29 June 2009

Last, not First, Monday

Caffeine- and sleep-deprived. I think I'll poach the next batch of sausages in Turkish coffee.

  • In the "free speech for me, but not for thee" department, consider the forthcoming documentary film Some Speech Is More Free Than Others... which, if done correctly, couldn't be shown on broadcast television because it would necessarily include the routine in the clip on the right. Of course, since it's on HBO...
  • This is the last day of the term for the Supreme Court. The most interesting aspect is that Citizens United — which is also at the intersection of free speech, media, and politics — will not be decided, but will instead be held over for reargument. This is the case concerning whether a propaganda film attacking Hillary Clinton was so much a piece of campaign work that the FEC could prohibit its release too close to the election under provisions intended to prevent candidates from evading contribution, spending, and other purportedly ethical provisions. Citizens United will be reargued on 09 September, with the parties required to answer the following question:

    For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce and a part of McConnell v. FEC, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?

    which leads to a very, very interesting question indeed: What if Justice-designate Sotomayor has not been confirmed and sworn in by that date? What it unfortunately does not do, though, is direct the following — which I would prefer to see at least reexamined:

    <hypothetical-question> For the disposition of this case, should the Court overrule Buckley v. Valeo insofar as it holds that expenditures and contribution of money and other resources constitute expressive speech protected by the First Amendment that may not be severely regulated for the express purpose of ensuring free and fair elections? </hypothetical-question>

    I just don't see that happening. Unfortunately; even if the decision were to come out the same way, I think that changes circumstances in the last couple of decades require formal reaffirmation or rejection... just like "separate but equal." For what it's worth, I think that classing money as "expressive speech" is inconsistent with the Court's obscenity decisions; if one can restrict "obscenity," one can also restrict "mere expenditure." I can see arguments both for and against restriction, but not for restricting one type of "disfavored" speech while allowing another at a constitutional level.

  • Which leads into another decision this morning that trends perilously close to another First Amendment right: freedom of association. In Cuomo v. Clearing House Ass'n, llc, No. 08–453, the Court held that the nineteenth-century National Bank Act does not — contrary to the wishes of the banks and the position of the Bush Administration — keep states from inquiring into banks' compliance with state laws, and in particular requesting "nonpublic" information regarding the banks' lending practices. The key point, which is completely absent from the syllabus, is that the state Attorney General's office was seeking records that would support or refute allegations that various nationally chartered banks were engaging in racial or otherwise unlawful discrimination in their lending practices, in violation of state law that applies to everyone.

    This opinion is a bit odd, because Justice Scalia wrote for a majority of himself and Justices Breyer, Ginsburg, Souter, and Stevens, which is a somewhat unusual coalition. It really turns on whether Congress was writing competently in 1864 when it passed the National Bank Act. You can probably guess my opinion of that! In logical terms, the decision asks whether {visitorial powers} is a union or an intersection with {sovereign police/law-enforcement powers}. The dissent says "union"; the majority says "intersection, and this particular inquiry was enforcement and not visitorial." Had Congress written the statute more competently a century and a half ago — at a time when other legislation was also distinguishing between what is now called the "police power" and what should now be called the "directive power" but really has no coherent name — this case would have been unnecessary. And it would not have had First Amendment implications... because the "free association" right has always been a potential problem with any antidiscrimination effort, as the other opinion this morning (Ricci v. DeStafano, No. 07–1428) fails to grasp... and, again, is a civil-proceduresque holding in which Justice Kennedy is in the majority, although it's a much closer and more-difficult question this time.

  • I'm still working my way through the grants/rejections list, but one grant for next Term pops out immediately: American Needle v. National Football League, No. 08–661 (PDF) (petition for certiorari granted 29 Jun 2009). This case asks whether the NFL is "one" or "a collection of thirty-two" — and it makes a big difference in antitrust law, and potentially throughout the entertainment industry.
  • Speaking of football, yesterday's match demonstrated that the US men's team is becoming more tactically sophisticated... and that there's some advantage to having largely college-educated players when engaging in a sophisticated scheme. Brazil employed a battering-ram approach to the match, relying upon the technical ability of its players over time to come through with a few moments of individual brilliance (twice) and/or take advantage of mistakes (twice, one disallowed). Even in those circumstances, though, there was never a feeling of inevitability to the Brazilian win, which is not at all what one would have expected. To my mind, that's because Brazil didn't play very intelligently against a 2/4 sliding defensive scheme by quickly switching play from flank to flank. But then, I was always an undersized defender in the Michael Parkhurst mold (nowhere near that good!) — with perhaps more of a Nobby Stiles attitude — than a traditional hulk like John Terry.

    In any event, I thank both teams for a thoroughly entertaining, hard-fought but fairly played match. The gamesmanship too common to cup finals was remarkably absent. Congratulations to both, and to Brazil for winning (again) the Confederations Cup.