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Soft On Crime: The Governor’s Indictment Thrown Out

The blaring above-the-fold headline in many Texas papers today (February 25, 2016) describes how the Texas Court of Criminal Appeals determined that former Governor Rick Perry committed no crime when he used his government position to coerce local law enforcement into shutting down hundreds of pending criminal investigations into official misconduct.

His defense team did a masterful job of convincing the public generally that he was being prosecuted for having exercised his constitutional authority to veto line-item budget appropriations, when in fact the criminal charges against him had absolutely nothing to do with the actual act of vetoing a legislative appropriation.

I’ve written about this before. The crime wasn’t the veto. The crime was the coercive threat. It is a crime to abuse public authority, using threats to suborn criminal investigations and thereby attempt to induce a public official to act against their own and the public’s best interests.

Here’s some relevant coverage:

https://www.texastribune.org/2016/02/24/texas-high-court-dismisses-rick-perry-indictments/

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/24/charges-against-rick-perry-dismissed-by-texas-high-court-on-constitutional-grounds/

More significant than the outcome is the decision by the Court of Criminal Appeals (influenced by amicus briefing on First Amendment free-speech issues provided by Eugene Volokh and others) that the coercion statute (Texas Penal Code Section 36.03) itself is overbroad as written, and therefore unconstitutional. Here’s a copy of the Texas Court of Criminal Appeals decision in .pdf format: Ex Parte Perry, No. PD-1067-15, Texas Crim. App. (February 24, 2016).

It is a tricky, difficult thing to successfully draft a criminal statute that addresses communication. If someone foments armed revolution, are they committing a crime, or are they just behaving like an average Twitter account holder?

If someone passes a note to a bank teller that reads, “This is a hold-up,” is that someone robbing the bank, or are they just complaining about how long they’ve been waiting in line? Sure, that someone’s wearing a ski mask, but it’s cold outside. And they’re carrying a gun, but maybe that’s just to celebrate their Second Amendment open-carry rights.

I believe the coercion statute was constitutional — it  had a chilling effect only on public expression to the extent that it criminalized credible abuses of office. The statute didn’t prohibit a public official from expressing an opinion, making a case, or shouting from the rooftops. It prohibited a public official possessing the actual capacity to abuse office from holding the public hostage with the threat to exercise that capacity.

 

Floyd Abrams Is Feeling A Little Defensive About “Citizens United”

I haven’t generally talked about campaign finance reform, or about one of the U.S. Supreme Court’s more disastrous policy missteps in that area (namely, Citizens United v. Federal Elections Commission, the 2010 decision that famously ruled that corporations should be freed from federal statutory limitations on their contributions to political campaigns and opinion advocacy).

Thanks in large part to that decision, our political campaigns are now awash with vast sums of corporate money, untraceable dark money contributions, and churning rivers of purchased influence and graft.

The whole topic of campaign finance is depressingly familiar and trite, and outside my comfort zone, because it is a field of political engagement that isn’t amenable to legislative or judicial correction – it is, instead, the tinder of class conflict and armed revolution. And I find revolutions depressing because they are inefficient and cause tremendous collateral damage.

Nevertheless, I was professionally curious about what Floyd Abrams had to say about the free speech clause of the First Amendment and the role he played in getting the Supreme Court to strike down restrictions on corporate political contributions. After all, Mr. Abrams is widely regarded as the most prominent and successful First Amendment litigator practicing in the United States; his absolutist views regarding the sanctity of free speech are unquestioned, and he spoke at Temple University on March 16th, 2015 about what he saw as the greatest threats to free speech rights today. His full lecture is transcribed at concurringopinions.com, and can be viewed here.

Some critics have suggested that Mr. Abrams’ has a rather single-track mind when it comes to questions of free speech, and alas (at least based on these remarks), I have to agree. Mr. Abrams feels the greatest threat to free speech is that people sometimes refuse to allow other people to say awful things. In particular, he seems concerned that campus organizations and individuals often withdraw invitations from racists and lunatics who want to use educational forums to draw an audience.

In decrying this general human preference not to be bombarded with the rantings of crazy people, he cleverly forgets to mention that the free speech clause of the First Amendment doesn’t say, “Nobody shall take any action restraining the free expression of ideas.” It says that Congress shall make no law abridging the freedom of speech.

You and I are still free to abridge the hell out of other people’s speech; we are certainly not obligated as private individuals to entertain the ravings of horrible people, and we can restrict communications to our hearts content. Heck, I do it every day by consciously avoiding Reddit forums!

It’s unfortunate that Mr. Abrams leads off his remarks with such silliness as being mad that horrible people like Ann Coulter sometimes get themselves booted off university campuses, because it trashes his credibility when he talks about other more pressing and complicated aspects of free speech law.

His argument with respect to “Citizens United” is to baldly declare that there’s nothing weird about the idea of giving civil rights to corporations, and that non-individual legal persons have had free speech rights recognized by the Supreme Court since forever – he then cites examples of businesses or institutions that at one time or another have been subject to what he views as restraints on expression, using the examples of (1) a bookstore being subpoenaed for Monica Lewinsky’s customer purchase history; (2) a museum being threatened with censorship by the former mayor of New York because of controversial art being displayed; (3) a movie being threatened with censorship because of sexual content; and (4) a tobacco company facing cruel demands to put dismaying images on its cigarette packs.

Wow. Um. I guess if you try hard enough, you can say that anything is a limitation on free speech. I hope that Mr. Abrams understands on at least some level that privacy cases, cases involving separation of powers and executive authority, and product safety regulations AREN’T ABOUT FREE SPEECH. I suppose that if the police pull me over for running a red light, they are infringing on my demonstrative expression of my disagreement with traffic regulations.

Citizens United is a bad decision for a lot of reasons. But one of the most glaring errors in the decision is the frankly bizarre assertion that because corporations are legal individuals, they are therefore … people … and that as a consequence they are entitled to free speech rights.

Um. No. Corporations are franchises of the sovereign. They exist only at the pleasure of the sovereign, and only to the limit of the sovereign’s license granted to them. As franchises, they are permitted to sue and be sued, to own property, and to possess legal rights identical to or analogous to the rights granted to natural persons. But they are not people, and it is within the sovereign’s right to dissolve their franchise. The Coca Cola Corporation is permitted to operate as a corporation not because it has rights, but because it has privileges granted by the state in which it is incorporated (probably Delaware, but I’m too lazy to look it up.) If Coca Cola Corporation fails to pay its franchise fees, or fails to maintain a structure of corporate governance, it will cease to exist, and will no longer be permitted to do business as a corporation.

Any privilege that the Coca Cola Corporation enjoys as a participant in the political process is subject to revocation at any time, at the pleasure of that which governs.

Aaagh. Sometimes I wonder how stupid ideas like “corporations are people” get started. And if I do get a ticket for running a red light, I do not want Floyd Abrams representing me – I’m afraid he’ll just make a mess of the thing.