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Judge Kavanaugh and Justice Kennedy's Free Speech Legacy

Justice Kennedy was the most speech-protective justice on a speech-protective court. What happens to free speech once he is replaced?

Justice Anthony Kennedy was the most speech-protective justice on the most speech-protective Supreme Court in our nation's history. His expansive conception of the First Amendment's protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last. While he did not vote in favor of those claiming First Amendment protection in each and every case -- notably cases involving government employees or schoolchildren -- he did so more often than those on both sides of the aisle.

Under Chief Justice Roberts the Court has largely been the Kennedy Court. For the past thirteen years Justice Kennedy has voted in the majority more than any other justice, even the Chief. So if you wanted to know how the Court might rule in a given case, it was usually enough to figure out how Justice Kennedy would vote. In First Amendment cases, this usually meant those seeking greater protection for speech and expressive conduct would prevail.

Although Court does not take as many free speech cases as it once did, it would be a mistake to view this as a retreat from the protection of speech. Under current law, a wider array of speech is protected than ever before. As Joel Gora noted in his chapter on the First Amendment in Business and the Roberts Court, the landmark free speech decisions of the Warren and Burger Court have been left largely untouched, while the realm of protected speech has grown. Indeed, one reason the Roberts Court hears fewer First Amendment cases is that it hardly needs to, other than to ensure speech protection on the margins, especially those margins that were historically ignored.

The Roberts Court has refused to carve out new exceptions to that speech which receives constitutional protection, rejecting claims that so-called "crush" films depicting animal cruelty or explicitly violent video games, lies about military honors or gratuitously offensive and bigoted funeral protests lie outside the First Amendment's reach. Although some forms of communication remain unprotected, such as "fighting words," obscenity, and defamation, Justice Kennedy has forcefully opposed adding to the list. At the same time, the Court has expanded the notion of protected speech to include more commercial and campaign-related speech -- often to the chagrin of otherwise speech-protective progressives.

Justice Kennedy's commitment to a broad and largely uncompromising vision of the First Amendment continued through this term, when Justice Kennedy joined the Court to affirm protections against compelled speech for crisis pregnancy centers and public sector workers who don't wish to support union activities.

This concern for free expression was not new. On his first full year on the Court, Justice Kennedy made clear he would uphold First Amendment principles, even when it hurts. In Texas v. Johnson, the flag-burning case, Justice Kennedy joined Justice Brennan's sweeping opinion overturning the protestor's conviction. Kennedy also concurred separately to note that "however painful" flag burning may be to some, it still merits protection. "It is poignant but fundamental that the flag protects those who hold it in contempt," he wrote, adding about the protestor that he "was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution."

And who can forget Citizens United, one of Justice Kennedy's most aggressive and principled First Amendment decisions. Citizens United affirmed the core principle, articulated in Buckley v. Valeo, that the First Amendment "was designed to secure the widest possible dissemination of information from diverse and antagonistic sources and to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people" (internal quotation marks deleted). As Gora observes, Kennedy's opinion reflected the "strong libertarian, antipaternalistic, anticensorship themes" central to First Amendment precedents from earlier times.

Judge Kavanaugh's nomination to fill Justice Kennedy's seat makes it very likely this free speech legacy will survive. The Chief Justice has largely supported Kennedy's speech protective vision, and has written important First Amendment decisions of his own, such as his decision for a unanimous Court protecting abortion clinic protests in McCullen v. Coakley (a position Justice Kennedy had urged in dissent several years earlier). Justice Alito, on the other hand, has written separately or dissented in multiple cases involving various forms of offensive or otherwise objectionable speech and protection.

As Ken White documents on Popehat (and Eugene noted here), Judge Kavanaugh has adopted a very speech protective record on the D.C. Circuit, including in areas that were of particular importance to Justice Kennedy, such as campaign-related speech. He has also articulated a principled and nuanced understanding of how the First Amendment applies in the context of compelled commercial speech. Contrary to Damon Root, I believe Judge Kavanaugh's opinion in American Meat Institute v. USDA is quite speech protective, and represents a more sophisticated understanding of how to reconcile various strands of the Supreme Court's commercial speech and compelled speech jurisprudence. There was no question that country-of-origin labeling requirements for meat products would be upheld. The question was how to reconcile this requirement with broader protection against compelled commercial speech, and that's the question Kavanaugh answered.

Largely due to Justice Kennedy's leadership, the Roberts Court showed that a conservative court can be a free speech court. The Kavanaugh nomination provides reason to hope that this free speech legacy is secure.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Negi||

    ISPs should have no more editorial control of my internet access than my local water utility should have editorial control of my tap water.

  • Voize of Reazon||

    Is this sarcasm? My local water utility exercises enormous control over the quality of the water they deliver, and I hope yours does too.

  • Negi||

    Only with limited discretion.

  • Voize of Reazon||

    And you would be OK with your internet provider following that example, controlling every measurable detail of the content you receive as long as it is government regulations that make all the decisions?
    You should look for a better analogy.

  • FlameCCT||

    Not to mention that local water utility can also control the amount of water provided/used (restrictions due to drought, etc.) as well as controlling the usage of said water (i.e. watering lawns & plants, etc.) Just ask the farmers in CA about losing crops because the State decided a small fish needed the water more than their farms.

  • The original jack burton||

    that's not the utility controlling your water supply, that is the state doing so.

  • FlameCCT||

    Exactly. Which is what occurred under net neutrality.

  • Stephen Lathrop||

    Well, the fish did need the water more than the farms. Just curious, if it had been bluefin tuna at stake, would it look any different to you?

  • FlameCCT||

    Nope, no different. Although bluefin tuna is a food source.

  • The original jack burton||

    I have no problem with the ISP exercising control over the technical "quality" of the service they deliver. It is not my responsibility to determine if they have fast or slow servers, or have little to great dropouts or service malconnections. If they don't meet my standard, I'll go to another service.

    But the water utility does not determine what I do with my water once it is in my home. I can water the garden, cook pasta, or take a bath. And I don't want my ISP to determine what I do with my internet services, either.

  • Negi||

    Where my family lives, we have one choice of broadband ISP. If there were more competition, I wouldn't mind letting things go freewheeling.

    For whatever reason, nobody in govt seems to see this as a problem with an antitrust solution.

  • JHR||

    Judge Kavanaugh pointed out (as Judge Silberman did in an earlier net neutrality case) that the FCC did not even try to make a finding of market power. If they had demonstrated market power, Kavanaugh noted, then the regulations would not have offended the First Amendment under the approach in Turner.

    The reason they aren't doing it is likely that they don't think they can. Various FTC staff have commented that it would be very difficult to prove market power in broadband. This is for a lot of reasons. The FCC conveniently keeps redefining the definition of broadband upwards, so, for instance, DSL no longer counts as broadband. For antitrust purposes, however, you have to look at cross elasticity of demand. It's likely that DSL, satellite, and mobile internet all constrain the pricing of cable broadband to some extent.

    Even more difficult is that market power has to be determined geographically. And in the context of broadband, that can be a street-by-street inquiry. If market power is demonstrated in one neighborhood and not another, then you'd end up with a patchwork of where the regulation applies and where it doesn't.

  • Voize of Reazon||

    I don't disagree with what you are trying to say, but this example really doesn't say it.
    A more apt parallel would be if the water utility let you use their pipes to deliver bourbon to your house.

  • FlameCCT||

    WTH?

  • AmosArch||

    The mark of a great Justice would be protecting speech that tends to enrage both sides and are thus often banned with no controversy such as drawing a stick figure and the words 'naked 17 year old girl' with an arrow between them.

  • bernard11||

    A narrow ruling in Citizens Union would have certainly been protective of free speech. The broad decision permits, for practical purposes, compelled speech on the part of shareholders not unlike that which was ruled unconstitutional in Janus.

  • swood1000||

    compelled speech on the part of shareholders not unlike that which was ruled unconstitutional in Janus.

    Except that in Janus the employees were required to pay dues to the union but nobody requires the shareholders to own stock.

  • nonzenze||

    I don't think this flies. The shareholders can sell their stock, the employees can quit their jobs.

    As noted below, the key item for me is that the government is constrained by the BoR in ways that are simply not applicable to private actors. In fact, if those constraints did apply to private actors, they would be violations of other provisions of the BOR :-)

  • The original jack burton||

    there is a substantial difference in kind between selling stock and quitting a job.

  • Rev. Arthur L. Kirkland||

    there is a substantial difference in kind between selling stock and quitting a job

    Not in this context.

    In many cases, the union was in place before the malcontent took the job, making "quitting" a lousy choice in that sentence.

  • Stephen Lathrop||

    Yup. For instance, you always know if you have a job. Most shareholders have no idea what stocks they own, let alone what political speech their money is being taken to pay for. On the latter point, it's pretty much no shareholders who know that, nor do they have any way to find out, not even after the fact. Isn't anonymity for corporate political contributions grand!

  • BigChiefWahoo||

    Even if all of a corporation's 'speech' was a product of the wishes of the majority of shareholders, the minority would still be "compelled", wouldn't they? In any case, the officers and directors actions in this context is still subject to the reasonable business decision test, is it not?

  • Stephen Lathrop||

    As far as I can tell, stuff nobody knows about isn't subject to any tests at all. Nor, if the speech did come to light, would "reasonable business decision" touch in any way on the question of taking shareholders' money to promote politics they oppose.

    And what does a majority have to do with it? The standard SCOTUS imposed on unions is based on the notion of individual free speech rights. If one union non-member is the only one to object—and not even object over politics, mind you, but just object to paying the money, that guy still gets to opt out, because SCOTUS says if it's a union, it's all politics. The question is, why don't shareholders have the same speech rights as union non-members?

    More generally, why should even non-shareholders have to compete in politics with corporate officers who tap corporate funds—without any visible accountability—and use them tax-free for politics the non-shareholders oppose. Private citizens not only have to dig into their own pockets, but also have to pay taxes on money they apply to politics. Why is that neglect of the public at large okay with SCOTUS, while it stays so contrastingly solicitous of individual rights belonging especially to union non-members?

  • nonzenze||

    Stephen, you are confusing anonymity of donation (a separate topic) with a company's responsibility to explain to shareholders how corporate funds are spent and on what.

    The latter is governed by the by-laws of each corporation, and by supervision by the Board. If you don't like the by-laws of a particular company or believe that the Board is inept, corrupt or just plain not taking enough of activist role in management, then don't invest in them.

    Of course, there's a limit to shareholder disclosure. I work for a publicly traded company and just filed an expense report, but I don't believe that shareholders have the right to know that I always stop at In'n'Out by the airport on arrival :-p

    [ Also, I have no idea how you can be ignorant of which shares you own. Do equities magically appear in your account with no intervention? If so, where do I sign up? ]

  • bernard11||

    Also, I have no idea how you can be ignorant of which shares you own.

    Do you own any mutual funds, index or otherwise? Are you a participant in a pension plan managed by someone else? (If the latter, how do you sell specific shares at all?)

    I have no idea how anyone can fail to understand this.

  • Stephen Lathrop||

    Also (please correct me if this is wrong; this is from possibly faulty memory), isn't it true that there are laws which prevent (or forbid) owners of mutual funds from voting those shares?

  • Absaroka||

    Vanguard, Fidelity, etc seem to vote the shares they hold.

  • bernard11||

    So what? They vote the way they want to, and generally support management, by the way. They don't want to make management angry and lose some access.

    In no way will they reflect the wishes of the fund holders with respect to politics.

    By the way, according to this

    "Households directly own 38 percent of the US equity market," he wrote. "However, the total effective household ownership is closer to 80 percent when combined with indirect ownership in the form of mutual funds (20 percent), pension funds (16 percent), and insurance policy holdings (7 percent)."

    So the snark about not knowing what you own is pretty silly.

  • Absaroka||

    "So what?"

    Ummmm... Mr. Lathrop asked a question, and I provided an answer?

    "They vote the way they want to"

    Well, what they say is that they vote in the best interests of the shareholders. Watching Vanguard over the years, I tend to agree that they do that. Do you have some specific example where they vote to stick it to their customers?

    You have very specific ideas about how companies and mutual funds ought to be run. Everyone has their own peculiar ideas about consumer choices - for example, I hate electric windows etc. in cars. But I can't find many models of cars w/o all that junk, and you can't find investments that you like[1]. My explanation of why I can't buy the cars I prefer is that my preferences are in the minority. I'm not campaigning to outlaw electric windows; it's just my tough luck to have oddball preferences.

    [1]Of course, you can - there are social choice funds and as posted elsewhere in this thread, companies that eschew politics. I know people who accept the generally lower returns of social choice funds, and are happy to do it.

  • swood1000||

    I don't think this flies. The shareholders can sell their stock, the employees can quit their jobs.

    Except that quitting a job is quite a bit more disruptive than selling stock. And if the employee specializes in work that is only performed by state employees he's out of employment entirely. And paying for the corporate speech is not a requirement imposed by the government.

  • Stephen Lathrop||

    And paying for the corporate speech is not a requirement imposed by the government.

    Right. It's a corporate-officer privilege empowered by the government. The shareholder is the guy required to pay—required by the privileged corporate officer—with the assistance and imprimatur of the privilege-granting government.

  • nonzenze||

    The corporate officer is constrained by the governance of the corporation, which is ultimately at the hands of the shareholders to elect a board to rein them in.

    That fact that most shareholders and boards elect not to do so indicates that either the sum is not worth fighting over, or that it's being deployed in a reasonable business manner.

  • Stephen Lathrop||

    That is one hell of a leap of faith for ideology. How does that scenario work out for the majority of shareholders when a minority of shareholders own a majority of the shares—and get to appropriate the majority's money for politics the minority prefers?

  • Absaroka||

    "and get to appropriate the majority's money for politics the minority prefers?"

    Is that another way to say "the majority stockholders run the company and make investments as they seem fit, and minority stockholders agree to that when they buy the stock"?

  • bernard11||

    The corporate officer is constrained by the governance of the corporation, which is ultimately at the hands of the shareholders to elect a board to rein them in.

    That fact that most shareholders and boards elect not to do so indicates that either the sum is not worth fighting over, or that it's being deployed in a reasonable business manner.

    More stick figures. It indicates nothing of the sort.

    Boards are nominated by management, which entrenches management. The elections are Soviet style - one candidate. To mount a challenge is extremely difficult and expensive, and management will fight you using company funds, while you use your own. Google "proxy fight" and learn something beyond what they taught you in Corporations.

    In general, let me say that any argument that says, "This is not a problem because you can do X," while ignoring the practicalities of doing X, is worthless.

    "Want to change some state policy? Just get elected Governor and change it."

  • Stephen Lathrop||

    bernard, it's not a worthless argument. It's got value when when the person using it needs a subject changer. But otherwise, it isn't a good faith argument.

  • swood1000||

    Right. It's a corporate-officer privilege empowered by the government.

    The "corporate-officer privilege" is permitted or denied by the Articles of Incorporation and not outlawed by the government. Do all private activities not outlawed by the government have the imprimatur of the government?

  • bernard11||

    Corporate charters rarely are specific enough to authorize or not authorize political contributions.

    OTOH, the so-called "business judgement rule," a common law idea does protect mgmt to a large degree.

  • Rev. Arthur L. Kirkland||

    Except that in Janus the employees were required to pay dues to the union but nobody requires the shareholders to own stock.


    You don't like the corporate policies? Find another stock. No one forces you to purchase a particular investment, and there are plenty of them available.

    You don't like the conditions of employment, including the union? Find another job. No one forces you to work at a particular job, and there are plenty of them available.

    This point appears difficult for conservatives to understand (or perhaps they just feign ignorance), but if the difficulty is genuine, find someone with an education willing to try to explain it for you.
  • bernard11||

    As a practical matter, many cannot, for various reasons, not least that they hold them indirectly through pension plans, mutual funds, and so on. Even direct shareholders face transaction costs and often capital gains taxes. Further, corporations try hard to avoid disclosing political contributions. How do you even know what they are doing?

    Besides, why should they have to do that? If I have. profitable, successful, investment why should management be able to contribute to politicians of their choice nd tell me to sell if I don't like it?

    The "they can sell" argument is just a glib legalistic argument that demonstrates complete unfamiliarity with how corporate governance and investment really works in the US.

  • Absaroka||

    "If I have. profitable, successful, investment why should management be able to contribute to politicians of their choice nd tell me to sell if I don't like it?"

    If I have a profitable, successful, investment like Coca-Cola why should management be able to make investment decisions of their choice (New Coke!) and tell me to sell if I don't like it?

    The answer is: the rules of stock voting are clear when you buy - 51% of the shareholders can force the company to do what they want. You could, I suppose, create a company whose bylaws require a supermajority before making any particular kind of decision. I'm open to correction, but isn't that legal?
    You may have your preferences for how the business is run, and other shareholders may have different preferences. If your preferences are in the minority, why should your preferences be forced on the majority?

    My sense is that the vast majority of the population cares mostly about the return on their investment. There are for example 'Social Choice' funds, but I don't think they are particularly popular relative to say SP500 funds.

  • Stephen Lathrop||

    If your preferences are in the minority, why should your preferences be forced on the majority?

    Good. Now explain why that principle is inoperative for corporations called unions.

  • Stephen Lathrop||

    Not to mention, "why should your preferences be forced on the majority?," is little better than impertinent as applied to per-share voting corporations. It's the majority of the shares, not the majority of voters. But thus it is, plutocracy, and that goes metastatically straight through the political system, making a corrupt mockery there of the notion of political equality among persons.

  • Absaroka||

    " It's the majority of the shares, not the majority of voters."

    Indeed so! Let's think about that. Suppose you want to start, I dunno, a newspaper. The printing press or whatever costs $100k. Try though you might, you can only scrape up $80k. You mention your plight to some friends and two of them chip in $10k each, and you're off to the races. A couple of years later, the newspaper business is going well (but, alas, not so well you can buy out your buddies). And they have an idea to refocus the business - perhaps they think the firm should stop publishing, sell the press, and open a strip club with the proceeds.

    Well, there are two of them and one of you. Clearly, the only moral thing is for you to start booking strippers, right? You wouldn't want to be one of those nasty plutocrats demanding to get their way just because they invested more money, after all.

  • Absaroka||

    As a followup, it's worth remembering why we have corporations. When everything was 40 acres and a mule, you didn't need them, but when you start talking about building ocean going ships and transcontinental railways and steel mills, you need people to pool their money to accomplish things on that scale. Without the invention of corporations we wouldn't have a fraction of the standard of living we have.

    But when people pool their money, it's just not going to fly that they don't get control of the enterprise in proportion to their contribution. No one in their right mind would contribute most of the money and accept a small minority of the control; if that was the rule you just wouldn't have corporations, and we'd be out plowing instead of commenting on the internet.

    (And of course, it's not like corporations are all Disney butterflies and unicorns - they can be as rapacious as all getout. But as a whole we're better off with them than without, and you won't have them at all if the rule is per person rather than per share voting.)

  • Stephen Lathrop||

    All irrelevant with regard to politics.

  • Brett Bellmore||

    It's also worth remembering that, while that's why we "have" corporations, the reason we have so many corporations is because the government's own tort system makes it extremely perilous to try to run any even moderately sized organization without incorporating.

  • bernard11||

    Well, some of it is that, and some of it is dodging potential real liability. Since you can dodge a lot by incorporating it's really not fair to say more than that we have lots of corporations because they provide a shield against liability.

    More to the point, the reason we have large public corporations is that the various legal privileges they enjoy make it possible to amass the huge amounts of capital necessary for large-scale business operations. A side effect is that they have lots of money to throw around, mostly as a result of those very privileges.

  • bernard11||

    No one in their right mind would contribute most of the money and accept a small minority of the control; if that was the rule you just wouldn't have corporations, and we'd be out plowing instead of commenting on the internet.

    That indeed is true of most things, but does not hold when it comes to candidate support. If the shareholders think they will benefit if Phoghorn is elected, they can contribute individually. There is no need to pool money and have centralized decision-making, as there is in the case of building a steel mill.

    the rules of stock voting are clear when you buy - 51% of the shareholders can force the company to do what they want.

    More stick figure logic.

  • Stephen Lathrop||

    Your tale of morality is beside the point. I do not suggest per-share voting is wrong as a means of governing a commercial corporation. I insist it is wrong to let corporate officers unduly influence politics by inviting plutocracy in the back door, in the guise of per-share voting to determine political expenditures.

    Politics ought to be based on equality among natural persons. Only on that basis can they legitimately exercise sovereign control of American government.

    Let me anticipate what comes next, where you say natural persons aren't equal, because some have more money. Politically, that's not great. But it is preferable to letting government interfere in legitimate exercise of sovereignty—which government would do if it moved to control political activity by wealthy persons.

    However, allowing government to privilege one person over another, by gifting the former with a plutocratic per-share voting privilege to influence politics, is an example of letting government interfere with the legitimate sovereignty of the other. And that kind of interference is far from trivial.

    Let governments license per-share voting for corporate governance. But bar its use to influence the political arena, where sovereign questions are at stake in which government has no business.

  • Voize of Reazon||

    What incorporated labor unions are you thinking of? I am not aware of any.

    The laws around organized labor and collective bargaining weren't an attempt to create yet another business structure that, as suggested in the comments to other recent postings, would act as a subcontractor. They aren't corporations, or partnerships, or LLCs, because labor unions are not businesses.

  • Perseus`||

    Because unions are not incorporated. Unions are government enforced labor cartels like medieval craft guilds (like the press guild, which in your twisted view is the only "press" deserving of full protection under the 1A).

  • nonzenze||

    It's not. The union operates by majority vote, just like the corporation. And just like the corporation, individuals are free to join and leave as they see fit.

    [Although, as noted, I think it would be a good idea to mandate a maximum interval (5 or 10 years?) between recertification ballots. Apparently in the US this is not done as a matter of course, which means that the 'majority vote' may have been more than a decade ago with a vastly different workforce. ]

  • Stephen Lathrop||

    The union operates by majority vote, not at all like the corporation. There is no equivalence between per-person voting and per-share voting. Per-person voting is the only kind which ought to be allowed any role in politics, or with regard to making joint decisions which affect politics.

  • bernard11||

    If I have a profitable, successful, investment like Coca-Cola why should management be able to make investment decisions of their choice (New Coke!) and tell me to sell if I don't like it?

    Because decisions of that nature have to be made centrally by management, and they can be evaluated more or less objectively afterwards to judge their wisdom. Also, they don't involve judgments about differing political values or opinions.

    Political contributions do not have to be made centrally. They can be made by individual shareholders according to their own preferences.

    Barring corporations from making them restricts no one's freedom of speech. Shareholders are perfectly free to make contributions to whomever they like, out of their own pockets, which may be slightly fuller because management is not using their money to advance its own preferences.

  • nonzenze||

    Absolutely. Which is why it would be beneficial if most corporations adopted into their charters a presumption against political contribution in the absence of board approval.

    My intuition, however, suggests that the total dollar value of all these contribution is such a small sum that it's not practical to fight for such a clause.

  • Stephen Lathrop||

    That might be a good point if what were at stake were the sums actually spent on politics. What that ignores is that small amounts in a big corporate budget can be giant amounts compared to campaign budgets or lobbying budgets. And what is at stake in those cases are not sums of money, but political and policy outcomes—a very big deal. No one should have to compete in politics with his own money used against him.

    More generally, no one who does not have money at stake in a corporation should have to compete in politics with plutocratically endowed corporate officers who are not even using their own money to pay for their political activism. If I own no investments, but share a political preference with my neighbor who makes small investments, we are both out of luck when we confront my neighbor's boss, who gets to take the neighbor's invested money and use it against both of us.

  • Absaroka||

    "Barring corporations from making them restricts no one's freedom of speech. Shareholders are perfectly free to make contributions to whomever they like..."

    I tend to agree on philosophical grounds. OTOH I fear that trying to prohibit political activity by groups is likely to face practical problems, including:

    -how do you account for the value of an NYT op-ed?
    -if the board wants to spend $1M on thing X, what's to stop them from from giving a $1.1M to the CEO as a bonus and wink wink, nudge nudge he decides to donate $1M to his new favorite cause X
    -are you planning to outlaw corporate charity in general? Money tends to be fungible; donating $X to the Sierra Club for conservation or to the NRA for safety education frees up $X in their budget for other things
    -my sense is that there is a lot of coercive lobbying that doesn't involve actual donations. I wish for a world where corporations didn't maintain legions of lobbyists in DC, but I doubt it's achievable when the decisions of government matter so much to the corps.

    In short, I like the companies I buy stock in to make money, not advocate for management's political preferences. But I think it's hard to implement that; watching attempts at campaign finance reform over the decades I mostly see clever lawyers finding ways around every attempt. When you have willing buyers and sellers, whether it's campaign finance or drugs, the market tends to find a way.

  • Stephen Lathrop||

    You may be right about all of that. But you could prevent a lot of it, and diminish the impact of much of the rest, by stopping anonymous corporate contributions. Make every instance of corporate funded speech carry with it the names and institutional connections of the natural persons who decided to spend the money—and names of any others, if there are others, who gave them the money to spend on politics. When corporations donate for whatever kind of political activism, make sure the corporate name and logo appears on the documents and in the ads.

    The worst part of this is that corporate anonymity lets political activism appear out of nowhere. That deprives bystanders of key information about the interests in play—information they need to evaluate the messages they hear or read.

  • David Nieporent||

    Corporations can't contribute to politicians at all.

  • bernard11||

    I think they can in some state-level elections.

    Regardless, they can contribute to PAC's, which is effectively the same thing. They can also contribute to so-called "social welfare organizations" - often thinly disguised political organizations. See here for a primer.

    From the link:

    No one knows just how much companies spend on politics. But with the 2016 election cycle set to cost billions of dollars, you can be sure that corporations will be opening their checkbooks to candidates across the political spectrum. Many shareholders are not thrilled.

    And if they can't make political contributions, why are they so eager not to have to disclose their contributions? Easy enough, right?

    "We didn't make any contributions."

  • nonzenze||

    Indeed, but shareholders are not being compelled to do so by the government, which State employees are.

    By way of comparison, a public university cannot require employees to perform religious duties while a private one can. A private HOA can ban political signs but allow school-pride signs, a public city cannot.

  • FlameCCT||

    I haven't heard of "Citizens Union" nor can I find such a case; perhaps you can expound more so we are better able to interpret your incoherent babbling?

  • bernard11||

    Incoherence is in the mind of the beholder. If you don't understand what someone says, I guess it's easier to call it incoherent than to admit the truth - that you're too stupid to get the point.

  • The original jack burton||

    So when the New York Times runs an editorial that I disagree with it becomes "compelled speech" on my part because I paid for my copy of that day's paper?

  • Ridgeway||

    In the words of William F Buckley, "Cancel your own goddam subscription!"

  • bernard11||

    No.

  • Bored Lawyer||

    The difference between the shareholders and Janus is that corporations are private parties, while the employer in Janus was a state actor.

    A private corporation is not restrained by the First Amendment. If it contributes, for example, to a political campaign, or to a public service announcement, it is free to do so. Shareholders can either lobby for a different policy, vote in new management or sell their stock.

    The state, OTOH, IS restrained by the First Amendment. Could a state make a condition of employment a small contribution to a political party? To an advocacy group? No, it cannot.

    A private employer could do those things. Might be stupid or bad policy, but nothing in the First Amendment prevents it.

    State action is the cornerstone of almost all Constitutional rights.

  • Stephen Lathrop||

    Bored Lawyer, corporations are state-licensed entities, which specially empower corporate officers to dispose of the funds of shareholders—including for use in politics—including for use in politics without telling the shareholders. Including without telling the shareholders, ever, what political speech the money buys. Not beforehand, not afterwards, not ever. So no, shareholders can not, ". . . lobby for a different policy, vote in new management or sell their stock." At least, they can't do so with informed reference to corporate use of their money for politics—including politics repugnant to the shareholders.

    That's a hell of a lot less transparent, and notably more dangerous, than anything that used to happen in union land. And guess what, unions are just as private as corporations. In fact, they are corporations. But if it's business, and not labor, different set of rules. So says SCOTUS.

  • Bored Lawyer||

    I don't know if you are a lawyer, but you are simply wrong as a legal matter. The fact that an entity is state-licensed does not make them a state actor. Private corporations, like private citizens. are not subject to the First Amendment, or almost every other Constitutional right. (Except the 13th Amendment.)

    As for unions being private, that is besides the point. The state is the employer. The state is requiring the contribution. That is the problem -- the state is doing something that abridges someone's rights.

    Private parties can do that. States cannot. As I said, a private employer could make a condition of employment a yearly contribution to a political advocacy group or political party. The state cannot.

  • Ted S.||

    Corporations are groups of people peaceably assembling to seek redress of their grievances.

  • BadLib||

    You, in concert with other shareholders, can threaten to replace the entire board and elect new board members who promise full disclosure of all political expenditures to shareholders -- and do so if the current board members refuse to provide full disclosure of all political expenditures.

    If any but a tiny, yet vocal, minority of shareholders cared, that would be what would happen. However, most shareholders don't care about a corporation's political expenditures as they are investing their money for financial gain, not political gain. Those that do care can just limit their investments to those corporations that are "socially responsible" (by some metric) on the assumption that the "socially responsible" corporate gene will extend to political expenditures and/or to those corporations offering full disclosure of political expenditures.

  • bernard11||

    Actually, it takes a large majority of shareholders, and is prohibitively expensive, to mount any serious effort to unseat the board.

    These dry legal arguments are ludicrous. They deal with stick-figure corporations, not real ones.

    "Sell the stock."
    "Oust the board."

    Do you know anything about corporate governance other than what you read in a textbook?

  • nonzenze||

    corporations are state-licensed entities, which specially empower corporate officers to dispose of the funds of shareholders—including for use in politics—including for use in politics without telling the shareholders. Including without telling the shareholders

    As explained enough times by now, they are entities which empower corporate officers to dispose of funds as contemplated by the corporate charter and in compliance with the corporate governance and supervision provided by that charter.

    If a particular corporation allows officers to make political contributions without supervision by the board or notification to shareholders, that is a defect in the particular charter for that company. It is not the place of the State to go and fix each and every defect in those arrangements.

  • Stephen Lathrop||

    Yeah, except that charter or no charter, it is, somehow, the place of SCOTUS to go and fix every defect—and indeed, overrule non-defects too—to get an outcome that strips unions of political power—while coddling corporations. When it's that outrageous, you can't put any gloss of validity on hypocrisy and results-oriented judging.

    What I don't understand is why the people who like that kind of outcome nevertheless tolerate methods to get there which will provoke extreme backlash as soon as the political pendulum swings. You think you like the way this is going? See how you like it when a Democratic-controlled Congress invokes the clause in Article 3 which empowers them to take appellate jurisdiction for certain topics away from the Supreme Court.

  • bernard11||

    Yeah, yeah.

    Look, the realities are that the "sell if you don't like it" argument is juvenile simple-mindedness. To tell shareholders to sell is completely unrealistic in the context of the public markets in the US today. It sounds great in law school, maybe, or in a Federalist Society meeting, but it is just not a practical idea.

    What stocks do you own? Own any mutual funds, index funds? Are you a participant in a pension plan managed by someone else?

    Oh, and I'm still waiting for you, or corporate America, or the GOP, to support mandatory disclosure of contributions. That's another minor problem for your argument.

  • nonzenze||

    Plenty of companies already do disclose all political contributions.

    For instance, Medtronic has the following policy (which I have greatly abbreviated, click the link for full deets):


    Under the policy, all corporate political contributions are subject to approval by a three-member Corporate Political Fund Committee to include the Chief Financial Officer, the General Counsel and the Vice President of Government Affairs, Americas. In addition, on an annual basis the Nominating and Corporate Governance Committee of the Board of Directors reviews corporate political contributions.
    [...]
    In the interest of transparency to our shareholders, we make available semiannually a list of all political contributions made by Medtronic and the Medtronic PAC and, commencing in 2012, all dues in excess of $25,000 paid to trade associations and other tax-exempt organizations. Please use the following links to review our reports:
    [Link to actual reports of all contributions]
  • bernard11||

    Some do. Most do not.

  • nonzenze||

    So first of all, with respect to a corporation like Medtronic with a transparent disclosure process and a supervision by the board, does this still offend your notion of shareholder rights?

  • Stephen Lathrop||

    It offends my notion of popular sovereignty. I'm not fighting this out as a matter of fair corporate governance. And it ought to offend every voter in America. No corporate officer, however authorized, ought to be empowered to compete in politics, using corporate funds, against ordinary voters who cannot do that.

    Political equality among natural persons must be the ruling principle of popular sovereignty.

  • nonzenze||

    Accenture has an even stricter policy.

    The company has a longstanding global policy against making contributions to political parties, political committees or candidates using company resources (including monetary and in-kind services), even where permitted by law.

    Here's FedEx's policy:

    FedEx also does not make corporate contributions to groups organized under section 501(c)(4) or section 527 of the Internal Revenue Code, other than membership dues, event sponsorships, and contributions to the organizational committees of the Democratic and Republican national party conventions and the annual conferences of the Democratic and Republican Governors Associations. None of these expenditures are used to directly support any election-related activity or ballot initiatives at the federal, state or local level.

    These limited corporate expenditures are approved by the Corporate Vice President of Government Affairs, in consultation with appropriate members of FedEx senior management.
  • nonzenze||

    Oh, and I'm still waiting for you, or corporate America, or the GOP, to support mandatory disclosure of contributions. That's another minor problem for your argument.

    There is a major push in this direction. At least if we don't agree on the underlying issue, we do agree that companies should adopt policies requiring disclosure and review of all contributions to political organizations and trade associations.

    [ Sorry for breaking up the reply, hit the 1500 word limit . . . ]

  • bernard11||

    Shareholders can either lobby for a different policy, vote in new management or sell their stock.

    Since you're bored, you might want to educate yourself on how realistic those courses of action are. You might learn something. Here's a clue: They are wildly unrealistic, especially if the dissident shareholders are in a minority, say 40%.

  • BadLib||

    Yes, like most democratic processes, 40% doesn't get to force the 60% to do something. This is true of City Councils, PTA meetings, and Corporate behavior.

  • Stephen Lathrop||

    Bernard, dissident shareholders could be in the overwhelming majority—and often probably would be, if they could be informed in advance of corporate political activity—but it would make no difference. It wouldn't matter, because the majority of the stockholders in big corporations will typically own the minority of the stock. And the voting is per-share, not per-voter.

    There is nothing wrong with per-share voting, for corporate governance. For determining questions related to politics, per-share voting is all wrong. That should be done one person one vote.

  • bernard11||

    Actually, it takes more than 40%, often more than 50%, plus a huge amount of money, to challenge corporate behavior.

    Besides, some things - such as individual rights - are not subject to majoritarian rule. Let the shareholders who support Candidate X spend their own money to do so, not other people's.

  • bernard11||

    If conservatives are going to start praising Justices for pro-free speech decisions, maybe they should stop complaining about Bork, and recognize that he was very far from being on the side of free speech.

  • swood1000||

    maybe they should stop complaining about Bork, and recognize that he was very far from being on the side of free speech.

    Can you be more specific. What Bork statement are you referring to?

  • FlameCCT||

    Doubt you'll get a response to your question. Progressives have trouble being specific because they base their whining on lies, propaganda, emotion, & feelz instead of facts, reason, logic, & critical thinking.

  • Stephen Lathrop||

    Warning, anecdote. While a graduate student, when news of the secret bombing in Cambodia leaked, I got the notion that maybe an especially effective Vietnam War protest could be had if my university, and others like it, announced they were going to shut down academics, and do nothing but protest the war, until Nixon came to his senses. The idea was to organize that nation-wide, at least among the more-selective class of schools. A general strike in academia.

    I thought it was a crazy idea, actually, but I was willing to discuss crazy ideas in those days (not like now, right?), so I mentioned it to professors. To my surprise, it caught on. I got encouragement to take it to the president of the university.

    To my further surprise, I got an appointment. Then to my yet further surprise—and disappointment—I found myself face to face not with Kingman Brewster, but with Bork. Bork listened only long enough to grasp the general idea, then told me if anything like that happened the government ought to cancel participating universities' charitable exemptions. That was that.

    So yeah, free speech not big with Bork.

  • mad_kalak||

    I suspect if you had wanted to organize a protest in the "quad" or whatever passed for a public area at your Uni, then it wouldn't have been a problem. But I don't want to put words in a dead man's mouth.

  • Stephen Lathrop||

    Well, of course, what you suggest was a famously big problem at Berkeley. Don't mean to suggest Bork had anything to do with that. But judging from his demeanor talking to me, it wouldn't have surprised me to learn he didn't like free speech at Berkeley either.

  • mad_kalak||

    (I love the story, thanks for sharing it!)

    To be fair to your larger point, the perception is that the public (especially the right wing) was not so free speech friendly just a generation ago in that it was perfectly fine in shutting down agitation.

    The GSS does say that there was a different mindset : "Younger adults are considerably more for civil liberties than older adults are. Across all years, those under 35 are more supportive than those 65+ of granting civil liberties typically by +25-35 points regarding anti-religionists, Communists, militarists, and homosexuals."

    You're implicating Bork in that generational mindset, perhaps unfairly. Still, awesome story, thanks for sharing.

    http://www.norc.org/PDFs/GSS Reports/Trends in Public Attitudes about Civil Liberties_FINAL.pdf

  • Careless||

    A generation ago? A lot longer than that

  • Smooth Like a Rhapsody||

    So:
    A law professor (not the general counsel), at a private university, offers his opinion as to what the IRS would do if the people in charge of said private university undertook certain actions which may have been in contravention of their charter?
    Sounds pretty Hitlerian to me.
    Question: did he stroke his beard in a sinister fashion while he spoke to you?--cause that would make your anecdote even anecdotier.

  • Stephen Lathrop||

    Smooth, Bork probably still was a law professor, I don't know. But if memory serves, he spoke to me in the role of acting provost of the university. If there is something especially important about a general counsel for my account, perhaps you can figure out how an acting provost relates—that's not in my knowledge base.

    Nor were Bork's comments in any way in reference to the IRS specifically, which he did not mention. He spoke about what the Nixon administration would do, and how quickly they would do it. And added his own view that they would be right to do it. And that's about all that happened. I was out the door about two minutes after I went in.

    The question I responded to was whether anyone could cite an example of Bork not on the side of free speech.

  • swood1000||

    So yeah, free speech not big with Bork.

    Thanks for the story. I don't doubt that it happened just as you said, but how do we reconcile that with the view of Michael W. McConnell that "Judge Bork is either as protective or more protective of civil liberties than current Supreme Court doctrine"?

    The key might be that "they were going to shut down academics, and do nothing but protest the war, until Nixon came to his senses." Perhaps under these circumstances these institutions would no longer qualify for their current charitable exemptions?

  • bernard11||

    Lies? Talk to Mr. Trump about it.

  • Sarcastr0||

    Bork held that only political speech was a 'core value' and should be protected.

    He also famously said that ANY speech advocating for illegal action was not protected. Which anyone can see is an exception that kinda swallows the rule there.

  • swood1000||

    Bork held that only political speech was a 'core value' and should be protected.

    Can you proved a link?

    He also famously said that ANY speech advocating for illegal action was not protected. Which anyone can see is an exception that kinda swallows the rule there.

    Any speech? So he said that a speaker advocating non-violent protest could be prosecuted if the local jurisdiction banned non-violent protest?

  • Sarcastr0||

    FFS. This isn't some obscure statistic - it's common knowledge you can Google for yourself.

    But Here

  • bernard11||

    Yes. Any speech.

    See the quote below from a law review article of his.

  • bernard11||

    Here is your link.

    He hates Griswold too. What do you think of that, libertarians?

  • swood1000||

    He hates Griswold too.

    Wasn't that the case that gave us penumbras and emanations? What's not to like about that? That case stood for the proposition that the constitution guaranteed certain personal activities not named in the constitution (taking birth control) but not other personal activities (e.g. prostitution) but without it being necessary to explain why one and not the other.

  • Sarcastr0||

    Your backpedaling about Bork and Speech is noted.

    You do know that SDP has had some cases aster Griswold that may have buttoned things up a bit, yes?

    Note that the case also stood for not banning contraception like some backwards atavists.

  • swood1000||

    Your backpedaling about Bork and Speech is noted.

    What backpedaling? See the excerpt below by Michael W. McConnell. Also, please respond to this comment, and point out the difference from a constitutional perspective.

  • Sarcastr0||

    1) an opinion article versus Bork's actual words...weak.
    2) the right to privacy isn't held by utilities.

  • swood1000||

    an opinion article versus Bork's actual words...weak.

    The opinion of Michael W. McConnell (currently Director of the Constitutional Law Center at Stanford Law School) as to the proper interpretation of Bork's constitutional position versus the opinion of Sarcastr0.

    the right to privacy isn't held by utilities.

    You were not asked to announce your conclusion but rather to explain it. How does one, from a principled constitutional perspective, differentiate these activities? As Bork put it:

    Neither case is covered specifically or by obvious implication in the Constitution. Unless we can distinguish forms of gratification, the only course for a principled Court is to let the majority have its way in both cases. It is clear that the Court cannot make the necessary distinction. There is no principled way to decide that one man's gratifications are more deserving of respect than another's or that one form of gratification is more worthy than another. Why is sexual gratification more worthy than moral gratification? Why is sexual gratification nobler than economic gratification? There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ.

  • bernard11||

    Constitutional protection should be accorded only to speech that is explictily political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal
    any speech that advocates forcible overthrow of the government or the violation of any law.

    This is a view he repeated, and softened - a little - only when up for confirmation.

  • Sarcastr0||

    The number of people who were sure ze libs couldn't do specifics...that's a change.

    People getting that far ahead of their skis on how cartoonishly dumb their opposition is (on a pretty high-level intellectual website) and making easily falsifiable predictions like that wasn't a thing a few years ago.

    And that doesn't count the clear ignorance about Bork.
    The man has passed into myth and become merely a symbol for a notion of how bad ze libs are.

  • bernard11||

    Here's more, not related to free speech, but an illustration of how Bork "thought."

    Compare the facts in Griswold with a
    hypothetical suit by an electric utility company and one of its customers to void a smoke pollution ordinance as unconstitutional. The cases are identical.

    In Griswold a husband and wife assert that they wish to have sexual relations without fear of unwanted children. The law impairs their sexual gratifications. The State can assert, and at one stage in that litigation did assert, that the majority finds the use of contraceptives immoral. Knowledge that it takes place and that the State makes no effort to inhibit it causes the majority anguish, impairs their gratifications.

    The electrical company asserts that it wishes to produce electricity at low cost in order to reach a wide market and make profits. Its customer asserts that he wants a lower cost so that prices can be held low. The smoke pollution regulation impairs his and the company's stockholders'
    economic gratifications. The State can assert not only that the majority prefer clean air to lower prices, but also that the absence of the regulation impairs the majority's physical and aesthetic gratifications.

    The only bench anyone who sees no difference between these two issues belongs on is the park bench.

  • swood1000||

    The only bench anyone who sees no difference between these two issues belongs on is the park bench.

    What is the difference from a constitutional perspective?

    No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Is one of these activities a privilege or immunity and the other isn't? Does one deprive any person of life, liberty or property without due process of law and the other doesn't? Does one deprive any person the equal protection of the laws and the other doesn't? Please clarify.

  • swood1000||

    The only bench anyone who sees no difference between these two issues belongs on is the park bench.

    What is the difference from a constitutional perspective?

    No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Is one of these activities a privilege or immunity and the other isn't? Does one deprive any person of life, liberty or property without due process of law and the other doesn't? Does one deprive any person the equal protection of the laws and the other doesn't? Please clarify.

  • swood1000||

    From a law review article by Michael W. McConnell (1987):

    Several specific first amendment issues warrant further discussion: (1) free speech and press rights of broadcasters, (2) nonpolitical speech, and (3) religion. In each of these areas, Judge Bork is either as protective or more protective of civil liberties than current Supreme Court doctrine. In a sense, this is not surprising. The first amendment is one of the most explicit and most basic of the constitutional provisions safeguarding individual liberty. In keeping with Judge Bork's commitment to constitutionalism, protection of first amendment principles is one of the most vital of a judge's responsibilities.
  • Krayt||

    Maybe the parallel would work if you were equally free to buy stock, or not, or sell it, as you are to join a union, or not, or be forced to pay for the union even if you don't.

  • Michael Cook||

    I raised compelled speech in the hypothetical of the Christian wedding singer strong-armed by a state (Oregon would be eager to do so) to sing love songs to a homosexual couple. In the context of Citizens United we get into notions that shareholders in capitalist business ventures should have aright to voice a common sentiment in things like advertising campaigns, but anymore any clever TV or Internet ad could invoke some hot button political meme and thus do double duty as both a political and a commercial message on either the conscious or subliminal level. This would potentially become an in-kind political contribution.

    So that would have to be sorted. But sometimes it may not be clear who the shareholders of a company might be, or who is really in control. Take Burisma, a company based in Cyprus and Kiev that exports a lot of natural gas to Germany. This gas competes with CNG from the USA to keep Germans warm. An American named Hunter Biden is on the board of Burisma, but the gas fields in Ukraine are in the east and appear to be controlled by Russian entities. If the legal question arises of whether Germany really enforces sanctions against Russia or not, the courts would need to know a lot about the politics of unknown shareholders.

  • Brett Bellmore||

    "In the context of Citizens United we get into notions that shareholders in capitalist business ventures"

    Citizens United was a non-profit organized specifically to advance the political views of its members. I have noticed that foes of the ruling have made a major effort over the years to confuse people about that.

  • bernard11||

    I have been explicit, including in these comments, that I think a narrow ruling in favor of Citizens United itself would have been correct.

    Its unwarranted extension to all corporations is not.

  • Stephen Lathrop||

    That has been my view as well—repeated here at least twice, by the way.

  • Brett Bellmore||

    Oh, so the NYT would have to change to being a non-profit in order for its editorial endorsements to not be regulated as in kind contributions?

    Remember, basically every newspaper in the country, setting aside some local newsletters printed in somebody's garage, is organized as a corporation. The implications of denying that for profit corporations have first amendment rights are remarkably profound.

    And, just to stop the usual response, NO, "the press" referred to in the 1st amendment isn't newspapers, it's the machine they're printed on, which EVERYBODY has the freedom of. Corporations that aren't publishing newspapers are situated exactly the same in regards to the 1st amendment as those which are publishing them.

  • Stephen Lathrop||

    Brett, that notion that it's not about newspapers? That's you (and EV, I know, so you have a prestigious source for your ignorance) against George Washington, Thomas Jefferson, Ben Franklin, Tom Paine, Sam Adams, John Adams—no doubt among others—all of whom are on record saying it is about newspapers. And since you like all caps, EVERYBODY is free to start a newspaper.

    Kind of worse, this whole in-kind contribution by the NYT argument—as worn out as it is—makes no sense unless you are ready to assert that EVERYBODY EXCEPT NEWSPAPERS enjoys freedom of the press. If you aren't saying that, then you have no way to deal with the reply that the many press-type things which newspapers do, which others do not do, must not be 1A protected—which would be nonsense.

  • Brett Bellmore||

    It's about newspapers, pamphleteers, playwrights, Luther nailing his thesis on the church door. It's about everybody who publishes, and if it doesn't apply to corporations because they're not the sort of entity that's protected, that they happen to publish a newspaper won't protect them.

    It's not my position that newspapers aren't protected. It's my position that EVERYBODY is protected. Real people and corporations, because the 1st amendment doesn't specify who gets the right, it just takes this entire area of action and removes it from the reach of Congress.

    Regardless of who is doing it, or how they're organized.

    I'm pointing out the implications of claiming that Archer Daniels Midland isn't protected by the 1st amendment because they're a for profit corporation. So is the New York Times.

    For 1st amendment purposes, every corporation is equally situated. They all have the right to freedom of the press, or none of them do.

    "If you aren't saying that, then you have no way to deal with the reply that the many press-type things which newspapers do, which others do not do,"

    This is no press-type thing that newspapers do, that others do not do. Newspapers just do those things more often.

  • Stephen Lathrop||

    So you are saying this sequence is something folks other than the institutional press also do?:

    1. For years, multiple reporters cultivate sources inside government security agencies. It pays off.

    2. The reporters collaborate, and cross reference information, to publish a national security story which embarrasses government—based on information from anonymous sources whose confidentiality the reporters have promised to protect.

    3. Government retaliates with mandatory process, to force disclosure of the identities of the sources.

    4. The reporters defy government, with financial support and legal backing from their institutional employer.

    5. The judge finds the reporters, and possibly the institutional publisher, in contempt. But the judge forebears to impose draconian penalties on either. Someone goes to jail, but not for too long. The publisher is not punished with ruinous fines.The sought-for identity information is never furnished.

    6. More stories coming soon.

    Provide the example, Brett, or stop talking nonsense.

    I will tell you why no one but major institutional publishers can pull that off. Sources like the ones I mentioned won't talk to anyone else—partly because they worry (accurately) that courts will compel the others. But mostly because only institutional publishers have the capacity to deliver the public exposure the sources need to make their risks seem worth taking. There are other reasons too, but characters.

  • ScottK||

    Too many BK topics to read them all. Have any of the Conspirators revealed where the "Judicial Crisis Network" gets all of its money to run ads about how the handsome Kavanaugh is the most distinguished attorney since Cicero and the greatest writer since Cato the Elder?

    Hmmm.

  • Careless||

    What a bizarre question. They also haven't made any posts on how you pay your bills. Does that make you think as well?

  • Michael Cook||

    Are you aware that Kavanaugh's mother is a judge as well?

  • Eddy||

    It's judges all the way down.

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