health effects of tobacco, statements that helped form the basis of the government suit under the Racketeer Influenced and Corrupt Organizations (RICO) law. In many of the tobacco company briefs, the First Amendment argument is the leading issue.”

The tobacco companies are responding to the DC Circuit’s finding that Big Tobacco’s advertising that claimed smoking was not harmful violated RICO. In contrast, documents presented to the court confirm that Philip Morris knew cigarettes were harmful, and released the advertisements in spite of this information.

The government presented evidence from the 1950s and continuing through the following decades demonstrating that the Defendant manufacturers were aware—increasingly so as they conducted more research—that smoking causes disease, including lung cancer. Evidence at trial revealed that at the same time Defendants were disseminating advertisements, publications, and public statements denying any adverse health effects of smoking and promoting their “open question” strategy of sowing doubt, they internally acknowledged as fact that smoking causes disease and other health hazards.

An added complication to these cases is that Elena Kagan, if confirmed as a Supreme Court justice will likely have to recuse herself from deliberations, because she was Solicitor General in February, when the United States filed its petition for the Supreme Court to hear one of the cases.

The cases, depending on how many the court chooses to accept, will likely turn on a test of equitable balance between the government’s interest in preventing fraud, and a corporation’s interest in defending itself.

 “This is an enormously powerful tool for the government,” said Carvin. “If you knock out corporations from public debate, that's pretty frightening stuff … The Washington Legal Foundation and the Chamber of Commerce of the United States have also filed briefs emphasizing the First Amendment issue among others.  But Crystal asserts that “you don't have a First Amendment right to commit fraud.” Carvin replies that “yes, you can stop someone from saying that his cereal stops cancer,” but the kind of statements at issue in the tobacco cases amount to “classic public policy speech” that deserve First Amendment protection.

Given the likely absence of Kagan on the bench, and the recent pro-business history of the Roberts Court, it’s fair to assume that corporations will find themselves with even more powers under the First Amendment. It is a truly scary notion for the average American, and something that further highlights the damage Citizens United will have on the rights of individuals in our democracy.
 

PFAW

Senator Cardin on a Constitutional Amendment

In a hearing today entitled "We the People? Corporate Spending in American Elections after Citizens United,” the Senate Judiciary Committee discussed the impact of the Citizens United v. FEC and possible steps to repair the damage.  In addition to touching on legislative fixes, the question of a Constitutional Amendment came up, posed by Senator Benjamin Cardin on Maryland. 

Don't forget to sign our petition, calling for a Constitutional Amendment to restore government by the people.

UPDATE: YouTube has been having some problems with embedded videos. If you have trouble playing it, try double clicking the video to open it in YouTube in a new window.

PFAW

Senators Dodd and Udall call for a constitutional amendment

Yesterday, Senators Christopher Dodd and Tom Udall introduced a constitutional amendment to correct the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission. According to Senator Dodd:

Ultimately, we must cut through the underbrush and go directly to the heart of the problem, and that is why I am proposing this constitutional amendment: because constitutional questions need constitutional answers.

People for the American Way applauds Senators Dodd and Udall, Senator John Kerry, and House members like Donna Edwards, John Conyers, and Leonard Boswell, for pushing constitutional amendments. We believe that this is the only complete remedy for the grave threat posed to our democracy by the Roberts Court and its equation of corporations with individuals – a perversion of the First Amendment.

While legislation is a crucial part of the effort to repair this decision, it should be only a part of our response. Constitutional amendments are warranted in only the most extreme circumstances. This is one of them.

You can join People For the American Way’s call for a constitutional amendment by signing our petition at http://www.pfaw.org/Amend.

PFAW

Correcting the Court is nothing new

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law, restoring the rights taken away by the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Company. One year to the day, a new movement is afoot to correct the Court.

Title VII of the Civil Rights Act of 1964 was enacted to protect individuals from discrimination they face in the workplace.  In Ledbetter, the Supreme Court undermined that protection by holding that employees who are subjected to pay discrimination must bring a complaint within 180 days of the discriminatory compensation decision and that each paycheck that is lower because of such discrimination does not restart the clock.  Advocates fought hard for a law that would reiterate Congress’ intent to hold employers accountable for their discriminatory practices and to allow employees a fair chance to challenge unlawful pay discrimination.

Advocates are now calling for another Court correction, this time in response to the Citizens United ruling, which prohibits Congress from limiting the influence of corporations in elections for public office. Not only is this a radical departure from longstanding precedent, it defies common sense: it argues that corporations and American citizens have identical free speech rights under the Constitution. As Justice Stevens pointed out in his dissent, corporations are not people. They cannot vote, they cannot hold office, and they should not be allowed to pour billions of dollars into our system of government.

Unfortunately the fix we found in for the Ledbetter decision is not enough to fix Citizens United. Legislation, while important and critically needed to mitigate the effects of the decision, may ultimately prove to be inadequate against the unfettered influx of corporate election spending. Only a constitutional amendment can restore the American people’s authority to regulate corporate influence in our elections and restore our democracy.

People For the American Way is calling for just such an amendment. Click here for more information and to sign our petition.

PFAW

President Obama Addresses Supreme Court Decision

In his weekly address today, President Obama addressed the Supreme Court's decision in Citizens United v. FEC.

You can read his address here.  And you can sign People For's petition to pass a Constitutional Amendment allowing Congress to regulate corporate influence in elections.

PFAW

Dawn Johnsen’s Year in Review

January 5th might not be circled in red on your calendar (unless, of course, you’re celebrating Twelfth Night) but for some of us it’s become a noteworthy, if not entirely happy, anniversary.

One year ago today, then-President-elect Obama announced that he would nominate Indiana University law professor Dawn Johnsen to head the Justice Department’s Office of Legal Counsel.

OLC doesn’t traditionally grab headlines, but under the Bush Administration leadership of lawyers like John Yoo and Jay Bybee, it was ground zero for creating slipshod legal justifications for torture, rendition and abuses of executive power. So it was a breath of fresh air to hear that Obama had chosen a woman with impeccable qualifications and unimpeachable integrity to restore the reputation of the office.

But now, a year later, Dawn Johnsen is still waiting for a vote in the Senate, and Republicans (who can’t seem to find a nomination they don’t want to obstruct) have gone so far as to use the end of the term to send her nomination back to the White House. She’ll be renominated later this month, but then she’ll have to make yet another trip through the Judiciary Committee.

Dawn Johnsen certainly isn’t the only nominee who’s been caught up in GOP delay, but she’s spent more time in confirmation purgatory than anyone else.

The votes are there to confirm Johnsen and have been for some time. Any more delay is inexcusable. President Obama deserves to have his team in place—especially in an office as important as the OLC.

Take a minute to sign our petition calling on the Senate to confirm Dawn Johnsen.
 

PFAW

Reid Announces Senate Health Care Bill Without Stupak Amendment

Surely we have a lot of fighting left to do, but it’s encouraging that the Senate has introduced a health care bill without the Stupak-Pitts anti-choice amendment, which passed in the House. There’s no doubt that the right-wing will attack this bill, and work fervently to get the anti-choice language into this bill. This summer, People For the American Way alerted you that the right wing was fanning the flames on abortion:

Religious Right leaders have enthusiastically joined Republican-led opposition to health care reform efforts.

Much of the Religious Right’s organizing energy has been devoted to incendiary and false claims about the administration’s alleged stealth plan to force every health plan to cover - and force all doctors to provide - abortion services. None of these approaches are actually included in the plans working their way through Congress. In fact, anti-choice members of Congress are using health reform to institute a new nationwide abortion ban in private insurance plans taking away coverage women already have.

And guess what’s happened… By now you know that the House recently passed a health care reform bill with the Stupak-Pitts amendment. As you’ve read here before, the Stupak-Pitts amendment prohibits private insurance companies participating in the new health care system (which will be created by the bill) from covering abortion services. Translation: private insurance companies that individuals pay to provide quality health care with their own money cannot provide the option of abortion coverage.

The right wing is already out in force on this. They’ll be lobbying members of Congress and talking to their allies at Fox News, The Washington Times, and news sources across the country spreading lies and misinformation. Our representatives need to hear from us, and know that this is unacceptable. Earlier this week, NARAL and People For the American Way delivered more than 97,000 petitions to Sen. Harry Reid’s office, and the Democratic Senatorial Campaign Committee. More than 97,000 of you have spoken up and called for Sen. Reid to reject the anti-choice language to this bill. Now it’s up to us to make sure it stays this way.

UPDATE: On Saturday night (11/21), the Senate voted along party lines -- 60-39 -- to move forward the Reid-introduced health care bill for debate.

We have plenty of work ahead in the Senate. If you have not joined our petition, please take a moment to do so now.

PFAW

Health Care and the Politics of Anti-Choice Activists

Anti-choice politics have become dangerously entangled with health care reform as evidenced by the troubling vote in the House of Representatives over the weekend for the Stupak-Pitts amendment. The legislation makes it virtually impossible for private insurance companies participating in the proposed new health care system to cover abortion services.

In an effort to maintain the status quo and avoid the use of federal funds to cover abortion care, the House had fashioned a compromise that required all health insurance plans to separate public and private dollars, thereby insuring that no tax dollars would be used to cover abortion services. At the urging of the U.S. Conference of Catholic Bishops that approach was rejected as unworkable; what was adopted instead, in the Stupak-Pitts amendment, is a radical departure from current law.

And, in an interesting note, here’s a must read op-ed from NARAL Pro-Choice America and Catholics for Choice pointing out that the system for separating out public and private dollars rejected by the House as unworkable employs the same principle for segregation of funds that the Catholic bishops have routinely used for managing federal funds they receive to ensure that tax dollars don’t finance religious practice.

Please sign our petition to Senator Reid urging him to help keep the Stupak-Pitts amendment out of the Senate health insurance reform bill.
 

PFAW

A Not-So-Great End to a Very Good Week

In many ways it was a very good week for anyone interested in LGBT equality. Marriage equality legislation took a big step forward in the District of Columbia, federal hate crimes legislation was signed into law after a decade long fight, and today the President reauthorized the Ryan White Act and announced that he would take the final steps to rescind the HIV travel ban. So it’s too bad that the week ended on a disappointing note.

In a brief filed today in federal court, the DOJ moved to dismiss the challenge against DOMA lodged by the state of Massachusetts on behalf of the legally married same-sex couples in the state who are nevertheless being denied federal benefits.

To be clear: Massachusetts is right in this case and the DOJ is wrong. DOMA is unconstitutional and should be struck down.

But the brief (much like most of the other briefs we’ve seen) took pains to point out that the President is defending the law not because he likes it, but because he’s compelled to. In fact, the brief points out, the President is opposed to DOMA and supports its repeal.

Great. Let’s do that.

It’s time for the President to make clear that repealing DOMA is a priority, and that his support is more than lip service. No one expects repeal to be immediate, but it won’t happen without Presidential leadership.

Then we can have good weeks, that are just plain old good weeks.

(If you want to push the process forward, don’t forget to sign our Dump DOMA petition.)
 

PFAW

Balls and Strikes for Drunk Drivers

Question: Can a police officer pull a driver over on suspicion of drunk driving based only on an anonymous tip? Based on the quotations below, can you guess what governmental body was asked this week to answer that question?

Every year, close to 13,000 people die in alcohol-related car crashes - roughly one death every 40 minutes. ... Ordinary citizens are well aware of the dangers posed by drunk driving, and they frequently report such conduct to the police. A number of States have adopted programs specifically designed to encourage such tips ...

[Another lawmaking body] adopted a rule that will undermine such efforts to get drunk drivers off the road. [It] commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road - by which time it may be too late.

There is no question that drunk driving is a serious and potentially deadly crime ... The imminence of the danger posed by drunk drivers exceeds that at issue in other [situations]. In a case [with an anonymous tip that someone at a bus stop is carrying a gun], the police can often observe the subject of a tip and step in before actual harm occurs; with drunk driving, such a wait-and-see approach may prove fatal. Drunk driving is always dangerous, as it is occurring. ...

The conflict is clear and the stakes are high. The effect of [needing more than an anonymous tip to permit the police to stop a driver] will be to grant drunk drivers "one free swerve" before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.

Is this a legislator urging his colleagues how to vote on an important policy question?

No. It's Chief Umpire John Roberts, and he's not exactly neutrally calling balls and strikes.

On Tuesday, the Supreme Court denied a petition for certiorari in Virginia v. Harris, declining to hear the appeal of a drunk driving case involving a police stop based only on an anonymous tip. Roberts, joined by Justice Scalia, issued a stinging dissent from that decision not to hear the case. Their dissent was brimming with ... policy considerations.

This blog has written before on the pernicious myth that judges shouldn't affect policy, pointing out that that's exactly what courts are supposed to do. It's inherent in interpreting the law in difficult cases. Yet part of the Far Right's propaganda to demonize liberal judges and portray them as anti-American is the line that they "legislate from the bench," usurping policymaking powers from the people's elected representatives.

No one should be fooled into buying the Right's framing. Progressives shouldn't be bullied into parroting it. And the press needs to start asking why the Right always remains silent when conservative jurists engage in this perfectly normal, long-accepted practice.

PFAW

Perez Says Justice Department Will Attack Gay Discrimination

Tom Perez, assistant attorney general in charge of the Justice Department’s Civil Rights Division, has celebrated the imminent passage of legislation that will allow the Justice Department to prosecute discrimination against the LGBT community.

Pending legislation includes hate crimes legislation that passed the House last week and the Employment Non-Discrimination Act.

In a speech to his colleagues, Perez said, "We must fight for fairness and basic equality for our LGBT brothers and sisters who so frequently are being left in the shadows [and to] ensure that there's a level playing field in which our LGBT brothers and sisters are judged by the content of their character."

Perez’s announcement is a welcome step forward for ending discrimination against the LGBT community in a division that has traditionally focused little attention on LGBT equality issues.

Perez began his position in the Civil Rights Division only last week after failed attempts by Senate Republicans to block his confirmation. Senate Republicans have continued to block well-qualified nominees like Perez from being confirmed to important offices, especially Dawn Johnsen’s nomination to head the Office of Legal Counsel.

Sign the PFAW petition to confirm Dawn Johnson so that she too can restore justice at the Justice Department.

PFAW

Patrick Leahy is fed up ... and he should be

Patrick Leahy is fed up and he should be.

Dawn Johnsen, President Obama's nominee to head the all important Office of Legal Counsel at the Justice Department, has been awaiting action by the full Senate since mid-March.

David Hamilton, President Obama's first judicial nomination, has been waiting since the beginning of June. 

Marisa Demeo, nominated to be an Associate Judge of the Superior Court of the District of Columbia has been waiting since the end of May.

These are just three of the 15 Justice Department and Judicial nominees that Republicans have been stalling for months!
"The Senate has to do better," says
Judiciary Chairman Leahy — and we couldn't agree more.

Click here to read more.

And take action by signing onto our petition urging the Senate to confirm Dawn Johnsen.

PFAW

Broad Coalition Calls for Mormon Church to End Anti-Gay Policies

A broad group of current and former Mormons, non-Mormoms, gays, and heterosexuals united to call on leaders of The Church of Jesus Christ of Latter-day Saints to end their anti-gay policies and their involvement with anti-gay politics (California’s Prop. 8) and fundraising. Through their website, the coalition has launched a petition to “earnestly seek to create a climate for reconciliation between the Church of Jesus Christ of Latter-day Saints and gays and lesbians who have been affected by the policies, practices and politics of the Church.” More from the petition:

We recognize that issues surrounding sexuality and gender orientation are complex; that understanding of these matters has evolved, especially over the past several decades, and are continuing to evolve as scientists, therapists, theologians and others continue to explore and ponder their meaning and significance; We believe that people of good will may have differing views about homosexuality, while maintaining amicable relationships.

True reconciliation requires that parties on both sides of this issue be willing to honestly examine their attitudes, behaviors (including past behaviors), policies and practices—and be open to understanding, forgiveness (both asking for and accepting), and apology.

The site includes links to the church’s historical involvement in gay marriage legislation, personal testimonies from gay and lesbian Mormons and a list of gay and lesbian Mormons who have committed suicide.
 

PFAW

President Obama, Census Bureau Looking at Ways to Recognize Same-Sex Marriages in 2010 Census

Pres. Obama and the White House are now looking at ways to include same-sex marriages, unions and partnerships in 2010 Census data – another small step of what we hope will be a larger agenda toward equal justice under the law for gays and lesbians in America. Last year, PFAW launched a petition drive urging the Census Bureau to reverse its policy of ‘editing’ the data from same-sex couples who accurately report that they are legally married, and re-classifying them as “unmarried partners.” From the Wall Street Journal:

The White House said Thursday it was seeking ways to include same-sex marriages, unions and partnerships in 2010 Census data, the second time in a week the administration has signaled a policy change of interest to the gay community.

The administration has directed the Census Bureau to determine changes needed in tabulation software to allow for same-sex marriage data to be released early in 2011 with other detailed demographic information from the decennial count. The bureau historically hasn't released same-sex marriage data.

The gay community strongly supported President Barack Obama during the 2008 election. But some gay activists say they have been frustrated by what they see as his slow approach to rolling back discriminatory policies.

White House spokesman Ben LaBolt said "the administration continues to make progress on the president's longstanding commitment to promoting equality for [lesbian, gay, bisexual and transgender] Americans."

This is a positive step forward although there’s no word on an actual policy proposal yet. In the meantime, People For the American Way is helping activists tell President Obama and Congressional leaders to “Dump DOMA.” You can find the petition here.

PFAW

Obama Takes Small Step for LGBT Equality When He Promised a Leap

Since taking office, the American people have seen a flurry of activity from the Obama administration, ranging from increased diplomatic efforts abroad to fixing the economic crisis at home. There is one area, however, where we've seen far too little movement―gay rights.

Last night, President Obama signed a presidential memorandum that will extend certain job benefits to same-sex partners of federal employees.

Over the past several months, the Director of the Office of Personnel Management and the Secretary of State have conducted internal reviews to determine whether the benefits they administer may be extended to the same-sex partners of federal employees within the confines of existing laws and statutes. Both identified a number of such benefits.

For civil service employees, domestic partners of federal employees can be added to the long-term care insurance program; supervisors can also be required to allow employees to use their sick leave to take care of domestic partners and non-biological, non-adopted children.

For foreign service employees, a number of benefits were identified, including the use of medical facilities at posts abroad, medical evacuation from posts abroad, and inclusion in family size for housing allocations. 

While it is a small step in the right direction, it is hardly the action that Senator Obama spoke of so often on the campaign trail:

I support the complete repeal of the Defense of Marriage Act (DOMA)– a position I have held since before arriving in the U.S. Senate. While some say we should repeal only part of the law, I believe we should get rid of that statute altogether. Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does. 

It seems that rather than take real action to repeal DOMA, the administration is offering a gesture to the LGBT community, a gesture without much weight behind it.

President Obama promised all of us that he would push to end the discrimination caused by DOMA; Let your voice be heard and tell the Obama administration that you want it repealed. Sign our petition to end DOMA now!

PFAW

Fourteen Years Later, PFAW Continues to Denounce ‘Irresponsible Speech’ and Intolerance in Our Country

It’s no mistake that freedom of speech is in the first Amendment to the Constitution.  It’s impossible to overstate its importance to our democratic system.  But respect for free speech doesn’t give us the right to turn a blind eye to dangerous, irresponsible speech.  As we’ve seen through the explosion on rightwing hate, violent rhetoric can lead to violent actions, and we have a duty to stand up to it and call it by name.

Fourteen years ago, a PFAW memorandum (pdf) was released, focusing on the hateful rightwing speech on issues like racism, abortion, and LBGT rights.  It is no coincidence that names like Rush Limbaugh, Pat Robertson, Newt Gingrich, and Randall Terry rise to the top of both this fourteen year old memorandum and the news headlines of today.  In comparing this article to our current situation, it is easy to see that too little has changed in the last fourteen years.

People For stood up to hateful speech then, and we’ll continue to stand up to it as long as it takes.

After you read the memo, be sure to sign our petition calling on the Department of Homeland Security to reissue its report on rightwing extremism.
PFAW

Sotomayor Hearings to Begin July 13th

Senator Patrick Leahy (D-VT) announced today that Supreme Court nominee Sonia Sotomayor will begin her confirmation hearings on July 13th. People for the American Way President Michael B. Keegan released the following statement on the announcement:

"Today's announcement is a clear sign that Judge Sonia Sotomayor is on track to be confirmed to the Supreme Court.

Judge Sotomayor is an eminently qualified nominee, and the misguided efforts by some prominent Republicans and their right-wing allies to smear her have failed.

In recent years Supreme Court nominees have traditionally had hearings within two months of being nominated. Today's announcement is consistent with the timeline for nominees of both parties." 

Make sure to sign our petition today, calling on the Senate to confirm Judge Sotomayor to the court.

PFAW

Confirm Sonia Sotomayor

You may have heard that President Obama nominated Judge Sonia Sotomayor to fill the Supreme Court vacancy left by the retirement of David Souter.

Sotomayor is a superb choice, and we're working with our allies to help introduce her to the country. 

And don't forget to sign our petition calling on the Senate to confirm Judge Sotomayor to the Court!

PFAW

UPDATED: Message from Senator Whitehouse: Keep Up the Pressure to Confirm Dawn Johnsen

Today I had the opportunity to moderate a discussion with Senator Sheldon Whitehouse on a conference call with PFAW members and activists.

As we’ve mentioned before, Senator Whitehouse has been one of the leading voices in the push to restore the integrity of the Department of Justice and confirm Dawn Johnsen to the Office of Legal Counsel.

Before the conversation, we solicited questions from our participants and got an enthusiastic response. Many of those questions focused on similar themes: What exactly happened at OLC? How can we fix it? And what can individuals do to help move the process forward?

Senator Whitehouse repeatedly emphasized the importance of OLC in providing honest legal advice, and he called on citizens in red and blue states alike to urge their senators to support Dawn Johnsen’s confirmation (and although he didn’t mention it, I’m sure he’d be happy to have you sign our petition as well.)

If you weren’t able to join our call, you can get a taste of what Senator Whitehouse shared with us from his appearance on Rachel Maddow’s show earlier this week.

UPDATED: You can listen to the conference call using the player below, or read the transcript here.
 

 

PFAW

Kathleen Turner Speaks Out for Dawn Johnsen

People For the American Way Foundation board member Kathleen Turner posted a piece today on the Huffington Post making a forceful case for confirming Dawn Johnsen as the head of Office of Legal Counsel.

To restore integrity and respect for the rule of law to the Department, President Obama has nominated an inordinately qualified individual - Dawn Johnsen - who is now being attacked by Republicans and her right-wing allies for having the nerve to criticize Bush administration excesses. They're faulting her for criticizing OLC opinions that the Bush administration itself repudiated. In other words, she's being pilloried for having the very integrity and respect for the rule of law that the Bush OLC so clearly lacked.

If you want to speak out to support Dawn Johnsen’s confirmation, don’t forget to sign the petition.
 

PFAW