Monday, June 25, 2007

Quick Hits on Wisconsin Right to Life

Just a couple of quick thoughts the Wisconsin Right to Life case:

1. Genuine issue ads are protected speech and they fall into a class of issues that are capabable of repitition but evading review. The Government had argued that the case was moot (a reasonable assertion), but because issues come back with some regularlity, the Court properly ruled that a review is necessary.

2. McConnell and Buckley did not deal with an intent-and-effect test and the Roberts Court won't either. The Court essentially said that the subjective intent of the advertiser is irrelevant. The controlling consideration is:
[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. WRTL’s three ads are plainly not thefunctional equivalent of express advocacy under this test. First, their content is consistent with that of a genuine issue ad: They focus and take a position on a legislative issue and exhort the public to adoptthat position and to contact public officials with respect to the matter.Second, their content lacks indicia of express advocacy: They do notmention an election, candidacy, political party, or challenger; andthey take no position on a candidate’s character, qualifications, orfitness for office.
This is a big, big win for free speech advocates, as the Court should give the benefit of the doubt to speech, not censorhip.

3. This case does not provide fodder for revisiting the ban on corporate contributions which leaves that question for another day.

4. Scalia, being Scalia, chastises the Chief Justice for being too vague with his "no other reasonable interpretation standard." Having not read the Scalia concurrence, I can't say if he announced a substitute or not--given Scalia--probably not.

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