By David Hoffman
Imagine, if you will, that the United States government passes a law banning advertisers from sponsoring commercials on Rush Limbaugh's radio show or Rupert Murdoch's Fox (Faux) "News" Network.
On one hand, there would be two decided advantages to this ban: The National IQ would undoubtedly increase several percentage points, and manipulative pseudo-journalists would no longer be able to appeal to the basest instincts in human nature for ratings and profit while laughing all the way to the bank.
But when one imagines how armies of obstreperous "dittoheads," tea partiers, racists and other right-wing fanatics would howl about how this ban negatively impacts their right to "freedom of speech," it is clear such a law would never survive constitutional scrutiny, especially since five such fanatics now comprise a majority of the United States Supreme Court.
One of my former law professors was fond of saying that the "Bible" of America's freedoms, the Bill of Rights, is a "negative" document, meaning that, with a few minor exceptions, it places no affirmative duties on the United States government.
Thus, the general rule has always been that while government cannot abridge the right to freedom of speech, it has no legal obligation to provide the financial resources, or venues, for such speech to occur.
It is this reality that made the Supreme Court's 2010 Citizens United ruling one of the most corrupt and egregious decisions in the court's history. Even prior to Citizens United, a person had to have significant financial resources, impressive academic credentials, celebrity status, or a government policy making position in order to exercise "freedom of speech" in any meaningful manner. In addition, as I've stated in several previous Pravda.Ru articles, the Bill of Rights does not apply to the private sector, which means that "at-will" employees are often afraid to exercise their right to freedom of speech for fear of offending their employers and losing their jobs.
By declaring that corporations and labor unions are now "people" for free speech purposes, the Supreme Court, in Citizens United, actually diminished the average citizen's ability to exercise "freedom of speech" even further. And with labor union membership in the private sector at its lowest level (less than 7%) since 1932, clearly the only entities with the financial wherewithal to effectively exercise "free" speech are the corporations and the modern-day robber barons who run them.
But even this has not been enough for right-wing, anti-labor politicians. Fueled by the desire to further weaken the free speech rights of labor unions, these politicians have engaged in a relentless campaign to deplete labor's financial resources. Recently, Indiana's governor Mitch Daniels successfully obtained passage of a "right-to-work" law that compels labor unions to represent employees in union shops who refuse to pay union dues. And Wisconsin's governor Scott Walker stopped the automatic withholding of union dues from the paychecks of public sector workers, which has (as I stated in Part One of this article) resulted in a decline in union membership.
But then I remembered the final portion of the rule I discussed above: In the competitive "marketplace of ideas," the government also has no right to take financial resources away from persons, groups and organizations engaged in lawful speech activities, even if it disagrees with their message.
This means that, under the Citizens United ruling, Walker's actions in Wisconsin, Daniels' actions in Indiana, "right-to-work" statutes or constitutional decrees in twenty-two other states, and the portion of the Taft-Hartley Act that authorized "right-to-work" laws is now unconstitutional.
Why? By cutting off the ability of labor unions to collect dues, federal and/or state governments diminish their right to freedom of speech.
Conversely, every time federal and/or state governments bail out corporations, grant them tax breaks, and/or give them contracts for government work, they enhance corporate freedom of speech.
In other words, the federal and many state governments are now unconstitutionally financing and favoring one message over the other.
It has been a little over two years since the Citizens United ruling destroyed democracy in America by placing the right to freedom of speech into the hands of corporations and robber barons. In turn, these corporations and robber barons have exploited the political corruption sanctioned by Citizens United to destroy the rights of labor. Today they, and the politicians they own, are arrogantly basking in their "victories."
Now is the time to hoist them on their own petards. If labor unions are persons for free speech purposes, then they have the right to collect the funds necessary to effectively exercise that freedom without government interference; if corporations are now persons for free speech purposes, then federal and/or state governments have no right to favor them by directly or indirectly financing their message; and if the federal judiciary is sincere in its assertion that Citizens United applies fairly and equally to both corporations and labor unions, then "right-to-work" statutes and laws prohibiting the withholding of union dues from union members' paychecks are unconstitutional.
But if the federal judiciary, particularly the United States Supreme Court, would ultimately rule otherwise, it will prove what many have suspected all along: The judicial branch of government no longer functions as an instrument of justice or a "check-and-balance" on the other two branches of government, but simply serves as a facilitator for corporate and political corruption.
David R. Hoffman
Legal Editor of Pravda.Ru
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