Rule of Law Requires Free Expression

Because had Citizens United come down for the alternative, the decision could have been summarized: First, they came for the corporations . . .

The First Amendment protects, in passive voice, the right to free expression.  This is a negative right, one retained by the people rather than traded to the community in exchange for governance/safety.

What if 1A hadn’t been written as a passive, negative protection?  If the Constitution had protected only individuals’ right to expression?  Well — then who counts as an “individual”?  Citizens?  Non-citizens?  Citizens as avatars, or as blogs, newspapers, etc.?

My esteemed — and handsome! — former colleague Reid Smith illustrates the case for broadly-protected speech using the infinitely-flawed Iraqi system as counterexample:

We might have known that come election time in Iraq, it’s rarely the voting that counts.

Controversy surrounding Iraqi Prime Minister Nouri al-Maliki’s attempt to prohibit political rivals from participating in March’s parliamentary election has threatened to splinter Iraq’s fragile democracy. Although the campaign for Iraq’s legislature does not formally begin until next week, 511 would-be candidates, both Shi’a and Sunni, with alleged ties to Saddam Hussein’s Ba’ath party found themselves unexpectedly stuck in political limbo.

The legal face-off pit the prime minister and a powerful Shi’a-led governance commission—one which replaced the original “De-Ba’athification” board established by the Coalition Provisional Authority—against a judicial appeals committee accused of acting under pressure from the United States.

How much pressure is too much?  And when does “campaigning” become “politicking”?

The stakes are high. Oil contacts, the status of U.S. forces, and the political representation of the Iraqi people hang in the balance of the March 7 elections. There have been rumblings that the Accountability and Justice Commission, helmed by several prominent Shi’a politicians, was designed to eliminate rivals and distract voters from the inability of the Maliki government to provide security, basic services and reduce unemployment. The commission’s interests are further blurred by its supervisor, Ahmed Chalabi, erstwhile ally of the Bush administration, who has since been suspected of Persian-politicking with Iran. Regardless, the uproar created by the commission’s judgment to haphazardly blacklist over five hundred aspirant MPs has threatened to drag the country back into the violent sectarian strife.

Last Wednesday, the seven-judge appellate committee that overturned this decision ruled that the banned candidates may participate in the election, although their cases would be revisited, and exhaustively reviewed, after voting. All those found to have legitimate ties to Saddam’s Ba’athist regime, or those found to be in breach of Iraqi election laws, would be permanently barred from participating in parliament. Since that time, of the 511 candidates originally targeted by the Accountability and Justice Commission, many were scratched by their parties, and some have seen their bans lifted. 177 cases remained in the appeals pipeline, but it was revealed Tuesday that only 37 of these petitions were filed correctly leaving the remaining 140 candidates ineligible for participation.

Although al-Maliki initially balked at the court’s decision to reinstate the candidates, and demanded a special session of parliament to uphold the black-listings, a meeting held between the prime minister and the head of the appeals body on Saturday apparently produced a satisfactory compromise. Not surprisingly, this impromptu arrangement may have drastically undercut constitutional law, as the standard appeals process was altered for appearance sake, shortly thereafter.

So it seems rule of law in Iraq still falls to: Say all you want; we’ll decide later whether to punish you for it.  Or, for the Iraqi constitution in peril: First they came for the ex post facto clause . . .


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