Supreme Court Declines To Ride Waaaaaaaaambulance?
By If I understand the theory advanced by anti-SSM wingers in the Washington state petition case, it’s the same one put forward by that great constitutional scholar Sarah Palin: i.e. that the First Amendment should be understood as insulating speakers from all criticism and all consequences. Fortunately, it looks as if the Supreme Court (with the inevitable exception of Sam Alito) isn’t buying:
People often ask me how it is possible that Ruth Bader Ginsburg and Antonin Scalia are such good friends despite their ideological differences. Argument today illuminates what they have in common: They are both the Jurists of Steel. First Ginsburg lays into Bopp about the fact that the initiative’s own sponsors sometimes sell their list of signatures for fundraising purposes, so the names are really only private with regard to the other guys. “So that would be the end of a person’s privacy,” she snaps.
Then Scalia tags in to ask, “Do you have any case in which we have held that the First Amendment applies to activity that consists of legislating or of adopting legislation?” Working himself into an Originalist froth, Scalia notes that “for the first century of our existence, even voting was public—you either did it raising your hand or by voice,” and then scolds that “running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate.” Scalia ends with the admonition that “[y]ou are asking us to enter into a whole new field where we have never gone before.”
Ginsburg says that in his own brief, Bopp admitted that “you cannot tell anything about the signer’s belief from the mere signature.” It may signal support for the proposition or merely support for letting the people decide or a desire to get away from the signature collector. Bopp replies that “With all due respect, we do not say the third. We did say the first and the second.” Ginsburg, looking as angry as I have seen her in a while, draws his attention to the page in his reply brief where all three arguments are laid out.
Justice John Paul Stevens, the model of civility, breaks in to ask the money question: “Wouldn’t it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?” He adds, “Is there public interest in encouraging debate on the underlying issue?” Bopp replies: “It’s possible, but we think this information is marginal.”
This leads Scalia to bring down the house with: “What about just wanting to know their names so you can criticize them?” Scalia notes that the disclosure of your name is “so you can be out there and be responsible for the positions you have taken.”
Bopp: “Well, then why don’t they require both sides?”
Scalia: “What do you mean, ‘both sides’? The other side hasn’t signed anything.”
Violent threats, of course, are already illegal, but there shouldn’t be any general constitutional right to have your public political actions insulated from any criticism.