The Roberts Court's First Amendment: Where the Lochner Court Dare Not Tread

Last week, the Supreme Court came down with their latest attempt to destroy democracy by carving it up for purchase. The decision was Arizona Free Enterprise Club v. Bennett, a case challenging Arizona's opt-in public financing scheme. The scheme worked like this: Any candidate may agree to public financing, meaning that he receives funding from the state, and is limited to that funding. If, however, his opponent is privately financed and outspends him, the state gives him 94 cents on the dollar in matching funds, up to three times the original amount. Anything in excess of that, and he was out of luck. The Supreme Court struck this down as a violation of the speech rights of the privately funded candidate.

Think about this for a second. Where this provision cannot be said to do anything but create more speech, the Court struck it down because it suppressed the efficacy of the private spender's speech. Justice Kagan's dissent doesn't pull punches in pointing out the absurdity:

The Search Engine, The Smart Phone, and Public Debate

Jacob and I had a quick debate a little while ago about whether the ubiquity of smartphones has destroyed the bar bet. I didn't think so - I thought it made bar bets more efficient because you could actually settle them right away. Jacob's take was reasonable though, that people get squeamish and say no to the bet, then just look up the answer. That got me thinking - this is how debates happen all the time. The thing about bar bets, though, is that while indeterminacy over a fact (e.g. whether Jerry Rice had more touchdowns than Randy Moss at this stage of his career) could end a larger debate (i.e. the best receiver ever), the fact of putting something on the line gives you incentive to resume the argument several days later. Without the bar bet though, you often end up in a dead end, and no one ever really follows up. So if the bar bet's dead, is that a good or bad thing for public discourse?

Generally, when people get into debates or arguments, it's live and in real time, like at the dinner table, in the classroom, the break room, the water cooler, or at the bar. This is essential to the romanticized version of democracy, where people are well-informed and debate politics all the time. What happens, though, when people are debating over a policy and cannot agree on a fact that's central to the strength of either argument? In the past, the debate probably would have just ended. Today, though, this dynamic has largely changed due to the advent of the search engine and the smart phone. However, like the bar bet, it's not clear that the effects are all good.

Egypt's Assault on Information: As Unamerican as...America?

Unless you've been living in a cave the last week or so, you've heard about the demonstrations (revolution?) going on in Egypt. This post isn't really about the protests themselves. It's about governmental assaults on information as a crackdown measure (with Egypt's being the most current). As a practical matter, any autocratic regime will suppress communication in a time of insurrection. It's been done throughout history, and this is no different, other than it being in the information age. Interestingly, these protests were reportedly even organized on Facebook, so that seems like an even more logical target. (See, it can be used for political protests more extensive than changing a profile picture.) And unlike the Iran protests, in which there was no "Twitter revolution" (all the tweets were in English, not Farsi, and came from this hemisphere), Twitter seems to be in legitimate use here.

So of course, what did the Egyptian government do in response? Shut down the internet:

Egypt has apparently done what many technologists thought was unthinkable for any country with a major Internet economy: It unplugged itself entirely from the Internet to try and silence dissent.

The Rally Lived Up to Its Promise of False Equivalence

The Rally to Restore Sanity and/or Fear happened this weekend. It was surprisingly as apolitical as Stewart and Colbert had promised, and perhaps even anti-political. They never even said to go vote, which, in a non-partisan fashion, would have absolutely been the right message. As exciting as it was, in this regard, the rally may well have done more damage than good.

First, as I pointed out before, the promise of this rally was one of pure false equivalence, basically between Fox News and MSNBC. This is something that gets me consistently lecturing people in real life, something that Jon Stewart knows better than to do, and something he usually doesn't do. Keith Olbermann, in response to the rally, said two things: 1) The message of ratcheting down the tone was not lost on him, and so he is suspending the "Worst Person in the World" segment. (Kudos to him for being responsive - this is a great move.); and more importantly, 2) he called out Jon Stewart on the false equivalence between MSNBC and Fox. This might seem self-serving, but he's absolutely right. In a way, Stewart's lambasting of both sides is, ironically, his own form of fearmongering rhetoric about the health our of discourse. Here's the Olbermann clip. It's well worth watching.

Government Subsidies are a Part of the Future of Journalism, and That's Not a Bad Thing

Ready for a controversial statement that I fully believe? Here goes: Government subsidies and funding of journalism will be included in future news models in this very country, and I don't believe that's a bad thing. As far as whether it will happen, I just think it's pretty much a given, since there's just no other way the papers will be able to afford to keep making quality news. Advertising’s drying up; non-profit models just don't work because there's not enough money, unless the paper is beholden to a few very wealthy donors, which is also problematic.

Government funding raises a couple very interesting questions though. Why are we so viscerally opposed to it, and does it make sense to be? Is it worse than what we will, (or already do) have? Could it be better? (By the way, this post was inspired by the discussion in the comments section of Dan Kennedy's post berating a local paper from taking a rotating small business loan from the local government. The comments hash out a lot of the issues on all sides of this debate, and are quite interesting.)

Obama's Still Got It (Part I - The Good)

(updated below)

Yesterday, President Obama gave the commencement address at Michigan, and I immediately realized that a) I was basically the only law student that didn't see it (I was at a friend's wedding - congrats again Johnny and Jen!), b) it was worth the hours of waiting in line, and c) it was a speech that could have been designed just for me (I was told so by several friends). So I read through it, and I almost began tearing up and couldn't stop smiling, except in the points where I wanted to yell out that he's being a hypocrite. And again, this was just while I was reading (full text here). But I've also seen enough of his speeches that I could recreate the delivery in my own head. Anyway, given my varied and strong reactions to his address, I figured I'd write about the different parts. This post is incredibly long, so I'll write here about the good, and about the bad separately.

The Difference Between Liberals and Conservatives

Paul Krugman has a blog post up today explaining that liberals and conservatives are not mirror images, that just because they are obsessed with small government for its own sake, it doesn't mean we want big government for its own sake. We want government to be involved where it's needed to produce results.

Jon Chait actually wrote a great piece about this in 2005 where he goes into a lot more detail, but comes to the same conclusion. I think this explains a lot about our current political culture, and how we're always talking past each other. Sadly, I think both sides misunderstand this.

Conservatarians: Liberals do not want big government for its own sake. Not a single one does. Get that straight. We mostly don't care one way or another about the "evils" of big government - we just want to help people and combat some of the inherent unfairness of life.

Liberals: It's not that conservatives/libertarians hate poor and black people. They just don't care one way or another whether people die from lack of health care or can't get jobs or political power because of their being born poor or black, as long as government is small enough for us to be free.

Yeah, I think I'm on the right side of this one.

Oh, and a quote from Jon Chait's piece (in 2005, remember) might explain why so many conservatives today actually believe liberals are socialist:

If liberalism is not the mirror image of conservatism, what is? The more apt parallel is probably socialism. True socialists believe that allowing capitalists to keep some of the fruits of workers' labor is inherently immoral. They also tend to believe that free enterprise does not work very well. But, like the conservative belief that big government doesn't work well, this empirical belief merely sits atop a deeper normative belief. For committed socialists, doing away with 'exploitation' is an end in itself.

If they believe we want big government for its own sake, they actually believe we're socialist. Believe it or not, it's totally logically consistent!

Legal Claims for Bogeyman Fundraising?

Does the bogey(wo)man have a legal claim when her name is invoked in political fundraising?



Scott Brown recently released a fundraising letter that claimed Rachel Maddow was running against him. Maddow has gone on the air several times saying that it is untrue that she is even considering running and that the Senator will not accept her calls. Even more bizarrely, the Senator denies she is calling at all, and seems to be claiming that the DNC paid for the full-page Boston Globe ad that MSNBC printed on her behalf, not once bothering to check with Maddow. This level of willful ignorance can only be called intentional. What I'm interested in here, is whether there are, can be, or should be legal remedies to such a blatant, fraudulent misuse of political fundraising.

Quick Health Care Notes and Quotes

Noam Chomsky basically said he'd vote for the HCR bill despite it mostly sucking, echoing the thoughts of basically every progressive everywhere at this stage of the game. The "kill the bill" folks seemed to have backed off a bit once talk of reconciliation began, though no one could really explain why a public option backed by a majority of the country could be passed via reconciliation when the typical Democratic excuse was always "we don't have sixty votes."

Chomsky had a couple lines in the piece that I'd like to echo here, since it speaks to not just healthcare, but everything that's wrong with our country:

The Massachusetts Institute of Technology professor added that it’s a damning referendum on American democracy that one of the most highly supported components of the effort nationally, the public insurance option, was jettisoned. He partly blamed the media for refusing to stress how favorably it’s viewed by the populace.

"It didn't have 'political support,' just the support of the majority of the population," Chomsky quipped, "which apparently is not political support in our dysfunctional democracy.... There should be headlines explaining why, for decades, what's been called politically impossible is what most of the public has wanted," Chomsky said. "There should be headlines explaining what that means about the political system and the media." 

I couldn't have said it better myself.

And just for fun, in the kind of bluntness I'd like to see more of in our discourse, Sarkozy welcomes us to a not-so-exclusive club.

An Attack on the Legitimacy of the State, Democracy, and the Law

(updated below)

Ok, so many of us either joke or cry about the Tea Party and the Great Republican Death Spiral. I've often personally speculated that eventually, this will shift us to two new parties - the Libertarians/Blue Dogs and the Progressives. But a couple of things have made me wonder whether the danger is greater than we imagined.