Criticism of High Court’s Campaign Finance Ruling Not Persuasive

Friday, February 12, 2010

Page 6

IN MY OPINION (Column)

Criticism of High Court’s Campaign Finance Ruling Not Persuasive

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Not since the attack on Pearl Harbor in 1941, or the assassination of a president in 1963, has there been such an alarm expressed in the media concerning an event which is noteworthy, but not particularly earth-shaking. That is the U.S. Supreme Court decision in Citizens United v. Federal Election Commission, 08-205 .

It was a noteworthy decision, but did not rise to the level of Marbury v. Madison, Brown v. Board of Education, or Roe v. Wade. In short, 2010 brought in a display of media overkill.

UC Irvine Law School Dean Erwin Chemerinsky has written a widely circulated opinion article, the president of the United States has referred to it in his State of the Union address, the Los Angeles Times has written three or more articles on it, the Letters to the Editor columns have been inundated, and there has been lots and lots of coverage in Time magazine and Newsweek. While I have not checked the Guinness Book of Records, I doubt if many U.S. Supreme Court decisions have been cited in a presidential State of the Union message.

All this, in spite of the fact that in my view, the criticism of the decision is not entirely persuasive.

In essence, the high court held that corporate spending limitations enjoy First Amendment protection. Any governmental limitation of corporate spending on political issues is prima facie illegal. To me, the First Amendment is a majestic and a monumental expression of the very fundamental rules of a democracy, composed of decent people and governed by a responsive government. I take it very seriously when anyone trifles with the fundamental rights, of which freedom of speech is the most important component.

Absent the clear and present danger exhibited by one who yells fire in a crowded theater, we have systematically enlarged the concept of protected speech. Our anti-SLAPP jurisprudence (a first cousin of motions for summary judgment) have systematically expanded the concept of protected speech. Even the angry motorist who throws epithets at his ticket-issuing CHP officer in a non-civil manner has judicially been held to exercise protected speech.

The five justices who jettisoned the restrictions on campaign donations are referred to as conservatives, particularly by Chemerinsky. He should be reminded that historically those who most advocated free speech in recent history were the ultra-liberals, i.e. former Justices Hugo Black and William O. Douglas, who sought to outlaw all restrictions of speech, including defamation. Likewise, it was former Justice William J. Brennan Jr., a great liberal, who had authored New York Times Co. v. Sullivan(1964) 376 U.S. 254— which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be actionable defamation.

To me, the proper rule for the judiciary is not to appoint a president, as was done in Bush v. Gore, but to restrict limitations of free speech, as was done in 1964 in Sullivan (as modified in 1974 in Gertz v. Robert Welch, Inc., 418 U.S. 323.) Defamatory facts are constitutionally immune absent a calculated falsehood. Also, see Restatement of Torts Secs. 580A and 580B.

Notwithstanding Sen. Russ Feingold’s publicized protestations, or indeed those of our president, it appears to me that this decision is not all that evil. It confers immunity upon corporations who make political donations, but it does the same for labor unions. I realize that in the present climate, corporations enjoy a more powerful role than labor unions. I have faith in Sarbanes-Oxley. It mandates corporate disclosures to the world, and that includes stockholders.

What would I have done? No president or governor has seen fit to appoint me to the highest court of the land. Suffice it to say I do not know. But I do know that the arguments are close. Hence, I do pontificate: Do not panic. The republic will stand and we are not in jeopardy. We survived Watergate. We can survive this.