Law: June 2007 Archives

Marty Lederman raises an interesting inconsistency argument against two opinions the Supreme Court handed down yesterday, both touching on free speech and both written by Chief Justice Roberts. If you want to read the opinions themselves, they are Morse et al v. Frederick and Federal Election Commission v. Wisconsin Right to Life, Inc. Here are the quotes Lederman compares:

From Wisconsin Right to Life: “Because WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy,” the Chief wrote. In defining what qualifies as “express advocacy,” "the court should give the benefit of the doubt to speech, not censorship."
From Morse: ''The message on Frederick's banner is cryptic. But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.''

I think the key would be to distinguish between different contexts for the two statements. If the context, the kind of case, and the circumstances of when it might be ok to act on the speech in some way differ in the right ways, then there's no inconsistency. In the school case, the issue wasn't whether it was a criminal act to say it. It was whether the school had the right to make a rule against it and thereby punish him in a non-legal way. It could outlaw that kind of speech within certain contexts, the Court concluded.

The other case didn't involve disciplining a student in a school for violation of a speech code or some such thing. It was about whether certain actions violate a law prohibiting a certain kind of speech.

I can understand why someone would think the burden of proof is much higher for establishing that someone has broken a law than it is for establishing that someone has broken a school speech code.

The other issue is that express advocacy seems to be a narrower concept in the Chief's mind, and there's no such narrower concept at work in the Bong Hits case.

I haven't read the opinions, so I don't know what Chief Justice Roberts would actually say, but I think I can make sense of why someone might view both cases differently even though both involve free speech. An interesting question is whether the dissenters, who also took opposite views on the two cases, can also provide a justification for wanting to restrict free speech in the campaign finance case while allowing it in the school case. They probably can, but I haven't read the opinions, and I haven't given it much thought.

I do think it's noteworthy that when people make such inconsistency claims they often forget to apply them to both sides. If conservatives favor restricting abortion but oppose animal rights, that has equal potential for inconsistency as favoring animal rights but opposing fetal rights. If conservatives have to explain how it's consistent to oppose abortion but favor the death penalty, then liberals who oppose the death penalty but favor legal abortion also need to explain how those positions are compatible. In any these cases, there isn't necessarily an actual inconsistency, but the charges are often made without considering that the opposite views might also have the same potential inconsistency.

Anti-Busing Absolutism

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This week, we're supposed to hear from the Supreme Court on a couple cases involving race-based assignment to elementary schools in order to ensure diversity at all schools (as opposed to race-based assignment of elementary schools in order to ensure segregation). I'm not sure yet that I have a view on the case. I plan to read the opinions carefully when they appear. I rarely do that. I think I've only read two Supreme Court opinions straight through when they appeared, and those were the sodomy and affirmative action decisions in the summer of 2003. But both were issues I was teaching about that summer, and I have particular interest in both issues because I regularly focus on both in ethics classes. This will be another case that draws my interest, but in this case I'm nowhere near as sure of what I think. I do think there's a difference between these cases and the segregation cases, but I also think there might be worries about how these programs work in the details. I may very well end up having mixed feelings about whatever the ruling is.

But here's one argument from Ed Whelan of Bench Memos that I cannot come close to endorsing, at least in its current form:
And how many American parents believe that any four-year-old should be forced to endure two daily 90-minute bus rides for any reason, much less in order to satisfy some social engineer’s rigid vision of racial balance?

I can understand that one more white kid in a white-dominated school is unfortunate in some ways, and I can understand concluding that it's not so bad that it's worth a 90-minute bus ride twice a day. But "for any reason"? What about a severely autistic kid who simply doesn't talk who needs a full-day pre-school program with none available in the entire county, and the closest one turns out to be one of the best in the entire region? And it's not fully 90 minutes. It's more like 75 (although it really is more like 90 for the other kid who rides his bus). And what if the kid actually enjoys the ride? I can't think of any better situation for my four-year-old than this, and it's unfortunate that the country can't keep paying for him to do it next year because of ridiculous state law requiring all kids his age to go to kindergarten regardless of any needs for further intensive pre-school services first.

This isn't really more than a quibble with his language, which could have been easily made to accomodate this sort of thing. If he hadn't spoken in such an absolute, he might have been accurate about most Americans' views. Even people who value diversity in education (and I'm certainly one of them, and I think it's ideal to have it at the earliest stages) may not think it's worth a 90-minute bus ride twice a day. But I think it's worth emphasizing a largely true generalization here. The more absolute you make a statement, the less likely it is to be true, especially when you're dealing with political issues, which are usually more complex than other issues (and especially more complex than either side of most debates will admit). I don't know very many Americans who, when presented with our situation, would think that we're immoral for sending Isaiah from Syracuse to Utica and back five days a week. The previous program he was in basically stalled his development right after he'd begun asking for things occasionally and using context-appropriate words occasionally (and then stopped right when he went to the half-day program), and he was making progress in this new program within a couple weeks of going there (and now is asking for things regularly, both with pictures and with actual words). Helping a four-year-old who is stuck whining and pointing to be able to ask for things with verbal language (never mind the other ways they've helped him out, which are fairly significant) is certainly worth the bus ride to another county, and even if he didn't like the bus ride I'd say that.

I've seen the following argument several times in recent months:

1. Hate crime laws make a penalty more severe only because of a different intent.
2. If you increase the penalty for a crime merely because of the motive, you are criminalizing a motive, i.e. a thought.
3. Therefore, hate crime laws are really criminalizing people's views and thus are thought crime laws.

The result is that a number of conservative organizations have been resisting hate crime laws and calling them thought crimes. Family Research Council is one group that has been doing this. When Congress had a bill on hate crimes in front of them, they were sending daily emails calling the bill a thought crime bill. I thought it was inaccurate to label it that way at the time, and I'm even more convinced of it now after reading Eugene Volokh's post from a few weeks ago on the subject. Volokh points out that we do this sort of thing all the time, and no one has any qualms about it. Treason is a thought crime, on this view. If I stole a government document in order to destroy it for the fun of it, it wouldn't be treason. But if I did it to sell it to North Korea or Iran, it might be treason. Also, murder or manslaughter can differ in terms of intent, as can different degress of murder from each other and different degrees of manslaughter from each other. Intent is extremely common as a means of distinguishing between different kinds of crimes with different penalties. Even less controversial discrimination laws can distinguish between different penalties (or whether a crime has even been committed) according to intent.

If those things count as thought crimes, then we shouldn't be opposed to legislating against thought crimes. But I think it's probably better to recognize that none of these things counts as thought crimes. A thought crime would be thinking something without doing anything further and then being arrested merely for having the view.

I haven't said anything about whether there are good reasons to favor or to resist including sexual orientation as specially protected in terms of hate crimes. I think there are reasons offered on both sides that have some merit. But it's silly to oppose these laws simply because they treat two murders or assaults as different according to motive. It's true that both are assaults, but they do have different moral factors that apply to them. One is a worse assault. At the same time, we don't always recognize morally important issues as affecting what kind of crime someone committed or even whether they committed a crime. I'd love to try to think through (at some point, not today) which factors count as legitimate ones in terms of motive. But ruling it out merely because it does involve motives is at best ignorant of how law generally works in this country with regard to different motives for the same act.

According to this story, James Dobson is on the pragmatist side of the pro-life camp, favoring the incrementalist approach to restricting abortion and thus earning the ire of those who think it is immoral to endorse any law or judicial decision that allows any abortion. His praise for the recent Supreme Court decision upholding the partial-birth abortion bad, and his endorsement of that ban to begin with, count as such pragmatist incrementalisms. After all, the ban only bans some abortions, and Justice Kennedy's opinion upholds the legality of abortion in most cases.

Dobson's difficulty is that he was treating what he saw as pragmatism among those who could vote for Rudy Giuliani against Hillary Clinton as thoroughly immoral, something he could never see himself doing. His reason seems to me to be parallel to the reasoning of those who are currently critizing him for being too pragmatist on these other issues. So is he consistent in taking these very different attitudes to things that some will treat both as pragmatist compromise.

I criticized Dobson's stance on the first issue, and for exactly the same reasons I want to say that he's taking the better approach on this second issue. But because I think the same reasons matter n both cases, I'm wondering if he can consistently treat the two cases as different in a way that justifies his vastly different language about each. Is there some principled reason why he could take what many would see as a pragmatist line on abortion laws and judicial decisions while calling someone immoral for taking a similar stance on which candidates to vote for? I'm not sure what such a principle might be. I can't think of any crucial difference between the two issues that helps distinguish them in the way he needs.

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