Don't go there--do you read the papers?

Salon.com |: By MATTHEW DALY (AP)

WASHINGTON -- Rep. Jim McDermott said Friday he will ask the Supreme Court to decide whether he had a right to disclose contents of an illegally taped telephone call involving House Republican leaders a decade ago.

A federal appeals court ruled in May that the Washington state Democrat should not have given reporters access to the tape-recorded telephone call of Republican leaders discussing the House ethics case against former House Speaker Newt Gingrich, R-Ga.

McDermott's offense was especially egregious since he was a senior member of the House ethics committee, the U.S. Circuit Court of Appeals for the District of Columbia said in a 5-4 ruling.

Free speech for the rich and powerful-I

Salon.com: By Garrett Epps

'Where the First Amendment is implicated,' Chief Justice John Roberts wrote this week in an important free-speech opinion, 'the tie goes to the speaker, not the censor.'

It's a comforting thought, and a nice example of the kind of judicial rhetoric Americans are used to. ...

Unfortunately, the implication that this court defends First Amendment rights is pretty much hogwash. If one carefully reads all three of these First Amendment cases, the court is really saying that the tie goes to speakers who have money and power. That is, if the speaker is rich and influential, then free speech wins. If not, free speech loses. Taken together, the cases give a picture of a new court majority that takes a very narrow view of free speech and a deferential approach to bureaucrats who seek to shape American culture from the top down. ...

Lithwick: SC upholds 'pervasive distortion of electoral institutions by concentrated wealth'

A Supreme Court conversation. - By Walter Dellinger and Dahlia Lithwick - Slate Magazine:

To my thinking, Justice David Souter has the better of it in his FEC dissent, which he read from the bench yesterday. What big corporate and union money is doing to election campaigns, and consequently to public confidence in the electoral system, is staggering. As he puts it, it's a problem Congress has been wrestling with for more than a century, in an effort to undo the 'pervasive distortion of electoral institutions by concentrated wealth, on the special access and guaranteed favor that sap the representative integrity of American government and defy public confidence in its institutions.' The chief justice's new model—don't see sham issue ads for what they clearly are, but closely scrutinize student speech for what it's clearly not—reveals a profound failure of understanding at both ends of the speech spectrum.

Many commentators have been struck by this juxtaposition on speech, corporate and student. "Free" speech does not quite capture the point.

Starting with Buckley v. Valleo, the Supreme Court has made a hash of halting leegislative efforts to control the impact of unaccountable big money on supposedly democratic politics, resulting in large part in the sorry state of contemporary politics. It is a self-reinforcing cycle: wealth buys political influence, affects selection of judges, who decide elections and frustrate the occasional results of popular outrage. I part with my free speech absolutist colleagues on this one.

We desperately need some new ideas (see, e.g., Ackerman & Ayres), and a new approach to media access (by which I mean free tv time in > 5 minute chunks) during election season. I'm not holding my breath. This is a generational task for the next generation of scholars and activists.

Dellinger on Campaign Finance Decision

Slate Magazine:

The real effect of the chief justice's presumption that campaign speech is protected issue advocacy is that he really believes that it is unconstitutional to ban the funding of such speech whether it's election speech or issue advocacy. That holding, however, would require expressly overruling the recent McConnell case. So, the presumption is just a fig leaf, a statement in effect that 'We honor and leave standing our recent precedent that funding of election advocacy can be restricted; we merely decide that henceforth we will never again conclude that any speech falls into that category.'

I prefer Justice Scalia's approach of honest overruling of McConnell. That doesn't mean I am happy about the terrible condition of our democracy and what money is doing to it.

This strikes me as more a comment on the disingenuous nomination hearings on Roberts and Alito, and their manipulative dishonesty on the bench, than on the campaign finance issue per se (for which, follow the link to the full original on Slate). My partial disagreement with Professor Dellinger on the "free speech" question is addressed in anther post.

Dellinger on the speech cases juxtaposition

Slate Magazine:

The chief's opinion protects campaign ads financed by corporate funds in virtually every case by assuming that the ads are issue advocacy and not ads seeking election or defeat of a candidate, saying that 'we give the benefit of the doubt to speech.' Student speech gets no such favorable presumption. Indeed, the exact reverse is true: If there is any reasonable basis for the school official's characterization of the speech as advocating illegal conduct the speech can be banned. In the school context, the chief might have paraphrased his then-minutes-old campaign-finance precedent and concluded 'we give the benefit of the doubt to [suppression].'

Political Correctness, Academic Freedom, and Free Speech on Campus

My colleague and fellow blogger, Ann Althouse, and I both attended a debate on academic freedom/ free speech this evening, co-sponsored by the American Constitution Society (of which I am a member and faculty affiliate) and the Federalist Society (of which I decidedly am not). It's a great arrangement--as Cass Sunstein has forcefully argued, we need more venues where we can hear non-stereotyped, intelligent presentations of opposing views. Preferably with pizza. (My recent travels remind me that Boston and New Haven have far better pizza than Madison!)
Ann's skills include simul-blogging. Here's how she sets up the evening, and her concluding paragraph:
Althouse:

I'm at this debate, which I mentioned the other day, between Greg Lukianoff of the Foundation for Individual Rights in Education [FIRE] and UW polisci prof Howard Schweber, here at the University of Wisconsin Law School....
I realize what bothers me so much about what Schweber is saying. He doesn't value the form of expression, only the content. He thinks what people have to say can be reframed in more polite terms. But I think the form matters, that there is value in the very sound of disrespect, mockery, contempt, and offensiveness.

Amen to that! Satirists of the world, UNITE!

[Not only can I not simul-blog, I somehow just managed to lose several paragraphs of my own laboriously typed commentary...GAH! I'll try to recreate in the morning. [INSERT to come--unless the disappeared stuff mysteriously re-materializes in place on its own, or I move on to other things]
The following piece did get saved:]

I did have a very brief, interrupted opportunity to raise a question at the event. (Why are so many moderators so determined not to allow straightforward statements, prefacing and framing the associated questions, from the audience? Rather discouraging of an engaged, collective conversation.) Ann's summary of my cryptic comments (I prefer to speak, much as I write, deliberately and in paragraph-long units, complete with parentheticals) may understandably have gotten me slightly wrong:

Alan Weisbard has the next question. "We're living in a time of blogs... AutoAdmit... Googling." People are afraid of being identified in public speech. His question is about preserving the right to anonymous speech.

In fact, as readers of this blog have probably figured out by now, I'm rather dubious about the value and constructive impact of anonymous commentary, except in rather special circumstances (such as the identities of NAACP members in late 1950s/early 1960s Alabama, when publicity might have resulted in death threats or worse--like actual bombings, shootings, and lynchings.) And there were, of course, the Federalist Papers--they seemed to have a useful impact (in pre-blog times). I have no problem with anonymous speech having first amendment protection, to accommodate such circumstances, but I find that I (and others of my declining generation--are we passe and alone in this?) am generally much more impressed with expressions of opinion by identifiable individuals who are willing to stand up for, defend, and accept responsibility for what they have to say.

My impression is that both speakers, albeit both younger than I, largely agreed with that perspective. Greg expressed considerable doubt that anyone would pay attention to anonymous postings in a world of nearly-infinite self-expression on the web and in the blogosphere. I'm not so sure, and I fear that anonymous postings can cause considerable trouble--and are, in fact, doing so already. To rehearse a frequent theme,I think we collectively need to facilitate and encourage more courage in speaking publicly for what one believes. So my focus is not "about preserving the right to anonymous speech"--it's more like encouraging powerful public speech.

Time did not permit followup on the specific implications of these general ruminations to the academic context, such as the role of anonymous postings to course discussion boards and campus-oriented blogs. [There is, I believe, considerable reason to believe that anonymous postings to various sites exacerbated the prospect for harmonious resolution of L'Affaire Kaplan.] I'll have to leave that for another day--and for constructive comments, signed or otherwise.