May 7, 201410:54 AMBlaska's Bring It!
with David Blaska
Judge Randa rescues the First Amendment from the guillotine and the gulag
Glory, glory hallelujah! Free speech survives in Wisconsin after all. The Constitution prevails. The People are free.
No thanks to the majoritarian progressive opinion leaders in Madison — all of whom were silent as sheriff’s deputies descended on private homes in pre-dawn raids, the homes lit up by blinding floodlights.
On Tuesday, Federal Judge Rudolph Randa stopped the secret, seemingly never-ending John Doe witch hunt dead in its tracks. The criminal investigation was the worst assault on free speech since Joe McCarthy and the House Un-American Activities Committee 60 years ago. No longer may partisan government prosecutors wage their secret vendetta against conservative allies of Scott Walker — and perhaps the governor himself — for conspiring to commit — what? — free speech. The judge noted:
Deputies executed search warrants, seizing business papers, computer equipment, phones and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorney.
Meanwhile, the targets were court ordered to remain silent. No, they could not even protest their treatment, nor proclaim their innocence, under penalty of law. Medieval England’s star chamber courts seem like Romper Room by comparison.
Judge Randa’s 26-page opinion is a bracing defense of the First Amendment, so besieged by today’s progressives. His ruling in O’Keefe and Club for Growth v Schmitz, et al. completely demolishes the case for more government management of citizen speech. It should shame the so-called journalists who remained silent, acquiesced in, or silently thrilled in the pre-dawn speech raids. And that is nearly all of them. Some takeaways:
Money IS speech — “Express advocacy money represents protected First Amendment speech.” Just as money is food, etc. (Try walking out of the supermarket without paying.)
Government censorship is the worse evil — Can money corrupt? Sure. But “the larger danger is giving government an expanded role in uprooting all forms of perceived corruption which may result in corruption of the First Amendment itself. … Maximizing First Amendment freedom is a better way to deal with political corruption than allowing the seemingly corruptible to do so. As other histories tell us, attempts to purify the public square lead to places like the Guillotine and the Gulag.”
Move to Amend is progressive censorship. The O’Keefe decision refutes entirely the case to geld the Bill of Rights. The “Move to Amend” cause has been taken up by the likes of John Nichols, The New York Times, and the Democratic Party. (“Chuck Schumer thinks he can improve on James Madison,” notes The Wall Street Journal, one of the few heroes of the Wisconsin John Doe saga.)
The Bill of Rights restricts government, not the people
The government does not run the government. Rather, the people run their government, first within the framework of the restrictions placed on government by the Constitution, and second by the constitutional rights each citizen possesses that are superior to the operation of government. One of these rights is the First Amendment right to speak freely, which ― has its fullest and most urgent application precisely to the conduct of campaigns for political office.
Randa quoted the 2009 Citizens United v. FEC case: “The First Amendment is premised on mistrust of governmental power.” Indeed, the judge said, the Bill of Rights restricts government, not the people.
The danger always exists that the high purpose of campaign regulation and its enforcement may conceal self-interest, and those regulated by the Constitution in turn become the regulators. [Citing 2014’s McCutcheon v FEC.] “Those who govern should be the last people to help decide who should govern.”
The prosecutors’ ultimate aim would require conservative organizations to report their issue advocacy speech as an in-kind contribution to Scott Walker’s re-election campaign. “This interpretation is simply wrong,” Randa wrote.
Government ‘fine-tuning’ is mischief
Indeed, if the prosecutors had prevailed, would not Paul Fanlund’s sycophantic portrayal of Democrat Mary Burke and hateful treatment of Walker constitute an in-kind campaign donation? Did Fanlund or any of his employees at The Capital Times coordinate with the Mary Burke campaign? Did they place a phone call? Exchange an email?
Over time, various … justifications for restricting political speech have been offered — equalization of viewpoints, combating distortion, leveling electoral opportunity, encouraging the use of public financing, and reducing the appearance of favoritism and undue political access or influence — but the Court has repudiated them all. The First Amendment ― prohibits such legislative attempts to “fine-tune” the electoral process, no matter how well intentioned.
I hope that Mr. O’Keefe, Deb Jordahl (a former blogger of my acquaintance), and R.J. Johnson sue for damages against the Milwaukee district attorney, the cooperating district attorneys in Dane and surrounding counties, and the Government Accountability Board, which authorized this spectacle in the first place.
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