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Supreme Court to dismiss all pretense of democracy

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Re: Supreme Court to dismiss all pretense of democracy

Postby connor on Thu Feb 04, 2010 2:13 pm

Lawrence Lessig just released his draft for a proposed amendment to fight the Citizens United case and the overall corporate-purchase of our legislature.

Proposed Constitutional Amendment
DRAFT

1. Congress shall have the power and obligation to protect its own independence, and the independence of the Executive, by assuring, through citizen vouchers or public funding, that the financing of federal elections does not produce any actual or reasonably perceived appearance of dependence, except upon the People.
2. The Freedom of Speech and of the Press shall not be abridged by this Amendment, save that the First Amendment to this Constitution shall not be construed to limit the power of the People to restrict any significant and disproportionate non-party financial influence during the last 60 days before an election, where such influence would reasonably draw into doubt the integrity or independence of any elected official.
3. Courts shall defer to factual judgments about an actual or reasonably perceived appearance of dependence, or the conditions under which a significant and disproportionate non-party financial influence would reasonably draw the integrity or independence of an official into doubt, when such judgments are made by independent, non-partisan commissions whose Members pledge not to enter elected office for a period of at least 10 years after service on the commission.


Notes

1. This section creates an obligation on Congress to assure that the elections of Congress and the Executive are funded in a way that preserves the independence of Members of Congress and the President. It does not mandate any particular mode of funding, but establishes a political obligation on Congress to support a system that does not create actual or reasonably perceived dependence by Members or the President upon any interest save the People.
2. This section clarifies and assures that both Congress and the states have the constitutional authority to create limits on expenditures during the 60 days preceding an election, but only where those expenditures are “significant and disproportionate,” and would reasonably be perceived to undermine the independence of any elected official. This provision does not grant any exception from the First Amendment for the purpose of prohibiting generally any class of speech, whether by persons or legally created entities or associations. In particular, it does not permit a ban of all independent expenditures by corporations. The provision instead simply secures the power to avoid expenditures which are “significant and disproportionate” and would draw the independence of an official into doubt. The “significant and disproportionate” test is drawn from the Supreme Court’s decision in Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009), and simply gives Congress and the states a means to assure the same institutional integrity that the Due Process Clause requires of the Courts.
3. This section creates a safe harbor for judgments made by independent commissions about whether a system for financing elections assures independence or whether a rule for avoiding significant and disproportionate expenditures is justified by concerns about integrity or independence. Courts, both federal and state, are directed to defer to the factual judgments of such commissions if they are (1) independent, (2) non-partisan, and (3) comprised of individuals who pledge not to enter elected politics for a period of at least 10 years. A commission is “independent” if it is adequately funded, and if its Members can be removed only for cause. It is “non-partisan” if no single party has a controlling vote on the commission.
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Re: Supreme Court to dismiss all pretense of democracy

Postby Big John on Thu Feb 04, 2010 5:33 pm

C. Thomas: Some questioning of Court 'irresponsible'

http://news.yahoo.com/s/ap/20100204/ap_ ... NvbWVxdQ--

Don't question you betters. You might think they are are just corrpted fools.
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Re: Supreme Court to dismiss all pretense of democracy

Postby connor on Thu Feb 04, 2010 5:43 pm

Ramifications!

Josh Marshall wrote:If You Got It, Flaunt It

You may have heard that Larry Kudlow, the former Reagan economic adviser, diehard supply-sider, and CNBC host, is considering running against Chuck Schumer for U.S. Senate from New York.

How can Kudlow hope to match the fund-raising prowess of the incumbent Schumer? Thanks to the Supreme Court's decision on corporate contributions in the Citizens United case, we got it covered, a top Kudlow supporter and pal tells TPMDC.

"People who are worried about their taxes, particularly medium- and large-size businesses, would be more interested in helping Larry Kudlow than Chuck Schumer," John Lakian says.
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Re: Supreme Court to dismiss all pretense of democracy

Postby connor on Wed Feb 17, 2010 2:23 pm

Lobby Firm Tells Clients How To Sway Elections While Avoiding 'Public Scrutiny'

Zachary Roth wrote:In the wake of last month's Citizens United ruling, a powerhouse Washington lobbying firm is informing its corporate clients on how they can use middlemen like the Chamber of Commerce to pour unlimited amounts of money into political campaigns, while maintaining "sufficient cover" to avoid "public scrutiny" and negative media coverage.

A "Public Policy and Law Alert" on the impact of the Supreme Court's ruling, prepared by two lawyers for K&LGates and posted on the firm's site last Friday, notes that, thanks to disclosure rules, corporations could alienate their customers by spending on political campaigns -- especially because they could become the target of negative media coverage.

So, what's a corporation looking to advance its political goals to do? According to the alert, written by K&L lawyers Tim Peckinpaugh and Stephen Roberts:

[G]roups of corporations within an industry may form coalitions or use existing trade associations to support candidates favorable to policy positions that affect the group as a whole. While corporations that contribute to these expenditures might still be disclosed, this indirect approach can provide sufficient cover such that no single contributing entity receives the bulk of public scrutiny.

In other words, just use lobby associations as handy pass-throughs, to obscure from the public your involvement in the race. Simple!

In fact, as we've reported, that's a tactic that corporations already routinely use, and that the Chamber of Commerce pioneered over the last decade. But the Citizens' United decision means these campaigns can now directly advocate for the election or defeat of a candidate -- and can do it right up to Election Day.

In an interview with TPMmuckraker, Peckinpaugh denied that the alert represents guidance to clients on how to make an end-run around disclosure rules. "We're just stating what the law indicates," he said.

Peckinpaugh characterized the alert as a Q&A that offers an "assessment" of the state of the law, rather than as legal or strategic advice for clients. "It's just stating the obvious," said Peckinpaugh. Indeed, a disclaimer makes clear that it does "not contain or convey legal advice."

Still, the alert is intended for the firm's corporate clients -- and it appears to give a strong hint as to how K&L is advising those clients behind closed doors.

Another section of the alert makes clear that U.S. subsidiaries of foreign corporations will now be able to spend unlimited amounts to sway elections -- a point that top Republicans like Sen. Mitch McConnell have tried to muddy.

Peckinpaugh and Roberts write:

Will U.S. subsidiaries of foreign corporations be exempt?
Yes. The definition of "foreign national" exempts any person that is "not an individual and is organized under or created by the laws of the United States or of any State or other place subject to the jurisdiction of the United States and has its principal place of business within the United States." 22 U.S.C. § 611(b)(2). The Federal Election Commission ("FEC") has determined that this exemption includes a U.S. corporation that is a subsidiary of a foreign corporation, so long as the foreign parent does not finance U.S. political activities and no foreign national participates in any decision to make expenditures.

On the whole, though, Peckinpaugh and Roberts suggest caution. "Just because a corporation may make an independent direct advocacy expenditure doesn't mean that it should," they write.
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Re: Supreme Court to dismiss all pretense of democracy

Postby warmowski on Wed Feb 17, 2010 2:46 pm

Not that it applies much here, but because I just learned this a couple of weeks ago, I'll wave it around: the Gates in K&L Gates is Bill's daddy. They bought law firm Bell, Boyd and Lloyd here in town not long ago. Okay, who cares.

Can you imagine being a sales guy for a TV network or web ad network or Google working the political arena/season? As it is, there's ten dozen front groups and paid-for-by committees and what have yous who buy commercial time from you. Now there will be twenty dozen. Maybe many of the same persons will be doing the buying under new banners. Maybe sales guys would be invaluable resources to investigative journalists towards building a cocksucker fambly tree.

Then again, maybe handing over the ad buying process to a new crop of cocksuckers aged in their middle 20s is the right cocksucker move there.

Blake, when we hand you $12 million on Monday and on Friday there's still $2 million left, it makes us wonder if you're the right material for us. Are you the right material?

-r
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Re: Supreme Court to dismiss all pretense of democracy

Postby connor on Thu Mar 04, 2010 3:04 pm

Radar Online/HuffPo gave me some serious blueballs this afternoon.

Fuck. Had it been true, I'd probably have taken the rest of the day off and gotten plastered.
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Re: Supreme Court to dismiss all pretense of democracy

Postby Auntie Ovipositor on Thu Mar 04, 2010 4:52 pm

connor wrote:Radar Online/HuffPo gave me some serious blueballs this afternoon.

Fuck. Had it been true, I'd probably have taken the rest of the day off and gotten plastered.


That story was waaaaay too good to be true when Radar published it. Their lack of sourcing made it more so.

Face it - we've got another 15-20 years before he has a heart attack and finally has power wrenched from his hands.

Scalia and Thomas on the other hand...
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Re: Supreme Court to dismiss all pretense of democracy

Postby connor on Thu Mar 18, 2010 4:31 pm

I highly recommend this short paper on the Citizens United case and the long history of corporate power in the U.S.

Super interesting. Somewhere between Thom Hartmann and Mason & Dixon.

Finally, what can we do about the High Court’s marriage to corporate power? I first list what I consider ineffective remedies, and then those that can work, and work quickly.

1. Ineffective remedies
a. Justices may be impeached. This has succeeded only once, to my knowledge, in
1804, when a justice was obviously insane.
b. Within a State a Justice may be recalled, as Rose Bird was. There is no such
provision for Federal judges.
c. A President can appoint anti-corporate judges as vacancies occur. This will happen
at best over a long time-span, but it needs to happen fast because with their newfound pecuniary “free speech” corporations will soon control both Congress and the Executive
even more than they do now.
d. Congress can tighten restrictions on foreign corporations contributing through
American subsidiaries. This is better than nothing, but does not affect Americanchartered
corporations, whoever actually owns them.
e. Congress might ban political advertising by any non-citizen, including any group
that includes a non-citizen. This would entail forcing corporations to identify their
shareholders. This proposal may entail too many steps to be implemented quickly, if at
all. As a layperson I would refer that point to learned counsel.

2. Effective remedies
a. The Executive and the Congress can play hardball by drafting new legislation to
curb corporate contributions, and threatening covertly to raise the corporate income tax as a bargaining chip – a big chip! This calls for a leader who sees the imminent danger, and is willing and able to act firmly and decisively, and communicate credible threats
covertly without breaking any rules, a la FDR. Washingtonians are skilled and
experienced in this sort of thing.
b. The Executive can introduce legislation modeled on the 1937 Reorganization of
Judiciary Act. This act would have given the President power to appoint six new justices.
It was a credible threat that worked by turning FDR’s 4-5 minority into a 5-4 majority, in
spite of a great outcry against it. It is what we need today. It is radical, yes; but the
Court’s ruling is radical, and calls for a remedy equally strong or stronger.
c. Could a simple act of Congress declare that a corporation is not a legal person?
Perhaps so, perhaps no, we need learned counsel to tell the odds. However, a straight line is the shortest distance between two points, and this action would bring the issue quickly to a head.

In summary, we have seen that the United States was born in rebellion against corporations. The U. S. Supreme Court soon began restoring their power. When it overreached, strong executives and popular movements set it back: under Andrew Jackson, Abraham Lincoln, Teddy Roosevelt, and FDR. Today it has overreached again; it remains to see if a new movement or leader will arise to set it back again.
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Re: Supreme Court to dismiss all pretense of democracy

Postby Ty Webb on Wed Oct 27, 2010 3:59 pm

Was just revisiting this issue and decided to look at an opinion contrary to my own, but rooted in legal interpretation rather than higher-order polemic. Led me to this:
http://www.yalelawjournal.org/the-yale- ... s-critics/

It's the Yale Law Journal, so of course it has a conservative, establishment slant. It's insightful for the layperson of any ideological stripe nonetheless. But it was most useful for leading me to this excellent Stanley Fish essay in the NYT, which I found fascinating. (Fish teaches First Amendment law and really digs into the marrow of this decision and the underlying layers of precedent that led us to this pass. Plus the guy is a hell of a literary critic to boot. What a show-off.)

http://opinionator.blogs.nytimes.com/20 ... dment-for/
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Re: Supreme Court to dismiss all pretense of democracy

Postby Antero on Wed Oct 27, 2010 7:06 pm

Ty Webb wrote:It's the Yale Law Journal, so of course it has a conservative, establishment slant. It's insightful for the layperson of any ideological stripe nonetheless. But it was most useful for leading me to this excellent Stanley Fish essay in the NYT, which I found fascinating. (Fish teaches First Amendment law and really digs into the marrow of this decision and the underlying layers of precedent that led us to this pass. Plus the guy is a hell of a literary critic to boot. What a show-off.)

http://opinionator.blogs.nytimes.com/20 ... dment-for/

This Stanley Fish article is shit, written by a man whose understanding of 1st Amendment law and precedent is shallow as a puddle of piss. It offers a dull, simplistic understanding of the workings of law, with a heavy layman's bias that lends unjustified credibility to strict construction (Scalia et al).

This is not the "marrow." This is an embarrassing and idiotic gloss on the subject by a man who is, as Brian Leiter put it, philosophically incompetent.
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Re: Supreme Court to dismiss all pretense of democracy

Postby connor on Thu Oct 28, 2010 12:36 pm

Any defender/defense of the Citizens United ruling can go fuck itself. Just lies and bullshit leading the march to plutocracy.
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Re: Supreme Court to dismiss all pretense of democracy

Postby Ty Webb on Thu Oct 28, 2010 3:21 pm

Okay. Antero, would you like to point out the weaknesses or inaccuracies of Fish's essay?

connor, would you care to point out exactly what in either of the links is defending the wisdom of the decision?

My point is that it's far too simplistic to point to this decision and say "Five Supreme Court justices suck Big Business' dick and 4 don't." The Yale author and Fish were at least right in pointing out that this decision was informed by, and retroactively comments on, many decades of First Amendment analysis and jurisprudence, weren't they?

Neither of those links add anything whatsoever to this discussion? Or is it just time-saving to froth about it in a Manichean manner?

I'm not defending Citizens United. It is, on its face, destructive to democracy. But that does not make inherently disingenuous from a legal standpoint, does it? Was the majority opinion in this case utterly political and legally disingenuous? Can a SCOTUS decision be both legally reasoned, if not legally sound, and counterproductive to democracy? After all, the integrity of our representative democracy and the intricacies of our legal system are not necessarily mutually and perfectly inclusive. They work in a series of additions and subtractions, pushes and pulls, do they not?

This is a complex matter that I thought might be worth some nuanced discussion rather than the internet version of pamphleteering.
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Re: Supreme Court to dismiss all pretense of democracy

Postby connor on Thu Oct 28, 2010 3:32 pm

Ty Webb wrote:connor, would you care to point out exactly what in either of the links is defending the wisdom of the decision?

I didn't read the link. I just slung some froth in its general direction. I issued a blanket statement. Because, honestly, if there's even a small portion in it that defends the SCOTUS decision, froth-slinging is the right thing to do. I'm not interested in "nuanced" arguments that in any way support the Citizens United decision.

I remember reading lots of "intelligently-argued, nuanced" pieces on why we should go to War in Iraq back in 2002 and 2003.
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Re: Supreme Court to dismiss all pretense of democracy

Postby Ty Webb on Thu Oct 28, 2010 3:41 pm

Going to war is not a SCOTUS decision. Legal decisions are based on thousands upon thousands of words of precedent, hours of argument, and the labyrinthine interweavings of previous legal argument.

Is there nothing worthwhile about discussion of how an abhorrent decision came to be made? Judgment is not the sole objective of discourse.

And honestly, I know your post came from justified outrage. I'm more interested in Antero elaborating on his post.
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Re: Supreme Court to dismiss all pretense of democracy

Postby connor on Thu Oct 28, 2010 3:54 pm

Ty Webb wrote:Is there nothing worthwhile about discussion of how an abhorrent decision came to be made?

Okay. I'll start:

Some rich, powerful motherfuckers got freaked out in the 1960s and 70s that there was an excess of democracy in the United States. These motherfuckers created a judicial farm-team full of psychos, fanatics, corporate sycophants, and cynics to install in our government so as to explicitly serve the interests of the aforementioned rich, powerful motherfuckers.

It just so happens that many of them are members of a shadowy-cult created early in the 20th century by wealth-and-power-worshiping clergy to serve the interests of fascist dictators.

The end.

And honestly, I know your post came from righteous indignation. I'm more interested in Antero elaborating on his post.

Hey man, you asked.
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Re: Supreme Court to dismiss all pretense of democracy

Postby Antero on Thu Oct 28, 2010 9:28 pm

Ty Webb wrote:Okay. Antero, would you like to point out the weaknesses or inaccuracies of Fish's essay?

Not really, because every minute spent with that man's shitty writing is wasted, but I'll do it for the benefit of the forum.

Stanley Fish wrote:Kennedy, along with Justices Roberts, Alito, Thomas and Scalia (the usual suspects), is worried that the restrictions on campaign expenditures imposed by the statute he strikes down will “chill” speech, that is, prevent some of it from entering the marketplace of ideas that must, he believes, be open to all voices if the First Amendment’s stricture against the abridging of speech is to be honored.

"Chill," as applied to free speech, is a legal term. To "chill" speech does not mean "to prevent some of it from entering the marketplace of ideas." Chilling speech means to cause citizens to contract the scope of protected speech out of fear of consequences, both clear and unclear.

An example would be the recent 2nd Circuit decision (FOX Television Stations vs. FCC) that ruled that the FCC's indecency regulations were unconstitutionally vague. The court said that the free speech of broadcasters was chilled by the regulations: because they are too vague the broadcaster cannot know what content will draw the agency's attention, and therefore will censor speech that would be both protected by the 1st Amendment and permitted under the regulations. That's what "chill" means.

In Citizens United, Kennedy used the term "chill" in a similar fashion - i.e., the fashion it is actually used - referring specifically to the threat of litigation and fines.

What Fish wrote is simply wrong.

He also says that "The word most important to Justice Kennedy’s argument (he writes for the majority) is “chill,"" which is also wrong: The important words are "association" and "corporate speech." The question of "chilling" is ultimately minor in the social scheme - a much more narrowly tailored decision could have been written, based around the chilling of speech and the uncertainties surrounding this particular statute, that found the statute unconstitutional while continuing to allow restrictions on corporate expenditures in general. That's part of the fucked up thing about Citizens United: there was no judicial restraint, and the resulting opinion was broad in a way that indicated a particular policy agenda.

Stanley Fucking Fish wrote:But even if they thought otherwise, even if they were persuaded by the dire predictions Stevens and those he cites make, they would come down where they do; not because they welcome corruption or have no interest in forestalling it, or discount the value of being concerned with it, but because they find another interest of more value, indeed of surpassing value. That is the value of being faithful to what they take to be the categorical imperative of the First Amendment, which, with respect to political speech, forbids the suppression of voices, especially voices “the Government deems to be suspect” (Kennedy); for if this voice now, why not other voices later?

First: He is tonguing Kennedy's balls so hard.

Second: Describing the First Amendment as a "categorical imperative" is idiotic per se. He's slapping a philosophical universality onto the raw text of the Bill of Rights that is simply absent in jurisprudence. A categorical imperative - brush off your Kant - is absolute, and controls in all circumstances. This is not how the 1st Amendment - nor law - works, and to mistake the text for a literal and absolute statement is a rank legal error.

Stanley Fish wrote:The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism.

That is not called consequentialism. Consequentialism is a general philosophical outlook. Does he mean that such an outlook is consequentialist? Maybe, but I expect a little more from a professor.
Stanley Fish wrote:For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Saying that Justice Stevens does not value freedom of speech for its own sake is an absurd slander, unsupported by the text of the case or precedent, and completely out of line.

Here's where we get to the serious problem with the piece: It engages in an extended bout of fantasy where the outcome of the case is determined by a clash, not of legal doctrines, but of high school-level yin/yang teleology and deontology. He is not describing two schools of legal thought: judges both uphold basic principles and engage in the analysis of outcomes. For fuck's sake, he talks about chilling speech up above, when discussing the majority opinion. A chill is a consequentialist analysis.

Fish's insistence that the majority's application of the First Amendment is "principled" and simply the application of a principle is the result of either intentional deception or colossal stupidity.

I'm going to side with stupidity:
Stanley Fish wrote:In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it

Forget about what speech does? Easy? Are you fucking kidding me? Determining what is or is not speech has been an extremely complex topic for the nation's entire history! Burning a flag is protected speech. Burning a cross is not - the court found that, given its history, it amounted to threats and intimidation. Threats and intimidation are not protected, despite being speech. Conspiring to commit a crime is speech, but it's also illegal. Wearing a jacket is speech.

Is money speech? The court says "yes." This is not "relatively easy."

Stanley Fucking Fish wrote:Only Thomas has the courage of the majority’s declared convictions. Often the most principled of the judges (which doesn’t mean that I always like his principles), he is willing to follow a principle all the way, and so he rebukes his colleagues in the majority for preferring the value of more information to the value the First Amendment mandates — absolutely free speech unburdened by any restriction whatsoever including the restriction of having to sign your name. Thomas has caught his fellow conservatives in a consequentialist moment.

ONE: Thomas is not a principled judge. He's a twat. He's only principled insofar as his views on the Constitution are as opposed to modernity as possible.

TWO: Fish has committed a serious intellectual wrong by declaring the majority, and concurrences, to all be faithful application of a single principle. What, pray tell, is that principle? It's not the literal application of the First Amendment text, because the concept that putting your name down is a restriction is not in the text.

God, I'm sick of reading this fuck's shitty writing. Let me cut to the chase.

The proposition that the decision in Citizens United is the result of a clash between teleological and deontological views of the First Amendment is absolutely fucking wrong. Not only does it fail to address the literal positions of the justices and the various doctrines that underlie the opinions, it also completely leaves out the questions of corporate personhood and money-as-speech.

For example, an originalist - like Scalia usually is, mind, but which he's conveniently abandoned here - could apply the First Amendment in the strictest way possible, but conclude that the founders never intended to give corporations those rights, or that the original understanding of "speech" as intended at the time the amendment was written did not extend to money.

These are the actual issues in the case.

Fish doesn't touch them.

He doesn't touch precedent.

He boils the entire thing down into a shitty freshman philosophy argument so as to bow at the altar of strict constructionism and beatify, as "principled," one of the most hideous Supreme Court decisions in history - hideous both in letter and in spirit.
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Re: Supreme Court to dismiss all pretense of democracy

Postby Antero on Thu Oct 28, 2010 9:36 pm

If you'd like more fun with Fish, there's another New York Times article where he makes the argument that both religion and science rely on "faith."

I basically spat my whiskey all over the computer when I read that one, because that's the sort of shitty argument that you get from the awkwardly-devout home-schooled kid in his first quarter of a college philosophy class, having just discovered epistemological relativism. It's the sort of argument that is made by people who think they are clever and yet are completely ignorant of philosophy.

Stanley Fish has the philosophical acumen of a high school philosophy class led by a moonlighting PE teacher.
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Re: Supreme Court to dismiss all pretense of democracy

Postby enframed on Fri Oct 29, 2010 12:08 am

Antero wrote:
Ty Webb wrote:Okay. Antero, would you like to point out the weaknesses or inaccuracies of Fish's essay?

Not really, because every minute spent with that man's shitty writing is wasted, but I'll do it for the benefit of the forum.

Stanley Fish wrote:Kennedy, along with Justices Roberts, Alito, Thomas and Scalia (the usual suspects), is worried that the restrictions on campaign expenditures imposed by the statute he strikes down will “chill” speech, that is, prevent some of it from entering the marketplace of ideas that must, he believes, be open to all voices if the First Amendment’s stricture against the abridging of speech is to be honored.

"Chill," as applied to free speech, is a legal term. To "chill" speech does not mean "to prevent some of it from entering the marketplace of ideas." Chilling speech means to cause citizens to contract the scope of protected speech out of fear of consequences, both clear and unclear.

An example would be the recent 2nd Circuit decision (FOX Television Stations vs. FCC) that ruled that the FCC's indecency regulations were unconstitutionally vague. The court said that the free speech of broadcasters was chilled by the regulations: because they are too vague the broadcaster cannot know what content will draw the agency's attention, and therefore will censor speech that would be both protected by the 1st Amendment and permitted under the regulations. That's what "chill" means.

In Citizens United, Kennedy used the term "chill" in a similar fashion - i.e., the fashion it is actually used - referring specifically to the threat of litigation and fines.

What Fish wrote is simply wrong.

He also says that "The word most important to Justice Kennedy’s argument (he writes for the majority) is “chill,"" which is also wrong: The important words are "association" and "corporate speech." The question of "chilling" is ultimately minor in the social scheme - a much more narrowly tailored decision could have been written, based around the chilling of speech and the uncertainties surrounding this particular statute, that found the statute unconstitutional while continuing to allow restrictions on corporate expenditures in general. That's part of the fucked up thing about Citizens United: there was no judicial restraint, and the resulting opinion was broad in a way that indicated a particular policy agenda.

Stanley Fucking Fish wrote:But even if they thought otherwise, even if they were persuaded by the dire predictions Stevens and those he cites make, they would come down where they do; not because they welcome corruption or have no interest in forestalling it, or discount the value of being concerned with it, but because they find another interest of more value, indeed of surpassing value. That is the value of being faithful to what they take to be the categorical imperative of the First Amendment, which, with respect to political speech, forbids the suppression of voices, especially voices “the Government deems to be suspect” (Kennedy); for if this voice now, why not other voices later?

First: He is tonguing Kennedy's balls so hard.

Second: Describing the First Amendment as a "categorical imperative" is idiotic per se. He's slapping a philosophical universality onto the raw text of the Bill of Rights that is simply absent in jurisprudence. A categorical imperative - brush off your Kant - is absolute, and controls in all circumstances. This is not how the 1st Amendment - nor law - works, and to mistake the text for a literal and absolute statement is a rank legal error.

Stanley Fish wrote:The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism.

That is not called consequentialism. Consequentialism is a general philosophical outlook. Does he mean that such an outlook is consequentialist? Maybe, but I expect a little more from a professor.
Stanley Fish wrote:For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Saying that Justice Stevens does not value freedom of speech for its own sake is an absurd slander, unsupported by the text of the case or precedent, and completely out of line.

Here's where we get to the serious problem with the piece: It engages in an extended bout of fantasy where the outcome of the case is determined by a clash, not of legal doctrines, but of high school-level yin/yang teleology and deontology. He is not describing two schools of legal thought: judges both uphold basic principles and engage in the analysis of outcomes. For fuck's sake, he talks about chilling speech up above, when discussing the majority opinion. A chill is a consequentialist analysis.

Fish's insistence that the majority's application of the First Amendment is "principled" and simply the application of a principle is the result of either intentional deception or colossal stupidity.

I'm going to side with stupidity:
Stanley Fish wrote:In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it

Forget about what speech does? Easy? Are you fucking kidding me? Determining what is or is not speech has been an extremely complex topic for the nation's entire history! Burning a flag is protected speech. Burning a cross is not - the court found that, given its history, it amounted to threats and intimidation. Threats and intimidation are not protected, despite being speech. Conspiring to commit a crime is speech, but it's also illegal. Wearing a jacket is speech.

Is money speech? The court says "yes." This is not "relatively easy."

Stanley Fucking Fish wrote:Only Thomas has the courage of the majority’s declared convictions. Often the most principled of the judges (which doesn’t mean that I always like his principles), he is willing to follow a principle all the way, and so he rebukes his colleagues in the majority for preferring the value of more information to the value the First Amendment mandates — absolutely free speech unburdened by any restriction whatsoever including the restriction of having to sign your name. Thomas has caught his fellow conservatives in a consequentialist moment.

ONE: Thomas is not a principled judge. He's a twat. He's only principled insofar as his views on the Constitution are as opposed to modernity as possible.

TWO: Fish has committed a serious intellectual wrong by declaring the majority, and concurrences, to all be faithful application of a single principle. What, pray tell, is that principle? It's not the literal application of the First Amendment text, because the concept that putting your name down is a restriction is not in the text.

God, I'm sick of reading this fuck's shitty writing. Let me cut to the chase.

The proposition that the decision in Citizens United is the result of a clash between teleological and deontological views of the First Amendment is absolutely fucking wrong. Not only does it fail to address the literal positions of the justices and the various doctrines that underlie the opinions, it also completely leaves out the questions of corporate personhood and money-as-speech.

For example, an originalist - like Scalia usually is, mind, but which he's conveniently abandoned here - could apply the First Amendment in the strictest way possible, but conclude that the founders never intended to give corporations those rights, or that the original understanding of "speech" as intended at the time the amendment was written did not extend to money.

These are the actual issues in the case.

Fish doesn't touch them.

He doesn't touch precedent.

He boils the entire thing down into a shitty freshman philosophy argument so as to bow at the altar of strict constructionism and beatify, as "principled," one of the most hideous Supreme Court decisions in history - hideous both in letter and in spirit.


Great post, Antero. Thank you.
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Re: Supreme Court to dismiss all pretense of democracy

Postby Chromodynamic on Fri Oct 29, 2010 4:08 am

Antero wrote:If you'd like more fun with Fish, there's another New York Times article where he makes the argument that both religion and science rely on "faith."

I basically spat my whiskey all over the computer when I read that one, because that's the sort of shitty argument that you get from the awkwardly-devout home-schooled kid in his first quarter of a college philosophy class, having just discovered epistemological relativism. It's the sort of argument that is made by people who think they are clever and yet are completely ignorant of philosophy.

Stanley Fish has the philosophical acumen of a high school philosophy class led by a moonlighting PE teacher.


The preceding posts were fantastic, thank you!
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Re: Supreme Court to dismiss all pretense of democracy

Postby Auntie Ovipositor on Fri Oct 29, 2010 12:51 pm

krs wrote:The entire decision is flawed, and anyone who defends it can go fuck themselves

As I posted earlier, the ACLU agrees with this decision and they filed an amacus brief during the trial.I'm more convinced by their legal arguments than yours. Have you read the Bipartisan Campaign Reform Act of 2002 (which the Citizens United case finished striking down)?

Unfortunately, group speech is complicated issue, and the law trying to address it was shitty. As in, it was badly written and didn't have any solid legal underpinning. The basis for the Bipartisan Campaign Reform Act of 2002 was political, not legal. In a tit-for-tat, corporations and unions were barred from engaging in "electioneering communications." That way what were perceived as the big spenders on both sides would have their hands tied.

If you want to differentiate types of what are now considered speech (which I think we can all agree is obviously needed) you need to establish a legal basis for doing so. You want to establish that money isn't speech anymore than violence is you need to do so (because sometimes in the law you need to establish the obvious). You set up a framework that doesn't just address the immediate situation.

And while I completely agree with the political reasons for the law being passed, this law didn't do that. In another century the situation that Bipartisan Campaign Reform Act of 2002 is supposed to address will be entirely different, but that law would still be there (had it not been struck down) and likely ineffectual. All of those Donkeys can't wear dresses on main street laws on the books in lots of cities look silly now because they were designed to address situations that are long dead and they lacked legal principle. History has shown them to be stupid laws.

You know what else is a shitty legal decision? Roe v. Wade. I'm 100% for abortion rights being expanded to the same level as sprained ankle rights (ie, universally available and unquestionable) and have done security at clinics and rallies several times over the last 20 years, so make no mistake about where I stand.

But the legal basis for RvW? Terrible. Blackmun's constitutional arguments are paper thin at best. While that decision has granted rights for the past 40 years, it has done nothing to guarantee them as part of our society. Which is fucked up because some day sooner than later someone's going to mount a serious challenge to it (probably on the Koch brothers' dime) and it's going to go down.

So, as with the Bipartisan Campaign Reform Act of 2002, what we need is a better law establishing (and fortifying) legal principles. We need to address the big issues and establish a legal framework for doing so or we'll keep losing in small increments like this.
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