PP stays up later than I do so he picked up on South Dakota J.A.I.L.er-in-chief Bill Stegmeier’s lawsuit against the No on E Committee. PP makes several good points but in looking at the pleadings, something jumped out at me.
You may recall that the Amendment E people have taken to holding up a ruling by Judge Rusch as a poster child for J.A.I.L. Their complaint? That because this individual supports Amendment E, Rusch violated the man’s First Amendment rights by telling him he could not post information about his ex-wife on the internet. As I’ve pointed out, this claim is bogus. But what shows up in the pleadings by these great defenders of the Fist Amendment?
It asks the trial judge to enter an “exparte (sic) temporary restraining order” forbidding No on E from airing any television commercials or distributing pamphlets or other materials the litigation claims are untrue. An “ex parte” order is one issued without notice to or a hearing afforded the party against whom the order is sought. So, the people who complain about the judicial system want an order without notice or hearing. While such orders are authorized under limited circumstances, it seems that under Amendment E any judge who issued such an order could be the subject of a J.A.I.L. complaint and sued.
These great defenders of the First Amendment also apparently skipped several days of whatever class they took about the First Amendment. First, the Supreme Court has said in no uncertain terms that the First Amendment “affords the broadest protection to . . . political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'” Buckley v. Valeo (1976) (quoting Roth v. United States (1957)). In fact, the landmark case of New York Times v. Sullivan dealt with a political campaign ad.
Similarly, the order seeks to restrain speech (hence a “restraining order”) before it takes place. The Supreme Court has been as blunt about prior restraints as political speech, saying “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Association v. Stuart (1976). So Amendment E, which trumpets the First Amendment on its web sites and inane blog comments, wants a judge to issue a prior restraint on political speech. Even though hypocrisy isn’t spelled with an e, it sure rhymes with it.
If this is how Stegmeier and Amendment E supporters view the First Amendment, perhaps you’re getting an insight into how they hope J.A.I.L.’s “special grand jury” will work and what they want to use it for.
UPDATE: I understand Judge Gors has scheduled a hearing in the lawsuit for 9 a.m. Wednesday morning The fact a hearing is scheduled would lead me to believe the “exparte” request for a TRO was denied or, at least, deferred.
Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.
Mills v. Alabama, 384 U.S. 214, 218-19 (1966)