While Seidman was preaching contempt for the Constitution, the radical former law professor Goodwin Liu, whose nomination by Obama to be on the Ninth Circuit Court of Appeals was thwarted by the Senate, was counseling evasion of the First Amendment. (After his federal appeals court nomination was defeated, he was appointed by California Governor Jerry Brown to the California Supreme Court.) With Liu voting in the majority, the California Supreme Court undermined property rights and the First Amendment rule against content discrimination by forcing an employer to host union picketing on its own private property. Liu argues that speech by businesses or other economic entities, or on their premises, can be sharply restricted by the government, to achieve the goals of the modern regulatory state: he approvingly cites progressive legal scholars exulting that “large areas of communication still remain untouched by the First Amendment,” and that “the state [supposedly] may criminalize speech [that] is face-to-face, informational, particular, and for private gain.” This claim is at odds with the First Amendment’s established protection for commercial speech, which liberal justices once defended more avidly than conservatives, before they became less enthusiastic than conservatives about it, as American conservatism became more tolerant, and American liberalism decayed into controlling statist orthodoxy.Libs would be more honest if they just admitted they wanted to get rid of the Constitution, but then again, libs aren't known for their honesty.
Alarmingly, Liu also approving cited a left-leaning legal scholar’s claim “the First Amendment’s coverage in the civil context may be partly explained by the existence or absence of a sympathetic class of litigants or a well-entrenched regulatory scheme.” So if Goodwin Liu doesn’t empathize with you, you apparently don’t deserve free speech (an outlook that echoes Obama’s claim that empathy rather than purely legal considerations should dictate the outcome in certain cases). Liu also argues that “the Supreme Court has consistently rejected First Amendment challenges to content-based speech regulations in the context of labor relations” and that content-based restrictions on speech are just fine in areas like antitrust law. (His argument gives short shrift to Supreme Court decisions limiting the reach of labor and antitrust law on First Amendment grounds, cases like BE&K Construction v. NLRB and the Noerr-Pennington line of cases, and lower court rulings limiting federal law’s reach over speech, like Rodriguez v. Maricopa Community College, and White v. Lee.) Once upon a time, left-leaning judges were more likely to rule in favor of free speech than conservative judges, but, alas, that time has long passed, and UCLA law professor Eugene “Volokh found that the conservatives have been considerably more likely to vote in favor of First Amendment claimants than liberals on the [Supreme] court” since 1994.
Liu’s pinched interpretation of the First Amendment came in a case known as Ralph’s Grocery v. United Food and Commercial Workers Union Local 8. In its decision in that case, the California Supreme Court refused to follow a federal appeals court ruling invalidating a requirement that employers host labor picketing, but not other picketing (Waremart Foods v. N.L.R.B. (2004)). The state supreme court disregarded the fact that a California statute imposing this requirement discriminates based on the content of speech without any compelling reason for doing so (the union could have picketed instead on nearby public property, without trespassing on the employer’s property). It rejected the employer’s challenge to forcing it to host the picketing, based on the reasoning that the employer’s property was not a public forum, which turns logic upside down, since the fact that the employer’s property was not a public forum is an added reason to leave it alone, and since the purpose of public-forum analysis is to distinguish among different owned government-owned settings based on whether public debate is permitted there (such as distinguishing a public park designed partly for speaking and assembly, from a government office designed for working, not public intrusion or debate), not to deny the First Amendment’s protection in private settings where First Amendment norms protected speech even before the concept of a public forum was invented — and which thus are fully protected against government meddling by the First Amendment regardless of whether they resemble “public forums.” As the Ninth Circuit Court of Appeals once noted, “Private property affords the strongest protection to free speech,” so speech in a company-owned bus shelter would be just as protected as speech in a government-owned public forum. Metro Display. Advertising, Inc. v. City of Victorville, 143 F.3d 1191, 1195 (9th Cir. 1998). (For example, your home is not a public forum, but that doesn’t mean the government can restrict speech there — the Supreme Court has said that the government cannot restrict the books that you possess in your own home, even if they contain obscenity that could be banned in public forums, and it has no more power to ban signs that you display from your home based on their viewpoint than it does to ban such signs in traditional public forums.)
Sunday, January 06, 2013
Goodwin Liu Doesn't Like The First Amendment?
How nice it is to know this lib is on the California Supreme Court: