Justice Clarence Thomas v President Barack Obama

August 24, 2011 8:52 PM

"The Justices all sit in high-backed leather swivel chairs, and Thomas has set his so that he can recline so far that he appears almost to be lying down. He stares at the ceiling. He rubs his face. He does not appear to be listening. He closes his eyes and sometimes appears to be asleep. The over-all effect is rude, if not contemptuous." The New Yorker profiles Justice Clarence Thomas, his wife Ginni's Tea Party connections and what they might mean for the inevitable SCOTUS ruling on Obama's Patient Protection and Affordable Care Act, and looks back on his confirmation hearings. Previously, Justice Thomas and Ginni; Obama and healthcare; SCOTUS.
posted by reductiondesign (124 comments total)

I hear that Thomas hasn't asked a question in court since 2005.
posted by jeffburdges at 9:00 PM on August 24, 2011

He's been sleeping.
posted by spitbull at 9:00 PM on August 24, 2011

Not only are we still paying for the mistakes of Bush the Lesser; but it's worth remembering that the the Republic is still paying the price for the mistakes of Bush the Senior.
posted by AsYouKnow Bob at 9:01 PM on August 24, 2011 [17 favorites]

He stares at the ceiling. He rubs his face. He does not appear to be listening. He closes his eyes and sometimes appears to be asleep.

I can't speak to any of the rest of this -- but I will say that when I am trying to concentrate as much as possible on someone speaking, I do pretty much exactly what's described here so that I can avoid distractions (as I am easily distracted visually.)
posted by davejay at 9:01 PM on August 24, 2011 [15 favorites]

Thomas is almost certainly a vote against, though. I'm more interested in what Anthony Kennedy's thinking.
posted by Rhaomi at 9:02 PM on August 24, 2011

The republic is still paying the price for the folly of allowing a gerontocracy of lawyers to control the legislative branch.
posted by banal evil at 9:04 PM on August 24, 2011 [5 favorites]

I really wish that the Supreme Court and Judicial branch operated with more (ie. any) transparency. We know precious little about what actually goes on in the courts.

_{And I'm a huge nerd, and would love to watch it on TV}
posted by schmod at 9:05 PM on August 24, 2011 [2 favorites]

And what would anyone expect from the New Yorker on this subject?
posted by Ideefixe at 9:05 PM on August 24, 2011 [1 favorite]

Quality journalism.
posted by AsYouKnow Bob at 9:10 PM on August 24, 2011 [29 favorites]

That New Yorker article is great. Though not a fan of (or expert on) Thomas's politics, the stereotype of him as an intellectual makeweight are hopelessly misplaced, and usually a sign that the stereotyper hasn't read any of Thomas's opinions.

I really wish that the Supreme Court and Judicial branch operated with more (ie. any) transparency. We know precious little about what actually goes on in the courts. And I'm a huge nerd, and would love to watch it on TV

I'm not that big a fan of television, but you can listen to a lot of appellate court hearings on their respective websites, plus there's a huge archive of Supreme Court audio here, with animated transcripts and so on, going back to the 1960s. It's awesome.
posted by anigbrowl at 9:13 PM on August 24, 2011 [3 favorites]

Ideefixe, The New Yorker is one of the most consistently excellent magazines I know. I subscribe to it on Kindle, despite the fact that over half the text of each issue tends to be meaningless to me (New York art, opera and movie listings, reviews), because the reporting is so good.
posted by JHarris at 9:13 PM on August 24, 2011

Wow. The justice actually leans way back in his swivel chair. He must be a terrible, terrible man.
posted by Seekerofsplendor at 9:23 PM on August 24, 2011 [5 favorites]

The Roberts court has thrown out a precedent on regulations of corporate campaign cash, the conventional view of the second amendment. They will soon use the commerce clause to destroy the remnants of the new deal and the geat society along with abortion rights. But remember Bush and Gore were no different as St. Ralph told us.
posted by humanfont at 9:24 PM on August 24, 2011 [11 favorites]

Funny how Justice Thomas demonstrates such reverence for the Founders, *none* of whom (not just the slaveholders) would ever have consented to shake his hand, address him as "Mr.," or share a meal with him. Originalism requires a lot of counterfactuals. And a pick-and-choose attitude toward reality.
posted by homerica at 9:29 PM on August 24, 2011 [16 favorites]

Thomas perjured himself during his confirmation hearings, pure and simple. (never discussed Roe vs. Wade in law school? PuhLEASE.)

He's said very little since then.
posted by ShutterBun at 9:46 PM on August 24, 2011 [2 favorites]

I still love that Hunter Thompson piece about this guy. Bad nominee. Bad judge.
posted by IvoShandor at 9:49 PM on August 24, 2011 [4 favorites]

Though not a fan of (or expert on) Thomas's politics, the stereotype of him as an intellectual makeweight are hopelessly misplaced, and usually a sign that the stereotyper hasn't read any of Thomas's opinions.

Which of Thomas's opinions are so brilliant?
posted by shivohum at 10:04 PM on August 24, 2011 [1 favorite]

I've heard more than a few times that Justice Thomas is just a copy of Justice Scalia.

I firmly disagree. Out of every opinion I have read that Scalia has written, I have disagreed with almost all of them, and I have seen remarkable scholarly merit and often sound reasoning with all of them regardless of my disagreement.

Out of every opinion I have read that Thomas has written, I do not recall a single one I agreed with regardless of outcome or individual reasons and the quality of his arguments are much less consistent.

I'm not a lawyer, and I may not be the best person to judge judges. I do know that I wish Thomas had found himself disgusted with Yale before he graduated and not spent his time on a diploma he found worthless enough to be a step towards his current job.
posted by Saydur at 10:10 PM on August 24, 2011 [3 favorites]

Which of Thomas's opinions are so brilliant?

According to the article, it's not so much that his opinions are "brilliant" but rather that they demonstrate serious scholarship. Also, that his reasonings and opinions have apparently been very influential on other conservative members of the court.
posted by Deathalicious at 10:13 PM on August 24, 2011

Funny how Justice Thomas demonstrates such reverence for the Founders, *none* of whom (not just the slaveholders) would ever have consented to shake his hand, address him as "Mr.," or share a meal with him.

That is a very unfair and somewhat irrelevant comment to make. None of us deserve to be defined and confined by our race, including Thomas. Judge the man on his merits (or lack thereof) alone.

In short, just because you call him "black" does not mean that he is then "black".
posted by KokuRyu at 10:16 PM on August 24, 2011 [4 favorites]

Wow. The justice actually leans way back in his swivel chair. He must be a terrible, terrible man.

I don't know if he's a terrible man, but you're a terrible reader if you only got that far into the sentence.
posted by Blazecock Pileon at 10:44 PM on August 24, 2011 [9 favorites]

I read the article a few days ago, and had my mind changed about the depth of Thomas' intellect. That said, it's not an adaptive, or flexible intellect. Thomas is rigid and unforgiving, bringing a unique mix of simple roots and the advantage of high end education an scholarship to bear in a way that prevents many persons who started as he did from accomplishing the things he has. He's an ivory tower judge, full of judgement, fire, and brimstone.

That said, there are qualities about the man that we can all learn from.
posted by Vibrissae at 10:52 PM on August 24, 2011 [1 favorite]

As long as we have liberal Justices, I think it's better for people like Thomas to also be there and have their say. Differing viewpoints and all that.
posted by reductiondesign at 10:55 PM on August 24, 2011

I found it hard to dispute his argument in Gonzalez v. Raich, for example. I'm no expert on the commerce clause but I share Thomas's skepticism over Wickard v. Fillburn. FWIW I consider myself a liberal, but not a progressive.
posted by anigbrowl at 11:06 PM on August 24, 2011 [1 favorite]

The article was way too kind on him.The man is an ideologue, an extremist whose political views are well to right of the vast majority of Americans. What the writer sees as intellectual integrity I see as his reducing the world to his simple political viewpoints. That he is even taken seriously at all is amazing to me.
posted by Steakfrites at 11:21 PM on August 24, 2011 [3 favorites]

Out of every opinion I have read that Thomas has written, I do not recall a single one I agreed with regardless of outcome or individual reasons and the quality of his arguments are much less consistent.

Not even his dissent in Kelo?
posted by Sticherbeast at 11:29 PM on August 24, 2011

Yeah, I find myself getting tired of the cartoonish picture of Thomas some people put forth. Kelo is a great example of a decision I think Thomas, Scalia et al were on the correct side on while the more liberal justices were not.
posted by Justinian at 12:30 AM on August 25, 2011 [1 favorite]

Kelo is a great example of a decision I think Thomas, Scalia et al were on the correct side on while the more liberal justices were not.

I would definitely be keen to disabuse myself of an admittedly cartoonish picture of Justice Thomas I have. Surely in 20 years of service with the SCOTUS he's had other standout opinions?
posted by ShutterBun at 12:59 AM on August 25, 2011

The Roberts court has thrown out a precedent on regulations of corporate campaign cash, the conventional view of the second amendment. They will soon use the commerce clause to destroy the remnants of the new deal and the geat society along with abortion rights. But remember Bush and Gore were no different as St. Ralph told us.
posted by humanfont at 9:24 PM on August 24 [5 favorites +] [!]

You might have thought those were good laws, but they were unconstitutional. You don't lose your right to speech because you have a lot of money, nor your right to bear arms if you have really big guns.
posted by gjc at 1:04 AM on August 25, 2011

Not even his dissent in Kelo?

A stopped clock is a terrible way to keep time.
posted by Blazecock Pileon at 1:32 AM on August 25, 2011 [7 favorites]

You don't lose your right to speech because you have a lot of money,

Why are you referring to corporations with "you"?

nor your right to bear arms if you have really big guns.

Huh, so the 2nd amendment doesn't allow restrictions on the ownership of nuclear arms? Excellent!
posted by Philosopher Dirtbike at 1:36 AM on August 25, 2011 [13 favorites]

That he is even taken seriously at all is amazing to me.

Not a lawyer, are we?
posted by valkyryn at 2:06 AM on August 25, 2011 [1 favorite]

“If it’s wrong, the ultimate precedent is the Constitution. And it’s not what we say it is, it’s what it actually says, and I think we have to be humble enough to say we were wrong,” Thomas said. In other words, Thomas is humble before his own reading of the constitutional text—and dismissive of the attempts of others, including other Justices, to interpret it.

I think this captures the essence of what annoys many people about originalists in general and Thomas in particular.
posted by Jakey at 2:08 AM on August 25, 2011 [4 favorites]

You don't lose your right to speech because you have a lot of money,

Nobody is proposing stopping the rich man from speaking. As an individual, his right to speak and to campaign absolutely must be respected.

HOWEVER - the power to speak and the power to fund a massive advertising campaign are two different things.

The former needs to be protected by right, to avoid the powerful from silencing the less powerful - so that we can hear all opinions and so that we can all benefit from that diversity. Also, so that no individual feels unduly oppressed by the majority.

The latter is not something that should be protected by right. Why? Because it is utterly, fundamentally different. It involves one individual or a small group of individuals using their power to push a message into the homes and lives many people. As an activity, it is much more like starting a business, producing a film, setting up a church or running a political campaign. You can fund those things, but they are (rightly) regulated, because they can have a huge impact on a lot of other people - including creating the same conditions (where minority voices are silenced) that "freedom of speech" is designed to protect.

It is wrong to pretend that two things that are very different are actually the same. Notice that I haven't said anything about the content of either - the person in the first instance could be a Nazi, the people in the second could be gay right's or pro-choice activists. The point remains - these two things are not the same and the law should be responsive to and recognize that difference.
posted by lucien_reeve at 2:14 AM on August 25, 2011 [18 favorites]

Not even his dissent in Kelo?

Which was lame and pretty much the anthesis of what he claims is the role of the court. For example.

"Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful."

Wait, what? What an activist judge, simply rewriting the law of the land to protect the "poor!"

This was a lousy dissent -- which is why the other three against refused to sign it. It is not the court's place to judge law based on morality. There was repeated precedent that "public good" was equivalent to "public use" and the court held that the "rightness or wrongness" was fundamentally a political question. And, as Richard Posner put, what Kelo did was make that clear, and now, the issue, while lost in this particular circumstance, has been won.

Worse -- the idea that public good *cannot* be a reason for eminent domain makes things like the EPA Superfund cleanup program basically unconstitutional. A number of the parcels taken in that program are closed off to public use. Are you really agreeing with Thomas that they should have been left alone in private hands?

See Hawaii Housing Authority v. Midkiff (467 U.S. 229), where the court ruled that the state may seize via eminent domain to break an oligopoly in land ownership, even though the explicit goal was to take from private hands and place in private hands. In this case, it was 22 people owning 77% of the real estate in Hawaii massively distorting the real estate market. A quote from there. "The Court's cases have repeatedly stated that 'one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid." This was an 8-0 decision, by the way, with O'Conner and Rehnquist voting.

Kelo merely reaffirmed long standing precedent, and to see Thomas demand this time, and pretty much this time only, that the court take a political stance because he disagrees with the actions of an executive body stands to show just how unimportant his strict constitutionalism is. He abandons it when it suits him.
posted by eriko at 2:21 AM on August 25, 2011 [15 favorites]

lucien_reeve: Combined with the freedom of association, both cases are the same. I think there is room in the constitution for regulations that require non-anonymity in corporate speech, but restricting corporate speech is a defacto restriction on the speech of the owners of the corporation. I don't like the results one bit, but the constitution is pretty clear about congress making no law that abridges the freedom of speech.
posted by gjc at 2:54 AM on August 25, 2011

You don't lose your right to speech because you have a lot of money,

If corporations are people, when do they start going to jail?
posted by rodgerd at 3:20 AM on August 25, 2011 [38 favorites]

I remember, I think I remember, Thomas Jefferson, writing something about how corporations were unnatural in that it is possible that they will not die. What do we call things that cannot die?
posted by zerobyproxy at 3:28 AM on August 25, 2011 [2 favorites]

Justice Thomas is playing the game brilliantly. The best thing a person can do when they have a high-paying, high-power job for life is to keep his mouth shut.
posted by Renoroc at 4:31 AM on August 25, 2011 [1 favorite]

restricting corporate speech is a defacto restriction on the speech of the owners of the corporation.

IANAL, but isn't the point of establishing a corporation to create an artificial entity (i.e., to create a barrier between what constitutes "you" and what constitutes "the business?") Corporations seem really good at being not-people when liability is involved, then people again when "speech" is involved.
posted by Rykey at 4:37 AM on August 25, 2011 [16 favorites]

This earlier comment of mine pretty much sums up Clarence Thomas as far as I'm concerned.
posted by TedW at 4:50 AM on August 25, 2011 [2 favorites]

restricting corporate speech is a defacto restriction on the speech of the owners of the corporation.

Only if you say it is. Otherwise it's not. I don't see the framers agreeing with this concept. Original intent only if it suits you.

IAAL.
posted by mygoditsbob at 4:57 AM on August 25, 2011

the power to speak and the power to fund a massive advertising campaign are two different things.

Why?
posted by valkyryn at 5:09 AM on August 25, 2011 [2 favorites]

"restricting corporate speech is a defacto restriction on the speech of the owners of the corporation."

Corporations ( and Non-profits ) being artificial entities created by the State when the Secretary of State accepts your filings, are in theory subject to whatever regulations The State chooses to impose.

If they don't like the regulations, they don't have to incorporate and can forgo the benefits of it.
posted by mikelieman at 5:11 AM on August 25, 2011 [5 favorites]

restricting corporate speech is a defacto restriction on the speech of the owners of the corporation.

No, the owners can still speak. They are people, and have that right. Their speech is as free as anyone else's.

If corporations considered people, they also have that right. If they're not, they may or may not, depending on other law.

Isn't this so?
posted by jet_manifesto at 5:15 AM on August 25, 2011

Your favorite justices go like this, and my favorite justices go like that.
posted by jquinby at 5:27 AM on August 25, 2011 [3 favorites]

Every time I find myself wishing that my own country's constitution contained more in the way of enforceable rights, I remember the insanity which is the US Supreme Court's essentially political function as final arbiter of everything and feel almost grateful that pretty much all we have is our "implied" doctrine of "freedom of political communication" and a lamearse right to be paid back when the Commonwealth takes our stuff that doesn't even apply to State governments.
posted by A Thousand Baited Hooks at 5:55 AM on August 25, 2011

Corporations seem really good at being not-people when liability is involved

How, exactly? The only thing a corporation does is restrict the financial liability of investors/owners to the amount invested. And even then, only to the extent that they were acting in good faith. People doing bad acts get no benefit from doing so under the guise of a corporation.
posted by gjc at 6:19 AM on August 25, 2011

No, the owners can still speak. They are people, and have that right. Their speech is as free as anyone else's.

That's true, but it is kind of like saying "free speech zones are totally fine because people can still speak."

It isn't about what you still have, it is about what is being taken away.
posted by gjc at 6:31 AM on August 25, 2011 [1 favorite]

If Thomas took his Constitutional philosophy to its logical conclusion, his opinions would only count for 3/5 of what they do now.
posted by Benny Andajetz at 6:34 AM on August 25, 2011 [7 favorites]

Corporations seem really good at being not-people when liability is involved

How, exactly?

Sorry, I should have been more careful with my phrasing. Maybe "accountability" or "responsibility" are better words than "liability," which has a more specific legal meaning (see, told you IANAL!).
posted by Rykey at 6:40 AM on August 25, 2011 [1 favorite]

It was a long time ago, although it seems like yesterday; that day when my entire worldview fell apart. That day when I agreed with John McCain.

He argued vehemently against equating money and speech, saying something to the effect that everyone should have free political speech, but that the rich were already sitting in the front row and now we were trying to hand them megaphones.
posted by Benny Andajetz at 6:55 AM on August 25, 2011 [1 favorite]

but restricting corporate speech is a defacto restriction on the speech of the owners of the corporation

No, its a restriction on commercial speech: advertising and marketing a particular act of speech.

By this crazy definition of freedom of speech, blatant false advertising and fraud are protected speech acts, because any corporation is just a person, expressing themselves, regardless of the intent of the speech.

If spending to promote or protect commercial interests is protected speech, then so is outright fraud.

Also, engaging in commercial activity is not speech, nor is broadcasting on the public airwaves. Broadcasting on public airwaves is a way of propagating speech (and historically, broadcast speech has been subject to limits in the public interest), not an act of speech, and it's a way of engaging in speech that is not equally accessible to the public and privileges the speech of the wealthy over those of less advantaged Americans.
posted by saulgoodman at 7:07 AM on August 25, 2011 [4 favorites]

gak. "the speech of the wealthy over those of less advantaged Americans"

Remember, one of the reasons the constitution specifically established a federally funded postal system was to ensure equal access to the means of distributing political speech. Unless you want to start opening up all public broadcast time to a lottery that allows anyone to broadcast their political opinions, you can't claim the gutting of regulation on commercially motivated speech is in any way about expanding the freedom of speech.
posted by saulgoodman at 7:11 AM on August 25, 2011 [4 favorites]

If Thomas took his Constitutional philosophy to its logical conclusion, his opinions would only count for 3/5 of what they do now.

Bullshit. The Constitution includes provisions for constitutional amendments, so amendments were clearly part of the Founders' intent.
posted by valkyryn at 7:37 AM on August 25, 2011 [3 favorites]

And there you have put your finger on the cant of the originalist position: it has no bearing on issues that were decided after 1789 or so. It renders the Constitution a dead document, much as the literalists have rendered the Bible a dead document.

With his contempt for precedent, Thomas is simply and nakedly a political justice. His position is arbitrary and unpredictable in the lower courts. Which means the courts are just gambling parlors where you go to roll the politically loaded dice.

Praising Thomas for his consistency is like praising any narrow minded bigot for consistency: consistently wrong.
posted by warbaby at 7:45 AM on August 25, 2011

Bullshit. The Constitution includes provisions for constitutional amendments, so amendments were clearly part of the Founders' intent.

Bait taken.

So privacy wasn't an intent, because it wasn't written in so many words? Thomas has an axe to grind, as does everyone."Scholarship" has fuck all to do with it.
posted by Benny Andajetz at 7:49 AM on August 25, 2011

The argument about removing regulation from corporate cash used in politics is almost identical to the argument about removing regulation from anything. The argument seems to be that because X is regulated it makes us less free. If you don't think corpate speech should be regulated you probably believe it for the same reasons other people don't think mines and oil drills should be regulated, or banks and wall street. All of the reasons that apply to one apply to the other. The real difference is how the first ammendment should be applied to this case and that depends on how absolute you find the first ammendment to be and what actually constitutes speech.

Which is a roundabout way of my asking: if you support Citizens United v FEC but are ok with some other limitations that are put on speech why do you support limits in one area but not others? If you're ok with that ruling on the grounds of the first ammendment but want to keep threats to the president illegal what is the difference to you?
posted by Green With You at 7:51 AM on August 25, 2011

I remember, I think I remember, Thomas Jefferson, writing something about how corporations were unnatural in that it is possible that they will not die. What do we call things that cannot die?
posted by zerobyproxy at 3:28 AM on 8/25 
[1 favorite +] [!]


We call them zombies or vampires!
posted by Katjusa Roquette at 7:53 AM on August 25, 2011

No, its a restriction on commercial speech: advertising and marketing a particular act of speech.

By this crazy definition of freedom of speech, blatant false advertising and fraud are protected speech acts, because any corporation is just a person, expressing themselves, regardless of the intent of the speech.

If spending to promote or protect commercial interests is protected speech, then so is outright fraud.

Nope. Individuals can be sanctioned for publishing false statements. So can corporations. I get that you don't like corporations, but you're misstating the law.

You seem to be assuming two things. First, that commercial speech oughtn't to receive any protection by the First Amendment. The Supreme Court already recognizes that commercial speech does not receive as much protection as non-commercial speech, but it does recognize that commercial speech merits at least some First Amendment protection, even if the government can regulate commercial speech more than non-commercial speech. If the First Amendment didn't apply to commercial speech, not only could we outlaw advertising entirely--which nice as it may sound isn't really a good idea--but even things like record labels and movie studios could find themselves subject to regulation, because even though they're selling what is admittedly art, it's clearly commercial in nature. This isn't a result we want. So commercial speech must have at least some First Amendment protection.

Second, you seem to think that any and all speech by a business entity is inherently commercial. It isn't, nor should it be. Unions are business entities, Individuals can and do engage in commercial speech, and their commercial speech receives no more or less protection than corporate commercial speech. Likewise, corporations can and do engage in non-commercial speech, and this receives exactly as much protection as individual non-commercial speech. Neither of these things reflect the current state of the law.
posted by valkyryn at 7:59 AM on August 25, 2011 [3 favorites]

So privacy wasn't an intent, because it wasn't written in so many words? Thomas has an axe to grind, as does everyone."Scholarship" has fuck all to do with it.

Don't be dense.

Slavery was abolished by a series of constitutional amendments adopted under the procedures in Article V.

The "right to privacy" was added in by judicial precedent.

Regardless about what one happens to think about the rightness or wrongness of those two things, there is a manifest difference in the way they came about.
posted by valkyryn at 8:01 AM on August 25, 2011 [2 favorites]

if you support Citizens United v FEC but are ok with some other limitations that are put on speech why do you support limits in one area but not others?

The difference is, as always, in the facts. The argument underlying Citizens United isn't that the First Amendment is absolute, but that the type of speech being regulated is in a category that has traditionally been maximally protected.

Political speech has been recognized from the very beginning as receiving the highest level of First Amendment protection. It was political speech that the Founders had in mind when they drafted the thing, as the British had made some pretty rigorous attempts to suppress political speech.

Threats, not just against the President but against anyone, have been recognized from the very beginning to receive just about no First Amendment protection. True threats are in the same category as libel and slander, which have always been beyond the First Amendment.
posted by valkyryn at 8:06 AM on August 25, 2011

The "right to privacy" was added in by judicial precedent.

See, this is my problem with so-called strict constructionalists. They refuse to see what's right in front of them.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That doesn't show any intent regarding privacy? If you say no, with all due respect, you are blind.
posted by Benny Andajetz at 8:08 AM on August 25, 2011 [1 favorite]

The "right to privacy" was added in by judicial precedent.

The right to privacy was not added, it was recognized. The right to privacy exists by a clear reading of the Bill of Rights (Also: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.")
posted by Philosopher Dirtbike at 8:09 AM on August 25, 2011

Not a lawyer, are we?
posted by valkyryn

Haha I've often thought that you couldn't be a lawyer, because you are so consistently wrong, and your instincts seem so off, but i know you claim to be one here on the blue so I haven't wanted to say anything.

Anyway, in law school, at least in good law schools, Clarence Thomas is basically laughed at by everyone, including seriously right-wing people.
posted by goneill at 8:13 AM on August 25, 2011 [1 favorite]

Wow. The justice actually leans way back in his swivel chair. He must be a terrible, terrible man.
posted by Seekerofsplendor at 9:23 PM on August 24 [4 favorites +] [!]

I have seen him do this at oral argument in person -- it's actually quite striking how disrespectful it looks. I've seen a fair amount of judges on the bench (from unemployment insurance "hearing examiners" on up) and I have never seen one act so ostentatiously uninterested in the proceedings. There is really no other conclusion to be made except for that he is conciously trying to communicate his disregard.

As for his opinions vs. Scalia's -- I usually disagree with Scalia, but his opinions and dissents do a fantastic job of cutting through the mire of confused legal reasoning and pointing out what's really going on. His dissents are often very useful in trying to put together legal arguments later on, because he demonstrates exactly where the law doesn't make sense -- and this is true even if the dissent is not helpful for my own case. Scalia has his hobby horses that he inserts at every turn (mainly, the illegitimacy of legislative history in statutory interpretation), but this is very different Justice Thomas tossing the verbal bomb in in every commerce clause case that "I think we should disregard all precedent since 1939."
posted by yarly at 8:15 AM on August 25, 2011 [2 favorites]

Ultimately, though, I don't think Thomas is probably any intellectually worse than the average Supreme Court justice over time. It's just the combination of averageness, his extreme agenda, and his worrying communication of disrepect for the institution that make him so unsettling as a justice.
posted by yarly at 8:18 AM on August 25, 2011 [3 favorites]

One person, one speech.

One person + corporation doing that persons speaking = 2 speech.

Pretty goddamn simple.

If we are to start giving corporations the same rights as humans, then they should bear the same responsibilities. This means trial by jury, including imprisonment. A corporation guilty of a crime, even if only committed by a few of the corporate officers or executives, should be held in suspension for a term equal to that given to a human for the same crime.

That means locking the doors and placing corporate properties under the protection and control of the correctional system. No phone or mail contact except through the correctional system, all communications are monitored. Any drug use or other criminal or non compliant activity (by any executive/officer or employee) will result in an extension of the term and a tightening of restrictions. No employee shall report to work, no work except that allocated by the correctional system may be conducted. No products or services shall be shipped, manufactured, processed, handled, or delivered. Any work or service currently under way shall be immediately suspended at the commencement of the term of corporate imprisonment.

Corporate parole or probation shall be conducted equal to that given a human being. No corporate officer shall travel outside the county of registration without prior written permission by the correctional system. Conditions may be attached to work and/or service equivalent to those placed on persons, e.g., a corporation involved in a crime related to its work or service shall be prohibited from engaging in that work or service, the same as computer criminals are prohibited from using computers.

Any gains or assets made by the corporation related to criminal activity shall be seized by the state and liquidated or distributed as the state sees fit. As individuals are so treated, the burden of relief of the seized property shall be placed on the corporation.

The corporate death penalty may be imposed, resulting in dissolution of the corporation. Officers and executives of the corporation shall be prohibited for a term of no less than twenty years, up to life, from engaging in any work or service related to the work or service provided by the deceased corporation.

I could go on. They won't like what they have got when I am done.
posted by Xoebe at 8:21 AM on August 25, 2011 [8 favorites]

Haha I've often thought that you couldn't be a lawyer, because you are so consistently wrong, and your instincts seem so off, but i know you claim to be one here on the blue so I haven't wanted to say anything.

My "instincts," legal and otherwise, certainly run against the dominant grain of MeFi, a community which is, on average, slightly to the left of Trotsky, but I'm not going to offer any apologies for that. My "instincts" don't seem to have hampered my practice any, for what it's worth.

You want to point out where I've been "consistently wrong" via MeMail, I'm willing to have that conversation, but that sort of abusive isn't really worth my time.
posted by valkyryn at 8:24 AM on August 25, 2011 [1 favorite]

Xoebe:

I think reasonable people would agree, and it's already been considered and averted by the people who wish to buy our government. That's why we have the Super Pac system where you don't even have to identify where the money's coming from.
posted by Benny Andajetz at 8:25 AM on August 25, 2011

I still believe Anita Hill.
posted by kuppajava at 8:27 AM on August 25, 2011 [7 favorites]

Justice Thomas re his clerks:

I also make it clear that if you don’t like my opinion, or you have a different opinion, all you’ve got to do is get nominated and confirmed.

This really tells me all I need to know about him. An individual promoted way above his abilities.
posted by longdaysjourney at 8:29 AM on August 25, 2011

valkryn:

I know it's a catechism on the constructionalist right that the right to privacy doesn't exist or is, at best, an "implied" right (said with a sneer, of course). I'm truly curious why you believe that the 4th Amendment doesn't provide any indication of the framers' intent.
posted by Benny Andajetz at 8:32 AM on August 25, 2011 [1 favorite]

Haha I've often thought that you couldn't be a lawyer, because you are so consistently wrong, and your instincts seem so off, but i know you claim to be one here on the blue so I haven't wanted to say anything.

Can we please not have "you're a dumb lawyer, LOL 1L" pissing matches here? It reminds me of ATL too much.
posted by yarly at 8:38 AM on August 25, 2011 [1 favorite]

I'm perplexed as to how so-called originalists infer a guarantee of the rights of corporations from the text of a document that does not so much as mention the word corporation, whilst simultaneously maintaining that everyone else must interpret the self same document in a strictly literal sense.
posted by Jakey at 8:50 AM on August 25, 2011 [4 favorites]

The Supreme Court’s Painful Season
posted by homunculus at 8:53 AM on August 25, 2011 [1 favorite]

I think I'd rather see Saul Goodman on the Supreme Court. His real world experience would prove invaluable.
posted by mrhappy at 8:55 AM on August 25, 2011

Aw, shucks, mrhappy. I'd never make it through the confirmation process, though. I'm always going around offering my coworkers soda cans with pubic hairs all over the lid. Just for laughs, though, it's not so much a sexual thing.
posted by saulgoodman at 9:00 AM on August 25, 2011 [2 favorites]

MeFi, a community which is, on average, slightly to the left of Trotsky

I guess that's one for the "consistently wrong" category...
posted by Rykey at 9:25 AM on August 25, 2011 [4 favorites]

According to the article, it's not so much that his opinions are "brilliant" but rather that they demonstrate serious scholarship. Also, that his reasonings and opinions have apparently been very influential on other conservative members of the court.

According to Steve Calabresis from the fucking Federalist Society,

“Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”

And that praise is about as faint as you can get: 'staked out some bold positions' is a euphemism for making assertions that have little basis in precedent i.e. can't be argued legally well. If the Roberts Court is approaching Thomas's opinions it just shows you how radical "movement conservatives' really are, once the mask starts to slip.
posted by ennui.bz at 9:30 AM on August 25, 2011

Tell me if I'm wrong (seriously) but it's been my impression that the right to fee speech is not absolute, and must be balanced against public interest. While political speech is most heavily protected, it too is not absolute. I'm probabaly being simplistic or just plain goofy, but does not the secret ballot trump the First Amendment, so that election officials don't have the right to tell everyone how I voted? It seems to me that Kelo allows powerful interests to subvert democracy, and isn't that a serious attack on the public good?

Shouldn't protecting democracy trumpo the right to free political speech in this case? Maybe?
posted by tommyD at 10:03 AM on August 25, 2011

"fee speech" was not intended as a pun, but so be it...
posted by tommyD at 10:13 AM on August 25, 2011

Likewise, corporations can and do engage in non-commercial speech, and this receives exactly as much protection as individual non-commercial speech. Neither of these things reflect the current state of the law.

I think you're missing the reason for the formation of a corporate entity here. Everything a for-profit corporation does is commercial. That's the basis for forming a for-profit corporation. Since the entities sole purpose is to maximize share holder returns, everything a for-profit corporation engages in has to be necessarily commercial to advance the economic interest of the entity. Even if the activity is not directly commercial, ie speech, the intent is commercial and it's to advance a commercial purpose.
posted by herda05 at 10:37 AM on August 25, 2011 [2 favorites]

That is a very unfair and somewhat irrelevant comment to make. None of us deserve to be defined and confined by our race, including Thomas. Judge the man on his merits (or lack thereof) alone.

In short, just because you call him "black" does not mean that he is then "black".

Obviously I didn't make my point clear enough; I wasn't advocating racism but questioning originalism. The puzzling thing about originalism is the unquestioning allegiance to a group of men, a major part of whose worldview was the superiority of white people. Why should the Founders' racism get a pass, or be tacitly airbrushed out of the picture, in order to jettison most policy reforms since 1789 as constitutionally inauthentic?

In a telling bit of inconsistency, Thomas (per the article) frequently asserts that those post-1789 reforms were hollow or vicious because they might have been used to enforce racism (see him do it with the bearing of arms). So racism is bad and vitiates the laws invented to support it? Then let's have a nice long look at the Constitution with the eyes of today, my friends, and abandon this originalism charade.
posted by homerica at 10:41 AM on August 25, 2011

I'm truly curious why you believe that the 4th Amendment doesn't provide any indication of the framers' intent.

Well of course it does. But two things. First, and perhaps most obviously, Griswold, the case in which the Supreme Court first announced a right to privacy as a distinct federal right didn't rely on the Fourth Amendment. It relied on the Fourteenth. Which was appropriate, because the Fourth Amendment doesn't really

But really, if you look at the history, "privacy," as a distinct, personal right, is a relatively new idea. Late nineteenth century at the earliest. Before that, the Fourth Amendment was interpreted not as protecting the inviolability of persons, but as an important property right. Read the thing closely: the text itself is mostly about property, and if you read "persons" in the way an eighteenth-century observer would have, i.e. "he had a gun on his person," it's entirely about property rights. If the Fourth Amendment means that the government can't get all up in your property without a warrant, going from there to some kind of distinct right to privacy in one's personal affairs in general, distinct from property rights, is a pretty big step. The Supreme Court made that step, but it was a step, and it wasn't obvious at the time that it was the right one.

The Founders' believed very, very different things from what most people today believe. The Founders' were downright aristocratic. Any time spent examining their debates about the Bill of Rights clear that what we currently believe about privacy hadn't even entered their minds. The ideas didn't even exist.
posted by valkyryn at 10:42 AM on August 25, 2011 [2 favorites]

Even if the activity is not directly commercial, ie speech, the intent is commercial and it's to advance a commercial purpose.

If you're going to take that broad a stance, then just about everything you do is commercial too. Really, can't everything you do arguably be said to be with the intention of advancing your economic interest? If not, why not? No, the courts look more closely at exactly what the speaker is doing before they decide that a particular speech is commercial.

And corporations aren't all for-profit either, but that doesn't mean they aren't actively engaged in commercial activity. Hospitals are frequently non-profit, despite having millions in revenue. Unions aren't generally for-profit, but I'll be damned if they aren't engaged in commercial activity.
posted by valkyryn at 10:46 AM on August 25, 2011

then just about everything you do is commercial too.

This is sophistry and rhetorical game-playing at its worst; when anyone confronts you with a valid point that disagrees with some sweeping claim you've argued, you manufacture a new false-equivalence to wave it away.

Now all people are corporations and everything is commercial speech. Amazing.
posted by saulgoodman at 10:50 AM on August 25, 2011 [3 favorites]

does not the secret ballot trump the First Amendment, so that election officials don't have the right to tell everyone how I voted?

There you've probably got one constitutional right pitted against another, so it isn't just that "the public good" "trumps" the First Amendment, you're balancing competing constitutional priorities.

In the case of corporate speech, what you've got is one clear constitutional right, the freedom of speech, balanced against somewhat controversial and non-constitutional claims about what constitutes "protecting democracy." The First Amendment was put in place to prevent the government from engaging in exactly that kind of judgment call. Individuals say plenty of things that I think are "bad for democracy," but we don't want to be in the business of deciding whether a particular kind of speech or particular kind of speaker is "bad for democracy," particularly because there isn't consensus about the answer.

Because let's be honest here: all the claims about how corporate speech are bad for the country are explicitly an attempt to block certain viewpoints from the public square. Which is exactly what we don't want the government to do.
posted by valkyryn at 10:51 AM on August 25, 2011 [1 favorite]

This is sophistry and rhetorical game-playing at its worst; when anyone confronts you with a valid point that disagrees with some sweeping claim you've argued, you manufacture a new false-equivalence to wave it away.

Unless you can tell me why my equivalence is false, all you've really got here is abuse. Just because you believe a point is valid doesn't mean it actually is, or that I have to agree.

Really though, the accusations from a number of quarters that I'm arguing in bad faith are ill done. I'm not accusing anyone else of acting that way, and this sort of abuse does little to convince me that I'm wrong. If anything, the fact that no one's actually come out with a real legal argument against me is convincing me that I'm right.
posted by valkyryn at 10:57 AM on August 25, 2011 [1 favorite]

The Founders' believed very, very different things from what most people today believe. The Founders' were downright aristocratic. Any time spent examining their debates about the Bill of Rights clear that what we currently believe about privacy hadn't even entered their minds. The ideas didn't even exist.

OK. Fair enough. Two things, though:

First, the 14th amendment is kind of a reiteration of the 4th amendment with respect to authority vs. personal rights. And while it may have been a step taken by the Court, I think we differ on the size of that step.

Second, if we are going to recognize differences between the cultural mindsets of the framers and ourselves, doesn't that point to the necessity of treating the Constitution as a more "living" document than a strict reading requires.
posted by Benny Andajetz at 10:57 AM on August 25, 2011

There's no point in having and using words at all if their denotative meanings in use are going to be freely bent, spindled, muddled, futzed around with and otherwise manipulated so often that virtually any discrete concept can be confused for any other.

In the case of corporate speech, what you've got is one clear constitutional right, the freedom of speech,

Tell me valkyrn, do you believe in the validity of laws against commercial fraud?

In other words, do you believe it is constitutional for the state to punish commercial actors for making false claims about the benefits or actual quality of their goods and services with the intent to defraud consumers?

If you do, then you cannot possibly believe that commercial speech is or has ever represented protected speech, because limits on commercial speech acts are at the very core of what we have historically defined as commercial fraud.
posted by saulgoodman at 10:59 AM on August 25, 2011 [1 favorite]

Griswold, the case in which the Supreme Court first announced a right to privacy as a distinct federal right didn't rely on the Fourth Amendment. It relied on the Fourteenth

I just reread Griswold -- for all that people make fun of penumbras issuing out of emanations, it's actually a surprisingly convincing mode of constitutional analysis on second glance. And it does in fact cite the 4th Amendment (and several others as the source of one of the emanations that forms a "zone of privacy" ... which join together to create the penumbra (Right to Privacy). I think the only reason it's a 14th Amendment case is because the right is incorporated to the states by the 14th Amendment; the rest is pure penumbra emanating from the Bill of Rights as a whole, more or less.

Also, interestingly, the opinion's punchline does harken back to physical property rights of the householder: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?"
posted by yarly at 11:01 AM on August 25, 2011 [1 favorite]

valkyryn: "Because let's be honest here: all the claims about how corporate speech are bad for the country are explicitly an attempt to block certain viewpoints from the public square. "

No, it's an attempt to ensure that a certain class of views is not privileged above other classes in its ability to effectively communicate messages to a broad audience by virtue of it possessing billions of dollars.

I did the math when Citizens United was first decided: If Exxon Mobil spent the same percentage of its yearly profit on electioneering as the average person contributing the maximum amount of their income allowed by the FEC, they would have outspent the McCain and Obama campaigns combined. Two great political parties, representing the broadest swathe of American political activity and fundraising, can be outspent by a single corporation anonymously allocating a relative pittance of its vast financial reserves. And they can legitimately threaten any politician who steps out of line with a deluge of slick, focus-grouped, state-of-the-art slander. That kind of influence, wielded exclusively by the wealthiest and most powerful, is incredibly dangerous, and a threat to the careful balance of power that underlies American democracy.
posted by Rhaomi at 11:03 AM on August 25, 2011 [9 favorites]

Unless you can tell me why my equivalence is false,

Everything I do is commercial? Helping my son start school? Playing frisbee at the park? Helping to care for relatives with medical burdens? Paying my bills?

Being motivated by a desire to live and be happy is not the same thing as pursuing commercial interests.

This whole contemporary approach to seeing the world--that is, viewing every aspect of life and society through the lens of economics and private sector management concepts--is a more insidious form of creeping totalitarianism than any native ideology we've ever seen in the US. It tries to reduce every sphere of human activity to commerce and then raze our entire culture and society to the ground on the basis of that false equivocation. We're just never going to see eye to eye on this topic, I suspect.
posted by saulgoodman at 11:07 AM on August 25, 2011 [17 favorites]

This whole contemporary approach to seeing the world--that is, viewing every aspect of life and society through the lens of economics and private sector management concepts--is a more insidious form of creeping totalitarianism than any native ideology we've ever seen in the US. It tries to reduce every sphere of human activity to commerce and then raze our entire culture and society to the ground on the basis of that false equivocation.

Those may just be the two best sentences I've read in 20 years.
posted by Benny Andajetz at 11:11 AM on August 25, 2011 [1 favorite]

In other words, do you believe it is constitutional for the state to punish commercial actors for making false claims about the benefits or actual quality of their goods and services with the intent to defraud consumers?

If you do, then you cannot possibly believe that commercial speech is or has ever represented protected speech, because limits on commercial speech acts are at the very core of what we have historically defined as commercial fraud.

Wouldn't slander have to be legal for this analogy to hold up?
posted by reductiondesign at 11:15 AM on August 25, 2011

What Rhaomi said. As a practical matter, granting powerful interests the untrammeled ability to swamp out competeing viewpoints within the political sphere undermines democracy. Is there debate that it doesn't?
posted by tommyD at 11:25 AM on August 25, 2011 [1 favorite]

@Ideefixe said "And what would anyone expect from the New Yorker on this subject?"

I really hate these type of comments. Please criticize the message, not the messenger, because to answer your question: I expect the truth (or as near as you can get to it). We're not talking about Fox News here.
posted by e40 at 11:30 AM on August 25, 2011 [2 favorites]

My "instincts," legal and otherwise, certainly run against the dominant grain of MeFi, a community which is, on average, slightly to the left of Trotsky

That's a cheap shot and you know it. Not to mention completely erroneous.
posted by blucevalo at 11:34 AM on August 25, 2011

How, exactly? The only thing a corporation does is restrict the financial liability of investors/owners to the amount invested. And even then, only to the extent that they were acting in good faith. People doing bad acts get no benefit from doing so under the guise of a corporation.

If I delibertately engage in some action knowing that it will kill one or more people I will most likely go to prison on manslaughter charges. And yet Ford recieved only a fine for designing, manufacturing, advertising, and selling the Pinto, knowing that the design would kill people, horribly.

Moreover, the officers of Ford who *made* that decision got to shield themselves from *personal* prosectution in their role of killing people for profit by claiming that they were just doing their job.

That's quite the protection.

certainly run against the dominant grain of MeFi, a community which is, on average, slightly to the left of Trotsky,

What a cretinous statement.
posted by rodgerd at 11:59 AM on August 25, 2011 [6 favorites]

Huh, so the 2nd amendment doesn't allow restrictions on the ownership of nuclear arms? Excellent!

If corporations are persons, they should at least have the right to bear the arms they make, no ?
posted by y2karl at 12:59 PM on August 25, 2011

I wish I could favorite that post more than once, rodgerd.
posted by HighTechUnderpants at 1:27 PM on August 25, 2011

A corporation is itself a regulatory construct of the state, which is given certain privileges (limited liability foremost) in exchange for following certain rules. It's ridiculous to say the state can't regulate it. Such regulation does not affect the free speech rights of investors in the corporation, except by depriving them of a particular way of structuring their financial investment in speech (which is only available because the state granted it in the first place). I'm not a lawyer, but as I understand it the fiction of corporate personhood only started for ease of applying contract law. Now it's apparently going to eat our entire political system.

The New Yorker article was really disturbing, because of the way the reporter felt compelled to whitewash the basic conclusions that he was communicating between the lines -- that Thomas is an out-of-control judicial activist bent on using extremist, unsupported legal theories to overturn democratic decisions. He's clearly driven more by resentment than rationality. But the author had to keep reassuring that Thomas is "intellectually serious". True enough that Thomas is serious, but in a thuggish and not an intellectual way. He's going to use his institutional power as a privileged interpreter of the constitution as a club to knock down the entire New Deal and Great Society and get back at the "elites" he hates and resents. That's as serious as a heart attack, but not in the way you want a judge to be serious.
posted by zipadee at 1:27 PM on August 25, 2011 [5 favorites]

A corporation is itself a regulatory construct of the state, which is given certain privileges (limited liability foremost) in exchange for following certain rules.

I admittedly did not read Citizens United because I thought it would be too depressing. But isn't the rationale that individuals have a 1st amendment right to forms of collective political speech (via corporations, unions, and other associations)? Surely the fact that corportations are legal and not biological persons does not make the analytical difference. After all, newspapers are not individuals, but they have 1st Amendment rights.
posted by yarly at 1:41 PM on August 25, 2011 [2 favorites]

I admittedly did not read Citizens United because I thought it would be too depressing. But isn't the rationale that individuals have a 1st amendment right to forms of collective political speech (via corporations, unions, and other associations)? Surely the fact that corportations are legal and not biological persons does not make the analytical difference. After all, newspapers are not individuals, but they have 1st Amendment rights.

The state restricts first amendment rights of privileged organizations qua organizations all the time -- churches cannot engage in political speech at pains of losing its tax exemption. Corporations gather money from hundreds of thousands of shareholders thanks in part to limited liability and enforceable fiduciary duties. These shareholders actually don't have very direct control over how that money is used.

But you're right that the complicated issue is what kinds of collective organization to facilitate speech is permitted. Just from common sense (again I'm no lawyer) this seems to involve a balancing act when the collective entity is privileged.

Of course a core issue is the equation of money and speech, and at the same the Arizona decision banning public financing used to equalize the balance. The agenda to weight speech by wealth is clear. It's like the law, in its majestic impartiality, banning sleeping under the bridge for both homeless folks and the wealthy. I have a right to whisper against your megaphone, and no ability to use democratic means to solve the collective action problem.
posted by zipadee at 2:13 PM on August 25, 2011 [1 favorite]

I can't speak to any of the rest of this -- but I will say that when I am trying to concentrate as much as possible on someone speaking, I do pretty much exactly what's described here so that I can avoid distractions (as I am easily distracted visually.)
posted by davejay

From what I hear, Thomas is easily distracted visually too - usually by younger female interns or something. You could be on to something here:P

saulgoodman, I wish I could favorite this 100 times!
posted by eviemath at 2:44 PM on August 25, 2011

Interesting that corporations have rights of individuals. Too damn bad they don't have the accompanying responsibilities, along with morals, ethics and concern for society.


Ha Ha. What a funny.
posted by BlueHorse at 4:02 PM on August 25, 2011

Maybe his back is bad and leaning back in the chair is best way to get relief.
posted by wobh at 4:50 PM on August 25, 2011

Xoebe: speech isn't additive, it is only subtractive. You can't get extra, you can only have some taken away. I can pay ten carnival barkers to shout my manifesto for me, and I am not exercising 10x free speech. But take away my right to hire those carnival barkers, and you have diminished my freedom. Well, corporate political speech is the same thing with an extra layer or two.

There is harm in libel, slander, threats, etc., but there is ZERO harm in political opinion.

(Distasteful and annoying as it is.)
posted by gjc at 5:32 PM on August 25, 2011

There is harm in libel, slander, threats, etc., but there is ZERO harm in political opinion.

So plastering the airwaves with propaganda for a policy that will help your corporation's bottom line at the expense of the public interest can't be harmful? Slandering a competitor's product is harmful but slandering an opposing politician can't be?

There are lots of great reasons for political speech to be free, but a lack of potential for harm isn't one of them.
posted by zipadee at 6:06 PM on August 25, 2011 [1 favorite]

I'm pretty sure you aren't allowed to slander anyone, but it isn't actually up to the government to make that determination. It is up to the courts after the victim sues.

The airwave plastering is only harmful if you believe your fellow citizens to be too stupid to realize they are being lied to. That's not a good basis for restricting freedoms en masse.
posted by gjc at 6:29 PM on August 25, 2011 [1 favorite]

Things that cannot die?

Angels?
posted by luke1249 at 7:06 PM on August 25, 2011

Unions, which are also corporations, have both spent liberally on political speech following Citizens United and are willing to slander the pants off each other when they are fighting for turf - as in the long running SEUI/NUHW bitchfest here in Northern California. I am for limits on campaign spending, but pretending that all corporate speech necessarily springs from Big Bu$ine$$ is hypocritical bullshit.

I would prefer publicly financed election campaigns, without endless TV, radio, and phone ads from businesses, nonprofits or unions.
posted by anigbrowl at 9:54 PM on August 25, 2011 [1 favorite]

The airwave plastering is only harmful if you believe your fellow citizens to be too stupid to realize they are being lied to.

That's kind of how I do feel, actually, and one reason I would restructure political rights if I were starting from scratch. Mass communication means our politics are less democratic than ochlocratic.
posted by anigbrowl at 9:59 PM on August 25, 2011

but there is ZERO harm in political opinion.

Try looking into the history of the 20th century some time.
posted by rodgerd at 1:02 AM on August 26, 2011

but it isn't actually up to the government to make that determination. It is up to the courts after the victim sues.

...And "the courts" apparently aren't even a branch of the government now in Bizzaro world.
posted by saulgoodman at 6:18 AM on August 26, 2011

There are more political speech limits on unions--particularly at the state level--than there are on commercial corporations. But that's irrelevant. If the ultimate aim of the speech is to further a commercial interest, it's not political speech, it's commercial speech, even if it's speech related to what might also be considered a political topic because it pertains to some industrial policy.
posted by saulgoodman at 6:20 AM on August 26, 2011

Everything I do is commercial? Helping my son start school? Playing frisbee at the park? Helping to care for relatives with medical burdens? Paying my bills?

Being motivated by a desire to live and be happy is not the same thing as pursuing commercial interests.

Why? Paying bills certainly looks like commercial activity, doesn't it? Why is it non-commercial when you do it and commercial when someone else does it? I mean, there may be a reason, but you haven't actually said what that reason is, you've just said that pointing out the commonality is sophistry, which isn't really an argument as much as it is an announcement that you don't have one. Helping care for relatives almost certainly involves economic activity, because you're either just giving them money or you're providing services which are a substitute for someone else's job. Indeed, the Obama administration is taking the position that health care is so economically important that the federal government can force you to buy health insurance! So if you want to say that some health care is commercial activity but not all health care, you need to come up with a distinguishing criterion. And you haven't. Education is definitely economic activity. It's a multi-billion dollar sector of the economy. Most public school teachers are unionized for crying out loud. If that doesn't say "commercial activity," I don't know what does. So why is consuming services provided by the school system sufficiently different from consuming any other service in the marketplace? Again, you want to draw a distinction, you draw it. You can't just say that it's obvious and then beat me up for not agreeing.

My point here is that the commercial/non-commercial line you want to draw is not as clear as you seem to think that it is. You keep saying that there's this brilliant white line that we should make law around, and this line means that the activities of corporations, as such, deserve no protection by the First Amendment. I keep asking you about the edges of that line, but you just keep insisting that it's there and it's obvious. Laws in a free society aren't made that way, and the fact that something is obvious to you doesn't excuse you from actually spelling out why you're right. Indeed, your inability to do so suggests that this isn't "obvious" as much as it's ideological.

Well the line may be there, but it isn't obvious, and the courts have spent a lot of time and energy trying to figure out where that line is. We can't just say that all corporate conduct counts as commercial activity and all individual conduct doesn't, because there is corporate conduct which is manifestly not commercial, e.g. conducting religious services (most churches are corporations, and the for-profit/non-profit distinction is not that significant outside the tax code) and political campaigns (which are generally corporate entities of some sort), and individual conduct which manifestly is, e.g. running a small business without a corporate entity or simply acting as an independent contractor. Nor can we simply say that all activity which doesn't go towards supporting a household is commercial activity, because that would make things like religion, all political activism, and even just owning a vacation home commercial activity, and I think we can agree that characterizing those things as commercial is somehow wrong.

So then: where is the line between commercial and non-commercial speech? You seem to say that all corporate speech counts as commercial speech, but that won't do. You're going to have to come up with something more rigorous, because drawing the line there doesn't even do what you want it to.

you cannot possibly believe that commercial speech is or has ever represented protected speech, because limits on commercial speech acts are at the very core of what we have historically defined as commercial fraud.

This just isn't true. You're treating the First Amendment like a binary switch, i.e. something is either entirely protected or entirely unprotected. And really, the fraud example is not on point, because false statements aren't protected regardless of whether the speech is commercial or non-commercial and whether the speaker is individual or corporate. The First Amendment does not protect false statements, period, which is why perjury is not protected by the First Amendment either.

But as others have pointed out, both individuals and corporations are and have always been subject to liability for certain kinds of non-commercial speech. You can't yell "Fire!" in a crowded theater. You can't seriously threaten people. You can't infringe copyrights.* You can't engage in sedition or treason. You can't incite riots or encourage people to engage in criminal activity. You can't engage in espionage. None of these are commercial (or at least they needn't be commercial) but none of them are protected either. The basic point is that not all non-commercial speech is protected. That being the case, it's entirely consistent to say that some commercial speech is protected but other commercial speech isn't. Commercial speech receives less protection than non-commercial speech, but it absolutely receives some protection. And really, this smaller degree of protection has more to do with the fact that the government can engage in more rigorous time/place/manner regulations of commercial speech than non-commercial speech, e.g. banning advertising via zoning regulations, etc.

But if you can't get that concept through your head, the concept that the First Amendment is never absolute and that the determination of whether a given speech is protected or not always involves a close consideration of the facts, this conversation is over, because it's the fundamental concept of First Amendment jurisprudence. Indeed, it's a fundamental concept of jurisprudence period. But you really don't seem all that willing to trade in shades of grey, so I'm guessing you're just going to have to deal with being frustrated with the legal system, because that's really all it does. There are way more balancing tests than there are bright-line rules.

I say again, what's really going on here is that you and the people in this thread on your side of the argument are trying to impose your view of what constitutes the "common good" on others by restricting others' ability to express their viewpoints. The First Amendment pretty explicitly won't allow you to do that.

Deal with it.

*Fair use isn't infringement, but even under a maximal definition, not all non-commercial copying is fair use.
posted by valkyryn at 6:23 AM on August 26, 2011 [2 favorites]

Jeffrey Toobin answers reader's questions about the article in The New Yorker blog
posted by readery at 12:26 PM on August 26, 2011 [1 favorite]

I know it's too late to comment on this, but that article was painful to read. Not because of the journalism, but because I was ignorant of the fact that such a narrow-munded and willfully ignorant person good hold such a high position. Sigh..
posted by mumimor at 3:46 PM on August 27, 2011

Justice Ginsburg: If I Were Nominated Today, My Women’s Rights Work For The ACLU Would Probably Disqualify Me
posted by homunculus at 11:35 AM on August 30, 2011

That's an interesting point. I had lunch with my legal mentor last Friday and discussed the confirmation hearings for Bork and Thomas in detail (he's around 60 and has been practicing law since the late 70s, whereas at that time I was living in London and was only aware of US judicial appointments insofar as they make for good theater).

His view was that Justice Ginsburg's confirmation might have been opposed even back in 1997. Republican strategy through the 1980s had been to look for fairly ideological candidates but with impeccable technical credentials, so that if the (long-entrenched) Democratic majority in Congress objected the Republicans could reasonably point to the qualifications rather than the political views of their nominees. This is one reason that the Supreme Court bench is so heavily dominated by Ivy-leaguers.

Reagan nominated Bork although Democrats in Congress had warned him they would fight such a nomination tooth and nail (partly because of Bork's history in the Nixon administration, partly because of his similarity to Scalia), and true to their word they went nuclear upon him. Their point made, they felt, Anthony Kennedy was confirmed unanimously. After Thomas was confirmed by a narrow majority a few years later, thanks to Republicans keeping the emphasis on his technical qualifications, the GOP had little basis for opposing Ginsburg although many senators professed themselves frustrated by how closely she held her jurisprudential cards to her chest during the confirmation hearings.

Justice Breyer was confirmed in August 1994, and the following November Newt Gingrich led the GOP to its first House majority in years. Trent Lott secured a GOP majority in the Senate 2 years later, but as it happened the composition of the court remained unchanged until 2005, when Justice O'Connor resigned and Chief Justice Rehnquist died only a few months later. That was the last Congressional term before Democrats regained the majority. Of course, the Senate had become considerably more partisan by then, and this process has only accelerated.

A fuller report of Justice Ginsburg's remarks indicates a desire for a less partisan confirmation process. I don't think the political blogosphere is any better than cable TV when it comes to its treatment of Supreme Court jurisprudence; both political parties are at fault here and have debased the judiciary as a result. The clearest indication of this is the decline in judicial pay.
posted by anigbrowl at 1:11 PM on August 30, 2011

valkyryn: Why? Paying bills certainly looks like commercial activity, doesn't it? Why is it non-commercial when you do it and commercial when someone else does it? I mean, there may be a reason, but you haven't actually said what that reason is[...]

Alright then, I'll say it. The difference is that your "someone else" is an amoral mechanism, a financial apparatus that many people actually claim only behaves ethically when its directors extract the maximum value out of the market for its stockholders BY ANY MEANS IT CAN GET AWAY WITH. This "someone else" some claim has all the rights of a human being (and some of those people are on the damn Supreme Court), but it carries few of the vulnerabilities or checks on behavior, and none of the socialization or sense of decency.

You say that the line between commercial speech and normal, free speech isn't solidly drawn, and in that you are correct. The line is arbitrary; we've drawn it there, on purpose. It is not an attack on the market, it's a defense of it!

If companies could legally make any lie about their products or services they could to sell them, then people would be swindled at first. But swindles are not true contributors to wealth; they are simple thefts, and things that can be stolen with ease lose value in the eyes of the victims. If you know people can lift your radio at a whim, you are unlike to think much of your radio, certainly not enough to keep buying them. And if you can't trust the commercial speech you hear, you aren't going to pay it much attention.

Please take note, large portions of our economy have their foundation upon commercial speech -- everything that is advertising is commercial speech. Trusting advertising may seem foolish. The saying is caveat emptor, "let the buyer beware," but in fact none of us have the time, energy, opportunity or ability to research everything we buy -- we all rely on advertising to some degree. If we can no longer place as much faith in that advertising, it doesn't give us any more time, energy, opportunity of ability: we'll just buy less than we would if we had good information. When you get taken for a ride, you're not likely to want to ride again soon.
posted by JHarris at 1:40 AM on August 31, 2011

Here's how they used to write about the "Truth in Advertising Movement" back in the 20s, when it was though to have entered a modern, "scientific" period, in which we had finally begun developing sophisticated political and social mechanisms for combating its effects.

People from this era would probably view the kinds of conversations we have lately on this topic (i.e., revisiting the whole idea of whether regulating truth in advertising is politically possible or even necessary), as downright uncivilized and culturally backwards. And maybe they would be right.
posted by saulgoodman at 12:59 PM on September 7, 2011