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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.
Clueless in Chicago wrote:I'm going to stop following this thread. A bunch of D&D geeks in a basement somewhere in Oklahomma with their nuts tied around their thighs...
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/
Clueless in Chicago wrote:I'm going to stop following this thread. A bunch of D&D geeks in a basement somewhere in Oklahomma with their nuts tied around their thighs...
Clueless in Chicago wrote:I'm going to stop following this thread. A bunch of D&D geeks in a basement somewhere in Oklahomma with their nuts tied around their thighs...
Ty Webb wrote:Okay. Antero, would you like to point out the weaknesses or inaccuracies of Fish's essay?
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.
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?
Stanley Fish wrote:The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism.
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?
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
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.
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.
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.
krs wrote:The entire decision is flawed, and anyone who defends it can go fuck themselves
Clueless in Chicago wrote:I'm going to stop following this thread. A bunch of D&D geeks in a basement somewhere in Oklahomma with their nuts tied around their thighs...
krs wrote:Immaterial. Constitutional or not, Section 203 was addressed in a way that is not legal.
The SCOTUS was not designed to create it's own court cases and have them fought out to make a larger point. Section 203 is not what was being argued in the case set out before the court. Roberts forced the plaintiff and defendant to argue this point, but it had already been abandoned by both parties. Citizens United dropped it's challenge to section 203. Roberts made them argue against it anyway. That is NOT LEGAL. Anything else is just noise. It's all bullshit.
Roberts should be impeached.
The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.
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