theCircusWeakman
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User ID: 2239
theCircusWeakman
11mo ago
Thanks for the response. I agree that nonprofit vs. for-profit corporations is not really a relevant distinction ... but Citizens United did not rely on that distinction, so it doesn't have anything to do with the outcome of the case.
Overall however, it's clear The Press is clearly something special and different.
Not that clear, actually. There is a live debate about whether the "Freedom of the Press" clause protects "the press" as an industry (professional journalists, newspapers, and media corporations) or "the press" as a type of speech-related activity, which anyone can do. The linked article argues for the latter interpretation, which I think is clearly the better view.
What about makeup of the corporation, does that matter? What if there are a bunch of noncitizens in the company? Running the company?
SCOTUS expressly held "We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process ... Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process." In other words, SCOTUS did not address whether Congress could restrict corporate speech based, specifically, on foreign ownership, but since the statute in question applied to all corporations, the statue was not "narrowly tailored" to that concern.
If people within the company disagree, isn't this kinda like "taking away" speech opportunities of the minority view, and giving it to the majority view, which creates a disproportionate effect similar to silencing speech, in effect?
The Court addressed, and rejected, that argument on the following grounds: (1) it applies equally to media corporations, and nobody believes the government should have the power to restrict political speech by e.g. newspapers; (2) there's little evidence such abuses could not be corrected through the procedures of corporate democracy; (3) the statute in question is clearly inadequate to address such concerns, because those concerns implicate all speech in all media at all times, but the statue only applies to certain kinds of political speech, in certain media, at certain times close to an election; and (most importantly, IMO) (4) the statute is at the same time overinclusive--again, not "narrowly tailored"--because it covers all corporations, including those with only a single shareholder. I think these points add up to a pretty compelling argument that the statute in question was "narrowly tailored to address a compelling government interest," but, again, it left open the possibility that Congress could pass a narrower law that would satisfy the constitution.
quid pro quo stuff
This issue was also addressed by the court, and found wanting. The big reason is that CU's spending was an "independent expenditure"--it did not give any money to any political candidate, nor to any political party, nor did it coordinate with any candidates or parties. It didn't even endorse a particular party or candidate; it just criticized Hillary Clinton. If CU's spending could be construed as a quid-pro-quo, so could just about any form of political advocacy. Obviously, politicians probably appreciate it when private parties (corporate or otherwise) are critical of their opponents, and unscrupulous politicians might even be tempted to show favoritism as a result--but that clearly doesn't justify Congress banning independent criticism of political candidates!
All this long comment to say that your assessment that the case came down to "common sense" conflicting with the actual, practical meaning of the law (and Constitution) is probably correct. But common sense does show up in many First Amendment cases, so this expectation wasn't wholly emotional. And "common sense", though ill defined, is broadly popular.
If by "common sense conflicting with the actual meaning of the law", you mean that ignoramuses misinterpreted, and continue to misinterpret, the Court's "probably correct" decision, I suspect you are likely correct. And in the sense that ignoramuses, in this matter and many others, vastly outnumber those who actually know what they're talking about, I agree that the decision was likely not "broadly popular." But I don't agree that SCOTUS perpetrated a "needless own-goal," in your words, by arriving at a well-reasoned and probably correct decision, just because it was misrepresented and misunderstood by left-leaning pundits and their gulls.
theCircusWeakman
11mo ago
They may have been worried about that, but if so I don't think their fears were realistic. Unless there is a confession, prosecutors almost never have direct evidence of intent. So they typically rely on circumstantial evidence. In this case, Diaz had actual possession of the car; she told an implausible story about the car belonging to her boyfriend, but she claimed not to know his address or phone number; and she refused to answer questions about the multiple phones found in her car. I think those circumstances would have been sufficient to prove intent, without needing a mind-reading expert. But the government may well have chosen to err on the side of caution--although, in so doing, they created an appellate issue they easily could have lost.
theCircusWeakman
11mo ago
I don't share the blackpilled reading of this case that I'm seeing here. The vast, vast majority of gun owners have nothing to worry about from the narrow holding of this case. Even defendants who are similarly situated to Rahimi can plausibly argue for a different result in future cases.
First, Rahimi raised a facial challenge to the law. The only question before the Court, therefore, was whether the statute was unconstitutional in every single conceivable application. This means any future defendant may still raise an "as-applied" challenge to the law and argue that it shouldn't apply to their case. Since Rahimi's case was basically as bad as it could possibly be, it should be relatively easy to distinguish.
Second, it seems Rahimi did not contest the evidence of his numerous violent crimes. Even if a future defendant is accused of similarly egregious conduct, if he asserts his innocence, that alone would meaningfully differentiate his case from Rahimi's. To the extent gun owners are worried about "red flag laws" eroding due process, that issue was not addressed in this case, so it is fair game for a future challenge to the statute. The Court explicitly makes this point in footnote 2.
Third, the Court is careful to explain that historical gun regulations like the "surety and going armed" laws presumed that people had a right to carry guns in public. Their prohibitions on gun possession were limited to temporary disarmament of specific individuals based on a particularized judicial determination of their dangerousness. Meaning legislatures cannot use those cases, or Rahimi, as an excuse to prohibit broad swathes of the public at large from possessing or carrying guns.
Fourth, the Court explicitly rejects the government's argument that the 2A only applies to "responsible" citizens, whatever that means.
In no way does this case overrule Bruen, sub silentio or otherwise. The historical "going armed" laws, as already addressed in Bruen, did not prohibit public carrying of weapons for self-defense, so merely "validating" such laws (their validity was never challenged, just the degree to which they supported modern regulations by analogy) won't change anything.
I know progressive judges in the lower courts will grasp at any straw to ban guns, but that was already true before this case, and the Court expressly leaves open enough roads to challenge anti-gun laws that I don't see this opinion as realistically improving the lower courts' ability to hollow out the 2A.
theCircusWeakman
11mo ago
the upshot was that PACs that run ads that are virtually indistinguishable from official ads are able to accept unlimited donations, which seems contrary to the spirit of restricted campaign donations.
This seems to be a common view of the outcome of the decision, but Justice Stevens' dissent makes the point that Citizens United could have poured unlimited funds into publishing and promoting the movie through a PAC without violating the statute. He argues that CU only violated the law by funding the movie through from their corporate treasury, rather than through a PAC. That's a big component of his argument that the 1A wasn't violated; he says the statute didn't ban CU's speech, it just diverted that speech through a different mechanism.
Which, if correct, makes the outrage over the CU decision even more puzzling. None of the critics of CU seem to be saying, "Unlimited campaign finance spending by corporations is just fine, actually, as long as it's done through a PAC rather than the corporate treasury!" That's why I still feel like I'm missing something.
theCircusWeakman
11mo ago
Great write-up as usual.
I've thought a bit about Diaz, and one issue that doesn't seem to have been addressed by anyone (probably because it wasn't raised by the parties, if I had to guess) is why the government even needed expert testimony on this point in the first place. It sounds like the expert's opinion was "Drug cartels typically don't hide half a million dollars worth of drugs in the car of some unwitting rando and then just hope that it makes it across the border and that they can find a way to retrieve it." This seems like ordinary, common-sense reasoning, moreso than specialized technical knowledge that the jury needed an expert to weigh in on. I get suspicious when the government brings in an "expert" to testify about something that should be obvious to everyone; it feels like they're trying to take advantage of the "expert witness" designation to put extra weight behind the government's theory of the case, rather than to explain some complicated topic or express some scientific opinion that jurors ordinarily wouldn't understand.
By the same token, however, the prejudice from eliciting such everyday-common-sense views from an expert witness is fairly small; they're just expressing an argument that the prosecutor would have made anyway and that the jury likely would have accepted. So while it may be overreaching by the prosecutor, it's probably harmless in most cases.
theCircusWeakman
11mo ago
In other SCOTUS news, we have four more opinions published today.
Two of the cases involve very similar issues--Section 1983 claims for retaliatory arrest and malicious prosecution--but for some reason the breakdown of Justices is different.
Gonzales v. Trevino: A per curiam opinion, with separate concurrences by Alito, Jackson, and Kavanaugh, and a dissent by Thomas. Gonzales was arrested and charged with stealing government documents, based on her allegedly attempting to make off with a city council petition (possibly to cover up that she obtained some of the signatures on the petition under false pretenses). Alito's concurrence helpfully summarizes the facts of the case, and, in an unusual move, even includes links to Youtube videos of the incident! (Here and here, for your viewing pleasure). Gonzales admits that there was probable cause to arrest her, but she claimed her arrest was in retaliation for her protected speech criticizing other city officials. The relevant precedent, Nieves v. Bartlett, says that probable cause defeats a retaliatory arrest claim unless the arrestee can show that other people, who allegedly committed the same crime, were not arrested (which would imply that the arrest was motivated by the arrestee's speech, rather then genuine law enforcement concerns). Gonzales presented evidence that other people ... had been arrested, for slightly different crimes, but nobody had been arrested for doing exactly what she allegedly did (with no evidence that anyone else had ever tried to do exactly what she allegedly did). To me, this evidence seems irrelevant to the Nieves exception, which requires a showing that similarly-situated people were treated differently, which is not what Gonzales' evidence showed. But the majority decided it was good enough to, at least, merit further consideration by the lower court.
Chiaverini v. City of Napoleon: Kagan writes for the majority, Thomas dissents joined by Alito, Gorsuch writes his own dissent. A jewelry store owner allegedly bought a stolen ring. He was charged with receiving stolen property, dealing in precious metals without a license, and money laundering. Prosecutors later dropped the charges. Chiaverini brought a 1983 claim for malicious prosecution--which, again, requires proof that the government lacked probable cause to arrest him. The lower court threw out his claim because the first two charges were "clearly" supported by probable cause, even if the money laundering charge was not. The Supreme Court reversed, holding that if even one of the charges was not supported by probable cause, Chiaverini could have a valid claim. Both Thomas and Gorsuch, in dissent, seem to agree that malicious prosecution is not properly considered a constitutional claim for section 1983 purposes--the main difference is that Gorsuch relies on an opinion he wrote while a judge on the 10th circuit Court of Appeals.
Diaz v. United States: A case about expert witnesses in criminal trials. The most interesting thing about this case is that Thomas wrote the majority opinion, Jackson concurred, and Gorsuch wrote the dissent, joined by Sotomayor and Kagan.
Moore v. United States: A mind-numbing income tax case. Kavanaugh wrote the majority opinion, Jackson concurred, Barrett concurred joined by Alito, and Thomas dissented alone as is his wont. Most interesting to me, however, is the publication of a "statement" by Justice Alito, concerning Senator Richard Durbin's sending a letter to Chief Justice Roberts "urging" him to "ensure" that Alito recuse himself in the case. Durbin's letter was ostensibly based on the view that Alito could not be trusted to decide the case without bias, because David B. Rivkin, an attorney for the Petitioners in the case, once interviewed Alito for the Wall Street Journal. Alito points out that the mere fact he was interviewed does not give rise to a presumption of bias. In addition, he points out that Durbin's letter seems like a suspiciously isolated demand for recusal: Alito provides a half-dozen footnotes detailing the numerous times his colleagues on the Court have been interviewed by media companies and then gone on to decide cases wherein those media companies were parties. I had fun reading this, but I'm sure politicians will continue making baseless demands for recusal on similarly flimsy pretexts.
theCircusWeakman
11mo ago
Yeah ... the Court's expedited response to Anderson was an extreme outlier, such that I wouldn't draw any inferences from the Court's failure to follow the same expedited decision-making process in any other case. The issue in Trump v. U.S., while still extremely newsworthy and constitutionally significant, is only tangentially related to the upcoming election, whereas Anderson could have jeopardized the election itself (and Trump's campaign) if not addressed in time.
theCircusWeakman
11mo ago
Can someone help me understand the continuing opposition to Citizens United? I didn't pay a lot of attention to Supreme Court news back in 2010, so I wasn't following the details of the controversy. But I remember the kerfluffle around Alito (allegedly) mouthing "not true" when Obama said, during a state of the union speech, that the ruling would "open the floodgates for special interests, including foreign corporations, to spend without limits in our elections." But the Supreme Court's ultimate decision seemed so obviously correct that I'm amazed it was ever disputed at all--and the fact that, years later, some people continue to consider it an egregiously bad opinion is totally baffling to me.
Here's my quick and dirty understanding of the constitutional issue in that case (please correct me if it's wrong): Citizens United was a nonprofit corporation that made a documentary video criticizing Hillary Clinton. They wanted to 1. show the video on cable TV and 2. advertise the video on cable and broadcast TV. The Federal Election Commission wouldn't let them, because federal campaign finance laws prohibited corporations and unions from spending money to advocate for or against a candidate in an election. The Supreme Court ruled in favor of CU, finding that the provisions of the federal statute in question constituted a ban on political speech and were, therefore, unconstitutional.
Isn't this ... obviously right? Like, if "freedom of speech" means anything, it has to mean that advocacy groups can publish a criticism of a politician. The FEC's counterarguments all seem really lame, like saying the First Amendment doesn't apply to corporations because they have too much money (what if they don't? And what about rich individuals--are they unprotected by the 1A too?), or because their views don't necessarily reflect the views of the public at large (since when does that permit restricting someone's speech?), or because some shareholders might not agree with the corporation's position (which is equally true of media corporations; does the 1A not apply to "the press"?). I really struggle to see how anyone could agree that these arguments justify the FEC's position. On the other hand, the idea that Congress can ban political speech--the most important kind, for First Amendment purposes--about a presidential candidate, no less--just because the speaker is a body of multiple people joined together, rather than the same people acting alone--seems both arbitrary and clearly unconstitutional. (Especially in the guise of campaign finance laws, which in my opinion should have some connection to, you know, financing someone's campaign, rather than restricting independent criticism of a politician.)
I like to think that the Obama-esque critique of CU is more sophisticated than just "corporations BAD!" But that seems to be the thrust of both Obama's SOTU soundbite and, from what I've read of it, Justice Stevens' dissent. (Stevens also complains that the Court went beyond the narrow issues raised by the parties, but I guarantee you that's not why people are still up in arms about this case years later.)
In my experience, many criminal lawyers share your reaction to this kind of hypothetical: "We can't allow cops to trample important freedoms, no matter how many lives it saves!" The value of the hypothetical is its ability to elicit that response; it illustrates exactly how out-of-touch the field of criminal law has become. Forget the possibility that lives are at stake; let's focus on the "freedoms" at stake. In this hypothetical, all that's at stake is the freedom to refuse to show a cop what's in your covered basket.
Imagine a country just like the US, with a constitution just like the US Constitution, as interpreted by the US Supreme Court, with this sole exception: people walking around in public must show the contents of their pockets, handbags, briefcases, etc. if a cop orders them to (with or without any degree of articulable suspicion). The cops still need to follow the US rules before they can touch or seize anything from a person, or perform any more invasive search, or enter a private area like a home. Would that be "tyranny"?
I don't think so. The impact on the average law-abiding person would probably round to zero. Cops probably wouldn't even ask most of the time. Under Pennsylvania v. Mimms, cops can legally order you to get out of your car during any traffic stop, but that's never happened to me.
The only people who would realistically be impacted by this sort of rule would be habitual criminals, who would find it tremendously inconvenient. Street-level drug dealers would be at constant risk of discovery. Felons would have to leave their concealed weapons at home, no doubt greatly reducing the rate of opportunistic/impulsive violent crime. Smugglers, who currently can carry duffel bags full of contraband with near impunity, could no longer rely on the forbearance of law enforcement.
Under the current system, cops can't articulate the requisite "suspicion" or "probable cause" based on a person's race, their class, or their status as a felon/vagrant/deviant/obvious troublemaker, even when those facts would cause reasonably normal people to suspect that someone was up to no good. For one example: I'm amazed by the prevalence of face tattoos in mugshots, vs. among the general population. I guarantee that cops know to keep an eye on people with face and neck tattoos. But I'm also sure they hesitate to articulate "face tattoos" as part of the "probable cause" or "reasonable suspicion" they need to conduct a search, seizure, or frisk.
A rule freeing cops from having to articulate probable cause for certain kinds of minimally-intrusive searches would greatly increase the crime-fighting ability of law enforcement, at negligible cost to the law-abiding masses. Civilization needs functional law enforcement a hell of a lot more than it needs elaborate protection for the rights of "criminal scum" (or the whims of obstreperous civil libertarians).
Instead, we have created a huge legal infrastructure for the purpose of protecting criminals, and criminals alone, from "unreasonable" searches and seizures. (The exclusionary rule only protects you if the cops actually find evidence of a crime and try to prosecute you; if they invade your privacy and don't discover evidence of crime, the exclusionary rule doesn't help you at all!) Modern innovations in criminal law are almost entirely based on finding more and more arcane technicalities to secure the release of criminals who were caught red-handed and are indisputably guilty. And lawyers still feel conflicted about letting cops do their jobs. How did we get to this point?
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