Yale Anons

Plus: A debatable list of worst cases.

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Friend of the pod David Lat challenges Sarah and frequent-guest David to think through the implications of different types of anonymous speech. Where is the line between a whistleblower in need of protection and a rumor-monger?

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  1. Cmn001

    I'm behind on my podcast listening, so it may be too late to comment usefully here. But while I share Sarah's frustration about Citizens United, I don't think it's all that hard to understand what the "alternative" its detractors prefer is. Just look at the world as it was prior to the decision.

    The law in question had a carve out for media companies, so there was no problem with NYT or other for-profit journalistic businesses disseminating political speech before elections. Nor was there any problem with non-profit ideological corporations disseminating speech. So it was still possible to use the corporate form to disseminate political speech. But for-profit corporations not directly in the media business could only do so through a segregated fund, not from their general treasury. (Note that CU was itself a non-profit, but it came under the law because it accepted donations directly from for-profit corporations.). So the basic upshot of the pre-CU regime was to hamper the funding of political speech by for-profit corporations (except media companies).

    Now, you might think that if anything, we should be *more* worried about the political influence wielded by media corporations, precisely because they already have a huge leg up in the dissemination of speech. But you can probably imagine the perspective that's not so worried about that. The argument would go something like this: The media companies are known and more transparent as to what their editorial agendas are, so that the profits they have available to spend on speech were earned through engaging in speech that people find valuable, which is consonant with democratic values. Whereas for-profit non-media corporations may have vast resources whose provenance has nothing to do with the public's approbation of their speech, and it is therefore threatening to democratic values to let them shovel money into supporting or defeating candidates for reasons (presumably of purely economic advantage) to which the public has comparatively little access. Note, I'm not arguing that you should accept this reasoning, just articulating what I take to be a coherent (though surely not unobjectionable) viewpoint.

    You might also object that, while the law in question had a carve out for media corporations, the anti-CU position implies that as a matter of *constitutional law* it would be just as permissible for Congress to ban the NYT from electioneering communications as to ban General Motors. And presumably most people would think that banning for-profit newspapers from commenting on candidates prior to an election was an intuitively obvious 1st Am. violation. I think here people are relying implicitly (to the extent they bother thinking it through) on the notion that the "freedom of the press" refers to "the press" in the contemporary sense of "people engaged in the regular business of journalism," which permits them to distinguish between the 1st Am rights of the NYT versus GM. My understanding (Eugene Volokh has written on this) is that this is anachronistic, and that "the press" didn't have that contemporary meaning in 1791.

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  2. Rundjm

    Just wanted to thank you guys for pointing me to the fun that can be had with ChatGPT... it even inspired me to write my own blog article: https://www.nei.org/news/2023/a-nuclear-lawyer-takes-chatgpt-for-a-spin @NuclearLawyer

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    Rbell96630

    The insular cases.

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  4. Karin

    One problem with anonymous complaints is that they can put a whole group under suspicion. Using a professor as an example, if she is simply told that ‘a student complained’ is she not likely to wonder which of her students this was, and even to think that she knows who it is. If she’s wrong, then the student - or students -suffers the consequences. That said, I don’t have a solution to offer. But it does seem to me like the cloud of suspicion that now hangs over SCOTUS clerks because of the anonymous leak.

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  5. Ccbhome2019

    Overall I agree with your thinking on anonymous speech for law students (liiiiike, come on), but wanted to point out that Sen. Ben Sasse advocated for effectively anonymous speech within the Senate (i.e., allowing senators to debate without any cameras in the room) as a means to facilitate meaningful discussion among senators when he was last on the Dispatch. Just thought that was an interesting comparison.

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    Hawks Law Office

    For worst cases I would propose a special category of cases (or line of cases) that effectively amended the Constitution outside of Article V. (I am a fan of Sarah's Scalia's quote in advocating making it easier to amend, but I think we can agree that "judicial amendments" are not what Scalia had in mind.) Here is my list of "judicial amendment" cases:

    1. THE SLAUGHTER-HOUSE CASES: Clearly the worst. They not only gutted the P/I Clause but also distorted all of Section 1 of the 14th Amendment and led to decades of misunderstanding about substantive due process.

    2. U.S. v. BUTLER/HELVERING v. DAVIS: These cases destroyed the enumerated powers doctrine when they collectively rewrote Article I, Section 8 by adding a non-existent "General Welfare Clause" to create an independent spending power. All government spending is only authorized as an incidental power under the N&P Clause and thus must be tied directly to an enumerated power.

    3. FOOTNOTE FOUR OF CAROLENE PRODUCTS: Negates the 9th Amendment by explicitly endorsing the idea that unenumerated rights should be denied or disparaged in favor of enumerated rights.

    4. THE PROGENY OF NLRB v. JONES & LAUGHLIN: The result in NLRB v. Jones & Lauglin, properly limited, was justified (i.e. Congress has the incidental power under the N&P Clause to prevent intrastate economic activity from undercutting its ability to regulate interstate commerce), but its progeny culminating in Wickard & Raich rewrote the Commerce Clause to read "the Power ... to regulate Commerce ... among the Several states ..., as well as any wholly intrastate economic activity that might cumulatively affect interstate commerce, no matter how small or remote the activity itself, not to mention any non-economic local activity that is a necessary part of a more general regulation of interstate commerce."

    5. BLAISDELL: Rescinds the Obligation of Contracts Clause by adding an "emergency exception" to the Constitution.

    6. PENN CENTRAL/KELO: These cases amend the Takings Clause by erasing the distinctions between regulation and a taking (Penn Central) and between private and public use (Kelo).

    7. I wish I could cite a single case that rewrote the Vesting Clause in Article I, Section 1 to eviscerate the non-delegation doctrine, but alas there are so many over such a long period of time in so many different contexts that I can't. There is no doubt in mind, however, that "judicial amendment" applies to such cases.

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    Young Riprock

    The Tinker phrase is “substantial disruption”, not “substantial interference.”

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  8. David Ragsdale

    Five Bad SC cases:

    1) Schenk v. United States – not because it was wrongly decided (which it was) but because we are still living with its consequences: the never-ending litany of ignorant "You can't shout fire in a crowded theater" statements that plague us to this day.

    2) Wickard v. Filburn – progenitor of 80 years of federal overreach, destroyer of enumerated powers, by allowing the government to call nearly anything "commerce."

    3) Casey v. Planned Parenthood – for its pomposity and for subjecting us to the sentence "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Also its absurd treatment of stare decisis (which J. Scalia mocked as a "keep what you want and throw away the rest" version).

    4) Griswold v. Connecticut – for the phrase: "penumbras, formed by emanations"

    5) Bostock v. Clayton County – not for its result, but because its hyper-literalism makes it unreasonably difficult for legislatures to write laws that mean what they intend them to mean.

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    Kimbaukusfitzgibbon

    ChatGPT: I asked ChatGPT to prove some basic math theorems that are most certainly all over the internet. Only one of 6 questions, prove that the square root of 2 is irrational, was comprehensible but still not totally correct. I did leave feedback on the prove that there is no largest prime number, and I checked back 2 weeks later. While the proof was still not totally correct, it had definitely improved, from incomprehensible goop, to you’re heading in the right direction. Supposedly, this type of improvement is due to machine learning.

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  10. Bradgreenwald

    I'm still not convinced by David's arguments on strict scrutiny for 2A cases. He made the argument that a general gun ban would not survive strict scrutiny against the government interest of stopping domestic violence. Sure, it probably wouldn't, but that wouldn't be the government's argument. "Gun violence is endemic in our society. Crime, mass shootings, no-one can feel safe. Additionally gun suicides are common and it is impossible to predict who is at risk. Therefore, a general gun ban is the least restrictive means to serve the compelling government interest in keeping its citizens safe."

    David or commenters, I'd be interested to hear how this argument loses in strict scrutiny.

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    1. Bradgreenwald

      Or if it even should? I suspect this is part of the Bruen opinion's thought in offering a different test.

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