The ethics of protests at people’s homes

•  Note:  This blog originally appeared in the Pioneer Press on August 30, 2020.

Under what conditions, if at all, is residential picketing a form of legitimate protest or expression of ideas?

Recently in response to the death of George Floyd the streets in front of the personal residences of two police officers and their families have been the sites of public protest. So too has the Minnesota governor’s mansion, also located on a residential street.

First, no reasonable person should disagree with the proposition that racism is wrong. Nor should a reasonable person endorse unwarranted use of force by police, especially when done in a racially discriminatory way. What happened to George Floyd was a tragedy and whether the police officers are guilty of a crime is a matter for the courts to decide.

Regardless of legal verdict in the pending trials, individuals have a First Amendment right peaceably to assemble, protest, and present their views on public streets, however much we agree with them or find their views repugnant. There is also a right, whether prudent or not, to use language, symbols, and speech which many might consider to be uncivil, to express their ideas. None of us should be expected to use perfect grammar or prose, and sometimes the choice of words or symbols, however impolite some may view them, may be effective ways to convey a message or get attention.

There are limits to the expression of ideas in residential areas.

The issue is not civility but counterbalancing rights of individuals to be protected from harassment and unwanted speech from which they cannot escape.

In the 1988 case of Frisby v. Schultz (no relation to this author), anti-abortion protestors peacefully picketed on the streets in front of the home of a doctor who performed abortions. The home was in a residential district. Justice O’Connor, writing for the Supreme Court, recognized that streets even in residential neighborhoods were public, yet upheld an ordinance banning this picketing. It did so for a couple of reasons.

One, the Court recognized a right to privacy in our homes. There is a legitimate interest in protecting people from unwanted intrusions into their homes.

Two, unlike protests in front of businesses or other public accommodations, individuals in their private residences are captured audiences who have no ability to escape from speech they do not wish to hear. One may have a right to free speech, but not a right to force unwilling audiences to listen.

Protests, especially loud, long, repeated, or with large crowds, can be threatening, and if residents or neighbors have no means to escape, these protests have turned from legitimate expression of views into forms of intimidation. Even the liberal Justices Brennan, Marshall, and Stevens, who dissented in  Frisby, contended that there are valid time, manner and place restrictions on speech, and a careful balance of expressive rights must be struck with efforts to protect privacy, captured audiences, and prevent intimidation. Contending rights must be balanced, and in some cases limited  restrictions on residential protests should be upheld.

There is a critical difference in the protests in front of the private residences of police officers versus the governor’s mansion in Minnesota. The latter is a public building with a public official. He is fair game for protest, however uncivil but peaceful it may be, and a different balance may need to be struck here that weighs more in favor of the protestors.

There is an additional problem with protests at private homes, at least as they have emerged recently. The demonstration at the home of Minneapolis officer Bob Kroll also targeted his wife. Bob Kroll’s wife is not Bob Kroll. There is an incredible amount of sexism in attributing the views of a husband to his wife, whether the attribution is positive or negative. We are all individuals and should be judged on basis of who we are as individuals, not by association.

But even if that protest had focused only on the officer, it subjected all parties in the household, including children and also perhaps immediate neighbors, to unwarranted intrusions on their privacy under circumstances where they had limited opportunity to escape speech they did not wish to hear. If the whole purpose of the protests at a private residence was in fact to trap people in their homes, then this was not speech but intimidation.

Some will argue that the protest intrusions here were justified in the name of abating racism. Others will contend that criticizing these protestors is racist. Both assertions are wrong and misdirected.

Abating racism and righting the wrongs it has caused do not justify committing other wrongs or trampling on the rights of others, no matter how noble the cause. If today it’s racism, tomorrow another perceived greater good may justify similar tactics, perhaps even for a cause you do not endorse and against people whom you do.

Finally, criticism of these tactics is not racist. It is an argument to respect rights and to suggest that there may be more effective and focused ways to make a point — and not use tactics that draw attention away from the message.

Why Doug Wardlow Can’t Fire all the DFLers–It’s Unconstitutional

If it is correct that Republican Doug Wardlow would fire all the Democrats in the Attorney
General’s office if elected, he would be acting illegally, violating the Constitution, and opening him and the State up to numerous lawsuits that he would lose.
Media accounts indict that Doug Wardlow said at a recent fundraiser that he would fire all the DFLers “right away” in the Minnesota Attorney General’s office if elected.  Whether such a statement contradicts prior statements of his that he would not politicize the office is another issue.  However, while at one time it may have been true that to “the victor belongs all the spoils” when it comes to considering partisanship or party in public employment decisions, that is generally unconstitutional.
In the old era of spoils and patronage, partisanship or party affiliation could be considered in personnel decisions such as hiring, firing, and promotions.  Yet those days are long since gone.  In addition to civil service laws dating back to the nineteenth century limiting such a practice, the  U.S. Supreme Court has weighed in, ruling that except in the case of some narrowly defined  confidential and policy  positions, it is a violation of one’s First Amendment free speech and association rights to have employment decisions in government decided on the basis of one’s political party or political views.
In a series of what are called the patronage decisions, that include  Elrod v. Burns, 427 U.S. 347 (1976),  Branti v. Finkel, 445 U.S. 507 (1979),  Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996), and O'Hare Truck Service Inc. v. City of Northgate, 518 U.S. 712 (1996),   the Court ruled  that the consideration of partisan affiliation or party activity in the hiring, firing, promotion, or letting of contracts was a violation of the First Amendment.  It did so by declaring the use of partisanship or party preference is not a compelling governmental interest in employment decisions.
For example, in Elrod v. Burns Justice Brennan argued that patronage is a threat to democracy and popular government because of the advantage it gives to one party in the electoral process.
It is not only belief and association which are restricted where political patronage is the practice.  The free functioning of the electoral process also suffers.  Conditioning public employment on partisan support prevents support of competing political interests...As government employment, state or federal, becomes more pervasive, the greater the dependence on it becomes, and therefore the greater becomes the power to starve political opposition by commanding partisan support, financial or otherwise.  Patronage thus tips the electoral process in favor of the incumbent party, and where the practice's scope is substantial relative to the size of the electorate, the impact on the process can be significant (356).
        The Branti Court reaffirmed their holding in Elrod.  In the latter Justice Stevens’ majority opinion stated that the real question in the case was "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved” (445 U.S. at 518).  The Court found that except in a few narrow circumstances, partisanship was not an appropriate requirement.  In Rutan Justice Brennan stated that: “Today we are asked to decide the constitutionality of several related political patronage practices—whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not” (497 U.S. at 65).
Justice O'Connor wrote for the Court in Umbehr and ruled that the First Amendment protects independent contractors. In O'Hare, Justice Kennedy wrote for the Court, also holding that independent contractors have First Amendment protections against municipalities considering support for a particular candidate influence the awarding of contracts. In reaching this conclusion, the Court stated that past precedents established by Elrod and Branti, holding that public employees could not be dismissed because of their political affiliation or views, extended to independent contractors. Kennedy also ruled that the First Amendment protects the rights of government contractors against dismissal for their political views or affiliation.  The moral of the story:  Independent contractors enjoy First Amendment protection against the termination of contracts with the government as a result of their expression of their political views.
Overall, in five cases, bipartisan Supreme Court majorities ruled unconstitutional what Doug Wardlow wants to do, if done in a wholesale fashion.  He might be able to consider partisanship and political views for a small number of close senior advisors, but certainly not in the way he is quoted in the media.
Were Wardlow to fire all or some of the assistant attorneys general based on party, he would open up his office and the state to potentially scores of lawsuits.  This alone is a problem.  But second, if in fact the primary job of the Attorney General is to represent the State of Minnesota in Court, the question then would raise a legal ethics conflict of interest problem.  An attorney dismissed from the AG’s office based on claims of partisanship would name the Attorney General and his office as well as the state of Minnesota as the respondent. What if a DFL governor objected and wished to oppose the firings, the AG could not be the one being sued and defend the State of Minnesota at the same time. There is a clear conflict of interest that would force the State to spend money to hire an outside law firm to sue the AG.  Such a scenario creates numerous ethical and legal problems for the state.
Overall, whether Wardlow was serious about his intention to fire Democrats or it was simply a stump fundraising speech to rally Republicans is immaterial.  An attorney general cannot take actions that violate clearly settled constitutional law, and were he to do so it would raise many legal and ethical problems for him and the state. 

Out-Foxed! Fox News and the Crisis of Contemporary Journalism

Fox news is trapped–ensnared not only in the basic contradictions that plague the news industry in general– by a business plan that increasingly reveals the impossibility of it serving as a legitimate news service while also pursuing it profit imperatives and its political goals.   The first Republican debate and how Fox treated Trump then and afterwards point to the coming crisis this national news service faces.
Back in 2000  I edited a book It’s Show Time: Media, Politics, and Popular Culture, in which I a penned a chapter entitled “The Cultural Contractions of the American Media.”  In it I described the four roles or functions that the news media performs in our country.  There is first the democratic function; that is the task of informing citizens about public affairs and serving as a watchdog.  It is this function which is at the heart of the First Amendment constitutionalizing a free press.
As the theory goes, a free press that critically reports the news is essential to a functioning democracy.  For many, this image of a free press was formed during the middle to second half of the twentieth century.  It was the era of Walter Cronkite who told us “that’s the way it is,” of Woodward and Bernstein relentlessly pursuing a story even if it meant that it would bring a president down, or the New York Times publishing the Pentagon Papers.  We expected the media to be politically neutral, but critical, and to evaluate all the facts and decide on what is the truth.  Truth was not telling one side and then the other; it was often times recognizing that truth might be something different.  This is what reporters once learned in journalism school.
But this image of the media is quaint and old-fashioned.  For one, it is an image that seldom existed, especially when we remember that the press the constitutional framers had in mind looked nothing like what it does today.  It was first handbills and pamphleteers such as Ben Franklin, and then small partisan-controlled papers which literally were the party organs.  But the creation of a national media, the search for audience share, and the large bell shaped distribution of public opinion made it reasonable for the news to search for the center.  But that era ended, with the media pulled by three other functions that compromise its democratic function.
Unlike even a generation ago, the news media is controlled by a small handful of corporate behemoths.   Journalism professor Ben Bagdikan once talked of the big 50 media companies in America, it is now the big six, with Rupert Murdoch’s Fox one of them.  Fox is also one of the principle drivers making news corporate, and with that structure it is a for-profit business.  At one time news was a lost leader for a company, now it is a revenue generator.  To make money, maximize market share.    But in a era where now (as opposed to the 1960s in a pre-cable, pre new media and pre social media 24/7 news cycle) there are many apparent choices for news, profitability is possible with market segmentation.  Fox news figured this out.  Develop a product niche, capture that audience, and make a ton of money.  Instead of profitability through news neutrality, profitability comes from appealing to a certain audience–be it liberal, conservative, or whatever.  Political neutrality and objectivity take a back seat to profitability.
But to maximize profitability and market share the media has had to become more entertaining.  Ben Barber, one of my former professors, talks of a world where we are increasingly distracted by many diversions.  We do not just have to watch the news–we can do a hundred other things to entertain us.  Thus corporate news in presented increasingly in a format to entertain us.  Thus the fine line between Comedy Central and legitimate news.  Watch morning “news” shows, they are more about entertainment or hyping other television shows or personalities.  This is the world too of politainment that I have written about.
Finally, as corporations they too have their own political interests.  They lobby the federal government, they support candidates, they have their ideological and political biases.  Taken together, the corporate, for-profit, entertainment driven aspect of contemporary news often all but makes the democratic function impossible.  “All the news that’s fit to make money” is what it is about.
So how does this apply to Fox national news?  They are trapped by these four conflicts as are the other major news services.  But Fox has a special problem–its business plan was more extreme than others, and it also had a fifth imperative constraining its behavior, specifically serving as a mouthpiece for the Republican Party.  Fox has been profitable for years and has been able to hide behind the veneer or being real legitimate journalism, but the Republican debate last week laid bare all the problems it and much of the American media faces.
In going after Trump Fox stood to make the debate a ratings hit and it succeeded.  It might have also been a way to show it was a legitimate news service while also being a guardian of Republican orthodoxy.  Megyn Kelly too may have viewed the debate to show she was a real journalist, not simply the shrill conservative commentator that her nightly show reveals.  But now all of this has exploded on Fox and Kelly.  Post debate Trump’s poll numbers are up, Rogers Ailes effectively apologies to Donald Trump, and 20,000+ sign a petition demanding that Fox prevent Kelly from hosting another Republican debate because she is biased and instead she should question the Democrats instead.
What is at stake for Fox is its veneer of journalistic legitimacy which was always critical to its business plan.  The debate it hosted was a debacle and the backlash from it is not over.  Nothing here says that Fox will cease to exist or that it will lose money, but what we may conclude is that its product and business plan are forever damaged.  Fox is trapped and there may be no way out of the contradictions it faces.

With God on Our Side: Religion, Bigotry, and Indiana

In a many dark hour
I've been thinkin' about this
That Jesus Christ
Was betrayed by a kiss
But I can't think for you
You'll have to decide
Whether Judas Iscariot
Had God on his side.

With God on Our Side--Bob Dylan

Need we tolerate the intolerant?  Do individuals have a First Amendment religious right to discriminate or be bigots?  These questions are really at the heart of much current political debate in the United States, most recently with the decision of Indiana to enact legislation purportedly giving individuals a religious right to refuse to serve individuals in their businesses.
Indiana’s new law is only the most recent manifestation of how the religious right drives a political cleavage through contentious issues.  Gay marriage, abortion, and matters of discrimination seem to pit the moral views of some against the personal liberty of others.  They raise questions about the limits of toleration in a free society.
It was not simply Indiana’s new law that made me think about toleration.  A couple of weeks ago I gave my students an assignment where they had to do some analysis with public opinion data.  I did not care what numbers they crunched– simply play around.  In class one student talked of her perplexity.  She decided to see what relationship there was between religious attitudes and support for reproductive rights for women.  She was perplexed to find overwhelming support among self-identified Jews for abortion rights.  She did not understand why until one of my Jewish students told her that within her faith an unborn fetus is not a person until born.  My student was surprised–she did not understand that not all faiths agree with the Christian idea that the fetus is a person.
Similarly, last week I received an e-mail from some individual who had read an article of mine.  He urged me to support a constitutional amendment to declare the fetus a person.  I wrote back and told him that what a woman does with her uterus is none of his, mine, or society’s business.  He wrote back and accused me as being under the delusion of radical feminism.
Both stories speak of the issue of toleration and respect for the choices others make.  They are about why in a free society there are limits to enacting your personal morality or theology into public policy.
Many forget that the concept of toleration is a modern Western European invention, born out of the exhaustion of the religious civil wars and the split between the Catholic Church and Protestants in the sixteenth century.  A theological government that does not respect the separation  of church and state is free to define orthodoxy, foisting upon dissenters, critics, and non-believers their view of truth in the name of God.  The 1598 French Edict of Nantes recognized the right of Protestants to believe what they wish.  British King James II and the Glorious Revolution of 1688 were about the religious toleration.  America’s founding with the Pilgrims and Puritans too were about religious toleration.  All of these historical events speak to a gradual recognition in the West that the church should be separate from the state, individuals should be free regarding what they believe, and that there were limits to orthodoxy and what a majority can compel a minority to believe or do.
The hallmark of a modern free society is balancing majority rule with minority rights.  James Madison declares that to be the case in his Federalist Paper number 10.  Alexis DeTocqueville’s Democracy in America fears the tyranny of the majority, James Bruce’s American Commonwealth  decries the fatalism many face in the fear of majority pressures, and Elizabeth Noelle-Neumann’s The Spiral of Silence describes the power of public opinion to silence and persecute. John Stuart Mill’s On Liberty captures it well when declaring that individuals ought to be free from the opinions of others and that there are limits on what society can compel people to do.
The point here is that there are limits to what political majorities can or should be allowed to do to others.  You can believe what you want but you cannot use the force of law to enact your prejudices into law.  We have a right to be bigots, we just do not have a right to enforce and impose the bigotry upon others, regardless of the reasons or motives.  This is especially the case in using religion as a shield, sword, or excuse to discriminate.
Long ago Bob Dylan wrote a song called “With God on our Side.”  He recounted how too often  religion was used as a justification for all types of evils.  He made a good point. Among the numerous problems in the current debates over gay marriage and rights, or abortion, or even birth control under the Affordable Care Act, is how religion is used to mask or further political ends.  It is first over how some individuals first think that there religious views are correct and how they have a right to impose them on others who disagree.  It is essentially saying that my views should be counted twice–they dictate how I live and with that, how you should live.  It is preempting some who disagree from being able to make their own choices.  “Freedom for me but not for thee” seems to be the stance.
This legislating of morality also seems to accept the legitimacy of imposing my religious views on others, even upon those who do not accept my faith.  I thought we had moved beyond the Middle Ages and the Spanish Inquisition.  Such a position also seems to believe that they have found the truth, the orthodoxy, and not are free to dissent or disagree.  The last I knew no one had a monopoly on the truth.
Accepting that people have a right to their own opinion does not mean they have a right for  your to accept it.  You can believe what you want–ethically and religiously–so long as it does not impact others in a discriminatory way.  That is the limit of your rights.
How does all this connect to Indiana?  Individuals are entitled to think what they want religious–they can be as bigoted as they want and not like gays and lesbians.  However they have no right to let that bigotry become a discriminatory law or policy.  Whether sincerely held or not, no one except for a racist perhaps accepts the idea that there should be a religious exemption to the 1964 Civil Rights Act when it comes to racial discrimination.  Imagine George Wallace claiming a First Amendment Free Exercise of Religion argument to fight integration and voting rights.  There is no difference between that and what Mike Pence of Indiana just signed into law.  While we may need to tolerate the intolerant when it comes to their private views–because the First Amendment protects that–there is no need to be tolerate or endorse those who wish to impose their views on others.

Political lies and the First Amendment: What role should deception have in politics?

My blog today appears in Minnpost.  Please visit it.    The title is "Political lies and the First Amendment: What role should deception have in politics?"  It examines a recent Court of Appeals decision striking down a Minnesota law making it illegal to lie about ballot propositions such as school bond levies.

The Lessons of Town of Greece v. Galloway for Campaign Finance Laws

    The Supreme Court’s recent Town of Greece v. Galloway ruling upholding invocation of a prayer before the start of a local town board meeting is not a decision that one would think would be of significance to election law, but it is.  Specifically, the Court’s discussion about coercion and religious beliefs has potential importance to those arguing against campaign finance laws, especially rules mandating disclosure of political contributions.
    At issue in Galloway was a practice of town board to begin its monthly board meetings with a prayer delivered by a local clergy member.  Clergy were selected by local congregations listed in a local directory.  It so happened, according to the Court, that most of the local congregations were Christian and therefore most of the prayers were Christian.  Citizens attending the board meeting objected, claiming such prayers constituted an endorsement of Christianity, in violation of the First Amendment Establishment clause.  The Supreme Court disagreed.  In ruling against them the Court offered several reasons, including the fact that starting legislative deliberations with a prayer is a long-standing practice that goes back to the first Congress.  But more importantly, the Court keyed in on the notion of coercion.
    One of the arguments made by those objecting to the prayer was that it “coerces participation by nonadherents”–in effect, it forces those who do not wish to participate in the prayer to go along with it in order to please board members from whom they are asking a favorable ruling on a particular matter.  Justice Kennedy, writing for the majority, acknowledged that the First Amendment bars the government from forcing individuals to participate in any religious exercise.  But nonetheless, Kennedy disagreed. Noting that the issue of coercion is fact-intensive, Kennedy  stated first that the prayer was not directed at the public but it was for the board members to help guide them in their duties.  Moreover Kennedy said there was no evidence that the town board had singled out any member of the public because it refused to participate in the prayer.  Requests to stand for prayer came not from the board members (the government) but from local clergy.
    But more significantly while some objected that prayers made them feel unwanted, Kennedy  distinguished that feeling from coercion.

    [R]espondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.

Exposing individuals to ideas that they would rather not hear is not coercion, especially when those ideas a brought up are not by the government but private citizens, in this case, members of the local  clergy.  For the Court, it is not coercion to be exposed to ideas one objects to unless in some way the government (my emphasis) does something more, such as retaliates.  Justice Thomas and Scalia in their concurrence reinforce this notion, stating that coercion only occurs when religious orthodoxy is enforced “by force of law and threat of penalty.”
    So how and why is all of this significant to campaign finance laws?  Central to a host of recent decisions, such as McCutcheon v. F.E.C, Davis v. Federal Election Commission, Citizens United v. F.E.C, and  Federal Election Commission v. Wisconsin Right to Life, Inc is the concept  that particular laws “chill political” speech.  The existence of some type of campaign finance laws, especially in the case of Davis, where candidate contribution limits would be raised to offset spending by wealthy donors, were seen to chill or discourage individuals from spending or contributing money because of fear that others would be able to contribute more to offset their spending.  In McCutcheon, aggregate contribution limits were seen as chilling free speech, in Citizens United bans on corporate independent expenditures were deemed censorship.  In all these case laws were viewed as coercive, either directly or indirectly discouraging individuals from donating.
    Now one can have a serious debate regarding whether all of these regulations really chilled or intimidated individuals from giving money.  In many of these cases the issue was not really not be able to give, but how much or how, but to read these cases one would think that the challenges came from a bunch of political wallflowers, fearful of what others may think about them.
    The best example of this comes in Doe v Reed where challenges came to an Oregon law arguing that the disclosure of the names of individuals who signed ballot petitions chilled their speech.  The Court rejected the claims, noting no record of real intimidation or retaliation.  The Court–with Chief Justice Roberts writing–rejected assertions that the mere posting on the Internet of the names of the petitioners along with maps indicating their locations is not enough of a showing of intimidation and harassment to void on First Amendment grounds their disclosure.  Scalia, pushes the issue even further, declaring that we should have the courage of our convictions.

    Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.


     The First Amendment protect us from the government, but not the dirty looks and approbation of others.  The government cannot persecute individuals who hold minority or dissenting positions, but nothing in the First Amendment protects dissidents from what John Stuart Mill described in book IV of On Liberty calls the “unfavorable judgment of others.”  Taking unpopular positions comes with criticism and no one should expect that the people relinquish their right to criticize.
    Thus what Greece v. Galloway states when it comes to religion is that the First Amendment does not protect individuals from being shunned or criticized by the public.  Feeling offended is different from being coerced.  And it when it comes to campaign finance laws, especially disclosure, Galloway declares that short of real proven harassment and intimidation, being shunned, criticized, given dirty looks, or being subject to public judgment is not chilling but part of what should be expected when one takes political positions.  The standard regarding what constitutes coercion in Galloway has precedential implications for disclosure laws, suggesting that more than mere offense or unpopularity of a viewpoint is necessary to implicate First Amendment concerns.

The Lessons of McCutcheon: The First Amendment as Thuggery

Since when did the First Amendment become a tool of thuggery to suppress speech rather than enhance it?  This is essentially what the Roberts Supreme Court did in the recent McCutcheon v F.E.C.  decision striking down aggregate political contribution limits.
    At the core of the McCutcheon  is the argument that all individuals have a right to expend unlimited money for political purposes.  Because of that right, federal laws that overall limit individuals to contributing approximately $123,000 per year to candidates and political parties violated  their right to free speech.  Who knew that such a cap was so suppressive and chilling of  free speech? At least this is what the Roberts Court wants us to believe.  We should all rejoice in our new found freedom to spend as much as we want to affect the political process.  Yes, now the rich  and poor equally have the right to spend more than $123,000 per year for political purposes much in the same way that writer Anatole France once said that the rich and poor were equally free to sleep under the bridge.
    That is false sense of equal rights is one of several points that the Roberts Court misses in McCutcheon.  The rich and poor may equally have the same right to spend unlimited amounts of money, but the reality is that only the rich shall be able to use this right.  For the other 99.9% of the population, McCutcheon has nothing to do with rights.  It does not mean that your tired, your poor, your huddled masses yearning to breathe free, will spend more.  No, it only means a few will do so because they will be able to.   This is what defenders of  McCutcheon either fail to see, or which they see clearly and embrace the decision because of its implications to favor their views.
    The shallowness of the McCutcheon argument lies in a misguided notion of what the First Amendment free speech clause is supposed to be about.  While of course John Stuart Mill wrote long after the Founding Fathers penned the First Amendment, his On Liberty remains perhaps the single best defense of free speech.  Free speech is necessary not simply to express ourselves, but to gather and circulate the information necessary to make informed political choices and to make democracy and the search for truth possible. Free speech is not a silencing tool but an invitation to dialogue, a declaration that were only one side to speak then it would shield dogma and invite censorship. As Mill stated: ”There can be no fair discussion of the question of the usefulness (of an idea) when an argument so vital may be employed on one side, but not on the other.”  It takes at least two to have a conversation; one person shouting at another  is not free speech it is intimidation.
    The First Amendment free speech clause is not meant to be a right for one or the few but for all.  It is recognition that in a society all of us have a right to speak, and to do that, as in any social situation, there are rules of communication that make a conversation possible.  There is no way that a rule that says all of us have an unlimited right to speak is viable; at some point one has to understand that the First Amendment rights of some have to be read or understood in light of the First Amendment rights of others. The right to free speech cannot be interpreted in such a way that  the rights of a few can suppress the free speech rights of others.  As philosopher John Rawls once declared:  “[E]ach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” Rights to free speech must be read within a social context of like liberty for all.  McCutcheon and its defenders fail to recognize this principle.
    At one time the Supreme Court recognized it.  In cases such as  Burson v Freeman the Court was confronted with conflicting First Amendment rights when it ruled that states could impose a ban on political advertising within one hundred feet of a polling place.  Here there were contending  free speech rights–to vote and to engage in political advertising–and it was impossible to allow for  both in absolutist fashion.  To allow an absolutist position for both rights probably would have meant neither were possible.  Contending rights of differing individuals have to read or understand in ways that respect the rights of both.  Similar tradeoffs or balancing of rights were made in Red Lion Broadcasting v. Federal Communication Commission where the fairness doctrine was upheld, ruling that the free speech rights of broadcasters must be balanced against the first Amendment rights of the public.  The same was true in Smith v. Alwright, where the Court ruled that the First Amendment associational rights of parties had to be balanced against the rights of individuals to participate in politics.
    McCutcheon, along with the 2010 Citizens United v. Federal Election Commission decision allowing corporations to expend unlimited money for political purposes, ignores the social context for free speech rights.  These decisions privilege the rights of the few at the expense of others.  Even worse, they assume that everyone has an unlimited right to speak and that this speech includes the expenditure of money.  It forgets an old adage many of us learned when we were growing up–My right to extend my arm goes no further that your face. 
    McCutcheon crabbed absolutism seems to assume that everyone has a right to spend unlimited amounts of money, even if that means that some have a right to drown out of suppress the free speech rights of others.  That is what McCutcheon will do.  Its impact will be to give some a  megaphone to speak, serving a a sledgehammer to silence others.  The First Amendment free speech clause was never meant to be a bullying tool or an instrument of thuggery but that is what the Roberts Court did in deciding that the rich and poor equally have the right to spend unlimited amounts of money for political purposes.

Obama's Constitution

            Barack Obama’s constitutionalism is not quite what anyone would have expected.  Far from embracing bold liberal notions of the Constitution and the Bill of Rights, much of his legal philosophy seems at home with his predecessor George Bush and Republicans.

            Ostensibly a liberal Democrat, one would have thought that Barack Obama would have been a civil libertarian, respectful of individual rights.  One would have also expected that he would have sought to use national power to its fullest to fulfill his agenda.  As a lawyer and former constitutional law professor, the belief was that he understood the law and would see how moving quickly and aggressively to fill the federal bench with his judicial nominees would be critical to securing his legal agenda and undoing the legal legacy that George Bush left.

            Such expectations were nurtured by presidential candidate Obama.  He sharply criticized the Bush administration for its support of torture and disregard for international law.  He promised to close Guantanamo Bay, and otherwise end the illegal operations of the war on terror and the presidential excesses of his predecessor.  Yet Obama has not turned out to be a constitutional liberal.

            To his credit, in the opening days of his presidency Obama did move to undo many of the practices of the Bush administration that he campaigned against.  He repealed legal opinions supporting torture and in his inaugural speech he committed his administration to transferring prisoners out of Gitmo and to closing the facility.  But Congress fought him on this initiative and Republicans have successfully stalled or filibustered judicial and other nominees.  But even accepting both as excuses, Obama’s constitutionalism is surprising.

            The Obama administration insists that it is within its constitutional authority to use drones to kill American citizens and to intercept and track telephone calls and internet traffic under the Foreign Intelligence Surveillance Act and through the NSA Prism program.  Obama administration legal memos, some of which have yet to come to light, so far seem to rely upon the same assertions  about extra-constitutional presidential power as commander-in-chief or upon the same congressional ascent under the post-9/11 Authorization to Use Military Force that Bush invoked. The legal memo on drones makes the same legal contortions about presidential power that the John Yoo memo did when it came to torture.  Obama has used these legal rationales and the most extensive authority given to him under the Patriot Act and FISA to justify policies disregarding basic civil rights and liberties.

            His administration justifies the killing of American citizens without proof of guilt in court.  There is no regard to the Fourth Amendment rights against use of excessive force, no due process to contest a decision to make unilateral execution decisions.  His snooping on American citizens is done without warrant, or at least one with proof of particularized suspicion as required under the Fourth Amendment.  His administration's initial refusal to read the Boston Marathon Bomber his Miranda rights exploited a questionable legal loophole and ignored the Fifth Amendment.  And do not forget that the IRS targeting of political groups is also a violation of the First Amendment.

            But additionally the Obama administration has rode roughshod over many other parts of the Constitution.  Where is the respect for the First Amendment freedom of the press when comes to getting secret warrants to search reporters telephone conversations because they reported on news embarrassing to the Obama Administration?  Or where is the respect for First Amendment freedom of speech when it comes to one of the most aggressive administrations on record when it comes to prosecuting leaks and whistleblowers?

            But his constitutional contempt is matched by timidity.  Obama now supports same-sex marriage, but only as he was beginning to run for a second term in office and when the tide of public opinion had apparently shifted on the subject.  It took years for the Obama administration to reach the conclusion that don’t ask, don’t tell was unconstitutional but he never did anything to fight its enforcement.  The same with DOMA–he did eventually argue that it was unconstitutional but continued to enforce the law.  Even in his administration’s arguments before the Supreme Court, Obama has never embraced a view of the Equal Protection clause that fully argues that bans on same-sex marriage are unconstitutional. Nor have we seen Obama argue that the death penalty is unconstitutional, and we have not seen him take an aggressive stance in Court to argue that the Second Amendment decisions holding for an individual right to bear arms were wrong and should be reversed.

            Even with the Affordable Care Act–his signature issue–he has failed to act boldly.  His central justification for its constitutionality rested on the Commerce clause–an argument the Supreme Court ultimately rejected.   In passing the Act Obama capitulated on abortion rights and since its passage has failed to push aggressively on contraception, including until recently his refusal to go along with allowing women under 18 the right to purchase the morning after pill.  It took a federal court ruling his policy to be arbitrary and capricious to get him to change his mind.

            Finally, the Obama administration has moved slowly on judicial appointments, generally eschewing efforts to challenge Senate Republicans to reject his nominees who, for the most part, have been centrists and not liberals.

            Obama’s Constitution is hardly liberal.  It is supportive of strong presidential power resting upon dubious constitutional claims of unilateral authority to act.  It is a constitutionalism devoid of serious respect for individual rights, supportive of the national security state, and surveillance ahead of privacy.  It is a constitutionalism not of the kind one would have expected from him, but instead one that bears more resemblance to that of George Bush than it does of the liberal Democrat some thought he was.

Citizens United, Politics, and the Lessons of Target Corporation

The backlash against Target Corporation’s political contributions offers important lessons about the brave new world of politics ushered in by the Supreme Court decision Citizens United v. Federal Election Commission. The lessons range from corporate marketing and governance to accountability.

Citizens United was a triumph for conservatives who believed that there was not enough money in American politics and that corporations lacked an effective voice in it. The 5-4 majority in Citizens United ruled that the free speech rights of corporations were violated in banning them from making express advocacy independent expenditures.

The decision freed corporations to make direct expenditures from their treasuries to endorse or oppose candidates of their choosing. That is exactly what Target Corporation did in Minnesota.

Tom Emmer is the Republican gubernatorial anti-tax and anti-gay rights candidate. Minnesota Forward was a PAC formed in Minnesota after Citizens United and it collected corporate donations to run ads endorsing Emmer. Target contributed $150,000 to the PAC, ads for Emmer ran, and then the sky fell in for Target. Immediately employees, gay rights organizations, and Moveon.org criticized the contribution, asking how the company’s donation squared with Target’s commitment to gay rights and its policy on same sex couple benefits. Target CEO Gregg Steinhafel tried to massage the protest, stating the company only endorsed the candidate’s views on taxes, not gay rights issues. But the rationalization was too late, and Target has been unable to contain the damage. Why?

Unlike other Minnesota companies such as Polaris and Best Buy which also donated to Minnesota Forward, Target occupies a unique place. Originally the Dayton and then Dayton-Hudson Corporation, this company is locally incorporated and was family owned for years. The Daytons had a record of community support and philanthropy, still expressed in terms of the company donating 5% of its profits to schools. Self-consciously, Target has curried this socially responsible, good corporate citizen brand in juxtaposition to its rival Walmart. For many, Walmart is the evil empire and Target’s progressive image made it a favored retailer for many. Steinhafel forgot all of this when he made the political contribution.

The donation supported a candidate who stood contrary to the image Target has sought to cultivate for years. Steinhafel violated the number one rule of business–know your customers.

The deterrent to corporate political contributions after Citizens United was that retail businesses would be loath to act, for fear they would alienate half of their customers. Target should have remembered that. It should have remembered how it had consciously built its image and thought about how this political contribution impacted it. Clearly Target failed to do that.

The half-hearted apology that the contribution did not mean it supported Emmer’s views on gay rights demonstrated a naivete about marketing. When companies employ celebrity spokespersons, they hire the entire package and it is impossible to separate off one part of their life or views from the rest. Think of Tiger Woods. Corporations cannot insulate themselves from criticism by saying they endorse only part of a candidate–they are stuck with the entire package.

What Citizens United and the Target donation revealed is that corporate political activity merges politics and marketing. Support of political candidates and causes are marketing and imaging statements, and companies in the future now must think about how their political activity affects their brand. Steinhafel and Target should have known that. In Target’s case, the contribution was bad branding but for other companies–such as a gun company supporting a pro Second Amendment candidate–such an expenditure might be a smart move.

Steinhafel thus violated a second rule of business–confusing his own self-interest or views with that of the interest of the company. This tells us something about corporate governance. The real power of corporations rest not with shareholders but management, and most of the major misdeeds in corporations occur when management comes to substitute their interests for that of the shareholders and stakeholders they serve. Steinhafel’s choice raises questions about how decisions are made in companies, who speaks for corporations, and whose First Amendment rights were furthered by Citizens United–the shareholder or the management?

Finally, what Target and the supporters of Citizens United forgot was that over the last 25 years corporations are increasingly being held socially accountable for the choices they make. Target understood that with its branding, but seems unable to grasp that point now that it has entered partisan politics. The brave new world of Citizens United does mean that corporations can speak, but they will be held accountable by their customers and shareholders for the choices they make.