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Schubart: Citizens' United

03/27/12 7:55AM By Bill Schubart
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(Host) Commentator Bill Schubart writes about living in Vermont from his home in Hinesburg. Lately he's been thinking about the Supreme Court's "Citizens United" decision, the principle of free speech, and the law of unintended consequences.

(Schubart) Social conservatives like to use the phrase "moral relativism" to describe their liberal counterparts, perhaps because absolutes are simple and easy to remember, if not to live by. Our judicial system was designed for the reality of moral relativism. Whenever we try to impose moral absolutes they fail.

A judge must understand and act on the relative merits of each case. Remember the Rockefeller drug laws and their mandated sentencing? In the ensuing decades judges had little choice but to lock up more young adults than ever before in our history and drug crimes went from street to pharmacy.

A judge must have the same leeway to punish the "feel good" doctor, liberally dispensing opiates to patients , as he or she has to punish the street drug dealer - the same leeway to sentence the well-heeled financial criminal as he or she has to sentence the street criminal who's robbed a convenience store.

Life doesn't respond well to absolutes. One might well argue that the sixth commandment, "Thou shalt not kill," is interpreted more liberally in red states, by means of the death penalty and concealed-carry gun laws.

We like to make things simple, but then again, sometimes we don't when we ourselves feel the pain.

I attended a community meeting recently in which Vermonters discussed practical and impractical ways to express their anger against the Citizens United decision.

The principle behind Citizens United is free speech, the first amendment to our constitution and a founding principle of our democracy. Free speech, however, has always been subject legally to relative rather than absolute interpretation. The free speech that protects pornography does not extend to children. The freedom of expression that protects public proclamations does not include yelling "fire" in a crowded move theater.

Currently, however, it does protect the cannonade of political rhetoric so riddled with made-up facts that fact-checking has become a growth industry.

The group discussed the legal evolution of how "free speech" came to include money and how corporations became "people".

There was also concern expressed that Citizens United trumps the long-standing commercial speech doctrine that governs truth in advertising. If corporations are indeed people and their speech has the same protections, truth-in-advertising falls victim to corporate personhood as well. The sky's the limit.

The judicial activism that conservatives love to condemn, in fact, underlies the evolution of Citizens United and it will take a groundswell of citizen outcry to again differentiate corporations from human beings. Life would be much simpler if we could live by absolutes, but the great challenge and beauty of life lies in its complexity. It places on us the responsibility to think and learn and listen before we act - because the right answers are hardly ever simple.
 

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