The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Monday, April 28, 2014

Ministry of Truthiness

The Supreme Court (Likely) Announces Diversity is Bad, Lying is Good 

Two Supreme Court cases were in the news last week that interested me.  One was about Affirmative Action in Michigan.  Back in 2003, the Court ruled 6-3 in Gratz v. Bollinger that the University of Michigan’s undergraduate policy, in which a point system gave specific "weight" to minority applicants, was reverse discrimination and shot it down.  However, it simultaneously ruled 5-4 in Grutter v. Bollinger that the university’s Law School policy was acceptable because it simply set a goal of diversity as a means to “enrich every [student’s] education.”  At the time, I applauded diversity as a more reasonable and sustainable civil rights strategy than reparations-based approaches.

Alas, critics of the decision got an initiative on the ballot in 2006 amending the state constitution, such that any Michigan university was prohibited to “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.”  The measure was approved and became state law.  This brought a set of challenges, which the Supreme Court heard in codified form and ruled on last Tuesday.  The legal technicalities of the suit rested on whether the defendants had a right to bring suit.  However, no court seemed to be able to get past the question of whether Affirmative Action is Constitutional.  Neither it seemed could the plaintiffs, since the case was Schuette v. Coalition To Defend Affirmative Action.

   Is this the new emblem of the
   Ministry of Truth?

A federal district judge ruled “there are no material fact issues” that justified a suit.  He also stated the state law was Constitutional.   The Sixth Circuit Court of Appeals, based in my hometown of Cincinnati Ohio, reversed that decision.  It argued that while students wishing other types of changes to university admission policies had many options to pursue remedy, students seeking racial preferences could only do so by amending the state constitution.  The Sixth Circuit concluded, “The existence of such a comparative structural burden undermines the Equal Protection Clause.”  It found the suit meritorious and the state law Unconstitutional.

The Supreme Court reversed the Sixth Circuit by a vote of 6-2 (Justice Kagan recused herself).  In his majority opinion, Justice Kennedy explained that the Court was not addressing the Constitutionality of Affirmative Action.  Rather it endorsed the ability of individual states to decide the matter for themselves.  This was enough to bring along normally liberal Justice Breyer into the conservative fold, although Justice Sotomayor wrote a long and impassioned dissent.  For their part, Justices Scalia and Thomas wrote concurring opinions that they believed the Court should have struck down all Affirmative Action solutions as inherently Unconstitutional.  The goal of diversity was not addressed by the majority.

The second case in the news this week was Susan B. Anthony List v. Driehaus, regarding political free speech in Ohio.  The state of Ohio passed a law making it a crime to utter “a knowingly or recklessly false” statement in political speech.  The Ohio Election Commission was established as the adjudicator of all claims and the burden of proof was set lower than that for slander or libel.  The purpose of the law was to take some of the invective out of political campaigns.  Ohio is one of fifteen states with such laws on the books.

Steve Driehaus was elected as a U.S. Representative for Ohio District 1 in 2008.  During his 2010 campaign for re-election, Susan B. Anthony list – a staunch anti-abortion group – decided to place billboards that accused, “Shame on Steve Driehaus!  Driehaus voted for taxpayer-funded abortion.”  The group based this claim on Driehaus’s vote for the Affordable Care Act.  Driehaus countered this was untrue as President Obama had an executive order in place prohibiting the law’s funds being used in this manner.  His lawyers convinced the billboard owners not to display the ad.  Then Driehaus filed a complaint with the Ohio Election Commission.  A hearing was held in which the commission found 2-1 that a falsehood had likely been committed.

By this time, the election was over and Driehaus lost.  He dropped his complaint with the commission.  Not satisfied, SBA List brought suit, saying their First Amendment rights had been intimidated.  Driehaus quickly countersued for defamation.  A federal district judge ruled against SBA List, saying no harm had come to them.  But he also ruled against Driehaus, citing the First Amendment.  “As a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation.”   The Sixth Circuit Court of Appeals upheld his ruling.  “On these facts, there is no hardship where the evidence suggests SBA List is not deterred from engaging in the very conduct that it claims is encumbered."

The Supreme Court heard oral arguments in the case last week.  As with Schuette, the narrow legal technicality at issue is whether the plaintiff is allowed to bring suit.  Also, as with Schuette, the Justices cannot seem to get past the larger issue involved – in this case, Free Speech.  

Virtually every amicus brief filed with the Court favors SBA List.  Mike DeWine, Ohio’s Republican Attorney General, filed two competing briefs – one in which he argues against SBA List in his official capacity and another personal one in which he questions the Constitutionality of the Ohio law.  However, the most notable brief is filed by the Cato Institute, which chose not a legal scholar but humorist P.J. O’Rourke as its author.  “The campaign promise (and its subsequent violation), as well as disparaging statements about one’s opponent (whether true, mostly true, mostly not true, or entirely fantastic), are cornerstones of American democracy.”  O’Rourke also brings up the concept of “truthiness” – the gut feeling something is true without any actual facts to back it up.

This is all great as satire but what nags at me is the way SBA List and its defenders seem to be making this satirical argument with utter sincerity.  The opening sentence of their petition to the Court is literally dripping with incredulity as they wail, “Believe it or not, it is a criminal offense in Ohio to make a knowingly or recklessly ‘false’ statement about a political candidate or ballot initiative.”  I mean, is prohibiting lying really such a bad thing?

The Supreme Court seem to think so.  Justice Scalia is soon parroting the plaintiff’s lawyers by referring to the Ohio Elections Commission as the “Ministry of Truth” from George Orwell’s dystopian novel 1984.  “If I say [political things], and there’s a serious risk that I will be had up before a commission and could be fined . . .  what’s the harm?” asked Justice Breyer.  “I can’t speak; that’s the harm,” he immediately answers himself.

The lawyers for SBA List, Michael Carvin and Yaakov Roth, wrote an article for the Wall Street Journal in which they explain their client’s position.  I fully appreciate their point that this is not about a Constitutional “right to lie” but “Whether the state may force citizens to defend the ‘truth’ of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized.”  This tautological approach to government is clearly undesirable.

I also appreciate their point that “People often disagree about what is the ‘truth,’ particularly in the political context.”  However, as a practical matter, this objection would make all law impossible to define and practice.  There is also considerable disagreement about what constitutes “insanity,” or when causing another’s death is “self-defense,” or where to draw the line between “premeditated” and “act of passion.”  Society needs to establish standards for such things and government is a logical and probably preferable agent to set and administer them.

Even so, I remain troubled by this case.  Most court watchers are predicting it will be a slam dunk for SBA List, with the real possibility of an oh-so-rare unanimous decision.

In 1984, the Ministry of Truth was famous for such paradoxical gems as “War is Peace,” “Freedom is Slavery,” and “Ignorance is Strength.”  The Supreme Court just endorsed the government of Michigan criminalizing what constitutes acceptable university admission policies as an example of grass roots democracy in action.  In the same week, they heard a case in which they strongly appear to feel the government of Ohio criminalizing what constitutes acceptable political speech is an example of big government run amuck.  And based on these seemingly contradictory reactions, they are likely to be announcing, “Diversity is Bad, Lying is Good.”  Maybe they are the real Ministry of Truth . . . or perhaps Ministry of Truthiness would be better.

Ironically, the expected decision in Driehaus may provide the loophole for Affirmative Action the majority thought they had sewn up in Schuette.   While it will still be Unconstitutional to allow racial preferences in university admissions in Michigan, it will not be Unconstitutional to lie about doing so.  All a Michigan school would have to do is claim the reason it turned away any applicant is because they believed that individual secretly rooted for the Ohio State Buckeyes football team.  There is not a court in the Upper and Lower Peninsulas that would convict.

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