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Satire Amicus
March 3, 2014 12:50 PM   Subscribe

"After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular humanist professors of Chicano studies."
The Cato Institute's unique amicus brief to the Supreme Court in the Dreihaus political speech case is a defense of "truthiness", mocking and satire which it contends "are as old as America, and if this Court doesn’t believe amici, it can ask Thomas Jefferson, 'the son of a half-breed squaw, sired by a Virginia mulatto father.'”
posted by dios (47 comments total) 8 users marked this as a favorite

 
The fact that every so often I agree with the Cato Institute is not something I acknowledge happily, but it does reassure me that my beliefs are earnestly held and not (too) strongly biased by who else holds them.
posted by Tomorrowful at 12:55 PM on March 3 [7 favorites]


An "amicus" brief refers to a brief filed by amicus curiae or "friend of the court." In other words, the authors are not parties to the case, but are interested in the outcome. Historically such briefs were rare, but in the most recent terms, more than 90% of the cases get amicus briefs.
posted by dios at 12:57 PM on March 3


Whats the case about ? I tried reading the description, but skipped the constitutional law portion of my engineering degree.
posted by Pogo_Fuzzybutt at 12:58 PM on March 3 [4 favorites]


amicus briefs

AKA Rightie Whities
posted by The Riker Who Mounts the World at 1:00 PM on March 3 [8 favorites]


In short, they want to keep wholesale slander and outright lies in political ads legal, otherwise political donations to Super PAC's would not be a good way to buy elections.
posted by Slap*Happy at 1:01 PM on March 3 [10 favorites]


I'm so proud to be in the 9th Circuit, which I believe still holds the record for most reversed decisions, so that I can claim a fair connection to Kozinski's quote:

How can you develop a reputation as a straight shooter if lying is not an option?

posted by janey47 at 1:02 PM on March 3 [1 favorite]


[Comment removed; I know it's all ha ha see what I did there and stuff what with the defense of edgy satire, but maybe lets not go super vile in the thread just to prove a point.]
posted by cortex at 1:12 PM on March 3 [1 favorite]


That is a glorious document and a much better read than most things filed in support of a case before the Court.
posted by killdevil at 1:12 PM on March 3


If the news is allowed to knowingly lie, I would hope that political campaigns would enjoy similar protections.
posted by el io at 1:15 PM on March 3


Footnote 15:
Dreihaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer-funded abortion. Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn't as truthy as calling a mandate a tax.

Yowza.
posted by Bromius at 1:16 PM on March 3


What is this I don't even

Seriously America, you are strange indeed, sometimes.
posted by marienbad at 1:20 PM on March 3


marienbad: "Seriously America, you are strange indeed, sometimes."

Strange, but funny. The case at hand seems of the most nonsensical ridiculousness. Toss funny at it, see if it sticks.
posted by chavenet at 1:21 PM on March 3


Note that this is actually a joint amicus brief on because of both the Cato Institute and PJ O'Rourke. I suspect O'Rourke had a substantial hand in the drafting.

Also, the Cato brief describes the issue thusly: Can a state government criminalize political statements that are less than 100% truthful? The questions actually being reviewed by the Court are a little more nuanced:
(1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.
As described in the Sixth Circuit opinion being reviewed by the court, the case involves allegations that a pro-life advocacy organization and an anti-tax advocacy organization (not a pundit or satirist, as Cato and O'Rourke suggest) planned to run false and misleading advertisements against a congressional candidate. Politics can motivate the framing of the question just as much as the answer.
posted by monju_bosatsu at 1:22 PM on March 3 [3 favorites]


How can it be a lie when it's all true?!??!
posted by blue_beetle at 1:33 PM on March 3


Hi monju_bosatsu. Long time, my friend.

Just to be clear: I did not offer that brief because it was a solid framing of the legal issue or that it accurately reflected the legal complexity and nuance of the issue before the Supreme Court. I just thought it was sufficiently outside the norm of briefing to the Supreme Court that it is worth noting. I'm not sure how the Court will receive such a brief given the Court's obsession with decorum. So it is interesting to me in that regard. I cannot recall the last time I read a brief that (intentionally) went for humor.

But, yes, the actual underlying case on the limits of political speech is a difficult but ultimately principled issue in its own right. This would not be the best lens through which to analyze that issue and it was not offered as such.
posted by dios at 1:40 PM on March 3 [2 favorites]


Truth is in the lie of the beholder.
posted by The Riker Who Mounts the World at 1:42 PM on March 3


In short, they want to keep wholesale slander and outright lies in political ads legal, otherwise political donations to Super PAC's would not be a good way to buy elections.

I'd hate to see a law that required that political speech must be "true." Actually, I'd be fine with it, as long as I am the one who gets to decide what is true and what is not. Talk about a chilling effect...if you're not sure you can prove what you say, then you may be committing a crime? I don't know the precise law, so I'm basing this on the issues as discussed by the SCOTUS blog.
posted by Edgewise at 1:55 PM on March 3 [3 favorites]


dios!
posted by monju_bosatsu at 2:04 PM on March 3 [1 favorite]


Seriously America, you are strange indeed, sometimes.

For realz.

It's one thing to say that when it comes to falsehood in political speech, any cure would likely be worse than the disease. Okay fine, lesser evil, blah, blah, blah.

It's another thing entirely to suggest that innuendo and outright lies are actually sign of the health of our democracy, sort of like sweating a lot or having regular bowel movements, and that any official effort to curb deception would make zombie Thomas Jefferson cry.

A big raspberry to this self-serving, slippery-slope silliness.

(Also, is it just me, or does are his caricatures of republican voters pretty bland? At least alleged "conservative satirists" like David Brooks understand why people on the other end of the spectrum dislike his values.)
posted by ducky l'orange at 2:05 PM on March 3 [1 favorite]


The background.

In summary, a pro-life group wanted to put up a billboard that said that an incumbent Democratic congressman, in voting for the ACA, supported “taxpayer-funded” abortion. Ohio has this law saying you can't make “a false statement concerning the voting record of a candidate or public official.” And the claim in question was legally found to be false.

The pro-life group complained, saying that for their purposes, it's true — federal funding can be used for plans that include abortion coverage, they just can't be used to pay for the abortions, and money is fungible, so the ACA still ends up funding abortions. They're complaining that Ohio required a judge to declare this statement false, when it's one of those depending-on-how-you-look-at-it things that would probably be rated “mostly false” instead of “pants on fire” if Politifact took a look at it.

Another group complains that it was going to assert the same thing, but was chilled because of this ruling, and one of the questions that has to be resolved (I think) is whether that second group has standing to sue, even though they haven't been slapped down by the same law.
posted by savetheclocktower at 2:07 PM on March 3 [4 favorites]


Not to criticize the post, but to criticize the brief -

This brief is absolutely awful. If one were actually trying to tell the Supreme Court that hyperbole and half-truth are a legitimate part of the campaign process, that could be done in ways that the Justices would understand. But this brief itself plays so loose with truthful argumentation, that it actually undermines itself: a judge reading this brief would soon get so pissed off about the sloppiness of various factual assertions and of the legal argument, that the judge would be more likely to be swayed against the Cato position than in favor of it. (For instance: the thing about Jefferson, as quoted in the post - I checked the source cited in a footnote for that, and at least as of this morning, the source said (in paraphrase) that there was no clear evidence that this was ever actually said about Jefferson during his life.))

At this point, a significant percentage of Supreme Court amicus briefs are actually designed not to convince the Court, but to make the authors feel cool and to be used as fundraising tools for the organizations that submit the briefs. This brief succeeds on those points.
posted by sheldman at 2:08 PM on March 3


I think some are missing the detail that the amicus is against the criminalization of false statements in political speech. There already are means of fighting lies with other legal measures, in addition to satire and so on, which this document supports.
posted by Pyrogenesis at 2:29 PM on March 3 [1 favorite]


A lot of the NGO and nonprofit worlds rely on or at least make use of linkbait for fundraising. Cato understands this.

That's about as much substance as I can pull out of the intention behind this brief.
posted by late afternoon dreaming hotel at 2:55 PM on March 3


Pyrogenesis: Which sounds great in theory, but in reality results in shadow campaigns attacking candidates as being an effective tool - after all, so what if you get fined 6 months after the election, if the campaign gets your candidate into office?

It's worth remembering that these days, Cato is a bought and owned division of the Koch empire as well.
posted by NoxAeternum at 2:56 PM on March 3 [2 favorites]


I know Cato's background, and I abhor it. But the thing is still that Ohio seems to be the only state in which false claims in a political speech is specifically criminalized. The rest of the US seems to do well without such laws.

(But I don't live in the States and don't really know about the laws, so eh... it was a mildly amusing read at least.)
posted by Pyrogenesis at 2:59 PM on March 3


it was a mildly amusing read at least.

That was the point. It's an amicus brief to the Supreme Court that went for humor... in a place that is the most decorum obsessed institution in this country. That alone made it interesting and was really the only reason I posted it.

Cato is a bought and owned division of the Koch empire as well.

Oh sweet, Jesus. I didn't really know anything about Cato or much care about their ideological bent before posting this--that wasn't the point. But if this is where this thread is going to go, please nuke it from outer space. I'd rather slam my balls in a drawer than read people prattle on about the fucking Koch brothers.
posted by dios at 3:07 PM on March 3 [3 favorites]


By the way, if you are interested, Rick Hasen's election law blog where I picked this up predicts a unanimous reversal of the Sixth Circuit in this case, while also noting the amicus' odd method of outright insulting one of the judges. Hasen's blog has more coverage of this topic.
posted by dios at 3:16 PM on March 3


For the sake of fairness, bringing up the institution's motivations for being cute is not what I'd consider a great big ideological derail. We're talking about Cato, which is not exactly an unknown for its ideological bent (not to mention its own fondness for calling out "stunts" put on by bodies other than Cato).
posted by late afternoon dreaming hotel at 3:19 PM on March 3 [1 favorite]


bringing up the institution's motivations for being cute is not what I'd consider a great big ideological derail.

You mean other than being the exemplar of ad hominem comment? Does it matter that Prof. Hasen, one of the most noted experts in election law and a self-described progressive, agrees with the result that Cato advocates and claims the opinion will be unanimous? No. Because the point of this post isn't the politics of the underlying law. It's that someone wrote a satirical, goofy, and even at points bitchy amicus brief to the Supreme Court. That is interesting.
posted by dios at 3:35 PM on March 3 [8 favorites]


if you're not sure you can prove what you say, then you may be committing a crime

...don't say it?
posted by feckless fecal fear mongering at 3:39 PM on March 3


I've often thought if I ran a banana republic I would grant complete freedom of the press, with one small caveat: All assertions about the government or government officials must be factual and independently verifiable, otherwise the government will sue for massive damages in every instance. Neatly circumvents any need for censorship or control...
posted by jim in austin at 3:49 PM on March 3 [1 favorite]


All assertions about the government or government officials must be factual and independently verifiable, otherwise the government will sue for massive damages in every instance.

I know you're not serious, but...

Should hippies who sang “Hey! Hey! LBJ! How many kids did you kill today?” have paid massive damages, because LBJ did not personally kill any kids at all?

Should someone who had said that "Bush lied, thousands died" have paid massive damages, if it could be shown that there was a substantial likelihood that Bush was instead ignorant, willfully ignorant, mistaken, or confabulating about the justifications for the Iraq War?
posted by Sticherbeast at 4:12 PM on March 3


but they're not the press, Sticherbeast.
posted by scruss at 4:44 PM on March 3


You mean other than being the exemplar of ad hominem comment?

I don't think we're talking about the same thing? When one brings up a tactic of the Cato Institute, it's sensible to talk about the Cato Institute's tactics. This post isn't asking for judgment on the content of the brief, as you say. It's noting the "satirical, goofy, and even at points bitchy amicus brief to the Supreme Court." I noted above that these tactics (e.g. filing a brief that will likely contribute nothing to the case being considered, but will generate many clicks and media attention) as part and parcel to many NGOs and nonprofit orgs (including those for which I work).

I mention this because I see that it adds a layer to the interestingness of the story--orgs don't usually direct resources to producing useless documents, so let's not forget the legitimate uses that this one could serve for Cato. There's nothing ad hominem in being clear about a group's rationale and motivations, especially when (like here) they are related to a way of doing business that isn't immediately clear to all readers. I'm sure the other policy types and lobbyists and organizational counsel staff in the audience who deal in site metrics and similar web-press stuff on a daily basis can agree on this one.

(And if we're going to tender an accusation of an exemplar ad hominem attack with an exemplar appeal to authority in response then I guess we're all set for nuke-it territory.)
posted by late afternoon dreaming hotel at 4:56 PM on March 3 [2 favorites]


I'd rather slam my balls in a drawer than read people prattle on about the fucking Koch brothers.

Satyr Slamicus
posted by The Riker Who Mounts the World at 5:02 PM on March 3


Hey, Dios. Good to see you. Great link.
posted by eriko at 6:05 PM on March 3


And folks, Dios is right. A satirical opinion presented to the Supreme Court is noteworthy. It is on the level of "The emperor has no clothes!"
posted by eriko at 6:07 PM on March 3


The Cato Institute, keeping America safe for snarky young white men who were too cool for the College Republicans. And employing a few of them, too.
posted by holgate at 6:11 PM on March 3 [3 favorites]


Thanks for the update on what the Charles Koch Foundation is up to!
posted by Pope Guilty at 11:34 PM on March 3 [1 favorite]


It is sad that you all are discussing a) whether or not false statements should be allowed or not, or b) the nature of Cato/Koch.

May I suggest you step back and check what kind of society you are living in that people are so woefully badly informed that this anti-abortion group can make such obviously distorted statements and not immediately lose all credibility in the eyes of the general public?
posted by DreamerFi at 2:28 AM on March 4 [2 favorites]


Im in ur briefs, trollin ur jurists
posted by krinklyfig at 4:06 AM on March 4 [1 favorite]


It is sad that you all are discussing a) whether or not false statements should be allowed or not, or b) the nature of Cato/Koch.

I agree with (b) but not with (a), since that's what the damn case is about!

May I suggest you step back and check what kind of society you are living in that people are so woefully badly informed that this anti-abortion group can make such obviously distorted statements and not immediately lose all credibility in the eyes of the general public?

May I suggest that you make that post, if you want to highlight that issue? Personally, I think it would be a crappy post - just a post to talk about how some people are so dumb, unless you have a better hook. This is actually a post about an amicus brief, and thus we know what the case was about, but we don't even know if credibility was lost by the group making the statement.

Also, it does not shock me in the slightest that they wouldn't lose any credibility. People who are in favor of legal abortion wouldn't have given the group any credibility to begin with, and those who aren't will likely forgive if they are even aware that the claim is distorted. That just human nature, and it is equally true in any culture and political persuasion. If that is surprising to you, then you are probably a perpetrator for your own team. Otherwise, you'd be seeing this phenomenon everywhere, all the time...as I do.
posted by Edgewise at 1:08 PM on March 4


Was this actually filed? I don't see it listed here. Am I missing it?
posted by nightwood at 8:36 PM on March 4


just a post to talk about how some people are so dumb, unless you have a better hook.

I've spent the last few evenings following (and comparing) the Ukraine news on both CNN and Al Jazeera. I think there's a hook right there.
posted by DreamerFi at 4:44 AM on March 5


nightwood, I think you and I are the only ones that noticed. It appears that they did not actually file it with the Supreme Court, which was probably a good idea.
posted by Sock Ray Blue at 1:27 PM on March 5 [1 favorite]


Oh, it's on the docket now. It would have been fitting for the whole thing to be a joke, but it's not.

Actually, I guess the whole thing is a joke, but it's not a hoax.
posted by Sock Ray Blue at 11:27 AM on March 6 [1 favorite]




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