Liberals (including President Obama) think the Supreme Court was wrong in Citizens United to say that corporations have free speech rights, but newspaper and book publishers are corporations. For some reason, the NYT is acting like it took a year to notice this hitch (which has been perfectly evident since the Citizens United litgation began in the lower courts). I guess the excuse for pretending not to see what was obvious is that it has been hoping to rely on the notion that some corporations have more rights than others. This new piece — a column by Adam Liptak — begins to concede that is an unworkable argument.
“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” Justice Kennedy wrote in Citizens United....
Eugene Volokh, a law professor at the University of California, Los Angeles, has reviewed the historical evidence. The bottom line, he said, is this: “If ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.”
But Liptak's column peters out with a quote from a lawrpof who calls it a "difficult question" and...
There good arguments both ways about whether corporations ought to be covered by the First Amendment. But it is harder to say that some corporations have First Amendment rights and others do not.
Yes, yes, it's obvious what the answer needs to be, and yet the debate must go on and on because it's so important to restrict the speech of people who organize themselves into corporations. Some of them. The bad guys. Not the good guys, like the ones who take a year to getting around to half-conceding the crushingly obvious.
So, then, how did this happen? Instapundit would unquestionably be #1, but Glenn had to take his public Site Meter down because it was interfering with ads. If you look at my Site Meter, Instapundit boostsmy traffic. The other thing is that the first chart ranks by the number of page views, but if you scroll down, there is a second ranking by the number of visitors. On that second chart, I'm second (to The Volokh Conspiracy ). That has something to do with clicking into the comments threads. Not that the comments at Volokh aren't good, but there's a bit more action in the comments here, so a special thanks to the commenters here — along with all the readers who don't comment. You make blogging great fun for me.
(Whatever happened to refusing to comment on issues that might reach the Court in real cases? Or is that just get-through-the-Judiciary-Committee blather?)
ADDED: What scares me is the thought that, if Justice Breyer had heard cheers at the hint that he might protect the feelings of Muslims over the free speech of Rev. Jones, he would have gone the other way.
The Wisconsin law says the names of independent candidates shall appear on the ballot along with "the party or principle of the candidates, if any, in 5 words or less, as shown on their nomination papers."
Cass Sunstein in full Orwellian mode (back in 2001):
Text:
Sites of one point of view agree to provide links to other sites, so that if you're reading a conservative magazine, they would provide a link to a liberal site and vice versa, just to make it easy for people to get access to competing views. Or maybe a pop-up on your screen that would show an advertisement or maybe even a quick argument for a competing view. [break] The best would be for this to be done voluntarily, but the word "voluntary" is a little complicated, and sometimes people don't do what's best for our society unless Congress holds hearings or unless the public demands it. And the idea would be to have a legal mandate as the last resort, and to make sure it's as neutral as possible if we have to get there, but to have that as, you know, an ultimate weapon designed to encourage people to do better.
I got to the link from Jonah Goldberg, and I also heard the audio on the Rush Limbaugh show yesterday, and I took the text from Media Matters, which critiques Rush (for associating Elena Kagan with the idea and for botching the meaning of "net neutrality") and refers us to a 2008 Bloggingheads diavlog in which Sunstein calls his own idea "bad." Here's the Bloggingheads segment (with Eugene Volokh!). I have not listened through it to figure out how far Sunstein may have walked back from his idea (and why).
The big problem is not just that the Court ruled that Congress had the power to detain “sexually dangerous” federal prisoners who have already completed their sentences. By itself, this is a relatively minor policy (except, of course, for the people detained). The really dangerous element of the majority opinion is that it adopts the highly deferential “rational basis” test for assessing assertions of power under the Necessary and Proper Clause, holding that “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”
Though "the statute involved here is somewhat peculiar," so that it might be distinguished in future cases, Eugene Volokh says that the Chief Justice's joining the majority suggests that the Court has lost its taste for striking down federal laws on the ground that they exceed Congress's enumerated powers.
To be sure, the facts of this case are unusual, because the law here applies only to people who had already been convicted of federal crimes. But the majority’s rationale seems quite broad; it concludes that federal power challenges should be upheld so long as they are “rationally related to the implementation of a constitutionally enumerated power” — that’s the famously extremely deferential “rational basis” test....
Comstock involved whether ample connection existed between the law incarcerating sexual predators after their federal criminal sentence had been completed and an enumerated power....
With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is “necessary and proper” to execute its power under the Commerce Clause. Moreover, the argument for “necessity” is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court’s normal deferential approach, finding “necessity” won’t be hard.
The problem with the mandate is whether it is a “proper” means to achieve a constitutional end. ...
In Comstock, nothing about the incarceration of sexually dangerous persons was alleged to be an “improper” means of pursuing an enumerated end. The issue was whether or not the statute was enacted pursuant to an enumerated power....
And there are also all those non-bisexual gay individuals who dated members of the opposite sex before they became convinced of their homosexuality or even after. People who are not sexually interested in each other may go out together to keep each other company as friends, to deflect rumors that they are homosexual, or for any number of other reasons.
The [First Amendment] articles attack difficult and important problems (Private Speech, Public Purpose, for instance, tries to come up with a broad theory to explain much of free speech law). They seriously but calmly criticize the arguments on both sides, and give both sides credit where credit is due. For instance, I particularly liked Kagan’s treatment of both the Scalia R.A.V. v. City of St. Paul majority and the Stevens concurrence, in her Changing Faces of First Amendment Neutrality article.
As importantly, the articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions, and of First Amendment doctrine. (I’m a big believer in formalism in the sense of a preference for rules over standards; but I share many people’s disapproval of formalistic arguments in the fashioning of rules, when those arguments ignore real-world distinctions and effects, and obscure the important policy questions rather than revealing them.) This is legal scholarship as it should be, and as it too rarely is.
And what kind of free speech opinions can we expect Justice Kagan to write:
My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies.
"They’re law students and legal academics. I presume that everyone there is manifestly unqualified to evaluate the scientific evidence one way or the other. It’s rebuttable. If they show me their scientific creds, I’ll listen. Until then, STFU."
Now if these comments just complained about people who write definitive-sounding op-eds or blog posts about subjects they know nothing about, I wouldn’t be responding to it here. But of course the author of the e-mail wasn’t writing an op-ed aimed at persuading the public. She was continuing a conversation with a friend. The recommendation is that non-scientists who don’t know much about the subject shouldn’t even discuss it....
[W]hat a narrow, stultifying notion of education that is. Read quietly, on your own, with no discussion with others who are interested in the subject, until you become knowledgeable enough. Only then should you feel authorized to discuss it. Only then will we be “sympathetic” should you be publicly pilloried for your e-mail to a friend that raises the question — because only then could we say that “actual science is being foreclosed” by the condemnation of you.
The law school classroom experience requires students to discuss complicated and sensitive subjects in front of other students. How on earth are we going to be able to do that if the students think there's a terrible risk in saying the wrong thing — or the right thing the wrong way?
The way most people actually educate themselves effectively, it seems to me, is very different. They get interested in a subject. They talk to friends about it. They read some more. They talk some more about their readings, perhaps especially with people who are also learning about the matter. Their friends might help correct their errors. Enlightenment might emerge in a conversation when it didn’t emerge in mere reading.
Yes. Exactly. Human culture emerges as people interact with each other. Life would be very different if it was all about reading and studying. In fact, this is why we value diversity in the classroom, so that different kinds of individuals will converse and react. We will get to a better understanding of things that way.
Now, part of that really is seeing and feeling what makes other people angry. This conversation that is so valuable can't be bland and emotionless. Emotion is a part of reasoning and learning. But what does the group do to itself? What should the law school classroom (or any classroom) be like? There is an ideal level of interaction that includes ease and care in the expression of ideas and the response to what other people are saying. I want students to debate and even argue, to get excited and even angry, but not to the point where the exchange breaks down.
Back to Volokh:
That’s supposed to be one of the joys of intellectual life. It’s supposed to be one of the advantages of life in a university, where you can find classmates who — like you — have intellectual interests beyond your narrow field of study.
My law school, the University of Wisconsin, prides itself on interdisciplinary study. We encourage students (and faculty) to import other fields of study into working within law. We like the cross-fertilization and don't see the academic disciplines walled off from each other (with the walls staunchly guarded by the experts). Do you think law should be aridly academic? Do you think cases should be argued and decided by people who are intensely specialized in the study of legal texts? If you think you do, I don't think you'd keep thinking that if we had a way to run the experiment and see the results.
Volokh himself is that computer programmer. Jared Diamond is the biophysicist.
I think the lesson here is that we should want to experience our full humanity and to understand and respect and help each other as full human beings. This is an idea that completely harmonizes with the rejection of racism.
With luck, this student won’t have her career ruined, or even much affected. I’ve seen a public call for her to be expelled.... but I doubt that this will happen. And even if some of the best future jobs are closed off to her, at least for a while, a Harvard Law diploma will get you to plenty of places. She doesn’t have to worry, I suspect, about not being able to feed herself or her future family.
Yet the public revelation of a private conversation; the public condemnation by management; the obvious danger of serious career ramifications; the apology, which I take it came out of a fear of those ramifications — all for daring to say to friends something that simply represents a basic scientific principle (the need to be open to the possibility that there are racial differences in intelligence, as one is open to other possibilities on other scientific questions) — that just sounded a little too familiar to me.
It’s a pale echo, but of something so bad that we should be wary even of pale echoes.
A troubling event and its reverberations can offer an opportunity to increase awareness, and to foster dialogue and understanding. The BLSA leadership brought this view to our meeting yesterday, and I share their wish to turn this moment into one that helps us make progress in a community dedicated to fairness and justice.
So the original "troubling event" was something Minow chose to use as a teaching moment to increase awareness, and to foster dialogue and understanding. She embraced the practice of turning the difficult material into an occasion to make progress in a community dedicated to fairness and justice.
Keep teaching, professor! A lot of us are prepped and eager for Lesson 2!
Here's the part of the BHTV that refers to. It's also a featured link in the sidebar at Bloggingheads with the teaser "Matt Welch. Mickey Kaus. A swimming pool. What happened next may be enough to derail a Senate campaign."
It's called "It's Fun to Be Goo" and is mostly in response to the passage of the health care bill, but there's some cool miscellaneous material in there, like the story of Matt and Mickey Kaus in Eugene Volokh's swimming pool, which includes my idea for a Speedo based on the California flag.
Joe Bottum asks, looking at a poster that identifies Eugene Volokh as "Founder of The Volokh Conspiracy blog and Gary T. Schwartz Professor of Law at UCLA."
In the marketplace of ideas, the currency is page views.
As a lawprof blogger. Same rank as last time. It's one thing to get ahead of Hewitt. But to best Volokh... I mean — what? — are there 18 lawprofs over there! How can one lady lawprof beat 18 lawprof guys? (Yes, there are 18, all male.) But #1 is, as ever, Instapundit. One guy. It's not 18 against one there. It's one. And, actually, I think one is the best number of writers on a blog. And one cannot even dream of getting to #1 as long as Instapundit is in the game.
"It was all in the context of saying positive things about Senator Obama. It definitely was in the context of recognizing in Senator Obama a great candidate and future president." So said Democratic National Committee Chairman Tim Kaine, about Harry Reid saying that Obama would be a fine candidate because he's "light-skinned" and has "no Negro dialect, unless he wanted to have one."
Is Harry Reid a racist? It depends on what the meaning of racist is:
If by "racist," you mean somebody who feels antagonism toward black people, then Harry Reid isn't a racist. Harry Reid thinks we are racists.
If by "racist" you mean somebody who would use other people's feelings about race in a purely instrumental way to amass political power, then Harry Reid is a racist.
Does the term “racist” indeed normally mean “somebody who would use other people’s feelings about race in a purely instrumental way to amass political power”? I don’t think I’ve ever heard it used this way; and while I certainly recognize that words can have multiple standard meanings, I’m skeptical that the second meaning Prof. Althouse suggests is indeed standard.
The reason why I put it that way is not because I saw that as a standard meaning. It is intended to express what I think is exactly what Reid was doing. The clause begins with "if." Seen that way, I'm saying: If what Reid did is racist, Reid is a racist.
Now, it's a separate question whether racism should be defined like that. Perhaps a narrow definition of "racist" is desirable. The word is so inflammatory, you might want to reserve it for those who think people of a particular race are inferior and deserve to be treated differently. But maybe our understanding of the word should be refined so that it covers those who use race in other ways that we disapprove of. My post was intended to offer the suggestion that we ought to disapprove of what Reid did with race and for that reason we ought to adopt it as the definition of racist.
Volokh says that if my proffered use of "racist" isn't "standard"...
... then it seems to me a bad idea to try to redefine “racist” this way, because of the substantial possibility that (1) listeners will misunderstand...
I disagree. I want to challenge people to think about what is "racist," not save the word for the meanings that have already been established. Let's use it in ways that are useful. And let's talk about and develop the meaning of this powerful word, not just try to make life easy for listeners.
... and (2) will misunderstand in a way that is unfair to Sen. Reid, because it might lead listeners to think that Reid is actually being called a definition-one racist (a normal meaning of “racist”), since that’s a more standard definition.
I'm not willing to dumb down the conversation like this. I said quite clearly that Reid wasn't a Type 1 racist. I think there is something else he was doing that was bad, and I'm using a proposed redefinition of the word to inspire critical thought about how bad it is.
