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 | Tuesday, June 30, 2009 at 12:21:51 mst
Comment ID: #1
Name: John Harris
E-mail: John.harris00(at)gmail.com
Alright, so lets say they strike this down; freedom loses, which would be bad, very bad.
What would happen? |
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| Tuesday, June 30, 2009 at 12:40:09 mst
Comment ID: #2
Name: Jennifer Snow
E-mail: Snowconic(at)hotmail.com
URL: http://literatrix.blogspot.com
This "study" of "impact" worries me, because that's entirely the wrong approach to be taking. Does that mean it'd be perfectly okay to regulate speech if the nonprofits WERE equipped to comply? This implies that it's not the *regulation* that's wrong, it's the fact that the nonprofits are "little guys" who are being quashed.
A troublesome precedent, if so. |
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| Tuesday, June 30, 2009 at 14:41:34 mst
Comment ID: #3
Name: Steve Simpson
E-mail: ssimpson(at)ij.org
Jennifer, are you saying that the courts should not take the approach of judging regulations based on their impact on certain parties, or that we at IJ are taking the wrong approach by studying this impact and making arguments based upon it? If it's the former, you are quite correct that the courts should not take that approach, but they unfortunately often do. If it's the latter, well, I disagree, but I'll await further clarification before commenting more. |
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| Tuesday, June 30, 2009 at 15:21:55 mst
Comment ID: #4
Name: Jennifer Snow
E-mail: Snowconic(at)hotmail.com
URL: http://literatrix.blogspot.com
I'm saying both are not really a good idea, because it's important to take a principled approach to ideas. While it's a good thing if the court strikes down a bad law, it doesn't do much good in the long term unless the reason *why* they struck down the law will lead, philosophically, to other bad laws also being struck down on the same basis.
If these laws are struck down due to "impact", how long until we start seeing legislation that does the same thing but has some addendum that minimizes the "impact" by having a "means cutoff" or something along those lines? How are you going to get *that* law struck down after basing your arguments around impact? They fixed the problem you were complaining about, after all. If you suddenly change directions and start trying to argue principles, you'll just look like a hypocrite or someone with ulterior motives.
It's no good trying to beat the pragmatists at their own game, because you only succeed in throwing your weapon away. Then they win either way. |
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| Tuesday, June 30, 2009 at 15:43:03 mst
Comment ID: #5
Name: madmax
Jennifer,
I agree with you. But I think (I'm not sure) that in today's legal system with today's laws and precedents that it is not possible to make a principled defense of free speech. No court is going to recognize an Objectivist argument for free speech. Lawyers have to use the only standards that will be recognized today and I think "disparate impact" is one of them. Since the end of the Lochner era thinking in terms of fundamental principles is totally frowned on, condemned and laughed at. Legal Positivism rules today; it has total dominion of our legal system. Its a sad state of affairs. |
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| Tuesday, June 30, 2009 at 16:58:32 mst
Comment ID: #6
Name: Jennifer Snow
E-mail: Snowconic(at)hotmail.com
URL: http://literatrix.blogspot.com
Hence why I don't think it'll do much good in the long term, madmax. Is it a nice thing? Yes. Is it going to change the political landscape for the better? No.
I'm reminded of what Marilyn Vos Savant said when she was asked whether she was "for" monogamy. "Am I for monogamy? Sure! I'm also for everlasting peace and an end to taxes." |
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| Tuesday, June 30, 2009 at 17:31:20 mst
Comment ID: #7
Name: Andrew Dalton
E-mail: andrew.s.dalton(at)gmail.com
URL: http://witchdoctorrepellent.blogspot.com
madmax -
That's pretty much my (non lawyer) understanding of the legal predicament, too. It's true that those kinds of constrained arguments won't save us in the long term. But it's also true that we cannot expect the legal system to correct the *philosophical* errors that have gotten us onto this march toward statism. Narrow legal victories can buy us time, which is definitely needed. |
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| Tuesday, June 30, 2009 at 20:24:23 mst
Comment ID: #8
Name: Dan G.
Jennifer,
About your first post; this is *not* the wrong approach to reverse a terrible law given the context of the situation. The courts are not the place where philosophical ideas will take root, so to attempt to seed them there would be a fruitless endeavor. You are correct, that a principled defense of the freedom of speech is necessary to sustain such a freedom, but taking that approach with individuals who are set in their ways, would be Quixotic. I believe that the approach that IJ is taking is appropriate (given the stated context), and I think that it would be good for individuals, such as yourself, Jennifer, to suppliment IJ's efforts with LtE's etc... that argue the principled position. The public sphere is where such arguments *will* be fruitful. |
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| Tuesday, June 30, 2009 at 20:25:15 mst
Comment ID: #9
Name: Dan G.
Steve et al.,
Great job, thank you for your efforts! |
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| Tuesday, June 30, 2009 at 21:04:53 mst
Comment ID: #10
Name: madmax
"Narrow legal victories can buy us time, which is definitely needed."
I agree. Well stated. |
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| Tuesday, June 30, 2009 at 21:20:37 mst
Comment ID: #11
Name: Steve Simpson
E-mail: ssimpson(at)ij.org
Yes, I'm aware that it's important to take a principled approach to ideas, which is the reason the press release does that, right in the second paragraph, where it makes clear that Americans have a First Amendment right to join together and speak out about politics. It then goes on in that paragraph to point out the grave threat that campaign finance laws pose for these rights. Your entire point is based on a false premise: that we are making a pragmatic argument based on impact simply because we studied the impact of these types of laws and decided to publicize the relevance of that study to this case. Frankly, I don't see how anyone could draw such a broad conclusion from one press release at all (given the nature of what a press release is), but, in any event, this press release makes crystal clear that that is not our position. It does so, among other places, in the 7th paragraph, where it points out that the problem is the regulation of speech as such ("Once you start regulating political speech, there is no place to stop. This is exactly why the First Amendment forbids government from controlling and limiting speech in the first place.").
I wouldn't waste time pointing out the obvious--you can all read, after all (and you can investigate our arguments further, instead of drawing broad inferences from press releases, if you really want to). But your approach to this press release is typical of a view that is unfortunately far too common among objectivists: that any argument that highlights the actual impact of a law, regulation, or program is necessarily unprincipled and pragmatic.
Taking a principled approach to ideas does not mean refusing to point out than an unprincipled approach leads to bad consequences in the real world. Indeed, doing so is absolutely essential to convincing others of the correctness of our ideas. Human beings are neither mindless automatons nor disembodied spirits. We're integrated beings who live in the real world. The moral is the practical and vice versa; both are essential to our lives on earth. As a consequence, most people care not only about being moral, but about how their actions and those of others will actually affect them in real life. This is perfectly appropriate, and we, as objectivists, should always be mindful of it and, indeed, should capitalize on it to our advantage. The fact that the moral is the practical means not only that actions that threaten our lives (and that threaten the actions, like free speech and free thought, that sustain it) are immoral; it also means that immoral actions (violations of our right to free speech, for instance) will negatively impact our lives. We, as objectivists, are uniquely suited to recognize that and to point it out to others.
Thus, for instance, if I see a violation of the right to free speech, I know going in that I will find many examples of how that violation negatively impacts the lives of those to whom it applies. Why in hell would I refrain from pointing that out? Why, in other words, should I fight with one hand tied behind my back, when I can make an argument that highlights not only the immorality of the law, but the impracticality of its consequences?
And, indeed, we always try to do just that, in our cases, in our op-eds, and even in our press releases--as we did here. Admittedly, the scope of our examination of the practical consequences of a law is often limited by practical considerations. I would certainly like to do studies that examine the negative impact of campaign finance laws on the whole wide world, but I'm unfortunately limited by things like time, expense, and the confines of particular cases. As a result, we have to make tough choices about what to study and what to leave for another day, which are typically informed by what is likely to have the greatest impact on our target audience--usually courts. In campaign finance cases, that usually means highlighting the impact of the laws on the people and groups that our opponents claim benefit from them. There's usually no reason to study the negative impact of campaign finance laws on large, wealthy organizations, because the laws are designed to prevent them from spending money on speech, so that point is already admitted (although we've even looked at that sort of thing in a few cases). But our opponents often claim that the laws actually benefit everyone else, so it is useful to point out that, in fact, they do not. This is so because, among many other reasons, it allows us to keep the court--and everyone else--focused on the principle at the root of the case; here, the First Amendment.
In the case for which we did the study mentioned in the press release, the law targeted groups that mentioned candidates or ballot issues. The types of groups that typically do so are non-profits, so we studied the impact on non-profits. To do otherwise, would have been, well, stupid.
All of this is part of our mission of trying to change not only the law, but the public's view of constitutional rights and their importance to our system of government and our lives. We at IJ have no illusions about our ability to "litigate our way to a better tomorrow." We recognize that it will take much more than lawsuits to change the culture. But consider for a moment exactly how it is that we are to arrive at the "long run" without the ability to speak and to try to convince others to adopt our views. I would prefer that courts always rule in our favor on the basis of fundamental principle, but when it comes to so basic a tool of cultural change as free speech, as Jefferson once said, half a loaf is better than none. |
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| Wednesday, July 1, 2009 at 0:35:33 mst
Comment ID: #12
Name: Kyle Haight
E-mail: khaight(at)alumni.ucsd.edu
URL: http://www.leftist.org/haightspeech
Um, yeah. What he said.
The most effective activism is a blending of moral argument with practical argument. People these days have such disintegrated psycho-epistemologies that they will often dismiss a purely moral argument as 'theoretical', 'too abstract', 'mere semantics', etc. The moral and the practical have been split apart -- we need to stitch them back together. How can one do that without discussing the practical? |
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| Wednesday, July 1, 2009 at 9:14:32 mst
Comment ID: #13
Name: Jennifer Snow
E-mail: Snowconic(at)hotmail.com
URL: http://literatrix.blogspot.com
Kyle, while that is true, the practical argument often doesn't hold up under scrutiny. You can talk broad trends (which is still considered abstract, theoretical, and pie-in-the-sky by pragmatists), but the truth is that a lot of the immediate effects of "deregulation" are really ugly and you cannot convince someone that the Russian Mob or the Bolivian Water Scandal are good things because they are not. The removal of a few legal restrictions won't suddenly produce some lovely results you can point at precisely because people are not automatons. Very rarely are there widespread immediate bad effects of regulations that you can point to and say "see, this is what we were talking about!" The bad results are long term, complex, and sometimes unmeasurable.
If you have a definite plan that these laws are preventing, then I can understand the need for this particular battle at this time. Otherwise I think you would be a lot better off campaigning to keep *new* regulations off the books like, say, Lin Zinzer did with the Colorado universal health care "plan".
It's your money and your time. If this is what you want to do, great. But where do you go from here? |
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| Wednesday, July 1, 2009 at 11:49:44 mst
Comment ID: #14
Name: Dana H.
Jennifer, if you're going to continue to criticize the IJ approach, I just have to say that you are missing the boat big-time. Other than ARI and affiliates, IJ is the only large advocacy group defending freedom on proper, principled grounds -- but in the legal sphere rather than the philosophical sphere. They do a brilliant job relating the moral to the practical. They choose sympathetic clients such that even the man on the street can see the rightness of their causes. And when they succeed in getting an unjust law struck down, that law remains struck down even for those who the man on the street might view with less sympathy due to altruist or collectivist premises.
At last summer's OCON, Yaron argued that the fight for freedom requires a whole network of think tanks and advocacy groups focusing on different aspects of the culture, that ARI can't do it alone. In this fight, IJ does more than pull its own weight. |
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| Wednesday, July 1, 2009 at 13:06:31 mst
Comment ID: #15
Name: Jennifer Snow
E-mail: Snowconic(at)hotmail.com
URL: http://literatrix.blogspot.com
So the fact that someone's doing a good job means that no one should say that there may be some problems with some specifics of their approach?
If they're happy in their own minds that they're aware of this potential problem and they already have it covered, good for them. If they think I'm overreacting, they should ignore me. Sheesh. |
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| Thursday, July 2, 2009 at 10:44:35 mst
Comment ID: #16
Name: Not Joe Biden
E-mail: notjoebiden(at)aol.com
Jennifer, I think you're doing a good job outlining the necessity of acting on principle. I think there may be problems with some parts of your approach, not so much with overreaction but rather with a less-than-full appreciation for what professional legal work consists of. That's not any kind of character flaw, even if this observation of mine is completely correct.
I say this not to add to the pile of criticism, but rather to try to shrink it. I'm hoping this gesture is not entirely futile. I'm guessing if you and the IJ principals had a chance to speak at length, you'd find yourselves with much closer outlooks on life than it would appear. |
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