Mumia Abu Jamal: A Lesson in Murder, Race, Police Brutality, Political Dissent and a Commencement Speech in Vermont

March 5, 2015

By: Carla Vestal

Mumia Abu Jamal, described by the New York Times as “perhaps the world’s most famous death row inmate” was convicted of killing Philadelphia police officer, Daniel Faulkner in 1981. He was sentenced to death for the crime, and spent the next thirty years living in isolation on Death Row. The latter ten of those thirty years, he spent isolated on Death Row even though a Federal Court judge overturned his death sentence in 2001. Currently, Mumia is still in prison under a life without parole sentence, and living in general population. So, why is this convicted cop killer giving a graduation speech via a pre-recorded phone call to a class from a Vermont college?

Philadelphia, 1981

Philadelphia during the early 1980’s was a city plagued with racial tensions. Just two years before the death of Officer Faulkner, the United States Department of Justice had filed a federal lawsuit against the city’s mayor, Frank Rizzo, and other city officials for condoning police brutality. The suit claimed that in the years 1975-1979, 290 persons had been shot by the Philadelphia police force. During Rizzo’s tenure as mayor, fatal shootings by the police department had increased annually by 20 percent. When Rizzo left office in 1980, fatal shootings decreased by 67 percent. The Pennsylvania House of Representatives Sub-Committee on Crime and Corrections found that the police force lacked internal leadership and that cops frequently engaged in acts of “lawlessness.”[1] [2]

During this time in the city, there was a growing political movement called MOVE. MOVE is described by CNN as a “a loose-knit, mostly black group whose members all adopted the surname Africa, advocated a ‘back-to-nature’ lifestyle and preached against technology.” In 1978, the police began a siege of a house that was occupied by MOVE members. Although it remains disputed who fired the first shot, a Philadelphia police officer was fatally wounded during the hostilities. As television cameras filmed the members of MOVE surrendering to police, the cameras also caught an officer striking the leader of the MOVE political group, Delbert Africa, in the head with the butt of his shotgun as he dragged his body through the street while other officers repeatedly kicked him. The very next day officers had the house bulldozed; completely destroying the crime scene. MOVE members that surrendered to the police that day were charged with third-degree murder, conspiracy, and aggravated assault; all were found guilty and sentenced from thirty to 100 years in prison.[3]

The Shooting

Mumia, born Wesley Cook, was active within the MOVE organization. In his youth, he was involved with the Black Panther party until 1970. It was at this time, when he was a fifteen year old high school student, that he was put under surveillance as part of the FBI’s Counterintelligence Program, COINTELPRO. This program was operated in conjunction and with the cooperation of the Philadelphia police department.   Later in his life, Mumia was a popular radio journalist. He was also the President of the Philadelphia Association of Black Journalists. Often his stories were critical of the police department and other city leaders. At the time of his arrest for the murder of Officer Faulkner, he also drove a cab to earn extra money.

Photo courtesy of National Lawyers Guild.

Photo courtesy of National Lawyers Guild.

At almost 4:00 a.m. on the morning of December 9, 1981, Officer Faulkner stopped a car driven by Mumia’s brother, William Cook, and a passenger nicknamed, “Poppi”.[4] A struggle was occurring between Cook and Faulkner as Mumia, on his shift as a cab driver, happened to drive by. Moments later, as other officers are arriving, Faulkner was dead with two gunshot wounds to his head and back. Mumia sat on the curb with a gunshot from the officer’s gun to his chest, and his legally owned and registered hand-gun a few feet from him on the ground. Mumia and his brother were arrested. Cook was released a couple of days later. Mumia was charged with first degree murder and possession of an instrument of crime.

The Trial and the After Effects

Mumia’s trial began in June 1982, in the midst of heavy media coverage. The interest remains today—a general Google search of “Mumia Abu Jamal trial” brings back 182,000 hits. Proponents of Mumia claim that the adjudication process was fraught with grave injustices to Mumia’s protected civil rights of having a fair and unbiased trial and these concerns were confirmed by the report from Amnesty International. Opponents of Mumia assert that the trial was conducted in an honorable fashion and the initial sentence of death was the correct result.

Mumia has had his death warrant signed two times in the course of post-conviction appeals. In December 2001, the United States District Court of the Eastern District of Pennsylvania upheld the conviction, but vacated the death sentence because egregious errors during the sentencing portion of the original trial. In particular finding, “the jury instructions and verdict sheet in this case involved an unreasonable application of federal law. The charge and verdict form created a reasonable likelihood that the jury believed it was precluded from considering any mitigating circumstance that had not been found unanimously to exist.” Mumia continued to live in solitary confinement, confined for twenty-three hours a day on Death Row for ten years, despite having his death sentence confirmed unconstitutional by the United States Supreme Court. He was finally moved into the general prison population in December of 2011.

Goddard College and the Restriction of Speech

Goddard College is not the run-of the mill institute of higher learning. Students do not have a set schedule, textbooks or a syllabus. Faculty and students meet on campus only twice a year for two weeks at a time and students are “encouraged to question received knowledge and the status quo and to create new understandings of the world and of human experience.” Goddard College is also where Mumia began his college education in the late 1970’s, and where he later finished his degree while serving time on Death Row.

Photo courtesy of Goddard College.

Photo courtesy of Goddard College.

The latest graduating class of Goddard, which consisted of 20 students, unanimously voted to have Mumia as their commencement speaker. The class cited that they wanted Mumia to speak for his “ability to think critically and radically.”

Police and supporters took to the streets of Philadelphia to protest the speech by standing in silence at the spot Officer Faulkner was shot for thirty minutes to “drown out the voice of Mumia Abu Jamal.”

And that is not all the supporters did to try to silence Mumia once more: Pennsylvania state legislators introduced HS 2533, which amends the Crime Victims Act of 1998, by allowing a district attorney in the county were a “personal injury” crime had occurred or by allowing the Attorney General, after conferring with said district attorney, to institute a cause of action against an offender whose actions “perpetuates the continuing effects of the crime on the victim.” The bill defines actions that perpetuates the continuing effects of the crime on the victim as “conduct that creates a temporary or permanent state of mental anguish on the victim.”

Impact on the First Amendment

HS 2533 severely restricts any person ever convicted of a personal injury crime from exercising the freedom of speech found in the First Amendment. This bill does not account for the severity of the crime, the nature of the circumstances surrounding the crime, the length of time from when the crime was committed until the person does any type conduct which creates mental anguish in the victim. That is because not one of those factors matter when addressing rather or not an offender can communicate. The bill restricts all forms of speech the offender can engage in rather it is related to the crime or not.

When Mumia delivered the commencement speech to Goddard via a pre-recorded message accompanied by a slideshow, he never spoke of the crime of which he has been convicted. He never spoke about Daniel Faulkner, Faulkner’s widow, the police, his trial or any other related topic to the controversial episode that occurred back in December 9, 1981. He simply spoke.

Mumia spoke of finding one’s passion in life and following that passion. He spoke about education and how education is the key to expanding the mind, to cultivate awareness and to make change in oneself. He spoke about the perils around the world and how the world desperately needs new ideas to eradicate old problems. Mumia cited classic literary works like the Pedagogy of the Oppressed by Paulo Freire and works of John Dewy. Social change and social transformation is what Mumia impressed upon the graduates of Goddard by telling those listening, “That your job is not to get a job. Your job is to make a difference.”

The issue that remains is not whether or not Mumia killed Faulkner, or whether Mumia got a fair trial; those opinions are for the reader to decide once he or she reviews all of the facts. The court in Pennsylvania holds that he did; thus he remains in incarcerated. The very act of Mumia still being alive is causing the victim, Faulkner’s widow, mental anguish. By HS 2533’s vague and broad standard that alone is enough to ask for a permanent injunction against Mumia. But an injunction against Mumia from doing what? Being alive? How can you place an injunction on someone’s life?

The question is when can the government silence an offender, incarcerated or not, because people do not like what that person is saying or doing. The answer is never. But it is happening. It is happening to Mumia because he spoke about making the world a better place. It is happening to federal prisoners who want to challenge their convictions by prison officials censoring the Jailhouse Lawyer’s Handbook. A conviction of a crime does not simply obliterate a person’s constitutional rights.

And that is the beautiful thing about the country in which we live. All people get to have a voice. It doesn’t matter if you agree or not; it doesn’t matter if you like it or not; and it doesn’t matter what color a person may be; or what religion a person may practice; or where a person may fall on the social hierarchy; or what crime the person may have committed. It shouldn’t matter, but oh, how it does.

[1] For an in-depth analysis on the case of Mumia Abu Jamal see Amnesty International’s full report: http://www.amnesty.org/en/library/asset/AMR51/001/2000/en/0987a185-dfd3-11dd-8e17-69926d493233/amr510012000en.pdf.

[2] For the response to the Amnesty International’s report from Faulkner’s representatives: http://danielfaulkner.com/docs/response.pdf.

[3] “A similar incident occurred in 1985, when a stand-off developed between police and members of MOVE. The siege was ended when a police helicopter dropped an incendiary device on the house, killing 11 of its occupants, including six children (only two occupants survived). The device also started a fire that destroyed over 60 houses in the predominately black area. In 1995, a federal jury awarded MOVE members $1.5 million after determining that the city of Philadelphia had violated their constitutional right to protection against unreasonable search and seizure when the police dropped the bomb.” (Amnesty International Report, 4).

[4] It is disputed by the prosecution that this person even exists.


Religious Freedoms of Public Employees: Why the Magistrate Recusal Bill is Unconstitutional

February 26, 2015

By: Adam Melrose

The North Carolina General Assembly is attempting to limit individual rights once again. Senator Phil Berger, a Republican from Rockingham, NC, filed a bill on January 28, 2015, entitled “Magistrates Recusal of Civil Ceremonies.”[1] This bill would allow any magistrate the right to recuse him or herself from performing a lawful marriage on the basis of a “sincerely held religious objection.” In addition, any magistrate recusing him or herself under this bill would be immune from any disciplinary action resulting from his or her refusal to marry a couple that, under the law, may be lawfully married in North Carolina.

What does this bill mean?

The bill has been featured prominently in the news since it was first introduced in the North Carolina legislature. However, the media has generally provided an erroneous description of this bill, labeling it an “anti-gay marriage bill.” There is some truth to the news reports’ descriptions. This bill appeared in the General Assembly just months after the Federal Fourth Circuit of Appeals ruled that banning same-sex couples the right to marry was unconstitutional. However, this description does not convey the full weight and magnitude that the bill could bring to bear. This bill allows for a magistrate to recuse him or herself for “any sincerely held religious objection.” It does not include language that limits recusals to religious objections based solely upon same-sex marriage.

Under the exact language of the bill, a Catholic magistrate could refuse to perform a marriage of a couple who had been previously divorced by stating that his deeply held religious beliefs object to all divorces. The media, by focusing the general public’s attention on the divisive issue of same-sex marriage, has inadvertently kept the public eye off the true insidious nature of this bill. While there are still plenty of people in North Carolina who are opposed to same-sex marriage, there are few people who would affirmatively state that a public official can refuse to perform a marriage of a previously divorced couple. However, even if the bill was only directed at same-sex marriages, it is unlikely that Berger’s bill would survive constitutional challenge upon being passed into law.

First Amendment Justifications

Berger’s rationale for this magistrate recusal bill is simple: Berger believes that this bill “offers a reasonable solution to protect the First Amendment rights of magistrates and register of deeds employees while complying with the marriage law ordered by the court – so they are not forced to abandon their religious beliefs to save their jobs.” This rationale does not withstand constitutional scrutiny because magistrates are public employees and therefore must abide by the law.

Photo courtesy of Getty Images.

Photo courtesy of Getty Images.

A public employee has no right to object to restrictions placed upon his or her conditions of employment, including those restricting constitutional rights.[2] As Supreme Court Justice Oliver Holmes once said, “A policeman may have the constitutional right to talk politics, but he has no constitutional right to be a policeman.” State actors, as the literal “hand” of the government, are required to follow the laws of the government, even if following those same laws may conflict with personal views held by the government employee that would otherwise be constitutionally protected if the individual worked in the private sector. If the government employee has an issue with a law, it is that employee’s prerogative to quit his or her job and seek employment elsewhere.

Furthermore, the state may not selectively apply laws as it sees fit based upon the whims of each individual state employee. The Equal Protection Clause of the Fourteenth Amendment prohibits this practice explicitly. The Fourteenth Amendment states that no State “shall deny to any person within its jurisdiction the equal protection of the laws.” [3]  The law, as it now stands, affirmatively states that bans on same-sex marriage are unconstitutional. As a result, magistrates, acting on behalf of the government, may not deny a marriage license to a lawfully eligible couple without running afoul of the Fourteenth Amendment. The privately held beliefs of the magistrate are of no consequence, no matter Berger’s attempts to use the language of the First Amendment as a smokescreen for an unconstitutional action.

Berger’s magistrate recusal bill is also not reconcilable with some of the other language in the First Amendment itself. While Berger goes to great lengths to argue that the bill is to protect the magistrate’s “religious beliefs to save their jobs,” this only addresses the “freedom of speech” portion of the First Amendment. [4] The First Amendment also requires the separation of church and state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Supreme Court Justice Hugo Black famously stated that the government may not “pass laws which aid one religion, aid all religions, or prefer one religion to another . . . in the words of Jefferson, the First Amendment clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’”[5]

A Step in the Wrong Direction

This bill, without a doubt, creates a situation where the state government, through its employees, would be able to act based upon their “sincerely held religious objections.” It is irrelevant that there may be magistrates of every religious creed affected by this legislation; the Establishment Clause does not allow the government to pass laws to aid any religion even if the bill does not discriminate in favor of any religion in particular. Berger’s bill discriminates against those magistrates who hold strong moral beliefs that are not centered in religious ideology. This quandary is at the very heart of what the Establishment Clause was created to prevent.

The Magistrates Recusal of Civil Ceremonies bill is a poorly constructed attempt to attack constitutional freedoms central to our country’s creed. The fact that this attack is shrouded by homophobic zealotry adds insult to injury. The members of the General Assembly should look beyond the trappings of Berger’s bill and realize that if this bill were to be passed into law it would only hurt North Carolina’s public image. Besides, Berger’s bill would not make it a month in the court system before being ruled unconstitutional. This is not the attention North Carolina wants, or needs.

 

UPDATE: On February 25, 2015, the NC Senate passed the bill 32-16, exempting magistrates from performing weddings. For more information, see the News Observer and the NC Legislature Bill History.

 

[1] The filed bill can be accessed online here: http://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S2v0.pdf.

[2] Connick v. Myers, 461 U.S. 138, 142-43 (1983).

[3] U.S. Const. Amend. XIV.

[4] U.S. Const. Amend. I.

[5] Everson v. Board of Ed., 330 U.S. 1, 16 (1947).


Public Records Requests in North Carolina: What We’re Not Given, and How The Civil Rights Clinic is Trying to Change That.

February 22, 2013

The Civil Rights Clinic’s Public Records Project is well on its way to drafting a letter to the North Carolina Attorney General addressing the insufficient response format to a public records request in North Carolina

Currently, under North Carolina General Statutes, there is neither an established period in which the state must respond, nor a mandated response format.  When a request is denied, North Carolina Statutes simply state a person who is denied access to public records may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying.

The Public Records Project has implemented a research plan focusing on the North Carolina statute and the approaches of other states to address public records requests and responses.  Currently, the Clinic has researched all 50 states’, and the District of Columbia’s public records statutes, classifying states as those with similar or comparable statutes, those with less stringent requirements than North Carolina, and those with more stringent requirements than North Carolina.  The goal of the statutory research is to determine how other states have either improved or justified their disclosure method, as well as what North Carolina can do to improve its disclosure and response format to resemble that of the Federal Freedom Of Information Act, which requires a detailed index stating the specific exemption for those documents not disclosed known as a Vaughn Index. Though the Clinic’s Public Records Project is concerned predominantly with state law, the Federal Freedom of Information Act’s response format, the Vaughn Index, is a model the clinic is striving towards.

Research so far has shown severe ends of the spectrum. For example, while North Carolina provides no real substance on how a state agency is to format its denial to a public records request, Georgia requires that any decision to withhold all or part of a requested record shall be made known to the person requesting such documents, along with the specific legal authority exempting the requested record from disclosure by Code section, subsection, and paragraph within a reasonable amount of time, not to exceed three business days.

The Civil Rights Clinic’s next step is to delve into case law, Attorney General’s statements, and administrative rulings regarding public records request among all fifty states.  The end goal for the Public Records Project is a letter to the North Carolina Attorney General seeking an opinion addressing the insufficient response requirements to a public records request, along with a proposal for a new standard for public records request responses. It is the hope of the Civil Rights Clinic that research will lead to improvements, not just within North Carolina, but to other states with similar or comparable statutes and those with less stringent requirements.

By Katie Webb


If corporations are people, then…

February 2, 2013

We’ve found a couple of interesting takes on the idea of corporate personhood.  Take a look and post some ideas you have of how to interact on a personal level with a corporate person!

California man says he can drive in carpool lane with corporation papers

Also, see the reblogged post below about some women who decided the best partner is a corporate partner.


What’s law got to do with it? For Same-Sex Couples the Question Remains

January 27, 2013

Charlotte School of Law Law Review’s Annual Symposium  (March 15th 9:00 am – 2:00 pm)

This year, the Law Review is presenting speakers from across the political and ideological gamut to discuss the social institution of marriage, and the effects of marriage laws on states and citizens alike.  As the Supreme Court prepares to hear oral arguments on Hollingsworth v. Perry and U.S. v. Windsor (two major cases that challenge both the Defense of Marriage Act (DOMA) and Proposition 8 (a state marriage law), the Law Review seeks to keep local activists, attorneys, and students on par with the theories that fuel these debates.

The morning panel, “I do, You don’t. A Constitutional Debate on Marriage,” will showcase legal, academic, and social scholars presenting unique and wide-ranging theories on the definition of ‘Marriage.’  The debate will mirror the current issues before the Supreme Court, as proponents and opponents of state and federal constitutional amendments are given the opportunity to fully flesh out the issues before an inquisitive audience of students and attorneys.  The panel will respond to questions from the audience and participation is encouraged as this is an issue that affects all members of the public, regardless of orientation or belief.

As the issues from the first panel resonate, speakers, students, staff and attorneys will have the opportunity to meet and greet, and come together in reflection during a catered lunch.

The afternoon panel, “A Straight and Narrow Path: Navigating the Law for LGBT clients,” will be a practice-oriented discussion of how to serve and advocate for LGBT clients within the existing legal framework.   Topics will include ethical issues that lawyers may face, overcoming state constitutional amendments such as North Carolina’s Amendment One when representing clients in family law or wills and trust issues, discrimination issues, and the relatively new and unique issues faced by transgender clients.

With such a hot topic currently being decided by the Supreme Court of the United States, the Law Review strives to have a wide range of public representation at the Symposium.   Regardless of belief, orientation, practice, or opinion, these are issues that affect each and every person, and if every viewpoint could be represented, the conversation would greatly benefit.

“Alone we can do so little; together we can do so much.” —Helen Keller


Election Day: The President, the Supreme Court, and the Cost of Free Speech

November 6, 2012

“[The] government of the people, by the people, for the people, shall not perish from the earth.” – Abraham Lincoln, The Gettysburg Address, 1863

“Corporations are people, my friend” -Mitt Romney, Iowa State Fair, 2011

Free speech has historically functioned as a bedrock for self-expression and empowerment of the people.  A series of close Supreme Court decisions has changed the nature and balance of this right, resulting in more speech for some and less for others.  The next president will most likely have the opportunity to appoint one or more Justices to the Court.  As we approach this presidential election, whose winner will likely determine the Supreme Court’s direction for some time, we must consider that this essential element of democracy is in danger.  Our union survived the Civil War, but can it survive a corporate takeover?

Like many of our principles and rights, the idea and practice of freedom of speech has evolved. Free speech, as a right, has constricted and expanded since we adopted the Bill of Rights as part of our constitution.    In the mid-1930s, free speech, as we have come to understand it, was established by the Supreme Court and maintained through the mid-1970s as a fundamental component of American democracy.

Since the mid-1970s, however, the Court has unjustifiably shaken this constitutional and cultural understanding.  Coincidentally, the Court has had a conservative majority since 1969.  During this time, the Court expanded corporate, business, and wealthy people’s constitutional speech, while restricting the speech most available to people of ordinary means.  The Court did this, most notably, by instituting the principles that money is speech and corporations are people!

Money Is Speech and Corporations Are People

Prior to 1976, well established First Amendment laws allowed limits on campaign financing because: (1) limits were imposed on money and not directly on speech; and (2) these limits were not total prohibitions on money but, rather, limits on amounts of money.

The Court went about removing the first obstacle to unlimited campaign financing by ruling in Buckley v. Valeo that money is speech; therefore, limits imposed on money are essentially limits imposed on speech.  They then set in motion the removal of the second obstacle, limits on amounts of money, by determining that government may not limit the quantity of protected speech.  This means that limits on the quantity of speech are treated the same way courts have handled complete prohibitions of speech–with the highest level of constitutional protection–and, remember, money is speech.

Viewing speech in this way makes for an attractive argument, as it reinforces the traditional belief that government should not dictate the quantity or intensity of speech.  This supports the idea that limiting the quantity of speech suppresses some measure of speech.  However, the main reason to reject extending heightened constitutional protection to unlimited quantities of money (ahem) speech is ignored: When money is defined as speech and that “speech” is unconstrained, the “speech” of the wealthy drowns out the voice of the common person.  In matters of public debate, the Court has given an almost infinitely large megaphone to one side, and one side only.

In the Buckley decision, in effect, the Court began to really expand constitutional speech rights for persons of means, such as wealthy persons and corporations.  This culminated in the much-debated 2010 case, Citizens United v. Federal Election Commission, which further favored the expansion of the free speech rights of the wealthy by declaring that the government could no longer restrict independent political expenditures by corporation and unions.  These decisions radically diverged from the text and purpose of the First Amendment, now confirming that the person –who is a corporation, is allowed speech–which is money!

But Not All Money/Speech Is Equal

While courts have been expanding the more expensive forms of speech, culminating in ridiculous acts masquerading as free speech, such as massive anonymous contributions to Super-PACs, many limits have been placed on the amount of speech where speech costs less.  Limits placed on non-monetary speech include determining the number of picketers or demonstrators, the number of permits for demonstrations and parades, the level of amplifiers, and the amount and size of protest signs.  The Court justified this in Frisby v. Schultz by considering whether the quantity allowed is “ample” or if more quantity is “necessary to convey [their] message.”  However, courts do not apply this same standard to campaign finance cases and they seem to be oblivious to the hypocrisy of limiting the number or picketers while removing limits on campaign finance.

Restricted Political Speech: The Time, Place, and Manner Doctrine

The Court also has a history of using “reasonable” time, place, and manner restrictions to control speech when it jeopardizes government functions or social interests.  This includes restrictions, such as noise limits in the middle of the night or the classic prohibition of yelling “fire” in a crowded theater.  I agree that some restrictions may indeed be necessary, but the modern Court has expanded the time, place, and manner doctrine so much that lower courts and municipalities are now using the doctrine as a basis for confining First Amendment protected demonstrations, and to selectively restrict the quantity of speech.

Public Property, But No Public Discourse: Public Forum Doctrine

The public forum doctrine is another barrier that the Court has used to limit speech of those with ordinary means.  In 1939, the Court ruled in Hague v. CIO that certain public areas, such as sidewalks and parks are open to free speech regardless of that speech’s point of view and that it is constitutionally forbidden to limit access.  The Court expressly stated, “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.  Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens.”

In the 1980s the Court began to use the doctrine to redefine the concept of a public forum by instituting a threshold for speech.  They rejected protected speech in open, public areas, arguing that speech was not the “principal purpose” of the public space at issue.  This makes no sense.  Speech is rarely the principal purpose of a public facility.  The primary purpose of a meeting oak is to turn sunlight into food so that acorns can be produced, not as a locus for public speech.  We, as a society, have made a constitutional, social, and cultural commitment to freedom of speech, rooted in a traditional understanding of the purpose of speech as a means to further and promote democracy.  That is why public forums have been places of free speech, not because it was the “primary purpose” of the forum.

Appointer-in-Chief

The Court’s modern interpretation is not completely for or against free speech, but, rather, for expanding some speech–specifically speech rights available to very wealthy people, corporations, and businesses, while for limiting some speech–particularly the variety more accessible to the ordinary person.  The Court, beginning with the Buckley decision, set us in this direction by declaring, without a coherent explanation or consistent approach, that money is speech and that government may not limit the quantity of protected speech.  The recent Citizens United decision has expanded and reinforced this idea by declaring that government may not place limits on corporate and union campaign expenditures.  Is this the right track or intent of free speech rights?

The Supreme Court will likely have several vacancies during the next Presidential term.    One presidential candidate’s party has clearly demonstrated a will to expand “speech” of the extremely wealthy time and time again.  While the other candidate has the opportunity to make appointments that could lead to a liberal majority in the Supreme Court for the first time since 1969.  Who we elect as President will determine who is appointed, and that one determination will dictate how free speech rights are interpreted for a very long time; “of the corporations, by the corporations, for the corporations …” just doesn’t have the same ring.


Brandy Hagler is a third year student at Charlotte School of Law.  She is the student chapter President of the American Constitution Society and the student chapter Co-Chair of the National Lawyers Guild.  She is a member of the Civil Rights Clinic at Charlotte School of Law.  She was an advocate for free speech rights during the 2012 Democratic National Convention, organizing National Lawyers Guild efforts in Charlotte, NC.


Free Speech for People Amendment: A Legislative Alternative to the Judicial Decision of Citizens United

October 18, 2012

Do independent expenditures by entities, such as corporations, create corruption or even the appearance of corruption thus diluting the people’s ability to control government?  The majority of the Supreme Court answered the question in the Citizens United v. Federal Election Commission ruling with an emphatic “No.”

What this ruling did, in effect, is give corporations much of the same rights to political speech as individuals.  It means that virtually all restrictions on corporate money in politics have been removed.  In a Slate article, titled The Numbers Don’t Lie, Richard L. Hasen, a leading expert on campaign finance and professor at the University of California at Irvine stated, “after Citizens United, the courts . . . and the FEC [Federal Elections Committee] provided a green light for super PACS to collect unlimited sums from individuals, labor unions, and corporations for unlimited independent spending.  The theory was that, per Citizens United, if independent spending cannot corrupt, then contributions to fund independent spending cannot corrupt either.  . . . So what was once questionable legality before the court’s decision was fully blessed after Citizens United.”

This summer the Supreme Court had an opportunity to take another look at the Citizen’s United ruling and declined.  The Montana Supreme Court upheld the state’s 1912 Corrupt Practices Act limiting independent political spending by corporations.  In a 5-4 ruling the U.S. Supreme Court voted to summarily dismiss the Montana case without oral arguments.

Montana’s Attorney General, Steven Bullock, argued that overturning the Corrupt Practices Act would “make our political process unrecognizable.”  He provided instances of not just the appearance of corruption, but actual corruption caused by this type of spending in the case.  Montana’s Supreme Court held in Tradition Partnership v. Bullock that the ban on such funding in Montana state elections was constitutional.  The U.S. Supreme Court’s 5-4 decision to not hear the case, unfortunately, proffered no rebuttal to the facts presented by Mr. Bullock and appears to have shut out the possibility of Citizens United being overturned by the current Supreme Court.

Is there anything we can do to change this unfortunate precedent? Well, yes, there is a grass roots movement to support a constitutional amendment!  The amendment, banning independent expenditures by special interest groups, has already been introduced in Congress.   Free Speech for People is helping organize efforts amongst concerned citizens to stir municipalities and other local governmental entities to call for Congress and states to act.  Their site provides an opportunity to sign a petition supporting H.J. Res. 88, a bi-partisan Congressional resolution that will amend the Constitution and overturn the Citizens United ruling.  The organization also provides resources to help you promote this amendment in your local and state governments.

The amendment process will eventually require ratification by2/3rds of the states and this grassroots effort helps to inform the electorate of the Amendment and gives representatives notification of what the People want.  According to a survey of 1,000 likely voters, 62 percent of all voters oppose the Supreme Court’s Citizens United decision.  In a poll conducted by Free Speech for People 82 percent of independent voters, 68 percent of Republican voters, and 87 percent of Democratic voters support the amendment.  This isn’t a political issue, this is voter’s rights issue, as Citizens United has allowed special interests to supplant the power of our founding principle of “one man, one vote” with the idea of “more money, more influence.”

For further reading, Corporations Are Not People, by Jeffrey D. Clements, and Republic Lost, by Lawrence Lessig, provide a thorough overview of the problem and its effect on our country. Also, the nationally-recognized expert in election law and campaign finance regulation, Professor Richard Hasen, will be joining the American Constitution Society for an event on Monday, October 22nd at noon.  Professor Hasen will be joining us via Skype and UNC Charlotte Professor of Political Science, Martha Kropf, will be on campus.

The time to act is now.  If you are interested in becoming part of this movement, please email Brandy Hagler, haglerb@students.charlottelaw.edu, or Cleat Walters III, waltersc@students.charlottelaw.edu for more information.

By Cleat Walters III and Brandy Hagler


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