Additional Thoughts on McComish

In a guest post over at Concurring Opinions, Deborah Hellman nicely captures part of the problem with the way in which the plaintiffs in McComish framed their claimed. As she notes:

The mistake of the petitioners in McComish is to focus on the effect that the law produces (chilling their speech) rather than the means by which this effect is produced.  Chilling speech through sanctions is problematic; chilling speech by more speech is not.

Howard Wasserman comments:

Deborah captures the problem with the plaintiffs' argument. They essentially are asserting a liberty from (government-subsidized) counter-speech and attributing their decision not to speak out of fear of that counter-speech to government coercion.

Both of these comments capture my reaction as noted in this post on McComish, especially the concern that the plaintiffs logic could lead to the unconstitutionality of public campaign finance schemes.  What are public campaign finance schemes other than government-subsidized counterspeech?

Some Observations from the McCormish Oral Argument

The Supreme Court heard oral arguments yesterday on the constitutionality of Arizona's public finance scheme, Arizona Free Speech v. Bennett and McComish v. Bennett.  Arizona provides public financing for state office seekers who agree not to accept private contributions.  The State provides an initial lump sum to fund the public candidates (the ones who receives state funds) .  The State also provides supplementary "matching funds" if the expenditures by the privately funded candidates (combined with independent expenditures in favor of the privately funded candidates or against the public candidate) exceeds the initial lump sum.  Matching funds are capped to three times the initial grant.  The constitutional question is whether the matching funds violate the First Amendment rights of private candidates.

The plaintiffs' primary argument is that the matching funds burden their First Amendment rights because it is their spending that triggers the match to their opponents.  As the William Maurer, counsel for the plaintiffs, phrased the point at yesterday's oral arguments: "What this case is about is whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies."

A few observations:

First, it seems to me that Mr. Maurer won the framing battle.  The oral argument proceeded on Mr. Maurer's terms and if transcripts of the oral arguments is a useful indication (very big "if"), the four of the five conservative justices who spoke (Justice Thomas was not recorded as having said anything) were sympathetic to the plaintiffs' cause and articulation of the burden to their speech.

Second, the plaintiffs' conception of a constitutional burden is quite odd.  Consider this example.  Suppose the government says "for every campaign poster printed by the private plaintiff, we will provide funds to the public candidate to match."  Is the private candidate constitutionally burdened by this rule?  Or consider this example.  Suppose that the state says "we worry about the corrosive effect of for-profit media, we will provide state funds to anyone who wants to run a newspaper and we will match the expenditures of for-profit newspapers." Or what about government speech itself, which takes a position and renders the contrary position less effective.  Thus when the government says "smoking is bad for you," under the plaintiffs' theory, that ought to violate the First Amendment right of cigarette manufacturers.


Third, If the plaintiffs' are right about the constitutional effect of the matching grant, I cannot figure out why the logical conclusion of the plaintiffs' argument does not mean the end of public finance.  Mr. Maurer conceded that there would not be a constitutional problem if Arizona provided a lump sum payment up front that was treble the amount of the initial grant.  But that concession does not make any sense if his formulation of the problem is correct.   If providing a supplemental matching grant to the public candidate to enable her to compete against the private candidate is a burden on the private candidate, then providing the initial public support is also a burden on the private candidate and an even greater burden.  If you're a private candidate who  is also a good fundraiser and could win a primary or an election if your opponent were not receiving public funds, why is the subsidy itself not the problem as opposed to the supplement?

The whole purpose of a public finance scheme is to "turn [the private speaker's] act of speaking into the vehicle by which [his or her] political opponents benefit with direct subsidy."  The logic of Arizona's public finance scheme (or any mixed campaign finance system in which candidates can opt between private money and public money) is to subsidize public candidates because of the existence of private financing.  This is another way of looking at the point pressed by Justices Ginsburg and Kagan. If Arizona can provide a lump sum payment, why can't it more accurately determine how much money the public candidate will need to run an effective campaign by saying to the public candidate, "we will give you roughly the same amount of money that your privately opponent is spending." It strikes me as bizarre that the First Amendment rights of the private candidate are violated when the state, as part of a public finance scheme, gives the publicly-financed candidate roughly the same amount of money that the private candidate spends in order to make sure that the public candidate can adequately finance her campaign.  If providing money to the public candidate to match the spending the private candidate is a violation of the private candidate's First Amendment rights, then public financing itself, which serves as a substitute for private financing, is a violation of the private candidate's First Amendment rights.  Welcome Alice, this is in Wonderland.

The Real Story about Duke and the Fab Five

By now, fans of college basketball -- or of sports in general -- have heard about the documentary about Michigan's "Fab Five," an unmatched collection of basketball talent that joined the University of Michigan basketball team at the same time.  In the documentary, one of its members -- Jalen Rose -- has choice words for Duke University and the kind of black athlete it chooses to recruit.  In his words:

"I hated Duke and I hated everything Duke stood for. Schools like Duke don't recruit players like me. I felt like they only recruited black players that were Uncle Toms."

This one quote has begun an important conversation about all kinds of things, many of them important.  Grant Hill, a black player who played for Duke during the Fab Five years, responded with an op-ed to the Times.  Michael Wilbon, of PTI fame and a columnist for the Washington Post, followed the debate with a thoughful column on ESPN about what Jalen Rose and Grant Hill share, rather than what makes them different. Chris Broussard similarly offered some very strong opinions about the issues that Rose's choice of words raise.

Until this morning, I had yet to see any discussion of what I thought -- both at the time and to this day -- was the real story behind the Fab Five.  This is from William Rhoden, writing in the Times:

My view about the Fab Five, then and now, was that these young men had chosen the right pew but had gone to the wrong church. Seen through the prism of black power and empowerment, and also from the point of view of one who attended a black college, the Fab Five had simply made a wealthy white institution wealthier and had missed a grand opportunity to catapult a historically black college or university to the mountaintop of March Madness.

Did Rose have any idea of the impact they would have had on history had they elected to attend a historically black college or university?

Yes, the stage would have been smaller, television nonexistent, at first. But the novelty of their act and then the courage of what they represented would have attracted attention. The Fab Five would have been the story of March Madness, not simply a spectacle.

Americans love the underdog; we also respect those who stand for principle. What a grand stand that would have been for the Fab Five.

This was a rare opportunity, one that may have resonated for generations. Rose, Webber, Howard, King and Jackson could have done something revolutionary.

This idea crosses my mind every recruiting season, when scores of high school athletes choose where to play college football and basketball.  To ask a high school athlete to think beyond himself and towards some semblance of the greater good, to think in revolutionary ways, is really hard.  I get that.

More interestingly, I also get the analogy to the colorblind argument of old.  That is, to even suggest the possibility that a high school student should choose a college on the basis of race might rankle colorblind purists, as this is hardly getting us to move towards a colorblind world. 

Note, however, the beauty of the colorblind argument: to ask that race not be mentioned or considered at all is to ensure that race will always matter in ways that are not beneficial to people of color.  To ask that players not consider race when applying for college is to ensure that white coaches and white institutions will continue to benefit from the labor of scores of black athletes who are readily and summarily discarded when their labor is no longer needed or useful.

I still cannot help but think: what if?

Law School Diversity--by Students and Faculty

The National Jurist performs an important service in measuring the diversity of the law school student body, and of law school faculty.  I'll offer comments about the methodology and the results in two future posts.

Here is their index:

The New Recruiting Battlefield for College Football

On Sunday's New York Times, we read about the new trend in college football recruiting.  This is seven-on-seven football, a game played without helmets, pads, or linemen and which showcases only the skill players.  According to the Times, this is the "new face" of college recruiting, rapidly growing in the last three years and soon to rival the AAU circuit that now heavily influences college basketball.  In the words of a high school coach, "[t]he sport of football is slowly turning into the basketball, from the street agents to A.A.U.-type football."

College coaches are none too happy about it. From the Times article, we find that University of Texas coach Mack Brown and former University of Florida coach Urban Meyer are worried about this new trend. “College football is doing great, and it’s the second-most-popular sport in the country," according to Meyer, "but there’s some things we have to get our arms around.” The proliferation of seven-on-seven football is taking the game to the grassroots, which in turn will take power and control away from these high-profile coaches and pass it over to what the article calls "street agents" and other third parties.

I hate to be cynical about this, I really do, but something about the reaction from the coaching community feels funny.  Here are coaches who make three and four million dollars a year worried that college recruiting will no longer consist in showing up at high school football games and flashing their credentials. So when they tell us that they worry about the game of college football as we know it, it is hard to take their concerns to heart.  The conflict of interest is obvious.

In the meantime, Yahoo! Sports is reporting that Jim Tressell, head coach at Ohio State and paragon of ethics, might have known that his players had broken NCAA rules last April yet did not disclose it and might have even lied about it when asked. According to Stewart Mandel, "few coaches in America have maintained a more pristine image than the so-called Senator." And yet even the so-called senator might have gone a bit farther than he should have.  Could it be that Tressel kept the violations quiet in the hopes that it would all go away?  Could it be that he put a winning season ahead of playing by the rules?

It really is hard to be cynical about this, but when you put these two stories together, it is hard to buy what Meyer and Brown are selling.  In saying this, I am not at all suggesting that AAU ball is a good thing for high school athletes, nor do I think that AAU coaches have the best interests of high school players at heart.  Far from it.  (If you have any doubts about this, look no further than George Dohrmann's terrific account of AAU ball, Play Their Hearts Out.) But it is also quite clear that college coaches are not the voice of these student athletes either.  

There is no easy answer.  But let us not pretend that the very coaches who over-sign players with impunity and often treat them as disposable commodities will be the ones speaking on their behalf.

College coaches live by one creed: in the words of the inimitable Al Davis, "Just win, baby." Please don't insult our intelligence by pretending otherwise.

Keeping track of the health care litigation

The health care litigation season is in full swing.  The latest salvo was fired a few weeks back, in Mead v. Holder.  This is only the latest on what promises to be a be a busy season for health care litigants.  For anyone paying attention, the scorecard now reads 3-2, with federal judges appointed by Democratic presidents upholding the law while judges appointed by Republican presidents striking it down as unconstitutional.  

But it would appear that not all rulings are made alike.  According to the Times, "[e]normous attention has been focused on rulings by two federal district judges who found the new health care reform law unconstitutional. Less attention has been paid to rulings by three judges who upheld the law’s constitutionality." This is fair as far as it goes, but I think it misses the real story of this litigation.  This is really a story about judicial review and the stories we tell ourselves and out students.

We love to tell ourselves that judicial independence is a virtue and a central element of our constitutional tradition.  This is because, the story goes, judges must be insulated from political pressures in order to render rulings that are grounded in the Constitution, rather than abdications to raw politics.  The problem with this story is not only that judges cannot be as insulated as the judicial independence mythology requires, but that the public filters their judicial output through its own partisan biases.  That is to say, not only are judges affected by their own partisan preferences, but so is the public that consumes these judicial opinions.  This is no way to run a constitutional democracy.

Take the health care litigation as a leading example: while Republicans and Libertarians see a central government overreaching into areas it has no business regulating, Democrats point to the constitutional tradition post-1937 and the growth of the regulatory state.  There is very little agreement between the two camps.  That the judges deciding these cases are closely tracking the partisanship of their appointing president does not help matters at all.

The same goes for Citizens United, the looming challenge to the constitutionality of the Voting Rights Act, Bush v. Gore, and just about any case I can think of.  This is what made the recent Snyder case intriguing: the fact that eight of the nine justices agreed that hate speech is a value worth upholding is a big deal.  

The question for the future is whether the public will ever discover that the emperor has no clothes.  Or better yet, whether the public even cares.

Oscar Shut-out: African-Americans

The LA Times has an interesting story on what has been described as the "whitest Oscars" in years.

Shortly after the Oscars ended Sunday, Samuel L. Jackson sent an e-mail to a Times reporter wondering why no black men had been chosen to present awards on the film world's biggest stage.

"It's obvious there's not ONE Black male actor in Hollywood that's able to read a teleprompter, or that's 'hip enuf,' for the new academy demographic!" Jackson wrote. "In the Hollywood I saw tonite, I don't exist nor does Denzel, Eddie, Will, Jamie, or even a young comer like Anthony Mackie!"

Jackson may be on to something, at least when it comes to the young comers.

There is still a sizable number of black actors in Hollywood with box-office clout and meaty roles, a point that will be underscored when the NAACP hands out its annual Image Awards in Los Angeles Friday night. Will Smith is the biggest movie star in the world, a title he's held now for several years, and Denzel Washington remains at the peak of his box-office powers.

But most of the prominent male black stars sit on the other side of 40. The best known of the next generation -- say, Derek Luke (36), Chiwetel Eijofor (33), Idris Elba (39) and Mackie (31) -- are not only less influential, they're not nearly as popular in their 30s as the previous crop was at their age. (Washington, for instance, had already won an Oscar and made "Glory," "Malcolm X" and "Philadelphia" before he hit the big 4-0.)

That's not because any of these actors aren't capable of pulling off a "Malcolm X" or a "Philadelphia," of course. It's because they're not given the chance. Mackie has one of the more substantive studio roles for a younger black actor in a while as Matt Damon's guardian angel in this weekend's "The Adjustment Bureau." But it's hardly the role of a lifetime.

"It's frustrating that the movies I want to make I haven't been able to make," Mackie told 24 Frames. "Orlando Bloom was given 15 opportunities after 'Lord of the Rings.' Black men are given no opportunities."

UPDATE: And the future may hold little promise of improvement: the L.A. Times story declares "nine newbies ready to break out"--all of whom happen to be white men. The intro declares that the nine "hail from the four corners of the English speaking world." In a California where whites form a minority, selecting nine men, none of whom appears to be a person of color, is astonishing.

The Looming NFL Labor Strife

Here is how a cartoonist sees the labor strife that threatens to derail the upcoming NFL season:

I suppose it it is easy to see this negotiation as a fight between rich owners and rich players over divvying up a nine billion dollar pot of money. Unquestionably, it is hard to figure out who the good guy is. 

One could choose to focus on the greed of the owners and side with the players by default. 

Instead, I think about the late Bob Probert, former hockey player who died last year and donated his brain for study. In recent days, researchers at Boston University concluded that Probert had  Chronic Traumatic Encephalopathy, a degenerative brain disease that is caused by repeated trauma to the brain.  I think also about Dave Duerson, former safety for the Chicago Bears who committed suicide last month and also donated his brain to BU. Or Andre Waters, former safety for the Philadelphia Eagles who killed himself in 2006, and whose brain tissue was that of an 85-year-old man in the early stages of Alzheimer's disease.  Or Owen Thomas, a 21-year-old college football player who commited suicide last April. I can think of too many names.  Tom McHale.  John Grimsley.  Mike Webster. Justin Strzelczyk. Terry Long.

I don't really care how much money the players ultimately make.  For clearly, it is not enough.

A Word on Snyder and the First Amendment

In the aftermath of Snyder v. Phelps, the recent First Amendment decision that protects the right of a fringe church to express its hateful message at a funeral, most commentators agree that the Court got it just right. This is speech, hateful as it may be, and it is protected by the First Amendment. According to Nadine Strossen, for example, "[t]he First Amendment appropriately protects expression that both expresses and provokes strong emotion. Even when expression stirs emotions that are overwhelmingly negative, as in the Snyder case, that cannot justify suppressing it." To Patricia Williams, similarly, "the essence of the First Amendment is not about individual hurt feelings: it is about ensuring public debate."  This is in fact an easy case.

And it may be so.  But something about the case still gnaws at me.  Consider first the text of the Amendment, the one that stands at the heart of the case.  

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment clearly stipulates that the government "shall make no law . . . abridging the freedom of speech." The language seems unequivocal enough, and yet we know that the amendment leaves room for the government to regulate speech.  Few people take an absolutist position on the First Amendment. This is a question of degree.  Enter the Supreme Court and its justices.

The First Amendment is nothing more than an expression of our deeply held commitment to the value of speech.  Like any other text that the Supreme Court is asked to interpret, however, the Amendment does not come with ready-made answers for any and all questions that arise in the real world.  The Amendment is only what we make of it. It is easy to forget this and to get sanctimonious and even holy about the Amendment and our Constitution in general.  In today's "Room for Debate," for example, all of the debates write very abstractly about the Constituion and its limits, as if this is a pre-ordained exercise and the justices are merely reminding us of commitments we made long ago. But this is not so easy, nor is the Amendment -- or any other part of the Constitution -- so straight-forward.

What better example of the limits and complexities of the Amendment than the passage of the Alien and Sedition Act, signed into law by President John Adams in 1798?  Surely, an Act that criminalizes the publication of "false, scandalous, and malicious writing" against the government or its officials must run afoul of the Amendment.  The better question is, how could the founding generation possibly enact such a law? Or how to explain the Smith Act and the trials of Trotskyists, alleged fascists and members of the Communist party in the United States?

The point is not that the Court got it right in Snyder, or in Dennis, or any other case. Rather, the point is that the Constitution is nothing more than a collection of words, bundled together by our shared commitment to living under its rule.  We obey the Constitution because it speaks to us, because we choose to abide by the authority that we have granted it, by the commitments we have made.  More crucially, these are commitments that we have assigned to our justices to uncover and then safeguard. And it is this last move that strikes me as odd.

This is why the commentary on Snyder has a funny edge to it.  Commentator after commentator writes as if the First Amendment requires one thing or another.  But clearly the First Amendment does not require anything.  It is the justices who require anything of us. And as Noah Feldman reminded us a few weeks back, we should not forget that these are not monks in a monastery, "innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience."  These are, instead, human beings with political connections and deeply held views.  We should never lose sight of that fact. For in the end, it is a Constitution they are expounding.

Loving the First Amendment

Earlier today, the Supreme Court handed down its decision in Snyder v. Phelps. This is the case where the congregation of Westboro Baptist Church picketed the funeral of marine lance Corporal Matthew Snyder, who was killed in the line of duty in Iraq.  The signs had choice words for gays and also for the military.  For example, some of the signs stated, "Thank God for Dead Soldiers," Fags Doom Nations, and "You're Going to Hell." Snyder's father filed suit for intentional infliction of emotional distress and won a multi-million dollar verdict.  The Church did not dispute the sufficiency of the evidence, nor did it dispute that its speech was outrageous and atrocious.  Instead, it defended its speech on First Amendment grounds. Siding with the Church, the Court held that the Church's speech was in fact protected under the First Amendment.  Only Justice Alito dissented from the Court's holding.

To be sure, it is refreshing to see a super-majority, especially from the Roberts Court, sticking up for unpopular minorities other than corporations. It is also comforting to see eight justices agree on a case as public and as noted as this one.  Polarization does have its limits.

On the other hand, it is clear that Justice Black's absolutist view of the First Amendment lost out long ago.  The Court makes all kinds of distinctions between protected and unprotected speech. If this is the kind of speech that the First Amendment is designed to protect, then I cannot help but think that there might be something wrong with the First Amendment.

I need to ask the experts: one cannot shout "fire" in a crowded theater or burn a cross in front of an African American family's house, but one can go to a stranger's funeral with placards that read "God Hates Fags" and "Thank God for Dead Soldiers" and inflict emotional distress?

Can we really differentiate Virginia v. Black -- the recent cross burning case -- from this case all that easily?

The End of the Second Reconstruction

In her Times column from last week, Linda Greenhouse asked "is anyone watching?" This question was in reference to the looming constitutional debate over the constitutionality of the Voting Rights Act.  She argued -- correctly in my view -- that the Court is gearing up to strike down the special provisions of the VRA.  Yet no one seems to be paying attention. Three issues from her essay caught my attention.

The first is the notion that the Court will not be able to escape ruling on the constitutionality of the act this time around.  In the earlier NAMUDNO case, the court offered an idiosyncratic and novel reading of a key provision of the VRA.  In so doing, the Court was then able to dodge the constitutional question.  According to Greenhouse, however, "[t]here appears to be no convenient off-ramp" in the new case.  But this is not quite right.  For one, there appeared to be no such ramp in NAMUDNO and yet the Court was able to create one.    This is in line with how the Court has historically interpreted the statute.  The Court has essentially used the statute as a jumping off point to do whatever it is the court wants to do with the Act.  NAMUDNO was no different in this regard.  

Furthermore, the way the Court dodged the earlier constitutional challenge has a Bickelian flavor to it, in the sense that the Court was simply looking for a prudential way to set the question aside for the future.  This is to say, the real question is why the Court chose to set aside the issue in NAMUDNO, and not the fact that it did.  In the next case, one can easily see the Court invoke the "passive virtues" to set aside the challenge.  The Court will decide this question when it is good and ready, and not a moment before.

The second issue is one how Greenhouse struck at the heart of the debate over the continued vitality and constitutionality of the VRA.  She put the point the following way: 

The new briefs were submitted last week. Where one side sees sufficient progress to render Section 5 obsolete, the other sees continued racial polarization and strategies that, while not physically keeping black voters from the polls as in the past, serve to dilute impact of black and Latino votes. The two sides remain far apart on which facts about voting patterns are relevant and on how those facts should be weighed. The answers to those questions, almost certainly, will come eventually from the Supreme Court.

I think this is exactly right, up until the last sentence.  This is clearly a question about which both sides disagree, and vehemently so.   The question for us is why the Supreme Court is the one institution that should decide such questions.  I don't have a good answer, and neither does greenhouse.  She simply assumes the answer away, as do most of us.  And that is unfortunate. 

The third issue is one that I have been thinking about for quite some time.  Greenhouse hints at it, though this is more than commentators are often willing to do.  The question is whether we are witnessing the beginning of the end for the Second Reconstruction.  Greenhouse raises this question by way of Justice Scalia's concurring opinion in Ricci v. DeStefano, a Title VII employment discrimination case.  Is the entire civil rights edifice now open to constitutional attack?  I have raised this question in the past, and the answer is usually that these statutes now form part of the fabric of our nation and are safe from constitutional challenge.  They are, in a word, super-statutes.  

Needless to say, we are about to find out if this is so.  I am not optimistic.