The Only Winning Move

Dear movetoamend.org:

I was just reading your page - presumably in protest of yesterday’s Supreme Court Ruling to the effect that corporations have speech rights - arguing that “money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights,” and I’m stuck on the section at the bottom right of your page asking for “organizational endorsements.” Your list of organizations from whom you would like endorsements includes businesses and unions - the first of which are potentially and the second of which are definitely corporations under the law. So, corporations DO have speech rights, then? Or is it only when they’re arguing that they don’t?

Love,

Confused in Indiana

Mr. Tweedy asks for opinions on where to draw the line on libel law. The link goes to an entry on his blog about a recent case where a minor league model is suing an anonymous blogger - apparently as a publicity stunt - for having posted some unfounded insults directed at her. The full story, for background, can be read here. The gist of it is that some blogger no one’s ever heard of posted some pics of her with captions that say things like “ho” and “skank.”

The circumstances of the case won’t cause too much headscratching. The girl is suing because someone called her a “ho” - an insult no one takes seriously here in the physical world when you say it to someone’s face - ONLINE. No one can seriously think this has damaged her reputation; she’s abusing the legal system. But there’s an important background legal issue here in that Google has been forced to hand over the Blogger’s email and IP addresses to comply with the frivolous suit. The question isn’t whether she’ll win her case, it’s whether there is a legitimate public interest in forcing third parties who might have some information about people making anonymous statements to identify those people when those statements are potentially libelous. A related issue - the one Mr. Tweedy seems to be interested in - is where to draw the line at libel/slander in the first place. What constitutes “harmful” speech when it’s just reputation that’s at stake?

Since he’s asking for opinons, here’s mine: there should be no libel laws. Libel and slander should be legal.

It’s not that I don’t get that reputation is important. In some careers it’s EVERYTHING. It’s just that I’m not sure it’s the kind of thing that falls under the purview of government. Some things are public responsibilities, some things are private responsibilities - reputation is admittedly kind of a grey area, but being the kind of person who tends to want to leave the government out of as much as possible this side of staying civilized, I guess my opinion won’t really surprise any regular readers. Here is some justification for anyone who has questions, though:

(1) The current legal regime is one-sided in the sense that celebrities can and do lie all the time to enhance their reputations, and I can’t recall a case of one having been sued or sent to jail for it. A gratuitious example: Britney Spears was sleeping with AT LEAST Justin Timberlake the whole time she was the poster child for the True Love Waits crowd. Even she herself now says so - which, if libel laws were fair, would mean that a lot of professional virgins would have the right to sue her since they bought her albums under false pretenses. But they won’t, they shouldn’t, and I don’t think anyone will have any sympathy for them if they try. So if celebrities can lie with impunity to promote false images that sell records, I don’t see what’s criminal about someone else lying to frustrate those same efforts. If it were a pharmaceutical company pushing ineffective drugs on the basis of faked studies, of course it would be fraud, and I think we can all agree that fraud should be illegal. My point is just to show that when you pump your intuitions, no one really thinks of smarmy self-promotion as fraud, exactly - at least not in the legal sense. Which begs the question why personal reputations need legal protection given that they’re apparently not otherwise regulated.

(2) Libel suits rarely undo the damage caused - which is another way they’re different from physical damage. In many cases, physical damage can be repaired, and the purpose of the suit is to fund the repairs. And in those cases where it can’t be (say, surgeon loses a hand in a car accident caused by a drunk driver), at least we can make a reasonbly accurate measure of what the damage is. Can we do that with reputation? I for one don’t think so. Public opinion is fickle, and it’s difficult to know how long tastes would have held constant if, say, Britney Spears had sued Justin Timberlake for stating in an interview that he’d banged her while she was still putting on her choir girl act. How many of her fans really decide to buy her albums based on virginity? How many of them would continue to value virginity enough to buy her albums on that basis into their 20s? What if there’s a big disco comeback and hedonism is in again and she no longer wants to be a square, only the terms of her lawsuit mean that she can’t now claim to have been a whore like all the cool kids are doing, only she does it anyway and it works out for her because she makes more money now than ever and can pay all the damages back? Arguably in that case Justin Timberlake did her a favor by unwittingly helping her reputation! All of which is to say that it’s very difficult to put a price tag on reputation, and I’m really not sure the courts are qualified to do it.

(3) Related to the previous point, sometimes bad publicity is good publicity - as, indeed, seems to be the case with this model. No one knew her name before she became an internet senstaion, and the only reason she’s an internet sensation is because some blogger who’s name we STILL don’t know posted some insults that no one heard and fewer still cared about until she delivered them to the press herself. Name me one other “crime” where the perpetrator is as often as not doing the victim a favor.

(4) There’s something really philosophically icky about referring to damage to reputation as personal harm - because it implies that people have a right to be thought about in the way they wish. But not only is it impossible to police thoughts, it’s immoral - not to mention hugely uneconomical - to even try. If we can all agree that the model in question doesn’t have the right to demand that I think of her as an appropriately selective mate, then where did she get the right to control the information on which I base my conclusions? Sure, some of the information on which I base my conclusions about public figures will inevitably be false or misleading, but the more I actually care about the truth of the matter in question, the more I realize that and take into account that “you can’t believe everything that you read,” and take it on myself to do some fact-checking. What most libel suits I’m familiar with amount to is two sides arguing over the right to the opinions of the gullible. Which leads to the next point, which is:

(5) There’s also something creepy about the government acting as an official fact-checker in personal disputes. Granted, again, that this is inevitable in a lot of cases. If you come onto my property and kill my cat and I take you to court, the police will have to do some spadework, fine. But when it’s over things like some model’s sex life? PR is a private, not a public, responsibility. If your reputation’s been sullied, you’re in luck because this is a free(ish) country and professionals are available for hire to work on your PR for you.

(6) I have trouble imagining a real libel case anyway. In all cases where it’s worth it to someone to sue someone else for having “lied” about them, then only because the thing being “lied” about is crucial to their livelihood in some way. And if something is a cornerstone of your professional reputation, then you’ve either done the work to protect it (i.e. hired professional PR or generally held up your end of the bargain by actually being what you claim to be and leaving a trail of evidence to that effect), or the accusations are true. In the first case, there’s nothing the court can do for you that you can’t already do for yourself. In the second, there’s nothing the court should be doing for you at all.

(7) There is, of course, the First Amendment and an associated tradition of generally protecting speech in this country. That isn’t to say that all speech in all cases should be legal, just that there is, or should be, a huge burden of proof on anyone attempting to claim that some kind of speech is harmful enough to warrant an exemption from constitutional protection. I’m as certain as the day is long that that burden can’t be met in this case. There are just too many grey areas, and ties go to the People in constitutional cases.

(8) It’s hard to slander someone without a ring of truth on your side anyway. Telling brazen lies with impunity was difficult even before the Information Age, but it’s as good as impossible now. Getting up and saying something about someone that’s obviously not true only makes you look ridiculous. For anyone to risk slander in the first place, they have at least some facts, or some current of public opinion, on their side before they start. This isn’t, it seems to me, a fact born of fear of slander laws, it’s just something that’s in the nature of the PR game. Calling Mike Tyson a wuss isn’t the same thing as saying it about Mike Stipe. I have a point in the second case, but in the first I just look like an idiot. I’m not really sure, therefore, what the courts of law add to this process that the court of public opinion isn’t already policing.

And I guess I could go on, but you get the point. Reputation is just a bit too “squishy” to qualify as a legal concept for me. It’s not that I’m completely incapable of imagining a case where lying about someone’s reputation could cause them real harm, or that I believe that no one could show me one if I were. It’s just that I think when you ask the government to start policing something you have to be aware that there is always a payment (in loss of freedom) for this, and you need to be sure the tradeoff is worth it. Pretty clearly in the case of libel and slander it’s not. In most cases, libel and slander suits don’t serve any real legal purpose, they’re simply extended theater for the PR game the actors were already playing. That handful of cases where the laws do some good, and where the situation is clear-cut enough that there are no unintended legal side-effects, don’t seem worth the intrusion into speech rights that slander laws necessitate. The intensions behind slander laws may be good, but the potential for abuse and the cost to constitutional liberties are not worth it - especially since it isn’t even clear that slander laws act as much of a deterrent to defamation in the first place. In most cases when someone is being defamed, there’s either something to the charge, or they don’t care and the attack doesn’t stick.

So given the choice, I say we strike slander from the books. Clear and consistent protection for speech freedoms is more important than a fussy devotion to absolute fairness. This tradeoff has existed as long as the republic has, and I don’t see any reason to flinch about it now.

Let’s get one thing straight: Sonia Sotomayer said what she said, and she meant it how it sounds. Here’s what she said:

Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Some chumps are suggsting that if you read the statement in context it’s not really all that bad. The New York Times is kind enough to give the full context, so read it for yourself and draw your own conclusions - but if you can come away with a reading of that line in the context of that speech that doesn’t mean “Latinas are generally wiser than white men and should be preferred for judicial appointments on that basis” then you’re much, much smarter than I am.

She said it, she meant it, context won’t help it (see Ilya Somin’s thoughts on the matter for deeper analysis) - those seem to be the facts. The question at this point is whether its relevant?

Well, obviously it is to some degree. The trouble with Supreme Court Appointments it that they’re for life; we can’t just yank her in four years if she turns out to be a crackpot. Questions of temperament are more pertinent for Supreme Court appointments than for most other positions, I’d say.

However - and maybe I’ll have to burn my LP membership card having said this - I don’t think it matters enough to make or break her appointment, and I kinda wish conservatives would shut up about it for that reason - at least for now.

Let’s be fair here: if Larry Summers is within the pale of legitimate scientific discourse to suggest that women and men might have different genetic endowments on average, and if Michelle Malkin and Thomas Sowell can repeatedly point to Asians and Jews as outperforming the averages on standardized test scores despite being marginalized minorities (by some definition, anyway), then I think it’s really OK for Sonia Sotomayer to hold the opinion that Latinas are wiser on average than everyone else. If that’s the generalization her various acquaintances and life experiences have brought her to, then that’s the generalization her various acquaintances and life experiences have brought her to. What’s relevant for her appointment to the Supreme Court isn’t whether or not she holds politically correct views on race, it’s whether and how her views on race will influence her decisions. When Larry Summers says that women are just not as good at math as men, he doesn’t mean that for every given pairing of a man and a woman the woman will fare worse. No - he’s just making a generalization. It is in the nature of generalizations that they capture trends in the data without guaranteeing that each new data point will fit the pattern. If Summers’ generalization does not lead him to unfairly discriminate against qualified female mathematicians in his hiring decisions, I don’t see any problem that the Harvard faculty need have concerned itself with. To the extent that Sonia Sotomayer understands that not all Latinas are wise and not all white men fools - and, more importantly, to the extent that she is capable of handing down rulings that fit the demands of law as written impartially and without regard to the races of the plaintiff and defendant before her - then this statement hardly disqualifies her from serving on the Court. It makes me dislike her personally, I suppose - and since my impression of Latinas is something like the opposite of hers I guess it also makes me question her judgment - but appointments to the Supreme Court should be made primarily on the basis of one’s legal resume and only secondarily on character speculation born of fishing expeditions in the arcana of the candidate’s public speeches. If nothing in Sotomayer’s public case record (and it is considerable - she has been on the District and Circuit benches for almost 20 years) suggests that she makes prior racist assumptions in her rulings, then there is little reason to worry that her private generalizations impair her ability to do her job.

I am not saying the infamous quote is off the table, mind you. I don’t really have any problem with someone raising the concern at her confirmation hearings and getting assurance from her that she won’t favor Latinas over whites in her rulings. After all, no less would be expected of a white man who had implied, a la Larry Summers, that women were less mathematically inclined than men. But I do hope that public discussion of this candidate can quickly progress to her actual judicial record. I really don’t want to see this quotation dominating the whole discussion, as it is largely beside the point.

So what of her judicial record? Well, not having read it I can’t really say - but preliminary rumblings suggest that she’s a Libertarian’s nightmare. She comes in for questionable copyright claims (in this case, that publishing a book of Seinfeld trivia is not “fair use” of facts that are available for everyone to see in endless reruns!), highly selective ideas about incorporation which seem designed to legitimize a personal preference for stricter state gun control laws, really scary ideas about eminent domain latitude, and - relevant to the discussion above about whether Sotomayer’s privately held pro-Latina racism will bleed over into her court decisions - a “see no evil hear no evil” approach to so-called reverse discrimination claims.

As I say, I haven’t carefully perused her record. Picking apart and discussing the merits of that record is what public discussion from here out is meant to accomplish. (Although certain useful idiots on the left suggest that it’s really just to provide an opportunity to declare yourself on the right side of the tide of history. See Matt Yglesias for a particularly odious reactionary interpretation.) This cannot happen if conservatives insist on making that single statement from 2001 the entire substance of the debate, so I sincerely hope they drop it for now and revisit it only then when some pattern in her rulings can be marshalled to suggest that it’s a real problem. The view at this point suggests they can - and that there are numerous other problems with Sotomayer as well. But the point remains: it’s only relevant when it can be demonstrated that there’s cause to worry that Sotomayer confuses personal impressions about the general wisdom of various groups with a license to reorient the law to their advantage - NOT BEFORE.

We hear a lot about “judicial activism” these days. But it’s always sort of an awkward charge to make - because judges, especially of the Supreme Court variety, aren’t “people like you and me.” While there aren’t any particular training qualifications for being an elected official, to be a high-ranking judge requires years of highly specific training and experience. One has to have the appropriate degree, have passed the appropriate exam, and then on top of that to have gained the respect of his peers. So I’ve always felt a bit impertinent accusing judges of “judicial activism;” they are undeniably more qualified than me to interpret the law.

Ilya Somin over at the Volokh Conspiracy wants to take it a step further, though, and say that “judicial activism” is not only impertinent but meaningless.

Unless -like Tushnet on the left, or Lino Graglia on the right - you want to do away with judicial review generally or severely restrict it, it makes little sense to criticize decisions as “activist” rather than “wrong.” As between supporters of strong judicial review, the real debate is indeed over competing “views about what the Constitution properly interpreted really means.”

I would like to respectfully disagree. While it’s certainly true that what one sees as “judicial activism” will to a certain degree be influenced by what he thinks the Constitution, properly interpreted, means, it is simply incorrect to say that people who cry “judicial activism” are using that as fancy-pants-speak for “I disagree with the decision.” No, “judicial activism” refers to a specific kind of “wrong,” and it is a pejorative because it implies some kind of duplicity on the part of the “activist” judge. Not just an error, but a deliberate or dishonest error. At the time of writing, Wikipedia has a nice, clear definition of the term as I’m accustomed to using it:

Judicial activism is a pejorative term for the misuse of judicial power for the purpose of obtaining a predetermined judgment based on the political convictions of the judges without regard to the U.S. Constitution, written law or legal precedent.

That packs a bit more in than just “being wrong.”

There’s a simple test, in fact, to determine whether judicial activism is a meaningful category over and above mere “wrongness” for you. You just have to ask yourself if you can imagine a court case in which you liked the policy effects of the outcome but find the decision itself to be plainly at odds with constitutional law. If you can imagine such a thing, then you have a distinction between “procedurally correct” and “politically expedient.” The only missing ingredient here is intention. Judicial activism is any situation where what is “procedurally correct” doesn’t agree with what the judge finds “politically expedient” and there is reason to believe that he allowed political expedience to override what is procedurally correct. “Judicial activism,” therefore, isn’t merely being wrong about a ruling, it is additionally an accusation of a specific type of abuse of power.

For my own part, I can cite the infamous Roe vs. Wade as a decision whose policy consequences I like, but which is plainly procedurally incorrect. That alone is not enough to accuse Harry Blackmun of judicial activism, but the fact that he spent so much time on the lecture circuit arguing that the decision he authored in Roe was vital to gender equality probably is. The implication is that Blackmun had strong personal feelings on the issue and allowed those feelings to determine the ruling for him, rather than a strict adherence to precedent and constitutional laws and procedures. If I believed that Blackmun honestly felt that the 9th and 14th amendments together guaranteed an implied but never enumerated right to abortion, then I would simply accuse him of an honest misreading or misunderstanding of the Constitution. But in fact I don’t believe that it was an honest misunderstanding. I think Blackmun was abusing his power - perhaps not entirely consciously, but doing it nonetheless - to obtain a result that he found politically desirable. He found himself in a position to shape policy on an issue he felt strongly about in the direction he wanted, and the temptation to do so clouded his better legal judgment. Which is to say that the opinion he authored functions more as a rationalization than a justification.

Is it impertinent of me to say so? Undeniably. Justice Blackmun has (erm, “had”) a vastly superior education in constitutional law than my own (which consists of reading Court cases for fun over the course of several years, really). He’s definitely more qualified than me to make these pronouncements. Notwithstanding, experts can be and frequently are wrong, and often because their positions as experts expose them to temptations and pressures that don’t affect the rest of us, as outsiders, nearly as much.

Indeed, I think the point for me about Somin’s post is that I would have thought that legal experts were even more attuned than the rest of us to the dangers and temptations of “judicial activism.” Here’s my reasoning. No one goes into law without some opinions of what the law ought to be, as opposed to what it is. There’s always a conflict between the legal system as one might wish it to be and the legal system we actually have, and surely legal experts have more detailed private descriptions of those differences than the rest of us. If nothing else, they’ve surely spent more time thinking about them. There’s also a fine line in general, I should think, between rationalization and justification. Being trained in legal theory is as much training in an applicable skill as it is in moral philosophy, after all. Some lawyers are indeed training to uphold the rule of law, but others receive the same training merely to find the weaknesses in the system and exploit them to best advantage for their employers. The skillset for these “white hat” and “black hat” lawyers is largely the same. Now, self-deception is as easy as it is ubiquitous. We, all of us, constantly struggle against what we want to believe to try to see ourselves and our place in the world accurately enough to make informed decisions. We all, from time to time, overestimate our intelligence, or our charms and beauty, or our expertise on a matter, or what we can afford, or how much of a workload we can handle, or any number of other things. Being provided with the tools of an expert as often as not merely makes one more adept at self-deception rather than at impartial analysis. I see this all the time in arguments about programming languages. There’s a certain amount of learning that seems to me to inform the debate, granted. You take a couple of classes, and your perspective honestly does change. But there’s a point beyond which new learning only seems to arm people with more tools for the debate. Someone sold on Haskell, say, only gets better at defending it in online discussions after this point. He doesn’t necessarily get any better at recognizing Haskell’s flaws or designing solutions for them. After a certain point, “religion” sets in, and the new skills you learn become just so many tools in your debating arsenal rather than real instruments for getting at the truth. Legal scholars should be and need to be on guard for this sort of thing as much as if not more than the rest of us in their own profession.

No, every profession has these temptations, the legal profession being no exception. Not every expert debate about what the Constitution means is informed and academic. Sometimes, it’s just someone being deceptive or self-deceptive and stacking the deck so that things come out the way he wants. Somin, as a legal expert himself, should recognize that this danger is real and understand the usefulness of having a shorthand name for it.

Perhaps it is the word “activism” to which Somin objects. I can understand that. After all, I’ve just made the case that a lot of what we call “judicial activism” may be self-deceptive - people rationalizing their behavior to themselves rather than intentionally deceiving people. Since the word “activism” implies a kind of conscious engagement, maybe it isn’t the best choice. Whatever we call it, I feel pretty strongly that there should be a name for it. It is an obvious temptation in the legal profession, a specific kind of being “wrong” that legal professionals should actively guard against in themselves and in their peers. A meaningful category by any estimation.