Rosen on Roberts
March 2, 2010 5:35 PM   Subscribe

US Supreme Court Chief Justice told law professor and commentator Jeffrey Rosen, “I think it’s bad, long-term, if people identify the rule of law with how individual justices vote.” He expressed his intention to help steer the Court away from 5-4 decisions. Now, three years later, Rosen argues that Roberts has been an activist, combative chief justice, willing to risk confrontations with the other branches of government and public opinion.
posted by ibmcginty (75 comments total) 4 users marked this as a favorite

 
Rosen is right. For those of us who believed what he said under oath in his confirmation hearings, our Chief Justice is an enormous disappointment.

I cannot get over the irony of watching the activism and disregard for past precedent of these darlings (Alito, Thomas, Roberts, Scalia) of the movement that claims to hate activist judges.
posted by bearwife at 5:39 PM on March 2, 2010 [5 favorites]


Rosen argues that Roberts has been an activist, combative chief justice, willing to risk confrontations with the other branches of government and public opinion.

Do you know who else was an activist, combative chief justice, willing to risk confrontations with the other branches of government and public opinion? That's right. Pretty much all of the great ones. But especially John Marshall.

I'm not going to bat for Roberts' opinions or philosophy here. But "activist, combative chief justice, willing to risk confrontations with the other branches of government and public opinion" isn't much of a criticism in and of itself.
posted by The World Famous at 5:42 PM on March 2, 2010 [11 favorites]


Sorry, but isn't that why Roberts was nominated in the first place? I remember thinking "What nonsense!" when he gave that answer about umpires during his confirmation hearing; it seems clear to me that almost nobody on the left or the right really wants non-partisan, Solomonic Justicies who interpret the law in an impartial manner. They want firebrand activists, just on their own side. I'd kill for a justice with the zeal and chutzpah of Scalia on the left.
posted by Bromius at 5:43 PM on March 2, 2010 [3 favorites]


I'd kill for a justice with the zeal and chutzpah of Scalia on the left.

All you have to do is raise Justice Brennan from the dead.
posted by sallybrown at 5:45 PM on March 2, 2010 [2 favorites]


sallybrown: All you have to do is raise Justice Brennan from the dead.
... or Thurgood Marshall, or Harry Blackmun...
posted by IAmBroom at 5:52 PM on March 2, 2010 [3 favorites]


Rosen, in writing about Citizens United, seems to believe that law is policy and that the court should make the policy he (or some group of like-minded people) favor(s). Also, links to two largely speculative essays by Rosen hardly provide enough evidence on which to make up one's mind about the workings of the Court one way or the other. Anyone writing about the Court needs to focus on the issues in play, not write thin screeds about the purported hypocrisy of one justice as if the other 8 lack any agency or personality.
posted by Inspector.Gadget at 5:54 PM on March 2, 2010 [1 favorite]


I don't care whether he's 'activist' or not, as that is a pretty useless term anyways these days except in how it pertains to abortion.

But anyone who would help grant free speech to a corporation is a savage. Oh, he also helped to dismantle the clean water act. Nice work. Now corporations can dump their sludge into ponds and creeks again.

Can't wait to continue seeing more excellent work from this justice for the next 20 or 30 years.
posted by localhuman at 5:59 PM on March 2, 2010 [8 favorites]


"those of us who believed what he said under oath in his confirmation hearings"

All three of you?
posted by mr_crash_davis mark II: Jazz Odyssey at 6:00 PM on March 2, 2010 [5 favorites]


localhuman: "Can't wait to continue seeing more excellent work from this justice for the next 20 or 30 years."

I'm looking forward to gun ownership being declared mandatory.
posted by Joe Beese at 6:03 PM on March 2, 2010 [2 favorites]


I'd kill for a justice with the zeal and chutzpah of Scalia on the left.

All you have to do is raise Justice Brennan from the dead.


Brennan was better than Scalia for reasons beyond the fact that he was on the left. Justice Brennan was a consensus builder. He was a master at getting justicees on his side, and then having gotten their votes, throwing in a concurrence (or letting Justice Marshall do it) that showed how much farther left the decision should be (setting the Court up for the future).

Scalia convinces nobody on the Court of anything. Since joining, he's done nothing but alienate the centrist justices with his rhetoric. His influence is over naive 1Ls, Think Tank fellows, and a pundit class that doesn't know better. Zeal and chutzpah are not enough.
posted by aswego at 6:06 PM on March 2, 2010 [10 favorites]


But anyone who would help grant free speech to a corporation is a savage. Oh, he also helped to dismantle the clean water act.
See, supreme courts matter. Also, christ what an asshole.
posted by uni verse at 6:08 PM on March 2, 2010 [1 favorite]


But anyone who would help grant free speech to a corporation is a savage.

Really? A savage? I mean, I understand the sentiment and agree with it on a visceral level. But certainly you can understand that it's a nuanced issue and that "corporation" doesn't just mean "commercial economic entity." Moreover, even if that were all it means, do you consider "savage" anyone who advocates against censorship of network television broadcasts? After all, that's helping grant free speech to a corporation, is it not? Was George Carlin a savage because he helped grant free speech to corporations?

I'm still not convinced by the reasoning of Citizens United. But your statement seems to me even less persuasive.
posted by The World Famous at 6:15 PM on March 2, 2010 [5 favorites]


This means we should be able to try, convict, and imprison corporations. ENTIRE FINANCIAL SERVICES INDUSTRY, I'M LOOKING AT YOU!
posted by Mister_A at 6:16 PM on March 2, 2010 [3 favorites]


"Oh, he also helped to dismantle the clean water act. Nice work. Now corporations can dump their sludge into ponds and creeks again. "

I think the Citizens United was a terrible ruling, however, the Clean Water Act rulings have a really clear legislative remedy, in that "navigable waters" is too limited, and expanding enforcement de jure to enforcement de facto is well within Congress's powers.
posted by klangklangston at 6:24 PM on March 2, 2010


Yeah, savage is an ill-chosen word. Perhaps all I may simply say is that I disagree with many of his decisions.
posted by localhuman at 6:26 PM on March 2, 2010


I usually frown upon those that drag out Ralph Nader as the reason why Gore lost in 2000 but I think it's ironic that the Nader voters made the case that there was no difference between Bush and Gore and yet I find it VERY hard to believe Gore would have nominated judges to the supreme court that would gut laws Nader championed.
posted by photoslob at 6:27 PM on March 2, 2010 [2 favorites]


You don't need a law degree to know that corporate personhood (which did not start under Justice Roberts's court, but has been bolstered tremendously by that court's recent decision) is an elaborate legal fiction designed to fuck the American people.
posted by Mister_A at 6:30 PM on March 2, 2010 [2 favorites]


Harry Blackmun?

In 1973 he joined the 5-4 majority in San Antonio v Rodriguez which decided that education was not a fundamental right.
posted by rakish_yet_centered at 6:32 PM on March 2, 2010


You don't need a law degree to know that corporate personhood (which did not start under Justice Roberts's court, but has been bolstered tremendously by that court's recent decision) is an elaborate legal fiction designed to fuck the American people.

Just remember you said that next time you're tempted to think some corporation ought to be sued.
posted by The World Famous at 6:35 PM on March 2, 2010 [1 favorite]


Was George Carlin a savage because he helped grant free speech to corporations?

This seems as wholly ridiculous a line of reasoning as Scalia using 24 to justify torture, so I guess it's apropos to the thread subject.
posted by Blazecock Pileon at 6:41 PM on March 2, 2010 [3 favorites]


You don't need a law degree to know that corporate personhood (which did not start under Justice Roberts's court, but has been bolstered tremendously by that court's recent decision) is an elaborate legal fiction designed to fuck the American people.

Corporate personhood had a lot less to do with Citizens United than many seem to believe. Corporate personhood is primarily about limiting the financial and legal liability of the individuals behind a company by throwing the liability on an arbitrary entity. Congress and state legislatures could rewrite corporations law tomorrow to get rid of the liability shift, and there'd still be a good chance the Court would rule similarly on Citizens United. That case was about what tools individuals can use to speak, and the Court ruled that the First Amendment makes corporations almost as legitimate as a bunch of the other tools we find more acceptable. That's also kind of ridiculous and will potentially wind up fucking the American people, but it doesn't really hinge on corporate personhood.
posted by aswego at 6:50 PM on March 2, 2010 [5 favorites]


Why can't these judges pay for their own health care?
posted by Max Power at 6:56 PM on March 2, 2010 [1 favorite]


Thanks aswego. From Chief Justice John Marshall's court in 1819 sprang the roots of corporate personhood. Yes, I was over-reaching in my universal condemnation of corporate personhood. There is a role for some sort of limited "personhood" for corporations, bearing in mind that, in the words of Justice Marshall himself,
“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”
This is a categorically different view from the (wait for it!) elaborate legal fiction of corporations as entities that have worthy political ideas that require 1st amendment protections. That kind of corporate personhood is designed to fuck us.
posted by Mister_A at 7:00 PM on March 2, 2010 [6 favorites]


Correct me if I'm wrong, but I believe the argument they forwarded in Citizens United went something like this:

1. There is a right to free speech

2. Corporations are "persons" and, as such, entitled to free speech

3. Laws limiting corporate free speech (i.e. money) are therefore unconstitutional


It's that stupid. They took a legal fiction and treated it as literal.

And the amazing thing is that these self-identified defenders of stare decisis couldn't seem to remember the words of William Rehnquist: "... treating corporate spending as the First Amendment equivalent of individual free speech is to confuse metaphor with reality."
posted by Benny Andajetz at 7:01 PM on March 2, 2010 [8 favorites]


Scalia convinces nobody on the Court of anything.

(Cf. The Entirety of Clarence Thomas' time on the SCOTUS Bench)

Half-joking, of course. Brennen's tactics were fantastic, and while I love Scalia's writing (and, working in Criminal Defense, love what he's done with expanding the 6th Amendment about as wide as it can go) he's obviously an asshole and most of the other Justices can't stand him. And his decisions are often devestating (though some, like Heller, are brilliant in saying, for instance, that yes, the 2nd Amendment exists as an individual right, and so here's what D.C. needs to do to get effectively the same gun ban going on but make it constitutional.)

Because that's the thing about Justices. We can label them "left" or "right" or "liberal" or "conservatives" but in reality even the worst of them has immense legal training and looks at the world through the lens of that framework.

For instance, D.C.'s equal marriage law went (briefly) to the SCOTUS today, in the form of an "emergency injunction." Roberts and the rest of the court smacked down the injunction, and while I'll have to get up extra early tomorrow morning because of the hundreds of people expected to show up for marriage licenses (the office normally handles ten per day), I'll be smiling the whole time at my (sort of) city being that much better and freer. And the final step of making that happen belonged to John Roberts, who sucks so very, very often but also doesn't see things necessarily through a red/blue political mindset.
posted by Navelgazer at 7:07 PM on March 2, 2010 [2 favorites]


Huge bipartisan majority opposes the Citizens United ruling

A two-question ABC News/Washington Post poll on the issue revealed that 80 percent of Americans (65 percent strongly) oppose the Court's recent ruling, and 72 percent (52 percent strongly) want Congress to do something to reverse the Court. This is stunning. There are very, very few issues in American politics for which there is such lopsided and intense agreement.

ABC/WaPo polling director Gary Langer's analysis is best left unaltered:
"The bipartisan nature of these views is striking in these largely partisan times. The court’s ruling is opposed, respectively, by 76, 81 and 85 percent of Republicans, independents and Democrats; and by 73, 85 and 86 percent of conservatives, moderates and liberals. Majorities in all these groups, ranging from 58 to 73 percent, not only oppose the ruling but feel strongly about it.

Even among people who agree at least somewhat with the Tea Party movement, which advocates less government regulation, 73 percent oppose the high court’s rejection of this particular law. Among the subset who agree strongly with the Tea Party’s positions on the issues – 14 percent of all adults – fewer but still most, 56 percent, oppose the high court in this case."

posted by Rhaomi at 7:16 PM on March 2, 2010


TWF: "Just remember you said that next time you're tempted to think some corporation ought to be sued."

If corporations are to be treated as people, they should age and die like humans within a reasonable timeframe. They should also be able to face capital punishment.

Also, why can corporations same-sex marry (sorry, "merge") if regular citizens can't?
posted by mullingitover at 7:21 PM on March 2, 2010 [4 favorites]


Correct me if I'm wrong, but I believe the argument they forwarded in Citizens United went something like this:

1. There is a right to free speech

2. Corporations are "persons" and, as such, entitled to free speech

3. Laws limiting corporate free speech (i.e. money) are therefore unconstitutional


It's that stupid. They took a legal fiction and treated it as literal.


I'm afraid that is not how the argument went.

It's a long opinion (the syllabus itself is seven pages), but the gist is more that the Court believed the First Amendment did not protect some types of associations' speech more than other types of associations' speech. The legal fiction you speak of could have never existed, and the Court might have reasoned and ruled the same way (we'll never know of course, but I'd certainly bet a lot of money it).

I think it was a bad decision. I'd even argue that the fact that corporations shift their liability is the very reason they should be treated in a different way than other associations. It's probably the biggest factor in corporations' bad behavior, after all.

But I'd bet that's not why Citizens United is so overwhelming unpopular, as Rhaomi alludes. I think it's because people are all of a sudden hearing about corporations being treated as "people," not realizing that "people" is a term of art in this context and has a very specific meaning (see mullingitover and The World Famous), and reacting to the fact that a very different definition of "people" has existed in their minds for most their lives. The equation just seems ridiculous to them. Never mind that our society is built on so many other "legal fictions" that would astound them if they were ever confronted with them directly. All of that, combined with the facts that 1.)nobody much likes corporations at the moment (for plenty of good reasons, in addition to the silly ones), and 2.)everyone's misinterpreting the decision left and right, are obviously going to lead to unpopularity.
posted by aswego at 7:28 PM on March 2, 2010 [7 favorites]


"Just remember you said that next time you're tempted to think some corporation ought to be sued."

An organization doesn't need to have constitutional rights to be amenable to suit. The problem with corporate personhood is that it drags all of these other irrelevancies into the picture. We have statutes that defines what a corporation is and what it can and cannot do, and none of this requires the legal fiction of corporate personhood.
posted by 1adam12 at 7:34 PM on March 2, 2010


Legal fiction - exactly right.

Hey, I'm all for giving corporations and every other business entity each and every right that they can actually exercise. Like taking advantage of tax breaks, paying taxes, having limited liability, ability to contract, etc..., but I draw the line at giving corporations rights which they cannot exercise without engaging in logical or legal gymnastics (e.g., $$ contributions = speech) or for which they can never be punished in the same manner as a "natural" person (imprisonment for criminal violations). A natural person can "speak" in the way the founding fathers understood speech to be: oral, written, and even silent protest as a "speech" in the constitutional sense. Last time I looked, Enron, GE, GM, et al could do none of those things except by the proxy of their employees -- or by spending cash.
posted by webhund at 7:35 PM on March 2, 2010 [1 favorite]


Why can't these judges pay for their own health care?

"Hello, we'd like to start a group PPO plan."

"Sure, how many employees in your group?"

"Nine"

"Hahahha" *Click*
posted by damn dirty ape at 7:48 PM on March 2, 2010 [8 favorites]


I'd even argue that the fact that corporations shift their liability is the very reason they should be treated in a different way than other associations.

Best argument I've seen. Thumbs up.
posted by Benny Andajetz at 7:53 PM on March 2, 2010 [1 favorite]


When I'm on the vinegar strokes of my Obama presidential fantasy, he enlarges the court to 11 (there's no constitutionally mandated number).
posted by klangklangston at 7:55 PM on March 2, 2010 [1 favorite]


Everyone says they don't want an activist judge.
posted by edgeways at 8:03 PM on March 2, 2010


The equation just seems ridiculous to them. Never mind that our society is built on so many other "legal fictions" that would astound them if they were ever confronted with them directly.

Name some; I'm genuinely curious. Unfortunately I only have a passing knowledge of American law, but from a Canadian perspective, the whole conversation is stunningly absurd. On the way out, Chretien passed crushingly strict campaign finance and election laws, and it's largely viewed as one of the best things to have happened to the country. 30 day campaigns, strict spending limits, funding provided to parties based on their performance in the previous election.

Even if Citizens United is in some sense technically correct, it is plainly against the will of the people and the interests of an egalitarian society. It has interpreted the right to free speech as "he who shouts loudest, wins." What it dismisses is the right to be heard. While it does strike me as a natural consequence of the "corporations are persons" meme, it is also its most damning indictment.
posted by mek at 8:07 PM on March 2, 2010 [1 favorite]


he enlarges the court to 11

That should go over well...
posted by Confess, Fletch at 8:14 PM on March 2, 2010


If you object to Citizens United on the basis that it protects the First Amendment rights of corporations, I'd really like to hear you distinguish NYT v. Sullivan in a way that doesn't make me laugh.
posted by planet at 8:23 PM on March 2, 2010


Huge bipartisan majority opposes the Citizens United ruling

I have to admit I don't have any idea what this is supposed to prove. Whether people agree with the results of a decision has absolutely no bearing on whether the ruling is correct Constitutionally. I don't care whether a huge bipartisan majority opposes or supports rulings, only that those rulings be correct.
posted by Justinian at 8:37 PM on March 2, 2010


But I'd bet that's not why Citizens United is so overwhelming unpopular, as Rhaomi alludes. I think it's because people are all of a sudden hearing about corporations being treated as "people,"

The ruling is unpopular because people believe it will increase corporate influence in politics -- people tend not to care about legal fictions unless they result in a ruling that they believe will negatively impact their lives.
posted by eddydamascene at 8:39 PM on March 2, 2010 [2 favorites]


The ruling is unpopular because people believe it will increase corporate influence in politics -- people tend not to care about legal fictions unless they result in a ruling that they believe will negatively impact their lives.
For example, notice the lack of popular outcry about corporations being treated as "persons" under the Internal Revenue Code.
posted by planet at 8:49 PM on March 2, 2010


30 day campaigns, strict spending limits, funding provided to parties based on their performance in the previous election.

I'm not saying these things would definitely be approved by this Court (it is right wing, after all), but they'd all have a better chance than treating corporations different from other associations had. In fact, our Court has yet to strike down some spending limits. So it's not that campaign finance goes against the First Amendment. It's that parts of it do.

Even if Citizens United is in some sense technically correct, it is plainly against the will of the people and the interests of an egalitarian society.

Bora Laskin was the greatest judge Canada ever had. He fought for ideals like the "will of the people" and an "egalitarian society" before 1982 even explicitly gave him the powers to do so. He was also smart enough to realize that even those two ideals conflict sometimes. All republics insulate themselves somewhat from the "will of the people," specifically so they can do things like enforce an "egalitarian society." Surely there are parts of the First Amendment you do agree with (from the other side of the border). If an opinion poll showed that the citizenry were overwhelming opposed to the good parts, would you still fret that the Court was ignoring the will of the people?

It has interpreted the right to free speech as "he who shouts loudest, wins."

It really hasn't. It decided that the side effect of "he who shouts loudest, wins" is, all things considered, better than the alternative. It decided that the "right to be heard" is subordinate to "the right to speak, even if it's with a bunch of friends who are organized in a convoluted, unabashedly profit-motivated way."

Anyway, you should ask yourself what really bugs you about Citizens United. If it's that you're afraid corporations will inevitably shout louder than human beings, spending limits (on both individuals and corporations equally) can pretty much solve that. If what bugs you is the equation of campaign contributions to speech, fair enough...publicly financed elections should solve that (take away BOTH individuals and corporations' contributions!). That's not a particularly good reason to treat campaign contributions from corporations in a different way than campaign contributions from individuals, though.

A good reason to disagree with Citizens United will involve examining fundamental differences between corporations and other associations, and showing specifically why those differences should garner different levels of speech protection. I tried to lay out one earlier in the thread. I can think of a couple more minor ones that have to do with corporate governance (and that the Court chose to dismiss in its opinion). I'd sincerely love to read more, though.
posted by aswego at 8:50 PM on March 2, 2010 [2 favorites]


If you object to Citizens United on the basis that it protects the First Amendment rights of corporations, I'd really like to hear you distinguish NYT v. Sullivan in a way that doesn't make me laugh.

I don't know, planet. The fact that the First Amendment explicitly mentions freedom of the press could reasonably be interpreted as affording the press extra protection like that relevant in NYTimes v. Sullivan, regardless of whether "the press" means individuals or the media corporation that employs them. There's nothing unreasonable about believing the crux of one clause (freedom of speech) requires differentiation of individuals and corporations while the crux of another (the press) requires inclusion of both.
posted by aswego at 8:55 PM on March 2, 2010 [1 favorite]


The fear about Citizen's United is overblown. To be worried about the ruling in Citizens United, you have to hold the (false) belief that corporate speech was somehow limited before hand. It wasn't very limited.

Citizen's overturned a statute that prevented direct spending from general corporate accounts on television and radio speech, and also regulated such speech during a 60 day period prior to elections. But guess what? Corporations already could fund radio and television speech. They just had to do so through a separate Political Action fund, rather than right from the corporate coffers. And while the act limited television and radio speech, there were never such regulations for print media or the internet.

I guess the real fear of Citizen's is that it shows the new court's willingness to take a stand on broad, sweeping constitutional issues. Citizen's could have been decided in a very limited way (deciding that pay-per-view movies either did, or did not, qualify as television for purposes of the McCain-Feingold act), but instead, the new majority decided to turn it into a sweeping referendum on the first amendment rights of corporations. It's scary for the direction it points in, but not the ruling itself.
posted by HabeasCorpus at 9:08 PM on March 2, 2010 [2 favorites]


sorry, by "pay per view" I mean "on demand", and by "60 days", I may or may not mean "30 days". I dunno...its late....
posted by HabeasCorpus at 9:12 PM on March 2, 2010


You don't need a law degree to know that corporate personhood (which did not start under Justice Roberts's court, but has been bolstered tremendously by that court's recent decision) is an elaborate legal fiction designed to fuck the American people.

Just remember you said that next time you're tempted to think some corporation ought to be sued.

I dunno....woudn't it be kind of cool if the board or directors, or even just the CEO got sued for the shitty stuff the company did, rather than the corporation as a whole?

Don't get me started on that limited liability crap...
posted by Salvor Hardin at 9:15 PM on March 2, 2010 [1 favorite]


he enlarges the court to 11

OBAMA: No, no, this one goes to eleven.
posted by PostIronyIsNotaMyth at 9:17 PM on March 2, 2010 [7 favorites]


There's nothing unreasonable about believing the crux of one clause (freedom of speech) requires differentiation of individuals and corporations while the crux of another (the press) requires inclusion of both.
Isn't there? What in the language "Congress shall make no law...abridging the freedom of speech, or of the press" would lead you to believe that there are entities that have press rights, but not speech rights? Particularly when you take into account that in 1789, the gloss of "the press" meaning "journalism" didn't yet predominate. Instead, it meant something like publishing. Corporate publishing didn't really exist at the time, if at all -- there were few if any general incorporation acts, and incorporation required a specific act of the legislature.

If you think about what methods of communication were available in 1789, you pretty much have speaking and publishing, and the First Amendment hits both of them. Is it really reasonable to take away from the parallel construction of the First Amendment that one of the protections (the second) is broader than the other? Furthermore, Citizens United involved airing a "documentary" film. Is this more like speaking or publishing? Under First Amendment law, this hasn't mattered, since the "speech" and "press" prongs have been interpreted just to cover pretty much any mode of expression -- so it's not important if you're speaking or publishing, so long as you're doing at least one, or something like at least one.

If corporations have press rights but not speech rights, though, it suddenly becomes very important whether a particular mode of expression is speaking or publishing. How do you, as a matter of Constitutional law, classify modes of expression that have arisen after 1789?
posted by planet at 9:18 PM on March 2, 2010


Why can't these judges pay for their own health care?

They do pay for their own healthcare. Their health plans are part of their compensation for doing their jobs, just like other people who receive healthcare as part of their employment compensation. And what we (the taxpayers) are paying them is a bargain compared to what the market would pay them if they left the bench to go into private practice.
posted by The World Famous at 9:31 PM on March 2, 2010 [1 favorite]


When I'm on the vinegar strokes of my Obama presidential fantasy, he enlarges the court to 11 (there's no constitutionally mandated number).

There isn't a constitutionally-mandated number, but the Judiciary Act of 1869 makes nine the limit. Recap of the varying number of justices on the Supreme Court over time.
posted by kirkaracha at 9:38 PM on March 2, 2010


planet- I've made similar arguments in my life about how the press clause is mostly unnecessary what with the speech clause right there next to it. But I'm close to a free speech absolutist, and am unimpressed with most journalists. That doesn't mean everyone who disagrees with me is unreasonable. Anyway, most of what you wrote seems to be predicated on an originalist argument. If you think Living Constitutionalism is inherently unreasonable, then I doubt there's any point in discussing the matter. If you actually are interested in the few examples of the Court paying special attention to the press clause, or agency reasons why protections of individual members of the press would have to include their corporate affiliates, or hypothetical ways in which the Court could give the press clause even more oomph (not necessarily ways I approve, but ways I considered serious arguments from reasonable people), MeFiMail me.
posted by aswego at 9:40 PM on March 2, 2010


Anyway, most of what you wrote seems to be predicated on an originalist argument.
No. There's nothing particularly originalist about taking the view that "speech" and "press" are just categories of expression, and as new categories of expression arise, they should likewise be accorded protection, which is what I argued. So don't tar me with that brush.
posted by planet at 9:52 PM on March 2, 2010


Huge bipartisan majority opposes the Citizens United ruling

And how popular was Brown v. Board of Education with the American general public when that decision came down?

The whole point of lifetime appointments for Supreme Court justices was designed exactly so that they could make decisions based on what they (correctly or incorrectly) think the law and the Constitution compels them to do, and not make decisions based on the whims of the general populance.
posted by gyc at 10:45 PM on March 2, 2010


This just in from Chief Justice Roberts.
posted by raysmj at 11:20 PM on March 2, 2010


Breaking news: Liberal law professor does not like decisions of conservative Chief Justice. Article written in magazine. Stand by for more information as it becomes available.
posted by Slap Factory at 12:00 AM on March 3, 2010 [2 favorites]


Thanks for the post.

If anyone wants to do some further reading along these lines, I recommend Judge Richard Posner's book How Judges Think. It's not just about the Supreme Court, but there's one chapter arguing that SCOTUS is a "political court," including both liberal and conservative judges. (Posner himself is considered a conservative.)

Posner says of John Roberts:
Neither he nor any other knowledgeable person actually believed or believes that the rules that judges in our system apply, particularly appellate judges and most particularly the Justices of the U.S. SUpreme Court, are given to them the way the rules of baseball are given to umpires. We must imagine that umpires, in addition to calling balls and strikes, made the rules of baseball and changed them at will. Suppose some umpires thought that pitchers were too powerful and so they decided that instead of three strikes and the batter is out it is six strikes and he's out, but other umpires were very protective of pitchers and though there were too many hits and therefore decreed that a batter would be allowed only one strike. . . .

Roberts may have made a tactical error. His confirmation did not turn on convincing Senators that a Supreme Court Justice is like a baseball umpire. In the spring of 2007, less than two years after his confirmation, he demonstrated by his judicial votes and opinions that he aspires to remake significant areas of constitutional law. The tension between what he said at his confirmation hearing and what he is doing as Justice is a blow to Roberts's reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.
posted by Jaltcoh at 6:37 AM on March 3, 2010 [3 favorites]


If you object to Citizens United on the basis that it protects the First Amendment rights of corporations, I'd really like to hear you distinguish NYT v. Sullivan in a way that doesn't make me laugh.

Laugh if you want, but freedom of the press is a specifically enumerated right over and above the right to free speech. As the US paper of record, New York times qualifies as "the press" don't you think?
posted by saulgoodman at 6:50 AM on March 3, 2010


Laugh if you want, but freedom of the press is a specifically enumerated right over and above the right to free speech. As the US paper of record, New York times qualifies as "the press" don't you think?
This is a deeply silly argument, so yes, I'm laughing. It's a historical and linguistic accident that a phrase we presently colloquially use to refer to corporate journalism collectively made its way into the First Amendment. Interpreting a law without being sensitive to intervening shifts in language use gives strange and arbitrary results. If people hadn't come to use the phrase "the press" to refer to the corporate journalism establishment, would we be forced to conclude that the NYT has no First Amendment rights? If, in the future, the word "speech" falls out of usage as a term generally encompassing all oral communications, and in 2100, "speech" is commonly used only to refer to oration to an audience, will we conclude that the First Amendment has consequently been narrowed? The answer has to be no.
posted by planet at 7:03 AM on March 3, 2010


If corporations have press rights but not speech rights, though, it suddenly becomes very important whether a particular mode of expression is speaking or publishing. How do you, as a matter of Constitutional law, classify modes of expression that have arisen after 1789?

Simple: All corporate speech is commercial speech by definition, because if it isn't motivated by commercial interest, the corporation is violating its legal obligations to its shareholders. Therefore, all corporate speech--print or otherwise--is commercial speech and there's already many years of solid precedent (which, naturally, right wingers reject) for treating commercial speech differently under the law.

The reason this doesn't apply to the press is that they're granted extra protection under freedom of the press. That makes sense, since they are (theoretically) in the business not of using speech to make money but of making money from speech.

In other words, when a corporation that doesn't exist strictly as a press but for other commercial purposes communicates any kind of message--political or otherwise--it's just advertising.
posted by saulgoodman at 7:03 AM on March 3, 2010 [3 favorites]


It's a historical and linguistic accident that a phrase we presently colloquially use to refer to corporate journalism collectively made its way into the First

Oh, ha, ha. You're so urbane and have such a nuanced grasp of historical context! And my, you used the word colloquially! Boy, are my cheeks red! You're right of course.
posted by saulgoodman at 7:04 AM on March 3, 2010 [1 favorite]


Simple: All corporate speech is commercial speech by definition, because if it isn't motivated by commercial interest, the corporation is violating its legal obligations to its shareholders.
Citizens United is a nonprofit.
posted by planet at 7:12 AM on March 3, 2010


Citizens United is a nonprofit.

Yes, but it has a charter that defines it's mission. To the extent its charter dictates its operational goals, it's speech rights are already legally constrained by its own charter.
posted by saulgoodman at 7:16 AM on March 3, 2010


And, BTW, legally, even non-profits can run afoul of the law if they don't fulfill their charter (whether their mission is to profit directly by selling products, indirectly by selling ideas, or otherwise).

In every case, a non-press corporation is constrained from exercising speech freely from the moment it's incorporated, by the constraints of its operating charter.
posted by saulgoodman at 7:20 AM on March 3, 2010


Yes, but it has a charter that defines it's mission. To the extent its charter dictates its operational goals, it's speech rights are already legally constrained by its own charter.
It's extremely common for a certificate of incorporation to provide that the corporation can engage in any lawful activity. I have no idea what Citizens United is authorized to do, by its charter, but we have no reason to think it was exceeding the scope of its permitted activities.
posted by planet at 7:21 AM on March 3, 2010


saulgoodman: Your comments about the press contradict your categorical statements about corporations ("All corporate speech is commercial speech by definition"). The New York Times and the New Yorker and the Wall Street Journal and Dissent Magazine -- they're corporations. Many people apparently resist calling them corporations, but that doesn't change the facts. No one can take a categorical position that "corporations" don't have free speech rights unless they think those publications don't have free speech rights (which I assume no one here would say).

A corporation is just a framework our society has invented for organizing human beings to do things, and often those things involve human beings expressing political views. It's hardly convincing to say "but there's a heightened level of protection for the press"; one can simply respond that there's a heightened level of protection for making a movie that does a hatchet job on a presidential candidate.

And planet is right that people are making some very dubious statements about how constrained corporations are in their actions.
posted by Jaltcoh at 7:30 AM on March 3, 2010


If the New York Times gets an exception from commercial speech, what about Fox News? What about my newest newspaper, "The Fedex Times"? All a corporation has to do to get around McCain-Feingold is start a newsletter.

Yes, but it has a charter that defines it's mission. To the extent its charter dictates its operational goals, it's speech rights are already legally constrained by its own charter.

The way you all describe it, they can advertise however they like so long as they're advertising the documentary. But the documentary was basically a long advertisement about why Hillary Clinton wouldn't make a good president. So what's the difference?
posted by anotherpanacea at 7:34 AM on March 3, 2010


I dunno....woudn't it be kind of cool if the board or directors, or even just the CEO got sued for the shitty stuff the company did, rather than the corporation as a whole?

It happens all the time.

Don't get me started on that limited liability crap...

Most corporations aren't big faceless evil empires. Your neighborhood mom-and-pop corner store is probably incorporated. Do you think the owners should have to make themselves personally liable (i.e. they put at risk their life savings, house, etc.) for all of the store's debts and other liabilities?
posted by brain_drain at 7:37 AM on March 3, 2010


by its charter, but we have no reason to think it was exceeding the scope of its permitted activities.

Then what you are describing is not a corporation but a legal instrument for funneling political money around.

If it doesn't have a mission, what does it have to say? If the corporation is acting merely as a representative for an individual or group of individuals, then no extra speech protections (let alone separate legal standards) are required.

The truth is that the concepts of freedom of speech and press were not simply terms colloquially used to mean any kind of activity with some political dimension whatsoever. At the time of the nation's founding, the speech referred to literally meant public speech acts of individual people; nothing more or less. Our current situation is a result of the law lagging far behind changing historical realities.

Instead of dealing with the legal problems that new forms of commercial media and public expression create on a case by case basis to establish a coherent and rational legal framework, we've stretched and redefined more primitive legal concepts until they're now effectively meaningless and the resulting law is bizarre and impractical, as large majorities of the public plainly agree.
posted by saulgoodman at 7:40 AM on March 3, 2010


But the documentary was basically a long advertisement about why Hillary Clinton wouldn't make a good president. So what's the difference?

The difference is, on principle, we've already established that congress can through various mechanism (like the FCC, FTC, etc.) regulate advertising. Not that they do anymore, thanks to Reagan, but it's long been established that commercial speech does not enjoy the automatic protections of free speech. So, if congress passes a law saying you can't advertise for or against a political candidate unless you meet certain legal requirements, there's no basis for a free speech defense if you do it anyway. What the supreme court has ruled is that congress doesn't have the right to limit this kind of spending on advertising. That's absurd. Of course congress can regulate advertising. It should have the right to ban advertising, political or otherwise, completely if it wants to, because congress is the only law making body we have, and advertising is not and should not ever be treated as protected speech.
posted by saulgoodman at 7:46 AM on March 3, 2010


So, if congress passes a law saying you can't advertise for or against a political candidate unless you meet certain legal requirements, there's no basis for a free speech defense if you do it anyway.

Err... what? You seriously believe that Congress can limit broadcast speech for and against political candidates? So, like: you can advertise if you're supporting Democrats, but not Republicans? Or if you're African-Americans can't buy political advertisements? Or women?

Presumably, you don't think that. But apparently you do think that we can distinguish between natural persons and associations of natural persons. And that's just weird: "If you want to do that, then you can't do it together."
posted by anotherpanacea at 7:56 AM on March 3, 2010


On a COMPLETE tangent:

Benny Andajetz:

2. Corporations are "persons" and, as such, entitled to free speech

3. Laws limiting corporate free speech (i.e. money) are therefore unconstitutional


For anyone who is looking to understand the proper use of "begging the question" - there it is.
posted by tzikeh at 8:22 AM on March 3, 2010


Err... what? You seriously believe that Congress can limit broadcast speech for and against political candidates? So, like: you can advertise if you're supporting Democrats, but not Republicans? Or if you're African-Americans can't buy political advertisements? Or women?

Yes. As long as the limit is non-partisan.

For instance, did the legal standard that congress imposed in Citizens United discriminate on the basis of the political content of the speech? No. If "the other side" had run the same kind of ad attacking a prominent Republican political figure, it would have likewise been prohibited under the rule. That's a perfectly fair and reasonable application of law.
posted by saulgoodman at 9:17 AM on March 3, 2010


You believe in viewpoint neutrality but not speaker neutrality, eh? Huh.

The problem, of course, is that this is still political speech. It's about politics. That's what it's for. If you have elections but won't let folks talk about the candidates, then you're basically privileging incumbents over challengers. There's more than enough of that kind of incumbency-bias already, and it's the sort of thing that incumbent politicians can agree on: regardless of 'sides,' everyone wants to keep their job. So it's not something that Congress is particularly well-suited to decide on its own.
posted by anotherpanacea at 9:43 AM on March 3, 2010


For anyone who is looking to understand the proper use of "begging the question" - there it is.

Tzikeh: I wasn't making the argument. I was saying that that was my understanding of the court's argument.


A corporation is just a framework our society has invented for organizing human beings to do things, and often those things involve human beings expressing political views.


Not quite correct. A corporation is just a framework our society has invented for organizing human beings to do things, with the sole purpose of aggregating capital while avoiding joint and several liability. Corporations were a business "improvement" on partnerships.

Also not addressed above, that I can see: Fine, corporations are "persons". But this is only a metaphor used to make the legalities more concise and understandable. Corporations are NOT ACTUAL PERSONS. Arguing over whether they deserve free speech rights is ignorant (or, at least, requires a case-by-case review) because ONLY ACTUAL PEOPLE are endowed with free speech rights.

And, I would argue that the fact that THE PRESS is actually enumerated in the Constitution is actually very important.
posted by Benny Andajetz at 9:48 AM on March 3, 2010


brain_drain wrote: "Do you think the owners should have to make themselves personally liable (i.e. they put at risk their life savings, house, etc.) for all of the store's debts and other liabilities?"

As a practical matter, they already are personally on the hook for debts. No bank will loan money to a small business without a personal guarantee from the owner.

So yeah, limited liability mainly benefits large companies, and amongst those, primarily those which have publicly traded stock.

For the rest of us, limited liability is of little practical value, except in some narrow ways if the business in question is a (limited liability) partnership.
posted by wierdo at 1:55 AM on March 4, 2010


I'm looking forward to gun ownership being declared mandatory.
posted by Breckenridge at 10:51 AM on March 4, 2010 [1 favorite]


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