Monthly Archives: June 2007

Democracy and Free Speech 1

Pat Gudridge:

Chief Justice Roberts is not succeeding, so far anyway, in engineering a spirit of unanimity in the Supreme Court — 5-4 Monday is proof of that. No one could have seriously thought, however, that there was some magic charm Roberts might wield capable of transforming his seven srong-willed senior colleagues into cheerful followers. Roberts, though, is plainly trying to develop his own lines of thinking independent, often enough, of the established positions of Justices Scalia, Kennedy, and Thomas — at some point he may persuade one or more of them to follow his lead, maybe even in an important case. At minimum, it's good practice: Roberts is likely to continue as Chief Justice well into the era after Scalia and Kennedy, at least, have left the Court. He may, someday, overawe their successors.

Wisconsin Right to Life — the campaign finance case — was not, however, Roberts's most immediately successful effort. Scalia, Thomas, and Kennedy refused to join his attempt to define, as a matter of constitutional law, the difference between candidate advocacy and issue advocacy, and thus treat the enforcement of the federal statutory ban on candidate advocacy 30 days before primary election day as wrong given the facts of the particular case before the Supreme Court, but not wrong in principle. Justice Alito did join Roberts, but evidently rattled by Justice Scalia's needling (“faux minimalism”), Alito also added a waffling opinion of his own (thereby supplying Scalia with a second target.) Was Roberts wrong? Ironically, he might be thought to have been not minimalist enough. Wisconsin Senator Feingold was running unopposed in the Democractic primary. The WRTL advertisement discussed the then-pertinent filibuster against several of President Bush's judicial nominees, opposed such delaying tactics, and urged its audience to contact Senator Feingold and also Senator Kohl (for whom the election was irrelevant.) The federal statute keyed its ban to advertisements that referred to candidates. Feingold was a candidate — but he was also a sitting Senator (along with Kohl). Why not read the statute as not covering this case, especially since the primary was — in Feingold's case — [AMF edit: not] a contested election? Roberts (like Scalia et al. and also the parties to the case) supposes that because Feingold is, among other things, a candidate therefore the statute covers the WRTL advertisement.

Why didn't Chief Justice Roberts treat the case as a statutory matter rather than a constitutional matter as such? Maybe because the statute — the McCain Feingold Act — seemed to rest on a strong assumption that's easy to accept: Election campaigning is what's really important; issue advertising like that undertaken by WRTL in the case at hand really is backdoor candidate attack advertising (or support advertising), whatever its literal message appears to be. It's easy to understand why Senators and Representatives would think like this (“it's all about us”) — it's their job, after all, to judge everything around them as potentially affecting their reelection prospects and to respond appropriately: that's what, most of the time, democratic representative government entails.

But that's not the only pertinent perspective. Why would WRTL spend its money, after all, to campaign against Feingold if he was running unopposed? Why would WRTL focus on filibustering as wrong — what does this have to do with protecting the lives of the unborn? To be sure, the judicial nominees who were denied quick votes were, in all likelihood, individuals who as judges would vote in ways that WRTL would support. But why not spend money on direct efforts to build support for the right to life? We know the answers: (1) Maybe WRTL was trying to build a coalition, to add support (sometimes, anyway) of individuals not strongly engaged regarding abortion etc., but strongly committed to straightforward legislative processes. There are such people (maybe quite a few, maybe especially in Wiisconsin, for all we know.) (2) Or maybe WRTL was trying to demonstrate that it has access to resources so rich that it can move beyond its core concerns and therefore needs to be treated, in the real business of legislative bargaining, as a real player. Feingold, on either hypothesis, is a prop, a faux target of the advertisements. Candidates may be secondary concerns even in election seasons.

This is a subversive suggestion, maybe: within our politics, who is elected may not matter as much as what those of us who are not candidates think about “our” own thinking — the views of each other with respect to the issues we all think matters. Election seasons are occasions for “real” politics — voter-to-voter argument, discussion, posturing, etc. Election results are sideshows. This conclusion, we know, is sometimes wrong “big time” (to quote Vice President Cheney)!!!!!! But it's not always wrong — and, as a constitutional matter, we might want to treat free speech protection as more important insofar as it addresses the speech of those of us who are not running for office — maybe popular sovereignty suggests this bias. If so, whatever officeholders or their would be successors think, maybe statutes should be read, where possible, in ways consistent with this bias.

To be fair: Chief Justice Roberts did emphasize the distinction between candidate advocacy and issue advocacy. Indeed, he wanted to treat the distinction as part of constitutonal law. But he had a hard time explaining why. He thought that free speech protection requires bright lines. That's a superficially attractive idea. But the enormous mass of Supreme Court free speech opinions yield very few bright lines. The greatest opinions, however, do try to link free speech protection to even more basic premises. See Brandeis in Whitney or Brennan in New York Times or Harlan in NAACP v Alabama etc etc. WRTL was an occasion for thinking about deep premises — and also a chance to articulate constitutional norms not as rules broken or followed, but as guides to interpreting congressional or other government efforts. Roberts had the change to be both maximal and minimal in the same opinion. Great opinions seize that opportunity.

Posted in Law: Constitutional Law | Leave a comment

Market Failure

How is that I first heard of Harvey Danger yesterday? And not via Pandora, but via this peculiar bit of lip-synching hosted at we-want-to-be-your-friendly-video share/repository vimeo? (Actually, it doesn't compare all that badly to the band's video for Flagpole Sitta …)

Seems that Harvey Danger has been around for over a decade — it's not going to be my favorite band, but it's an appealing and energizing mix of rock, rockabiliy, punk, and lyrics with just enough references to be interesting. I bet they are a blast in concert.

Posted in Kultcha | 4 Comments

Worst Pun of the Month

Easily the worst techie pun of the month over at UserFriendly.

Ouch.

Posted in Completely Different | 2 Comments

Today’s Strange Florida News

The headline in the print version of the Herald says it all: “Man With Bad Headache Learns His Wife Shot Him”; the online version's headline is less funny.

A woman was arrested Tuesday after her husband woke up in the middle of the night with a terrible headache and later learned he had a bullet lodged in his head.

St. Lucie County sheriff's deputies initially thought Michael Eugene Moylan had been hit by a stray bullet, but later realized the couple's story did not match up, Sheriff Ken Mascara said.

April Moylan, 39, was arrested Tuesday night and charged with possession of a firearm by a convicted felon, Mascara said. Moylan was being held in jail.

I can hear the jokes already…

Posted in Florida | 1 Comment

Pandora Is Silent Today

Pandora is silent today, as are most other internet radio stations. Here's the letter explaining why:

A Day of Silence

Hi, it's Tim from Pandora,

I'm sorry to say that today Pandora, along with most Internet radio sites, is going off the air in observance of a Day Of Silence. We are doing this to bring to your attention a disastrous turn of events that threatens the existence of Pandora and all of internet radio. We need your help.

Ignoring all rationality and responding only to the lobbying of the RIAA, an arbitration committee in Washington DC has drastically increased the licensing fees Internet radio sites must pay to stream songs. Pandora's fees will triple, and are retroactive for eighteen months! Left unchanged by Congress, every day will be like today as internet radio sites start shutting down and the music dies.

A bill called the “Internet Radio Equality Act” has already been introduced in both the Senate (S. 1353) and House of Representatives (H.R. 2060) to fix the problem and save Internet radio—and Pandora—from obliteration.

I'd like to ask you to call your Congressional representatives today and ask them to become co-sponsors of the bill. It will only take a few minutes and you can find your Congresspersons and their phone numbers by entering your zip code here .

Your opinion matters to your representatives – so please take just a minute to call.

Visit www.savenetradio.org to continue following the fight to Save Internet Radio.

As always, and now more than ever, thank you for your support.

-Tim Westergren
(Pandora founder)

Please help save Internet Radio.

Posted in Law: Copyright and DMCA | 2 Comments

Do We Need the Trident Submarine?

William M. Arkin has a thought-provoking article today about the role of the Trident submarine (and also attack submarines) in the post-Cold-War world. Have a look at More Subs, Fewer Boots on the Ground.

I'm sure that if Trident were free it would be of some positive value to national security. But it's far from free, and I don't know enough about military strategy to have a confident view as to whether Trident is worth what we spend on it. (If I had to guess, I'd be tempted to suggest that we keep Trident and instead ramp down the land-based ICBMS and especially the potentially destabilizing bunker-busters.) I do know enough about politics to know that there is of course zero chance of anyone actually advocating abolishing an entire branch of one of the services — stopping a single weapon system is hard enough, even if tests demonstrate that it is useless — so it may be a waste of time to even think about Trident. Look at how long horse cavalry survived into the age of the machine gun and the tank.

It's interesting, though, to imagine some zero-based thinking about our armed forces. If we were starting with a blank slate, where would we put the resources?

In reality, of course, you never start with a blank slate, and it is very hard to walk away from sunk costs, especially when it would take so long to rebuild the program from scratch were it ever to be determined that closing down the program was a mistake. Trident has been a part of the national security blanket for a generation. Losing it would be too scary for anyone in power to even contemplate.

Posted in National Security | Leave a comment

Where Do I Buy a Ticket for the Deposition?

RIAA's second biggest mistake was to sue Tanya Andersen, an innocent single mother, for copyright infringement. Their biggest mistake was to harass her and try to depose her 10-year-old daughter. (And even, allegedly, to call the girl's school posing as her grandmother!)

RIIA was forced to dismiss its case against Ms. Andersen with prejudice, although the counter-claims remain to be heard. And now those counter-claims are being bulked up with a new complaint, which basically charges BMG and two other record companies, the Recording Industry of America (RIAA), and two of their lawsuit minions, Media Sentry and the “Settlement Support Center” of basically running a rip-off operation, with formal counts including negligence, fraud, abuse of process, malicious prosecution, intentional infliction of emotional distress, invasion of privacy, libel and slander, deceptive business practices, misuse of copyright laws, trespass to chattels (!), violations of the Computer Fraud and Abuse Act, and of course state and federal RICO claims.

The best part will surely be the depositions in which various record company execs and RIAA honchos and goons are asked whether they understood the nature of the fishing expedition cum intimidation racket they had cranked up. And being smart, some of them must surely have known. (The others will be mere knaves.) If they could sell seats, this could be the hottest ticket in town.

As it is, we'll have to make do with the transcripts.

(spotted via Groklaw)

Posted in Law: Copyright and DMCA | 1 Comment