Palinprudence: My First Amendment Rights are Threatened by Criticism

Elections are rarely fun for constitutional law scholars to watch. Both Democrats and Republicans mutilate the Constitution to fit into neat political pitches and soundbites. However, Gov. Sarah Palin has reached a new low with her interpretation of the first amendment as threatened by criticism of her views in the media. Palinprudence is to Jurisprudence but Palintology is to Paleontology. Just as Palin believes man walked with dinosaurs, she appears to believe that free speech demands that people allow her to speak without contradiction.

On a conservative radio show, the vice presidential nominee spoke of “attacks” from reporters who have been covering her negative campaign against Barack Obama. The McCain camp is widely viewed by voters are running an extremely negative campaign and Palin has been the main pit bull, as promised, in driving those attacks. Now, Palin has raised a constitutional objection:

“If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”

So, this is how it works under Palinprudence. While the free press is expressly part of the First Amendment, it is the media that is threatening Palin’s right to free speech but criticizing what she says. Put another way, the only way to protect the rights of free speech and free press is to have less of it — at least for critics.

It is a view that would require some considerable re-working of constitutional theory and language to maintain. Just to clear the palate of Palinprudence, here are a few helpful quotes:

“Free speech is not to be regulated like diseased cattle and impure
butter. The audience that hissed yesterday may applaud today,
even for the same performance.” Justice William O. Douglas

“An unconditional right to say what one pleases about public affairs
is what I consider to be the minimum guarantee of the First Amendment.”
Justice Hugo L. Black in New York Times Company vs. Sullivan (1964)

“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve it’s high purpose when it induces a condition of unrest, creates dissatisfaction with things as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for understanding.” Potter Stewart (1967)

“It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.
They are cognate rights, and therefore are united in the first Article’s assurance.”
Judge Wiley B. Rutledge in Thomas v. Collins (1944)

For the full story, click here.

21 thoughts on “Palinprudence: My First Amendment Rights are Threatened by Criticism”

  1. Voice of Reason,
    I am a lifelong Illinois resident and I want Blago to the one picking because that means Obama will have won. I don’t think even Blago would pick himself, but I wouldn’t be surprised to see him pick Lisqa Madigan for the job to try to mend some of his political fences. He can make more money as a governor!

  2. rafflaw…. think again. Ask us Illinois Democrats if we want Blago picking anything except his nose.

    Speculation around the State House has been he will appoint himself. Illinois Dems hate this man, party loyalty be damned. He has said he wants to be President, and a loss for the nomination to run for governor would kill his political career. But if replaces Obama with himself, then he’s national. Lisa Madigan will run for guv, win, and help him with Illinois Dems in exchange for her chance to become guv.

    While Blago will pick a Dem and keep Illinois blue, we fear who it will be. I don’t think IL should have to take a bullet for the nation.

  3. Matt, what does that have to do with the media calling her attacks negative? Either way you put it, she was saying people (other than herself of course) shouldn’t practice free speech because the government might restrict someone’s speech.

    Or of course she is saying what it sounded like she said ‘you are restricting my free speech by calling my speech negative.’

    I don’t really see how one position is worse then the other. It didn’t sound like she came anywhere close to simply attacking the position that speech critical of elected officials should not be restricted.

  4. then you’ll enjoy this…

    If McCain Wins, A Constitutional Dispute May Follow: Why Arizona’s Process to Pick a Senator to Temporarily Fill McCain’s Seat Is Unconstitutional

    As the two parties sprint toward the November election finish line, analysts are focused on who will take the White House, and what the makeup of Congress will be. But there is at least one unnoticed, important, and complex way in which these two questions are linked.

    No matter who prevails, there will be a vacancy in the Senate until an election for a successor can be held, and the relevant state’s governor will be the one who chooses the temporary Senator. Should Senator Obama become President, the Democratic Governor in Illinois (Rod Blagojevich) would almost certainly replace Obama with another Democrat, resulting in no net partisan change in the upper legislative house. But should John McCain win the Presidency, the Democratic Governor in Arizona (Janet Napolitano) might be inclined to appoint a Democrat to replace Senator McCain, thereby giving the Democrats an extra Senate seat to check and balance a McCain presidency (at least until an election is held, in which the temporary Senator will have quasi-incumbent status)…

  5. Jill and Patty C,
    Thanks for the update on Alaskan law. It still looks like my concern may still be a possibility. Even if there is a special election, it is possible Palin might win it. That is scary for Alaska and for the nation. Although it may be an interesting to see Palin spill her wondrous philosophy in the Senate!

  6. Actually, Rafflaw, it’s a bit more interesting…

    AS 15.40.145. Temporary Appointment of United States Senator. [See Revisor’s Note]..

    When a vacancy occurs in the office of United States senator, the governor may, at least five days after the date of the vacancy but within 30 days after the date of the vacancy, appoint a qualified individual to fill the vacancy temporarily until the results of the special election called to fill the vacancy are certified. If a special election is not called for the reasons set out in AS 15.40.140 , the individual shall fill the vacancy temporarily until the results of the next general election are certified.

  7. No, Steve, what am I saying is that if you practice the kind of free speech that the media and elected officials frown upon, such as highly effective “negative ads” by third parties, during political campaign season, then you may well be restricted, as McCain-Feingold tried to do. Palin’s reponse was about the future of America and the pooh-poohing of “negative campaigning.” Poorly stated, yes. Requiring a clarification, yes. A gaffe, not a full policy position, although many hostile to Palin are reacting with glee as if this gaffe is a full policy position. But there is a general attitude in the political class and the establishment media that such advertising, critical of elected officials and bringing new information to light, should be restricted.

  8. Matt, do you really think that is what she was trying to say?

    If it was she was essentially saying:
    If you practice free speech, the government will create laws forbidding free speech, so don’t practice free speech. (I think that is what you are saying)

    Is that really a more charitable interpretation?

  9. Offering a more charitable interpretation than many of her critics, who don’t seem to get their dander up nearly as much about the ridiculous assertions and outright fabrications of Joe Biden, it seems to me Palin was confusing some “rogue” thoughts. If the media convince enough people to give up their freedom to criticize elected officials, because it is “negative campaigning,” then laws will be written forbidding some groups from criticizing elected officials (Such as, for example, McCain-Feingold, which tried to do that very thing). Her closing thought was the source of confusion.

  10. I just saw this. I think this is about the state of our media today.

    CCS Chinese Documentary Film Series
    No Sex, No Violence, No News: The Battle to Control China’s Airwaves

    A film by Sharon Connolly, Susan Lambert and Stefan Moore for Film Australia; 2002; 55 minutes (English and Chinese with English subtitles). This unique film examines the battle raging to control China’s airwaves. Working with a government that allows nothing of social or political import to be broadcast, entrepreneurs from Hong Kong, Singapore, and Australia bring their full complement of consumerism and mindless entertainment to the millions or Chinese greedy for a glimpse of the outside world.

  11. I see Palin’s accusations as an act of complete desperation, ( this desperation also indicated by the many posts repeating the same info about Obama on this blog). Attacking the media while simultaneously using them, has been a tactic of mccain/palin for a while now.

    No one is abridging Palin’s first ammendment rights. Criticizing, evaluating and fact checking Palin’s words are not even close to abridging her speech. The fact that she is deliberately equating the two shows just how disingenuous and desperate that campaign is.

    It seems cheney/bush have communicated the attack the press strategy well. This is an attempt to stifle the press (which doesn’t take much work these days). Republicans should call on their own candidate to show she supports, rather than, subverts this nation’s Constitution.

  12. Hi rafflaw,

    The gov. may not appt. herself or anyone to Uncle Ted’s seat. The law is AK holds a special election if Ted resigns or gets booted out by the Senate. Sarah could run in that special election.

  13. obama gonna lose wrote:


    And ‘prey’ tell, “god”, please ‘hep’ weak and misguided obama gonna lose! Oh wait, there aint no ‘god’ so Sista’ Sarah aint a’gonna be blessed and thar juss aint no ‘hep’ fur obama gonna lose.

    Praise da’ lord an’ pass ‘dem biscuits…Obama gonna win!

    Conservative Republican votin’ for Obama gonna win/Biden and thoroughly ashamed of McCain gonna lose/Palin


    Boston Housing Authority ‘flabbergastered’ Zeituni Onyango living in Southie…

    Obama Aunt says made $260 donation to Obama subjecting her to immediate deportation if in America illegally…

    Kenyan Government orders Obama’s family in Kenya to stop media interviews…

    Obama’s brother STILL living in 9 by 9 hut on $12 per year…

    ZOGBY SATURDAY: Republican John McCain outpolled Obama 48% to 47% in Friday polling. He is beginning to cut into Obama’s lead among independents, is now leading among blue collar voters, has strengthened his lead among investors and among men, and is walloping Obama among NASCAR voters. Joe the Plumber may get his license after all…


    Suicide jumper left ‘note for Obama’…

    State employee says she was ordered to check out ‘Joe the Plumber’…ACLU ignores violations…

  15. She is such a ridiculous creature. Perhaps dangerous if left unattended, but ridiculous nonetheless.

  16. Prof. Turley,
    I love the “Palinprudence” term! It is a good label for her nonsense! Diane is correct that this moose huntress has had a taste of the “show” and will want more of it in a few years. I haven’t had a chance to check on Alaskan law but, I am worried that Sen. Stevens will win his election and then he will enter the federal monastery and Palin as governor will pick his successor. Who would she pick? NO, it wouldn’t be the First Dude, it would be herself! A quick and easy road into the Senate. Won’t that be fun to watch her in a committee hearing trying to ask a question??! If anyone knows if the Alaskan Governor can pick a successor to Stevens I for one would like to know. It is a little scary to think about, but it may be fun watching her continue her “Palinprudence”!

  17. I hope we all have long memories, because the fundamentalists are going to hang on to Palin for ’12.
    If she can weasel her way into Stevens Sen. seat, she will proclaim she has the experience to lead.

    We all have to remember this campaign and hope that Alaskans recall their governor when she returns on Nov. 5th!!!!!

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