I suppose no one should be surprised by the Supreme Court's 5-to-4 decision on The Hilary, The Movie Case —or that along with the decision we would be treated to brave pronouncements about the bold stance now being taken by the Court against government censorship and bans upon free political speech. No one should be surprised, but that doesn't make it any less horrifying. The fundamental intellectual dishonesty of the opinion is just plain staggering.
I wrote on this a while back, when it was a case being reheard at the behest of the Court last Fall. I titled my piece "Hairdressers" then, with some sense of irony and anger at the rhapsodic defense of corporate campaign spending Justice Scalia had offered —on behalf of corporate citizens "like the local hairdresser" —this as he was supposedly hearing arguments from the parties to the case.
(Should we discuss 'activist judges' now, folks?)
At the time I tried to argue it was just a bit disingenuous to characterize the restrictions upon corporate campaign spending, being made an issue of in the case by the justices themselves, as somehow equivalent to some abridgment of the rights of 'the regular guy' just down the street—those many "single shareholder corporations. … The local hairdresser, the local auto repair shop, the local new car dealer” as Justice Scalia described them, whom he supposedly so wanted to protect. I pointed out that none of the curbs on corporate campaign spending dragged into court by the court did a damned thing different to abrogate a "single shareholder’s" rights —any inch further than the rights of a single stakeholder citizen. What we were beholding in Scalia's "Hairdresser" was a cross between a Trojan Horse and a Judas Goat.
But what was so ominous then, and what makes the decision so sadly unsurprising now, is that the points of law we were hearing argued (mostly by the judges) were never of substance in the original case. The case was never about banning the movie in question, shutting down public showings or pulling copies of the dvd from the shelves —as some have suggested. The case stemmed from a ruling on an online on demand video distribution network, that the corporate producers of HTM had paid a pretty penny to access. The ruling in appeal was that the paid access was essentially a media buy of the sort regulated by campaign spending law. The plaintiff's themselves first argued the case in the narrow terms of that interpretation and it was only when the Roberts Court suggested it that we heard new arguments on the larger themes —"The censorship we now confront [so] vast in its reach"—as Justice Kennedy ultimately described it in announcing the decision.
So, no —we shouldn't be surprised when the decision comes down vindicating the plaintiff's arguments that the judges instructed them to make. No, we shouldn't be shocked or dismayed at all. Actually we should be dismayed , as so it is that we get treated to Justice Kennedy waxing eleoquent.
"When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves."
As Dahlia Lithwick of slate.com points out, It fell to Justice Stevens, reading the dissent to the decision, to point out that none of Kennedy's rhetoric actually corresponds to facts of the case —or truly founds and establishes "the court's decision to topple decades' worth of legal architecture that had never been questioned in the courts."
President Obama has responded to the announced decision by calling upon Congress to develop a "forceful bipartisan response" and describing the ruling as one that "strikes at our democracy itself "
"This ruling opens the floodgates for an unlimited amount of special interest money into our democracy. It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way - or to punish those who don't. That means that any public servant who has the courage to stand up to the special interests and stand up for the American people can find himself or herself under assault come election time. Even foreign corporations may now get into the act.
I can't think of anything more devastating to the public interest."
It is worth noting that just one of the campaign spending laws gutted and crippled by the court bears the name of President Obama's opponent in the last presidential election —The McCain-Feingold Act. So, although it might sound crazy these days to suggest that a bipartisan effort could be called upon to correct the errant moves of an arch activist Conservative court, it just might be possible. It's going to require a politically transcendent understanding of the Constitution —and no small measure of Audacity.