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Freer SpeechThe lower courts give, as the Supreme Court taketh away.

By Jamin Raskin
Posted Friday, Aug. 10, 2007, at 1:18 PM ET

(Continued from page 1)

Overnight, the Internet vote-swapping movement swept the Internet , as thousands of people joined up on flourishing Web sites, including Voteswap2000.com, created by William J. Cody. But just as quickly, a group of Republican secretaries of state and attorneys general struck back hard.

On Oct. 30, 2000, California's ambitious Secretary of State Bill Jones sent Cody a threat letter. "This letter is to formally notify you that 'Voteswap2000' is engaged in criminal activity in the State of California," he wrote, claiming Cody was brokering the illegal sale and purchase of votes, a felony carrying "a maximum penalty of three years in state prison in California for each violation." Given that thousands of trades had already taken place, Cody was facing thousands of year in jail. He took his site down, and similar official threat letters, from Oregon to Minnesota to New York, quickly followed suit, squelching many Web sites and a vibrant online movement with already tens of thousands of participants. This story, too, is part of the as-yet unwritten history of the stolen presidential election of 2000.

Although this official bullying a week before the presidential election achieved its transparent electoral purposes, the gutsy and Web-savvy Generation X champions of political coalition in 2000—Alan Porter, Patrick Kerr, Steven Lewis, and William Cody—chose to fight for their rights. The ACLU of Southern California and the National Voting Rights Institute brought a case alleging that California's threats against them violated the First Amendment, specifically the freedoms of political expression and association. Surely Americans have a right not only to talk to one another about how they will vote but to form strategic political alliances across state lines to advance their views. Seven years later (better late than never), the 9th Circuit agreed this week that this "kind of communication is clearly protected by the First Amendment."

The court found that "the websites' vote-swapping mechanisms and the communication and vote swaps that they enabled … amounted to efforts by politically engaged people to support their preferred candidates and to avoid election results that they feared would contravene the preferences of a majority of voters in closely contested states. Whether or not one agrees with these voters' tactics, such efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment."

Political freedom has a history of its own. The union activists and their lawyers (Michael Anderson and Arlus Stephens) and vote-trading pioneers and their lawyers (Peter Eliasberg, Mark Rosenbaum, Lisa Danetz ,and Brenda Wright) who stood up for political freedom in these cases now take their rightful place in this history. While America watches the Supreme Court eat away at freedom's progress from the last century, we can experience a small satisfaction that there are federal judges out there who are still doing justice—even when a majority of the judges we call "Justice" are not.

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Jamin Raskin is a professor of constitutional law at American University's Washington College of Law and a Democratic state senator in Maryland serving on its judicial proceedings committee. He filed an amicus brief in Sheet Metal Workers v. National Labor Relations Board on behalf of Greenpeace USA. He was also originally of counsel to the plaintiffs in Porter v. Bowen. He is the author of Overruling Democracy: The Supreme Court Versus the American People.
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It is interesting that a person with scholarly expertise on union law would fail to note that union activity in general was thought by jurists to violate antitrust laws and was proscribed to some degree until special legislation was passed in the 30's. In other words, unions in their basic activities have already been granted supra normal rights.

A resonable interpretation of Taft Hartley is that it represents a political pendulum swing against what was veiwed as abuse of those special rights.

Apart from the free speech issue raised, I had forgotten that Slate allowed its pages to be used by Jamin for partisan political organizing. As far as I'm concerned anyone should be free to so advocate, but I'm appalled that an enterprise with journalistic pretentions would so allow and continue to allow its pages to be used for political organizing.

--Breaker

(To reply, click here.)

When conservatives picket Disney World because of Disney's policies (or liberals picket Domino's because of it's owner's politics), they're not attacking a 'secondary target,' they're attacking precisely the people whose policies they disagree with. And, of course, the government did, in fact, ban protesters from military funerals (precisely to get rid of Fred Phelps and his noxious WBC turds). The whole 'hypocrisy' argument the author tries to set up is nothing more than a thin tissue of blatant LIES in support of unionized thugs attempting to intimidate people who don't even do business with them. Such behavior is disgusting, and rightly forbidden under the best (and fairest) labor law ever instituted in any society (Taft-Hartley).

--Planetary Eulogy

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