I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’” [Thomas is quoting from other opinions.]Thomas feared, as do many other people, that – in the USA – civil discourse soon becomes uncivil, and sometimes threatens violence (which may happen). Of course, if the core political speech was itself uncivil (and possibly untruthful), then we should have the right know who was responsible for that uncivil broadside. Think about it: Thomas (a judge) did not advocate legal solutions for threats against persons, but suggested that threats be obviated by hiding the identity of the person.
Thomas’s dissent was not based in law and the application of the law, but was based on social concerns. Consider the court case of an atheist female high school student who wanted to remove a prayer mural in the auditorium at Cranston High School West (Rhode Island). The plaintiff (Jessica Ahlquist) could not be anonymous unlike Thomas’s view of how the perpetrators of political communications should be treated. The plaintiff’s suit succeeded, with the result that the court “orders the immediate removal of the School Prayer mural”. Responses to the judgement from all sides ranged from incorrect readings of the US constitution, to RI state representative Peter Palumbo referring to the student as “an evil little thing”, to “shes not human shes garbage” [sic] (and there were more extreme responses). People are nasty, and the police are investigating threats against the student – as they should. Thomas should encourage such action if he worries about a decision that “subjects citizens of this Nation to death threats …” for political propaganda.
Thomas was in the modest majority of 5-4 for other parts of the Supreme Court opinion, parts that were responsible for the Super PACs we have seen in operation in the Republican presidential primaries – effectively satirized by Stephen Colbert and Jon Stewart of Comedy Central. John Paul Stevens in his dissent also voiced social concerns, but from a legal perspective:
At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majorityIt might be instructive to see how often social concerns supersede legal assertions in US Supreme Court opinions and dissents …
of this Court would have thought its flaws included a dearth of corporate money in politics.
If you look at the original US Bill of Rights, it includes the rights of free agents and the responsibilities of societal agencies (it is a Bill of personal rights and collective responsibilities). The preamble to the Bill says clearly that conventions in various states, in considering the new US constitution, had:
expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added …Rights of free agents are “declaratory” and responsibilities of societal agencies are “restrictive”.
The first amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.“Congress” is a societal agency that has certain restrictions on its actions: no laws restricting religion; no laws restricting personal speech or the press’s content; and no laws restricting peaceful assemblies of people or people’s ability to petition the Government (which is itself another societal agency). The “people” are free agents with certain declared rights: people are free to follow their own religion; people are free to speak; and people are free to assemble and petition.
Note that “the press” is singled out for special treatment in the amendment, and a strict constructivist could argue that only things that are printed (on a press) are covered by that clause. Is “the media'” (21st century) equivalent to “the press” (18th century)? In the Supreme Court opinion:
… there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech.Is Comcast (21st century) equivalent to the Connecticut Gazette (18th century)? I think not.
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