Thoughts on rationalism and the rationalist community from a skeptical perspective. The author rejects rationality in the sense that he believes it isn't a logically coherent concept, that the larger rationalism community is insufficiently critical of it's beliefs and that ELIEZER YUDKOWSKY IS NOT THE TRUE CALIF.
The religious liberty challenge is pretty weak (both as a moral and legal matter). Essentially, the owner of Masterpiece Cakeshop is arguing that he shouldn’t have to comply with the same laws that everyone else does just because his religion disagrees. It used to be the case that in some situations the Supreme Court recognized a first amendment right to an exception to generally applicable laws when they conflicted with religious belief. However, in Employment Division v. Smith Scalia got rid of this nonsense. As long as a law is generally applicable and isn’t motivated by religious animus the fact that it requires you violate your religious beliefs is immaterial1. As a result Masterpiece Cakeshop really doesn’t have a leg to stand on as far as the free exercise claim goes.
The free speech arguments are a bit more hefty. There is a long ling of cases that hold the first amendment bars the government from compelling you to express views you disagree with. For instance, in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston the Supreme Court held that the first amendment protected the right of march organizers to exclude groups from their demonstration (despite contrary anti-discrimination law) when it would compromise their message, e.g., you can’t force a march against homosexuality to allow gay groups to join or a white supremacist march to include blacks. In other cases the court has held that the government can’t force students to pledge allegiance, newspapers to carry political responses for balance or PG&E to include environmental fliers in its bills.
As such, if Masterpiece Cakeshop was about the baker refusing to decorate the cake with a message they disagreed with I’m inclined to think there is a plausible argument to be made. If Masterpiece Cakeshop was willing to sell blank or generic wedding cakes to gay couples getting married there would be a strong case that requiring them to distribute messages on the cakes that they find objectionable is analogous to requiring PG&E to distribute environmental fliers it disagrees with. However, that’s not the fact patter in this case. Masterpiece Cakeshop is refusing to sell any wedding cake for a homosexual wedding.
Now there have been some heroic attempts to argue that merely providing any wedding cake at all conveys a celebratory message. However, this argument just isn’t very plausible. Certainly, wedding cakes are used as part of an event which, as a whole, sends a celebratory message but so too are the plates, silverware and chairs used at such functions. Surely no one thinks that a vendor who rents chairs for events is somehow being compelled to speak (in the way the Supreme Court has deemed unacceptable) when the law requires they deliver chairs to both gay and straight weddings. Indeed, if we accept the argument that merely because a good sold by a business will be used for an expressive purpose the sale of that good is itself expressive and thus protected from compulsion we would have to conclude that a white supremacist who owned an art supply shop had a first amendment right to refuse to sell pens to blacks as they will be used in an expressive manner (and quite likely to disapprove of white supremacy).
More broadly, there is an expressive component to all business transactions. In some sense serving black customers at a dinner expresses approval of their presence in the same dinner as whites. However, this isn’t the kind of incidental compelled expression the supreme court has identified as deserving of special protection nor should it be. When the government mandates that newspapers carry articles they disagree with the newspaper’s ability to express its desired message is seriously burdened. In contrast, when the government requires business owners to serve customers at a dinner regardless of race or sexual orientation there isn’t the same burden place on the ability of the diner owner to clearly convey his bigotry (modulo certain issues about signs2). If these brief remarks haven’t convinced you on this point I urge you to read this piece.
Alright, so Masterpiece Cakeshop deserves to lose (and almost surely will lose) at the Supreme Court. Indeed, if SCOTUS found for Masterpiece Cakeshop it would raise serious issues about the continued practical applicability of anti-discrimination laws more broadly. Many of which still address compelling needs.
However, I’m far less convinced there is any similarly compelling need for protecting homosexuals access to public accomodations like bakeries. Don’t get me wrong, I firmly believe that individuals like the owner of Masterpiece Cakeshop are deeply misguided and probably bigots3. However, such individuals are being overwhelmed by the remarkably rapid march towards greater acceptance of homosexuality.
Certainly, there are still pockets of homophobia in the country but by the time laws barring anti-homosexual discrimination in public accommodations can be enacted and have an effect in less progressive states than Colorado there will be more homosexuals than people who support discrimination against homosexuals. I don’t mean to in any way diminish just how hurtful it can be to be discriminated against but we need to balance that hurt against the burden such laws place on our freedoms. The judgement we’ve made in almost all cases is that just because something is hurtful or offensive isn’t a good enough reason to abridge people’s rights to choose whom to sell to. After all, its also quite hurtful to refuse to sell to someone because they are dumb, support abortion, or because their hipster beard looks stupid (though that may be more understandable). Those may not be quite at the same level but refusing to serve any ex-cons is closer as is any number of personal reasons for discrimination one sees in small towns.
The argument that there is a special need for public accommodation laws (as opposed to other instances of hurtful but appropriately legal behavior) stems, in the case of racial discrimination, from the claim that such discrimination is systematic, pervasive and makes it particularly difficult to dissolve bigoted attitudes. These all were, and perhaps would be again absent such laws, in the case of racial discrimination. It wasn’t just that blacks were excluded from a few venues run by marginalized bigots but systematically barred from whole classes of establishments — particularly high status establishments were power and influence get traded. The systematic exclusion of blacks from these establishments created a particularly formidable barrier to racial understanding and acceptance.
In contrast, homosexuals are only rarely discriminated against in public accommodations (I’m not suggesting that many people don’t remain closeted because of likely bigoted responses from friends and family but this is beyond governmental intervention) and usually have ample alternative venues. Those public accommodations which do discriminate against homosexuals tend to be low status enterprises run by socially marginalized assholes. The penetration of chain stores into virtually all parts of America provides high quality cheap products in a non-discriminatory fashion even in some of the most backwards regions. The opinion poll trend lines prove that even without such laws the cultural shift towards homosexual acceptance is both rapid and unstoppable. In short, virtually all the reasons for thinking that anti-discrimination laws serve a special need whose exceptional importance warrants prioritizing it over the individual freedoms of the business owner don’t seem to apply. Certainly, its awful and morally unacceptable but it doesn’t seem to be different in kind from the other awful morally unacceptable behaviors we don’t outlaw.
I certainly recognize that reasonable people can disagree on the relative value of the freedoms given to business owners as well as the substantial compliance costs, unintended harms and regulatory burdens imposed by anti-discrimination laws. However, the lack of any serious attempt to weigh the costs and benefits of such anti-discrimination laws makes me suspect that people support laws barring discrimination against homosexuals merely to signal their moral disapproval of such discrimination not based on any policy analysis.
Currently, many states as well as the federal government lack laws barring discrimination based on sexual orientation in public accommodation (hiring is a harder question IMO) so given the fact that once an anti-discrimination law is passed it is virtually impossible to ever repeal (for fear of sending the message that discrimination is acceptable) now is the time to sit down and ask whether we really want the kind of laws that lead to Masterpiece Cakeshop. If I could choose to enact such laws for a ten year period I’d probably support them but when I balance 50 or 100 years of reduced freedoms, compliance costs and unintended harms against the rapidly fading benefits I find leaning against such laws.
In short, while Masterpiece Cakeshop is clearly in the wrong from both a moral and legal perspective in the long run I fear that the well-intentioned laws that lead to this case are what we should really fear. If only there was a good way to signal our moral disapproval with sufficient strength without actually creating expensive and invasive new torts and enforcement agencies.
Of course, in some circumstances we do feel that religious groups deserve a special break on a generally applicable law such as when the law is merely a matter of enforcing some uniform standard and the costs of allowing sincere religious objection is small. For instance, the purpose of a law stipulating that city employees are barred from wearing any visible clothing besides their uniform isn’t substantially impeded by allowing Jewish employees to wear a kippah (aka yamaka) and the benefit to religious individuals pretty clearly outweighs the additional hassle of having to make individual determinations of appropriateness. Congress and state legislatures have adopted RFRA laws in a (deeply flawed) attempt to ensure that, in those cases where the societal cost is small and the individual benefit large, we make exceptions. Personally, I would prefer a legal regime that was religiously neutral and simply focused on strongly held views and applied a balancing test but that’s another conversation. ↩
As Eugene Volokh has pointed out there is a serious tension between free speech rights and anti-discrimination laws which bar vendors from expressing bigoted/sexist messages in their workplace. While being forced to serve blacks doesn’t seriously burden the owner’s freedom of expression being barred from decorating the diner with news clippings praising white supremacy, denigrating blacks and arguing for the racial inferiority of minorities does. However, this is an issue for another time. ↩
From afar animus is hard to distinguish from compassionate belief someone is making mistaken life choices combined with a desire not to encourage further mistakes. I honestly believe some very devout catholics who truly treat homosexuality as a mistake just like adultery or premarital sex fall into the second category but such people are rare. Animus is far more common. ↩
Do You Care About Protecting Women Or Just About Middle Class Values
It’s time for everyone claiming to support criminal bans on prostitution because they want to protect vulnerable women to choose sides. Are you really concerned about doing what it takes to protect vulnerable women or are you just using that as an excuse to justify your middle class values and your discomfort with the idea of exchanging sex for money?
Time to choose sides since it looks like research based on the (unfortunately brief) accidental Rhode Island experiment in decriminalizing indoor prostitution has some interesting results. Decriminalization resulted in a 50% drop in gonorrhea and a 30% drop in reported rapes (which, given the ability for prostitutes to go to the police without fearing prosecution, should have increased if rapes had stayed the same). Importantly, it appears that even women who weren’t in the prostitution industry saw a decrease in incidence of rape. I’d say these results were surprising except they weren’t to those familiar with the field, indeed, that’s why I’m willing to say this seems like a pretty solid result (maybe not the actual number but the direction of the change).
While no one suggests that the lives of most prostitutes (though the high end ones sometimes do well for themselves) are sweetness and light but sex workers who have experienced decriminalization will usually express strong support for the change and the ways it has changed their lives. However, one could still make an intellectually cogent case for decriminalization creating a real net harm, e.g., suggest that even if it makes the lives of sex workers better it makes more people into sex workers. However, if this research stands up, its just no longer even plausible to claim women are better protected in a regime which results in 30% more rapes. No matter how far you stretch the additional harm of increased numbers of sex workers (though often of a different class which isn’t as vulnerable) it doesn’t go that far.
But I’m pretty pessimistic. While I believe the passionate advocates in this area really do care about the victimization of women (though one can care so much that you are unable to let some go to save more) I don’t think that is what drives criminalization of prostitution at all. Rather, it’s just more of the usual human psycho-sexual drama about the threat which ‘virtuous’ women perceive from prostitution dressed up in new language.
The Effects of Decriminalization in Rhode Island
The study itself was a standard difference in differences design. Basically, that means they look at the data on rapes and STDs from both Rhode Island and the rest of the country before the decriminalization and then after the decriminalization. If the difference between Rhode Island and other states changes at the time prostitution is decriminalized then we infer that this difference in differences is a result of the change in legal status at that time. Of course, the actual statistical work is a bit more complex than this and uses data over a number of years but it’s a decent way to estimate the effect in a natural experiment provided one doesn’t believe that some other change singled out Rhode Island at the same time. To further shore up their work they use synthetic controls (basically they find the states which resemble Rhode Island in terms of the pre-decriminalization data and then use those as a control instead of the rest of the US).
Unfortunately, a reason why this study itself is only fairly persuasive and not highly persuasive is that the recriminalization results were not as strong. While rapes did rise again after Rhode Island made prostitution illegal again this result had a p-value of only .2. The story the authors offer is that the fact that this change was widely anticipated might dull the statistical power of the difference-in-differences method. In other words, they are suggesting that maybe the rapes started rising again once everyone realized they were going back to criminalization. I don’t find this very plausible since most mechanisms for this effect I can imagine, particularly including the author’s suggestion that rape is a partial substitute for paid sex, shouldn’t see much change, if any, until prostitution is actually recriminalized.
However, I think this result actually fits very nicely into a different model. In particular, while it may be the case that rape and consensual sexual encounters are partial substitutes I’m pretty skeptical that accounts for the effects here. Its not as if prostitution doesn’t exist when it is illegal or someone willing to rape for sex wouldn’t avail themselves of it. Rather, I suspect there are more general network effects at play here. In the pre-decriminalization world you have a system that relies on a system of pimps, organized crime and other bad actors to operate in which the girls involved may have little control/ownership interests and probably have only a minimal support network among themselves. Decriminalization not only removes this criminal element from the scene it also, as suggested by the health data, draws in a new class of prostitute who has better resources, planning, risk mitigation and isn’t at the mercy of her drug dealing pimp, i.e., more middle class prostitution. Recriminalization appears to have push some people out of the industry but it doesn’t change the fact that the criminal element is no longer present. A prostitute with a regular list of clients, a system for meeting new clients online and who isn’t already enmeshed with the criminal element has little need to return to their clutches even after recriminalization meaning the benefits linger. Sadly, I would guess that in the long term we will see a regression to previous levels as the police work to disrupt the organization and continuing business relationships these women have used to replace pimps and organized crime and eventually people will go back to securing prostitution through this element and rapes will rise.
Luckily, one doesn’t need to believe my analysis (which is just speculation) since one can rely on the fact that the results found for decriminalization are similar to what other studies have found.
The story of how Rhode Island came to decriminalize prostitution is pretty neat so I advise you to read this article. I am not, however, please with the top billing they gave people who in my opinion were nothing but moralizing middle aged women who had never had to make really hard choices using the language of concern for vulnerable women to justify their disapproval.
Around the world, there’s a growing movement to decriminalize sex work. Last year, Amnesty International, the largest human rights group in the world, came out with a recommendation that governments should decriminalize consensual sex work and develop laws that ensure workers are “protected from harm, exploitation and coercion.”
When Did Prosecutors Forget Their Job Is Obtaining Justice Not Convictions?
A prosecutor in Minnesota has decided to charge a woman who apparently shot her boyfriend at his urging as part of a stupid youtube trick with a gun. Apparently he showed her a book that he’d shot previously and failed to penetrate to convince her to shoot a book he held in front of him while they filmed it. This is obviously tragic but in choosing to prosecute this woman prosecutors seem to have totally forgotten their job is to pursue justice not rack up convictions.
Might this meet the legal standard for manslaughter? Sure. Is anything achieved by prosecuting this woman other than ruining her life and that of her boyfriend’s child and soon to be born child? It is just cruel to further harm the deceased by hurting his family when there is no need. I have serious issues with the arbitrary power prosecutorial discretion provides but its cases like this which prosecutorial discretion exists for.
Usually we prosecute (2nd degree) manslaughter to deter people from engaging in behavior that unreasonably risks harm to others but in cases like this there is obviously no possibility of deterrence. Had she the presence of mind to realize the danger and weigh the risk of a manslaughter conviction she would have been deterred by the risk of killing her boyfriend. Even from a retributive point of view she lacked the kind of malicious intent that those who believe in this sort of thing usually want to punish and simply living with the consequences in this case is surely pretty awful1.
I hope the prosecutors offers a generous plea deal but that makes even less sense! If you agree she doesn’t deserve substantial prison time here why burden her with a criminal conviction? If its about symbolism (which is a bad reason to prosecute anyone) a slap on the wrist does insult the value of the victim’s life in a way that prosecutorial discretion doesn’t as it means you are holding the accused responsible for her boyfriend’s death but apparently don’t think that is worth very much.
I know that prosecutors have a long track record (browse Mimesis law/Fault Lines) of cruel prosecutions but I can almost imagine they really believe fighting the drug war means they need to convict the girlfriend who once drove a few grams of coke across town as a favor with conspiracy charges for all the crimes his gang committed. However, nothing but sheer numbneess to the suffering of the accused seems like it could explain this.
In the unlikely case the prosecutor suspects the accused of having malicious intent and manipulating events to lead to her boyfriend’s death than he should charge her with murder only and let the jury decide. Again, if justice is the goal and, assuming things happened as she claims, she shouldn’t be tried then she should get the same presumption of innocence with regard to any suggestion it was murder that we believe accused criminals deserve. Just because the prosecutor has the legal power to circumvent the presumption of innocence standard with regard to a (surely fictional) suspicion of murder doesn’t mean it is right. ↩
So I frequently run into articles like this one which aim to criticize Israel’s behavior with respect to the occupied territories but, rather than laying out a clear policy argument (or direct moral considerations) instead fall back to invoking the supposed fact that Israel’s behavior with respect to the settlements and/or occupied territory is in violation of international law. While there are any number of grounds on which to criticize Israel’s polices invoking claims of international law short circuits important discussions while misleading readers.
One might wonder why people even bother to invoke international law regarding Israel’s occupied territories. The treaties most credibly cited as outlawing Israel’s behavior aren’t ones that Israel is a signatory to (though some arguments are based in such treaties) and the ICJ lacks any jurisdiction in Israel1. Thus, whatever the status of the occupied territories and settlements they don’t raise any practical issues of treaty compliance.
Rather, I think its fair to say that in most cases people raise international law regarding Israel’s settlements and occupied territories to either somehow suggest that international law reflects the settled opinion of the global community or leverage the reader’s presumption that illegal behavior is immoral/unacceptable. However, both cases invite the reader to inappropriately transfer assumptions we make about the internal laws of nation-states to the context of treaties and the international community. While we are used to the idea that laws are non-negotiable rules whose meaning is discerned by an independent judiciary and subject to enforcement by any one of many government agents virtually all these assumptions fail when we consider treaties.
Usually treaties do not specify any authoritative interpretive body leaving the interpretation ultimately in the hands of the signatories (some modern treaties do assign such power to the ICJ but I don’t believe any are at issue here). Moreover, international law is frequently openly violated without consequence (most famously during the NATO bombing of Yugoslavia2). The fact that inconvenient international laws can simply be ignored, or at least bent, combined with the lack of any enforcement mechanism undermines one of the principle aspects of the law which justifies the moral significance we assign it: the assumption that, good or bad, it binds everyone equally. Moreover, in the absence of independent enforcement (and the ICJ is not independent) there is no pressure to ensure that international law truly reflects global norms (without any risk the rule will be enforced against you the incentives are to declare Israel’s actions legal/illegal based on whose favor you wish to curry). In short, it is misleading to use international law either as a proxy for global consensus or to imply is has the default moral warrant we give to standard laws. While many writers obviously fervently wish it were otherwise, if you want to hold forth on the issue of Israeli-Palestinian relations there simply isn’t any way to avoid diving into the contentious issue of the moral status of Israel’s actions regarding the occupied territories
Still, despite appearances to the contrary, maybe there is some genuine reason to raise the issue of international law in this context. Perhaps one sees Israel as a first step toward a more legalistic and predictable world order (though picking such a controversial and vexed issue as a kicking off point is dubious) or has some other reason to consider international law. However, to the extent one is genuinely concerned about the legal status of settlements and the occupied territories one has to treat the issues as serious legal questions. That means its not enough to observe that the 4th Geneva convention bans the occupying power from transferring parts of its population into occupied territory and claim case closed. One has to verify that, as a legal matter, the land Israel controls in the west bank is technically ‘occupied territory’ (some suggest that occupied territory refers to occupied land legitimately belonging to another country) and that ‘transfer’ encompasses merely enabling voluntary movement rather than merely forced migration. Indeed, at least one scholar (Eugene Kontorovich) has made extensive arguments claiming that most of the clauses which are purported to ban Israel’s activities in the occupied territories inapplicable and that this interpretation is supported by a variety of recent precedents.
Of course, Eugene Kontorovich is not only pretty obviously driven by ideological affinity3 and represents an extreme viewpoint in the international law community. Many of the arguments he presents as decisive have been considered and rejected by other scholars. Ultimately, I simply don’t know enough about international law to reach a conclusion on the matter. Is Kontorovich ignoring independently established interpretive norms when he makes his arguments? Is the very liberal makeup of legal academia in general and international law in particular biasing the mainstream position against Israel? Does this disagreement mask a fundamental divide over the appropriate level of precision and detail in international law? Or, as I tend to suspect, does it reveal that international law is still sufficiently subjective that supplementing a plausible argument about international law with the support of both most UN member states and the legal elites renders it valid.
In any case, I won’t try and adjudicate this controversy merely note that the issue is complex enough to warrant multiple books and that facially plausible concerns have been raised by both sides. As such, anyone genuinely considering the legality of Israeli occupation and settlements (rather than merely using this as a proxy for moral condemnation) owes readers at the very least a summary of how they take such arguments to play out. The fact that 99% of the places which raise the issue of international law with respect to Israel have absolutely no interest whatsoever in doing this is all the more reason to treat their use of international law as suspect.
The Moral Particulars
This post is not the place for a detailed analysis of the moral issues regarding the occupied territories. However, I would like to make some general remarks about the unfortunate failure modes of moral analysis regarding this issue. In particular, I think 50% of the vitriol on this issue could be avoided (or at least diminished) by giving explicit answers to the following three questions.
Whose actions are being morally evaluated (or compared to alternatives)? Why them? What, if anything, do your claims imply about the morality of actors on the other side?
What standard are you using when you condemn/praise Israeli/Palestinian actions? Are you calling people out merely for deviation from perfect saint-like willingness to turn the other check or suggesting they fall short of normal standards in western countries?
Are you merely engaged in an intellectual/social exercise or are your criticisms intended to motivate actions.
For instance, with respect to 1 a great many people in the US (and possibly Europe) seem to simply tacitly assume that Israel is within the sphere of rational actors and subject to moral suasion based on shared moral norms but make no such assumption about the Palestinians. As such, and often without making a conscious judgement, many people behave in a way that suggests an anti-Israeli bias when, in fact, they are actually exhibiting anti-Palestinian bias by unconsciously viewing them as foreign and beyond the pale of our shared moral norms. By explicitly answering this question one can recognize such implicit biases and avoid creating the unintended impression that you are drawing a moral distinction. Note that a converse effect is also common in which people go out of their way to sympathize with individual (imagined/idealized) Palestinians (who, by stipulation, do not support violence against Israelis) but make no analogous effort to empathize with individual Israelis. This has the unfortunate effect of hiding the fact that individuals on both sides are powerless to make the major changes needed and, recognizing these limitations, act rationally and relatively morally within them. Again, explicitly considering the implications for actors on the other side resolves the potential confusion.
Point 3 is simply a variant of point 1 except it guards against falsely implicating differences as a result of policy oriented criticism/encouragement, e.g., criticism aimed at one party to encourage a change in behavior must be distinguished from criticism for the purpose of attributing relative moral blameworthiness. However, I think pure ascriptions of blame are probably best avoided in any event.
Point 2 is probably the most important. It is very common to hear strident criticism of Israel based on their treatment of Palestinians. While such criticisms often acknowledge the real threat of terrorism they hold Israel to task for taking measures that affect Palestinian’s collectively, e.g., the wall and extensive security checks required to move to and from Gaza and the West Bank. While I think we all acknowledge that ideally we would treat each and every person as an individual it’s absurd to suggest that any western democracy would behave differently in the same situation. Indeed, comparing Israel’s relative restraint in dealing with terrorism to Guantanamo Bay and our extreme and unjust indefinite detention of sex offenders is instructive. This doesn’t change the fact that many Palestinians face very unpleasant conditions, often through no fault of their own, but it is important to distinguish considerations of moral luck (if Americans found themselves in Israel’s position they would probably behave even worse) from questions of moral blameworthiness.
Ultimately, the one substantive position I will take here is to condemn the way the rest of the world shoves this problem off on the Israeli’s and Palestinians and then scolds them for not doing a better job. We should recognize that the Israelis (and probably the Palestinians as well) face an insoluble collective action problem (normal political differences make strong actions to resolve the problem very difficult to initiate much less maintain). The mere fact that we don’t live there and they do doesn’t make the rest of us any less responsible for the welfare of our fellow citizens so, rather than continuing to lay into Israel for not doing more to solve the problem, those of us in the west would be better served by convincing our own governments to help. Frankly, until we have at least managed the tiny step of passing a law which authorizes substantial payments to Palestinians in exchange for giving up various regions, e.g., certain parts of Jerusalem, it is a bit rich to criticize Israel for not taking much more drastic steps that could put its citizens at risk. While the situation between Israel and Palestine may be deadlocked I honestly believe that if the rest of the world (or even just NATO possibly with an assist from China) was sufficiently dedicate to solving the problem headway would be made.
If one wants to get technical the issue is somewhat complicated but from a practical point of view Israel isn’t bound by any ICJ decision. ↩
Of course there are arguments that this wasn’t a violation of international law. However, this merely serves to illustrate the flexible nature of `international law’ and the way in which international sentiment alters, if not the fact, at least the application of international law. ↩
This isn’t grounds for dismissing his arguments but it justifies treating his work as pure advocacy and taking care to avoid assuming that neither the factual backdrop he presents nor the interpretive process he uses present the complete picture. ↩
I generally sympathize with the liberal contingent on the supreme court but I think this [defense](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/26/citizens-united-media-corporations-and-other-corporations/ of Citizen’s United is right) on.
Now I’m open to arguments against Citizens United but if you are going to criticize the opinion the burden is on you to identify a good bright line rule (to prevent gradual erosion of rights) that provides newspapers and other journalism with the kind of protection we think they deserve without handing the government the ability to distinguish responsible journalists from mere non-profits/pacs/etc..
I’ve long supported Citizens United but what this post very helpfully pointed out is the extent to which every justification to restrict Citizens United style corporate speech has applied to restrictions on journalism/editorials. Cities with a single large newspaper surely had as much reason to worry about that newspaper using it’s power in a last minute attempt to sway the election than we have to worry about corporate money in politics.
Now, I agree that responsible journalists have a special role to play in the electoral process. I’m NOT worried about the New York Times doing something dastardly. However, I most certainly do not want Trump’s administration deciding who is a journalist as opposed to an advocate of some corporate interest, Yes, as the Citizens United dissent points out we sometimes adopt balancing tests for constitutional rights and we could adopt one here. But balancing tests tend to follow the political wind and if free speech is to serve as a bulwark against tyranny and patriotic group think that’s not good enough for core political speech.
Moreover, think about what would happen if Citizens United was overturned and one adopted some kind of test to distinguish media companies or genuine journalism from other corporate speech. I think the natural response to such incentives would be to further obscure whether or not you were engaged in journalism. In other words companies would cloak themselves in the trappings of a media company/genuine journalist to avail themselves of the greater free speech rights further worsening the problem of fake news. The courts would then have to either accept the trappings of media/journalism as valid on their face (encouraging such deception) or engage in a dangerous substantive investigation of whether a company counts as a `real’ journalism company.