Prop H8 Case is Rejected on Standing

California’s Proposition 8 case was rejected by the Supreme Court based on standing.  This is an important legal term meaning the man who filed the appeal had no basis for doing so because he wasn’t affected by the law.  The ruling means the Court couldn’t rule on the constitutionality of marriage because the party bringing the action had no legal basis for doing so.

It means also that the Ninth Circuit had no basis for deciding the case so the decision of the state court stands making marriage equality the law in California.  This is a win for the LGBT community in a flawed case which prevented a landmark decision affecting the entire country.

DOMA Is Dead

The defense of Marriage Act is unconstitutional according to a decision announced this morning by the Supreme Court.  The decision, written by Justice Kennedy, was expected because he is a major supporter of equal rights.  The Court says (in a 5-4 decision) that DOMA was a violation of the Fourteenth Amendment’s equal protection clause.  This is the argument I’ve been pushing for years:  it is unconstitutional to establish two classes of rights, one for straight people and another for gays and lesbians.

Government May Be Violating Tobacco Companies’ 1st Amendment Rights


A controversial Supreme Court decision less than two years ago could have the unintended consequence of significantly reducing the government’s 46-year campaign against cigarettes.

In a 5-4 decision, largely along political lines, the Supreme Court ruled in Citizens United v. Federal Elections Commission (October 2009) that not only were parts of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Campaign Reform Act) unconstitutional, but that corporations and political action committees enjoyed the same First Amendment rights as private citizens.

The government’s anti-smoking campaigns, most of them the result of a combination of executive department and Congressional action, essentially have three major parts: anti-tobacco advertising and public service messages, warning labels on cigarette packs, and the outright ban on several forms of tobacco company advertising.

Government Advertising

Because the First Amendment applies only to governmental intrusion upon free expression, when the government creates advertising (whether TV ads or pamphlets), there can be no significant First Amendment issues. There may be some recourse, however small, in suits against use of taxpayer funds for political purposes, similar to the government’s role during the George W. Bush administration in forcing anti-abortion education upon women and health clinics.


The anti-smoking campaign had begun with the 1964 Surgeon General’s report that there was a strong correlation between smoking, lung cancer, and chronic bronchitis.. The following year, Congress passed the Cigarette Labeling and Advertising Act that required every cigarette pack to have a health warning: “Caution: Cigarette Smoking May be Hazardous to Your Health.” The Public Health Cigarette Smoking Act of 1969,  taking effect two years later, strengthened the wording on cigarette labels to: “Warning: The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health.”

However, the labels had minimal effect on reducing smoking. In 1984, unwilling to face political consequences from an outright ban, such as it enacted against any form of marijuana, Congress passed the Comprehensive Smoking Education Act that required even stronger messages on each pack.

Last week, the Food and Drug Administration, acting within authority of the Family Smoking Prevention and Tobacco Control Act of 2010, ordered all cigarette manufacturers to include nine new designs on a rotating basis on all cigarette packs. The designs take up the top half, both front and back, of every pack. Several of the messages are medically-supported statements that tell users that cigarette smoking causes cancer. One of the graphics is a pair of cancerous lungs next to a pair of non-cancerous lungs. Another label shows a set of rotted teeth. Another shows smoke coming from a tracheotomy hole.

The FDA also requires that government-approved messages appear on one-fifth of every print ad.

Based upon interpretation of the Citizens United case, it would not be an unreasonable stretch to argue that the newly-required messages, with graphics and text, place an undue burden on a corporation’s rights of free speech by restricting their own message to less than half. Another argument could be made that by forcing the tobacco companies to accept pre-determined text and graphics is de facto government intrusion upon the rights of free expression.

Tobacco Company Advertising

The largest concern for First Amendment consideration is in the area of the federal government imposing restrictions upon advertising and information messages.

In 1967, the Federal Communications Commission, citing the Fairness Doctrine, required radio and TV stations that aired paid ads from tobacco companies to run anti-smoking ads at no cost. Unwilling to give up five to ten minutes a day to unpaid advertising, the stations began “voluntarily” dropping cigarette advertising.

The Public Health Cigarette Smoking Act, which had changed the text of warning labels, also banned cigarette advertising on radio and television. In a concession to the tobacco companies, Congress permitted the law to take effect on Jan. 2, the day after the televised football bowl games. The effect of the law was a loss to radio and television stations of about $200 million a year in cigarette advertising, and a significant increase in advertising in newspapers, magazines, and billboards-and not much reduction in smoking.

A 1991 study in the Journal of the American Medical Association concluded that the cartoon character Joe Camel, advertising mascot for Camel cigarettes, was recognized by 3- to 6-year-olds almost as much as they recognized Mickey Mouse and Fred Flintstone. The AMA charged that R.J. Reynolds, manufacturers of Camel cigarettes, had targeted children; the company denied the charges, but eventually settled the lawsuit for $10 million, the funds to go to anti-smoking campaigns.

In 1998, the Tobacco Master Settlement Agreement was the result of years of litigation and negotiation between the four largest tobacco companies, which controlled about 97 percent of all domestic sales, and 46 state attorneys general; four states had already settled. That agreement exempted the companies from class-action tort liability by citizens filing against the companies for health effects from smoking. The federal government also agreed to provide subsidies to tobacco farmers to cover losses based upon reduction of demand for their product. In exchange, the tobacco companies agree to provide $365.5 billion, with most of the funds going to the states for anti-smoking campaigns, and to allow FDA regulation. Among other provisions, the tobacco companies agreed to cut back advertising and sponsorship of activities, especially those that targeted youth. Because this was a civil case settlement, First Amendment concerns were rendered moot.

However, the Family Smoking Prevention and Tobacco Control Act of 2010 is a government-imposed control that brings to question distinct First Amendment concerns. That Act bans tobacco companies from sponsoring all sports and cultural events, which could loosely be interpreted as a violation of the right of association, not specifically mentioned in wording in the First Amendment but extended by the Supreme Court decisions involving First Amendment guarantees. The Act further bans tobacco companies from displaying all tobacco-related images, including their logos, on any apparel, and also requires most advertising to be black lettering on a white background. Both actions are probable First Amendment violations.

A critical side issue melds labels with the media. It would be nearly impossible for any medium to show anyone with a cigarette pack, whether in news or entertainment, without also showing the government’s message. Any attempt by the government to regulate what appears on screen or in print would violate the First Amendment.

Without the Citizens United decision, the government’s rights to regulate corporate advertising would probably not have significant basis for challenge. With that decision, tobacco corporate entities suddenly have a case.

[This column is meant to be a general overview and not a definitive analysis or detailed case study of possible First Amendment violations of government-imposed sanctions against tobacco companies. Dr. Brasch, professor emeritus of mass communications and journalism, is a specialist in First Amendment and contemporary social justice issues. His latest book is Before the First Snow: Stories from the Revolution.]


Sestak: “Specter Unfit to Serve”

Republicans are insisting that President Obama choose a moderate and are threatening a filibuster if he chooses a liberal for Justice Stevens’ seat.  Of course why not choose another liberal for a liberal seat?  My bet is Obama, an avowed centrist whose previous pick was a centrist, moves the Court towards a center/right split from a left/right split with another centrist.  Why is it though that Republicans can nominate extreme right wing agents such as Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito but Democrats must nominate centrists?  Here’s the real question:  why do Democrats keep allowing it?  Not only do spineless Democrats fail to block GOP extremists to the Court they refuse to appoint even mildly liberal ones themselves.

Sen. Arlen Specter’s re-election prospects got caught in the crosshairs of the SCOTUS arguments over the weekend when former Sen. Rick Santorum disclosed his endorsement for Specter six years ago was bought with a promise Specter, as Chair of the Judiciary Committee, would shepherd whomever George W. Bush nominated.  We can thank Specter for both Alito and Roberts.  How much easier was it for Bush to nominate two extremists knowing Specter was in his camp?

Joe Sestak lambasted Specter over this in a scathing press release this morning:

Specter’s Supreme Court Influence-Peddling Casts Doubt on Fitness to Serve

We always had reason to suspect Arlen Specter would do anything for political survival. Now we have the smoking gun.

Click below for the rest of the statement.

Specter sold out to the radical right in a quid pro quo for Rick Santorum’s endorsement and help winning an election. He pledged to exploit his influence as Chairman of the Judiciary Committee to give anyone picked by George W. Bush a lifetime appointment to the Supreme Court — no matter how partisan, no matter how unqualified.

Why should we believe Santorum’s assertion? At the time, after the far-right threatened to block Specter from the chairmanship, it was reported that he met with Santorum and emerged with this statement: “I have no reason to believe that I’ll be unable to support any individual President Bush finds worthy of nomination.”  Santorum is now clarifying that he extracted a firm pledge that Arlen Specter would do as he was told.

This goes far beyond politics. This strikes at the foundation of our democracy. Specter didn’t just sell out his own integrity this time. As your Senator, he sold you out. He sold us all out. This is about trust.

Arlen Specter says confirming Justices is one of the most important functions of the Senate. He’s right. There are few people who have a greater influence on our country than the Supreme Court Justices charged with interpreting our Constitution. Their rulings determine the character of our country and profoundly affect the lives of every American.

The Justices that Arlen Specter installed as part of this bribe will remain long after he is gone, and their decisions will permanently alter our justice system. America will have to live with the results, like the Citizens United ruling that now permits unlimited corporate money to distort our elections.

For Arlen Specter to undermine the integrity of the Supreme Court just to feed his own ambition is unconscionable. He so coveted the chairmanship — he so wanted to satisfy his own pride by holding up that gavel — that he was willing to be a political puppet. He betrayed the people he was elected to represent; he betrayed his office; he betrayed the rule of law that underpins our nation.

This revelation should permanently shatter the myth of Arlen Specter:

   * He claims he’s independent. But he was really just carrying water for the Bush Administration.

   * He claims he’s a moderate. But here he was doing the bidding of the far-right.

   * He claims he’s pro-choice. But the point of this scheme was to appoint Justices who will overturn Roe v Wade.

   * He claims he fights for Pennsylvania. But he is really just out for himself, with no concern for the impact his actions will have on Pennsylvanians.

Simply put, Arlen Specter has been in it for himself.

He then even switched parties as part of another deal to regain the chairmanship — as he says he struck with the Majority Leader — just underscores the fact that Arlen Specter lacks the integrity to faithfully represent the people of Pennsylvania.

There are many crucial issues at stake in this election, but this incident calls into question the Senator’s fitness to serve, where he believes it’s about ensuring his “entitlement” to his job rather than working for Pennsylvania. Our nation depends on our being able to place our faith in our public servants to act in our best interest, not their own.

I couldn’t have said it better myself.  Sestak raises serious issues around this disclosure by Santorum.  While we’ve known Arlen is willing to sell out anyone, any Party or any issue for his personal gain getting concrete examples other than his switching Parties and getting that information to the voters and drilling it into their mindset before May 18th is critical.

Santorum Says Specter Bought His Endorsement

Rick Santorum dropped a bombshell yesterday which may determine the outcome of next month’s U.S. Senate primary:

“The reason I endorsed Arlen Specter is because we were going to have two Supreme Court nominees coming up. I got a commitment from Arlen Specter that no matter who George W. Bush would nominate, he would support that nominee.”

In 2004 everyone wondered why the then Sen. Santorum endorsed Arlen Specter and campaigned heavily for him in a close Republican primary against Pat Toomey.  Toomey and Santorum are cut from the same political cloth.  Now we understand the motives of 2004.  This year finds Pat Toomey once again running against Democrat Arlen Specter for the seat.  Congressman Joe Sestak, the only real Democrat in the race, is running well behind Specter because he has yet to introduce himself to most voters.

The retirement announcement of Justice Stevens brings this issue tot he forefront.  I’ve said all along that my main opposition to Sen. Specter has been his key involvement putting men such as Clarence Thomas, Samuel Alito, John Roberts and Antonin Scalia on the high court.  I simply cannot support someone so reckless with our fundamental rights.  Now we know that Specter only got that re-election six years ago because he promised Rick Santorum he’d use his Judiciary Chair position to guarantee George W. Bush’s nominees a pass in the Senate.  We have Roberts and Alito as a consequence.  With a new seat going through the nomination process we cannot risk returning Arlen Specter once again.  Republicans are already gearing up for a hailstorm of rhetoric, filibuster and obstructionism over Stevens’ replacement.  Arlen Specter casually sells his votes for his own self interest rather than ours.  This must stop and it can on May 18th.  Vote for Joe Sestak.

Supreme Court Keeping Citizens United in the News

The Citizens United v FEC Supreme Court case continues in the news headlines because Chief Justice Roberts came out this week criticizing the President’s criticism of it in the SOTU.  The President mentioned the decision ion his address because he called for legislation to overturn this most heinous act of judicial activism seen in generations.  The Supreme Court decided that corporations can have no limits on contributions to political campaigns.  In essence they used a 19th century landmark decision saying companies are persons under the constitution to justify them having full rights to completely corrupt our government.

The nation is outraged by such activist Justices, all of whom got on the court by deriding activist Justices.  Their hypocrisy knows no more bounds than their right wing ideology which says the Executive Branch is all powerful and the Judicial, their own, and Legislative branches must submit to a “unitary executive.”

Under Citizens United democracy dies.  Well, what’s left of it will die.  Corporations and Big Business already have a hugely disproportionate influence on Washington.  We need to reduce their influence through public financing of campaigns not by greatly expanding corporate privilege.

The irony of the criticism being levied by these Justices is that they are keeping their mischievous conduct before the public.  Chief Justice Roberts is reminding us of his negligence.  Such is the hubris brought to the Court by the George W. Bush nominees.  I hope he continues because the people need to be reminded every day that Congress must do as the President requested and redress this injury to democracy.

In that regard Congressman Paul Kanjorski today addressed this issue:

Good morning.  Today we meet to examine the likely effects of the Supreme Court’s decision in Citizens United v. Federal Election Commission.  In response to this groundbreaking ruling, Members of Congress have introduced no less than 30 bills.  While other panels in the House have jurisdiction over many of these measures, the Financial Services Committee has the responsibility to examine those bills related to shareholder rights and corporate governance.

Like many, I was disappointed in the Supreme Court’s ruling.  In our system of capitalism, corporations enjoy many benefits designed to promote the efficient allocation of resources in a vibrant economy.  Unduly influencing elections should not be one of those privileges.  Moreover, shareholders have financial interests in companies, not political interests.  Finally, I should note that in our political system people vote; corporations lack such rights.

To limit the influence of the Citizens United decision, the Capital Markets Subcommittee now has under consideration several proposals.  These thoughtful bills generally aim to increase shareholder participation in the electioneering decisions of public companies, enhance public transparency on corporate campaign spending, and contain corporate political activities.

At the very least, we ought to act to empower shareholders to determine whether and how corporations can spend their money for political purposes.  Shareholders should not expect that a company will use their money to invest in candidates that the shareholders themselves do not support.  In this regard, corporate management should obtain some form of approval from their shareholders regarding corporate campaign expenditures.

We also ought to enhance public disclosures of corporate political expenditures.  Many have said that transparency is the best disinfectant.  Better information about how corporations spend money on political activities will help to hold corporations accountable for their actions.

Today, we will examine pending legislative proposals introduced by Mr. Ackerman, Mr. Capuano, Mr. Peters, Mr. Grayson, and Ms. Kilroy that achieve these desired ends.  We will also explore ways to refine these bills.  I look forward to a vigorous debate at this hearing so that we can determine the best way to move ahead on these important policy matters.  Moreover, because we have many ideas concurrently in motion, I am also hopeful that we can work today to achieve consensus, improve coordination, and ensure a comprehensive legislative reaction.

In sum, while courts have long granted corporations the status of personhood, they are not actually people.  We need a legislative response to the Citizens United case in order to restore balance in our democratic system, and corporate governance reforms represent an important facet of an effective solution.  Such reforms can give American citizens – the living, breathing, voting people we are here to represent – faith that our system of representative democracy will long endure and thrive.

Kudos to Kanjorski for leading the way on this most important issue.  Now let us hope Justices Roberts and Alito continue reminding voters what they did and the President’s call to action to change this precedent.

Promoting Firemen

Five activist Justices on the Supreme Court rewrote Title VII of the Civil Rights Act yesterday and no one on the right wing is screaming bloody murder.  Instead they are claiming the 5-4 vote was actually 9-0 (we already knew they’d flunked math) and that the decision sinks the nomination of Sonia Sotomayor for the Court.

Actually it illustrates that she ruled correctly because she and two other Judges decided correctly that the New Haven firefighters suit violated Title VII as previous Courts had ruled.  She actually upheld precedent rather than creating new law.  It was five Justices appointed by Republicans and whom condemn “activist judges” who do exactly what they did who rewrote federal law yesterday.

It is interesting that Republicans only condemn activist judges when they do so against their wishes but not when they decide something based on race, creed, gender or so on which they desire.  It is time to end this specious argument about the role of judges if the right wing lunatic fringe cannot be consistent.

Justice For Sale

The Supreme Court divided yesterday in a decision about buying justice.  A West Virginia businessman facing litigation bought his own Judge through $3 million in campaign contributions and had the case against him dismissed on appeal.  It was an obvious case of someone buying a judge through campaign contributions.  The Court said such Judges must recuse themselves when such obvious conflicts arise.

The decision raises as many questions as it answers.  How much money is too much, is it tied to a timeline?  In other words if your contribute today but a case involving you doesn’t arise for five or ten years does the rule apply?  Thirty nine states elect Judges including Pennsylvania.  We are electing a new Supreme Court Justice this year along with four Superior Court Judges and millions have already poured into campaign coffers.  Business owners wanting friends on the high courts are giving millions to Republican judicial candidates and trial lawyers are giving to Democrats.

The question posed to the Court was, is it improper when a litigant openly gives millions to one candidate in order to directly affect the outcome of litigation in which they are involved?  You’d think the answer would be obvious but four Justices said no.  What this says about our current Supreme Court wouldn’t be proper in a what I try to keep a family friendly website.  

The ultimate solution to all this is apparent:  public financing of all campaigns.  Taking the money out of politics eliminates the “pay to play” corruption and undue influences of those willing and able to part with their cash for undue influence.  It is the nature of our system and the core of which is bad about democracy.  Those with money have power and a voice, those without none.

Obama to Name Sotomayor to Court

Barack Obama is set to nominate Sonia Sotomayor to succeed David Souter on the Supreme Court.  Sotomayor was appointed as a Circuit Court of Appeals Judge by President George H.W. Bush and will be levated to Justice by a Democrat.  A woman and Hispanic she will bring both perspectives to her work and be the third woman and first Hispanic to serve.

Seven of the nine current Justices have been appointed by Republicans and George W. Bush was able to appoint two extreme right wing Justices during his eight years.  At that time Senate Republicans claimed that judicial nominations not be filibustered.  They have since filibustered almost every significant piece of legislation.  It will be interesting to see if they decide, suddenly, that filibustering Supreme Court appointments is appropriate.

I hope the Obama Administration vetted Sotomayor better than they did most of their other appointments.  Another embarrassment at this level will undercut much of the President’s remaining political capital.  

Should Republicans gear up their propaganda machine, as expected, they risk alienating both critical groups of voters:  women and Latinos.  Will they gamble their already small bit of credibility and tick off even more Hispanics?  My bet is yes.  The GOP had its way in naming extremists Scalis, Thomas, Roberts and Alito but will try to argue that liberals not be allowed to balance those right wing votes.  If Republican presidents have been able to appoint ideologues why should Democrats be prohibited from nominating liberals?  Elections do have consequences and this is one of them.

Pressure will be on Arlen Specter to behave better during this advise and consent procedure.  His conduct towards Anita Hill during the Clarence Thomas hearings continues to reverberate among many women and they will be watching to insure the Senator shows the proper deference and respect to Ms. Sotomayor.  Should he not he can kiss his seat good bye.

Justice Souter to Retire

Everyone assumed there would be an early retirement on the Supreme Court this summer but the assumption was that it would be Justice Ruth Bader Ginsberg’s seat.  Instead david Souter is stepping down.  Expect a replacement for Justice Ginsberg too as she fights pancreatic cancer.  This provides President Obama a chance to get back to having two women on the high court.  That remains grossly underrepresented for half the population.

There are many names being bandied about and we’ll discover more about each as we go forward.  The basics:  someone grounded in sound, liberal legal philosophy, of young an age to balance Roberts and Alito, and a firm belief in the rule of law.

Republican unapologetically appointed extremists in Clarence Thomas, Antonin Scalia, Roberts and Alito (we can thank Arlen Specter for them!) so let us not back off appointing liberal Justices.  It is time to rebalance the Court to support the people.