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Toward Eternal Tonehenge

November 30, 2017 Leave a comment

In the introduction to the seminal work entitled An Introduction to the Creation of Electroacoustic Music, Professor Sam Pellman wrote:

For thousands of years, the predominant medium of musical expression was the human voice. In the past few centuries, however, musical instruments have become increasingly important. The sophistication of these instruments has paralleled the development of technology in general. Early musical instruments were relatively simple devices constructed of wood or of the horns of animals. By the 19th century, the level of mechanical ingenuity had progressed to the point that remarkably clever instruments made of a wide variety of materials, including metals, could be perfected or invented. The piano is perhaps the best representative of the technology of that time. Modern wind and brass instruments, such as the saxophone and the trumpet, reached maturity during this time as well. One thing that all of these instruments had in common was that they depended on the power of human breath or the muscles of the arms to create the waves of sound that could be heard as music.

The preeminent technology of the 20th century has been electronic. It seems inevitable, therefore, that musical instruments would be developed that would apply the power of electricity and the control capabilities of electronics to the task of creating musical sounds. The field of scientific study that deals with the transformation of energy between electrical forms and acoustical forms is called electroacoustics. This term has been borrowed by musicians who use electronic instruments, so that their music has come to be known as electroacoustic music. Such music may consist of sounds that are produced naturally and then transformed electronically . . . or of sounds that are created synthetically, by oscillating electrical circuits . . . . Most typically, perhaps, it includes both kinds of sounds. Indeed, the array of resources available to contemporary musicians working in the medium of electroacoustic music is an impressively rich and immense one . . . .

Samuel Pellman, An Introduction to the Creation of Electroacoustic Music xv (Wadsworth 1994).

Earlier this month, Pellman died suddenly at the age of sixty-four.

Here is an example of his recent work:

Sam’s Music for Contemporary Media course remains one of the most memorable educational experiences of my life. I offer here two of the projects I created as a part of that course.

Categories: Current, Education, Listening, Music

In re Monster Mash

October 31, 2017 Leave a comment

In 2017’s internet-centric media world, the illusion of interactivity trumps truth, and the mind-altering pursuit of that illusory activity has little time for factual accuracy. Thus, it was with familiar disappointment that I encountered the below stitch of web content in the days preceding the instant holiday:

I do not know Lawrence Miles. There is a good chance I do not know any of the roughly sixty thousand internet people who interacted with Miles’ tweet. I do know “Monster Mash,” though.

“Monster Mash” is at least two things: 1) a song recorded and released by Bobby “Boris” Pickett and The Crypt-Kickers in 1962 and 2) a dance performed by the monsters referenced in the song.

Miles’ statement obviously is incorrect on its face. After all, Pickett’s song, which topped charts shortly after its release and remains a seasonal favorite more than sixty years later, has reached many ears.

Of course, that is not the sense at which Miles directed his tweet. The song may be called “Monster Mash,” but it obviously is about something called “the monster mash” as well, and that subject is Miles’ target. Miles may not be a careful listener, however, because the song clearly identifies and describes the monster mash as a dance, rather than a song:

I was working in the lab, late one night
When my eyes beheld an eerie sight
For my monster from his slab, began to rise
And suddenly to my surprise

He did the mash, he did the monster mash
The monster mash, it was a graveyard smash
He did the mash, it caught on in a flash
He did the mash, he did the monster mash

From my laboratory in the castle east
To the master bedroom where the vampires feast
The ghouls all came from their humble abodes
To get a jolt from my electrodes

They did the mash, they did the monster mash
The monster mash, it was a graveyard smash
They did the mash, it caught on in a flash
They did the mash, they did the monster mash

There is no ambiguity here. Whether it was the monster mash or the mashed potato, the narrator is describing a particular dance the monsters were doing, not a song they were playing. Miles reasonably might have contended that no one had ever seen the monster mash dance performed, but his statement, insofar as it contemplates the monster mash as a song, finds no support in the text itself.

A potential problem for the analysis presented in this post appears in the chorus following the third verse, however, which uses slightly different phrasing:

The Zombies were having fun, the party had just begun
The guests included Wolfman, Dracula, and his son

The scene was rockin’, all were digging the sounds
Igor on chains, backed by his baying hounds
The coffin-bangers were about to arrive
With their vocal group, ‘The Crypt-Kicker Five’

They played the mash, they played the monster mash
The monster mash, it was a graveyard smash
They played the mash, it caught on in a flash
They played the mash, they played the monster mash

A band appears and, for the first time, this chorus introduces the notion that the monster mash is something that could be “played” as well as done, lending apparent support to the implied premise of Miles’ assertion (i.e., that the monster mash is a song). At this juncture, the best we can do is meet Miles part way. The monster mash plainly is a dance, but it might also be a song. If so, however, the question remains: have we heard the monster mash song?

With an assist from Dracula, the monsters answer this question in the affirmative. Immediately after the foregoing chorus, the narrator tells us:

Out from the coffin, Drac’s voice did ring
Seems he was troubled by just one thing
He opened the lid and shook his fist and said
“Whatever happened to my Transylvania Twist?”

It’s now the mash, it’s now the monster mash
The monster mash, it was graveyard smash
It’s now the mash, it caught on in a flash
It’s now the mash, it’s now the monster mash

Importantly, Dracula has been in his closed coffin this entire time (“Out from the coffin . . . He opened the lid . . .”), so he had not seen the monster mash dance but he had heard the monster mash song. Thus, when he asked about the “Transylvania Twist,” now rebranded as “The Monster Mash,” he was referring to a song and not a dance. And, contrary to Miles’ claim, we have heard “Transylvania Twist,” a rollicking barrel-house instrumental that would sound right at home in Eastern Kentucky:

No matter which way you slice it, Miles was wrong: the monster mash is a dance, and, to the extent it also is a song, it is a song we have heard.

(While the preparation of this post brought me no pleasure, I was glad to learn in the course of my research that the late Leon Russell was a Crypt-Kicker whose keyboard mashing appeared one one of the tracks on The Original Monster Mash, “Monster Mash Party,” which was the b-side to “Monster Mash.”)

Wishing everyone an honest Halloween.

Categories: Current, Internet, Listening, Music

We Need a Two-Party System

June 29, 2016 Leave a comment

A common refrain of politically dissatisfied Americans is that the United States is in need of a multiparty system akin to the parliamentary arrangements that populate Europe. During the last presidential election cycle, I wrote in defense of casting a vote for a third-party presidential candidate. That post included a favorable discussion of our two-party system:

There is much to be commended about the two-party system as it exists in the U.S. today. The conglomerate, dynamic nature of the parties means that the they evolve by competing with each other to attempt to absorb new movements and the votes that come with them. (Cf. Democrats and Greens with Republicans and Tea Partiers. The question of what happens once that absorption takes place– the assimilation– is a subject for another post.) It really is not so dissimilar from multiparty, parliamentary-style democracies, the difference being that those systems wait until after an election to form a coalition government, while the American system forms would-be governing coalitions before the election.

That, at least, is how a successful two-party system ought to operate. If party platform decisions made by the Democratic National Convention drafting committee this month stick, though, that may be an indication we are moving closer to a one-party system than any sort of multiparty arrangement:

There is some nuance missing here (e.g., the rejection of the $15 minimum wage amendment leaves in place a minimum wage at that amount but will not index the amount to the inflation rate, as some wanted), and the platform is not final, but these policy decisions– as well as others not noted, including the rejection of a proposal opposing the Trans-Pacific Partnership trade agreement— appear to portend movement by the Democratic Party closer to the Republican Party, if not any meaningful sense of “the center.”

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A functioning democracy needs a national political environment that features at least two political parties. Right now, it looks like America’s may be collapsing down to one.

Categories: Current, Listening, Politics

The Value of Anonymity

September 30, 2014 Leave a comment

Two of the results of the widespread availability of the virtual printing press that is the internet are an increase in published criticism and, in reaction to that increase in criticism, an increased demand for people to publish their material, and particularly their critical material, under their own names. Part of this second result is borne out of a demand for authenticity: we want to know that the things we see and read online are real. Another comes from a voiced desire of the criticized to know their critics. The foundational concept is a belief that people are unlikely to publish false, baseless, or mean-spirited commentary under their own name, because they likely would suffer adverse consequences. In essence, anonymity is harmful to public discourse because it allows people to participate in public discourse without consequences.

Anonymity is not all bad, however. As evidenced by the success of increasingly openly partisan cable news networks, people prefer to receive information and discuss issues with others they already know they agree with. It seems likely that people decide what they think about an article, or even whether they are going to read it at all, simply by referencing source identification material. Republicans disregard MSNBC and the New York Times, to which Democrats flock while disregarding Fox News and the Wall Street Journal, to which Republicans flock. The point is not that these are necessarily insightful, intelligent, or worthwhile information sources, but that context matters in deciding how– or whether– people approach offered ideas, content, information, or potential conversations.

Anonymity can make discourse more robust because it necessarily emphasizes content over source-information context. Readers and listeners must engage with the idea or ideas presented because there is nothing else. Without preconceived expectations, people are more likely to consider an opinion they otherwise would ignore or find a new way of understanding an idea with which they already generally agreed, all of which can lead to more meaningful exchanges of ideas and reassessments of one’s own views.

Placebo Placebo

March 31, 2014 1 comment

A well-recognized component of therapeutic drug testing is comparing the experiences of people receiving the drug with those of people not receiving the drug. In short, the testers want to know whether the drug actually does anything. In these tests, the control group– the people not taking the drug– often receives an inert substance the group nevertheless believes to be the drug being tested. Sometimes, despite receiving no medication whatsoever, members of the control group experience improvements in their symptoms. Rather than from a targeted, scientific testing process, this effect also can result from a long, steady, general drumbeat about the efficacy of a therapy. The touted ability of vitamin C to prevent the common cold appears to be such an example.

When people discuss the placebo effect, they usually apply a negative connotation. If the appearance of the placebo effect isn’t a disappointment, as in the case of a tested drug that is less effective than hoped, it’s a fraud, a shorthand way of saying Emergen-C doesn’t really work.

That is, unless you believe it does, in which case it might.

Instead of dismissing the placebo effect as shorthand for failed expectations or a dead end, perhaps it is an opening for new exploration. (Perhaps, and likely so, such exploration already has occurred.) If the mind, through delusion (conscious or unconscious), belief (actual or fraudulently induced), or faith (earnest, blind, or false), can achieve physiological results in the body, we may need to consider manifestations of that capability like the placebo effect an entry point rather than a concluding point, something to be harnessed or developed, rather than dismissed.

Categories: Listening, Science

Justice Talk Pretty One Day

January 30, 2013 Leave a comment

Earlier this month, the Supreme Court heard oral arguments in Boyer v. Louisiana, a case that presented questions about the rights of criminal defendants, including the rights to counsel and a speedy trial. See generally here. Whether the case will be of great lasting significance remains to be seen, as the Court will not issue its decision for some weeks. It already has drawn significant attention from Court-watchers, though, for reasons entirely collateral to the merits of the case.

As most people know, Justice Clarence Thomas is not frequently a vocal participant in oral arguments. In fact, that’s probably an understatement: before the Boyer argument, it nearly had been seven years since he last spoke in open court. Back in 2010, I wrote:

This week marks the fourth anniversary of Justice Clarence Thomas’ silence during Supreme Court oral arguments. The last time he questioned an attorney during oral arguments was in Holmes v. South Carolina, 547 U.S. 319 (2006), on February 22, 2006. Thomas had a solid reputation for sparse participation prior to the Holmes argument, and the four silent years since then have only served to solidify it. Observers, close and casual, are mixed on the significance of that silence, however.

Most people I encounter in casual conversation are immediately disparaging when it comes to Thomas, and particularly so regarding his silence. Some consider him a waste of space on the bench, and others suggest it is evidence that he is unqualified to serve on the Court, a charge that sometimes carries implications about his intelligence. Still others believe he simply is close-minded.

Perhaps I limited my survey of reactions to Thomas’ recent remark because of how I had seen him regarded in the past, or perhaps I’m just less attuned to Court-watchers today than I was three years ago (and I am), but I did not detect the same degree of disparagement I did before. More than anything, people seemed to see the happening as a sort of political novelty. Some actually called it “brilliant,” but that seems ridiculous in light of what Thomas actually “said.”

When Thomas’ name made its appearance in the transcript, the discussion at hand was about the qualifications of the criminal defendant’s counsel. Justice Antonin Scalia asked whether the defendant’s lead counsel was a Yale Law School graduate. After Scalia received an answer in the affirmative, the transcript records the following:

JUSTICE THOMAS: Well, there — see, he did not provide good counsel.

(Laughter.)

Everybody but Justice Sonia Sotomayor and possibly the arguing attorney seemed to be laughing at this point at what those in attendance agreed was a joke by Thomas, including Tom Goldstein, who wrote:

Most of the Justices were in a lighthearted mood today.  There was a lot of banter between them.  At one point, the questioning turned to whether the petitioner – a capital defendant – had “competent” counsel.  Justice Scalia made the rhetorical point that his lawyer was impressive because she had gone to Yale.  Chuckling, Justice Thomas interjected (as I heard it, imperfectly) that fact might make the lawyer “incompetent.”

Everyone who heard what he said recognized it was a joke.  All the Justices laughed to one degree or another.  So did the bar and gallery.

The most interesting part is that it isn’t even clear whether Thomas intended to speak into the microphone; some had noticed him passing a note to his neighbor, Scalia, and thought the remark may have been intended to be a private one.

In any event, the context to this remark is simple and should have been immediately apparent to anyone with even a general familiarity with Thomas. He attended Yale Law School himself, so at the very least, the joke was a self-depreciating one. That’s assuming he’s softened his views toward Yale. In the past, at least, he has not been especially proud of his time in New Haven because he believed he only was accepted there due to the school’s affirmative action policy, and he somewhat famously stuck a fifteen-cent price tag on his diploma as a signal of the value he placed on his Yale degree. Some commentators noted that Thomas in fact has been warming up to Yale more recently, but any deep analysis beyond this would not appear to yield anything of great significance.

Instead of moving straight along with things, though, I think this occasion does offer a good opportunity to remember that there were good reasons for Thomas to keep his silence. Beyond the personal ones, which he has clearly set forth in his autobiography and elsewhere, it is helpful to remember that the written briefs, as Thomas has said, are “far more important” than oral arguments, which, nine times out of ten, do not change his position. Naturally, there is reason to believe that he is not the only justice who takes this view, even if he is the only one who will say it out loud.

___________________________________________________________________

Previously

Silent Justice – My full remarks on the fourth anniversary of Justice Thomas’ silence at oral arguments

Thinking Positively About Negative Implications

March 31, 2012 2 comments

The Constitution’s Commerce Clause, Article I, § 8, has been in the news this week, but it’s the Clause’s negative implication– known as the Dormant Commerce Clause– that provides the conceptual starting point for this post and its ultimate conclusion about the full meaning of First Amendment speech rights. If the Commerce Clause is an express grant of authority to Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” the Dormant Commerce Clause is an implied restriction on state authority over a regulatory area– interstate commerce– that belongs to Congress. State regulation that affects interstate commerce must bear a rational relationship to a legitimate state concern and the benefit the regulation affords to the state’s interest must outweigh the burden on interstate commerce. This (implied) proscription applies even in the absence of affirmative federal regulation of the precise subject matter the state sought to regulate. It is enough that Congress could regulate the aspect of interstate commerce; it need not actually have done so.

A related concept is that of implied preemption. In general, implied preemption is a decision to resolve conflicts between federal and state law by choosing the federal law in most every instance. One application of implied preemption comes where Congress so occupies a regulatory field– immigration might be an example, Arizona and Alabama notwithstanding– that any state regulation in that area is preempted, even if Congress hasn’t passed a statute addressing the particular issue.

There is a concept at work both with the Dormant Commerce Clause and implied field preemption that has to do with the virtue and authority of silence. Both doctrines place silence on authoritative par with sound, inaction equal to action. They recognize and protect the full scope of the grant of authority, even if the authorized body never exercises the authority to the fullest extent.

Calvin College is one of the nation’s leading Christian Reformed colleges, and while it has a reputation for social conservatism, it also has a reputation for hosting progressive, secular music concerts. About a year and a half ago, these two interests clashed, however, when the school cancelled a scheduled performance by indie act The New Pornographers on the sole basis of the band’s name, and even in full recognition of the fact that the band does not “endorse[] pornography.” There’s no legal question that the private college may host or not host whatever entertainment it chooses, but the story still took on a community discussion that proceeded along free expression lines.

We usually talk about First Amendment speech in terms of things actually said, and the legal and political questions usually have to do with whether the First Amendment protects words actually spoken or actions actually taken. But maybe the First Amendment is about more than fostering a broad cacophony of speaking and a mess of expressive acting. Maybe there’s a negative implication of the First Amendment and its protected rights, a Dormant First Amendment.

The Dormant First Amendment might recognize that, just as someone has a right to say something, he also has a right (or at least a strong interest) in not hearing something. For example, we might see Calvin College not as restricting someone else’s speech in cancelling the concert but as preserving its own interest in not hearing something it found distasteful. The former formulation carries a negative connotation, but the latter should carry a positive one. Rather than the First Amendment (conceptually, not mechanically– although I do appreciate that that statement may impair the impending metaphor) being a one-way ratchet that directs only more and more speech-volume, why not a multifaceted approach that values discernment, distillation, refinement, taste?

It may be true that the First Amendment was meant to create a marketplace of ideas, as courts have said. Marketplaces are loud, noisy places, and the merchant who hawks her wares the loudest may be more likely to survive there, but not everyone survives in a market because customers don’t do everything sellers’ advertisements tell them to do. Perhaps people would make better decisions if they patiently heard every pitch from every market participant, but at the very least, the First Amendment is about a right to speak, not a right to be heard. Moreover, if the First Amendment is about everybody being able to say whatever they want, is it really so offensive to that principle to say that people ought to be able to use their discretion to decide when to step to the side of the spray of the verbal fire hose?

As for how the idea of the Dormant First Amendment would work practically I’m far from sure, and if there are any readers who aren’t practically dormant at this point, comments, as always, are welcome below. The real thrust of this post is to suggest the possibility that, like the Dormant Commerce Clause and implied preemption doctrines place Congress’ inaction on authoritative par with its action, the First Amendment might also have a negative implication that places an individual’s desire to avoid speech on protective par with his or her desire to engage in speech.

Remembering to Vote: Memory and Suffrage

February 29, 2012 Leave a comment

Last month, the Supreme Court heard oral arguments in three consolidated cases, Perry v. PerezPerry v. Davis, and Perry v. Perez, all having to do with state and federal elections in Texas. The cases are complicated for a number of reasons, and they even seemed to give the usually confident justices some trouble, as Lyle Denniston’s report on the oral arguments for SCOTUSblog indicates. The situation is complicated in terms of both procedural and substantive law, as there are challenges to Texas’ policies on different grounds in different courts, with a number of different entities all advancing their own remedial proposals, all with a pressing deadline that requires some solution in time for state primaries ahead of this fall’s general election. At the root of these cases, though, are fundamental questions about the Voting Rights Act of 1965, a central piece of the civil rights legislation of the 1960s that already has been facing some fundamental questions in the last few years. In 2006, after much debate, Congress voted to extend the expiring legislation for another twenty-five years, and in 2009, the Supreme Court avoided ruling on the constitutionality of a key provision of the Act while expressing doubts about its ongoing constitutionality. See Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. ___ (2009).

Voting Rights Act litigation usually focuses on one or both of two sections of the Act. Section 2 contains the Act’s general rule against voting discrimination. Section 5, the more controversial of the two, requires certain identified jurisdictions, typically in the South, to seek approval from the Attorney General before making changes to election procedures.

In an excellent and extensive piece that followed the Northwest Austin decision, Joel Heller outlined the Voting Rights Act’s legal landscape and argued that the interpretive tools and sources of authority upon which the Court relies in its Voting Rights Act (“VRA”) cases “present historical, ideological, and statistical perspectives on the question of the continued necessity of § 5, with an especial focus on the South. They tell divergent stories about history, race and  voting.” Joel Heller, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 3 (2011), avalilable here. What’s missing, according to Heller, is “the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same concerns as the VRA. Specifically, a prominent theme in Faulkner’s work is the power of memory in the South and the ongoing influence of the past on contemporary actions and attitudes.” Id.

As a legal matter, Heller argues that it’s appropriate for courts to consider literature:

Literature can serve as a probative tool for understanding and evaluating policy because it is often, like law, a response to social problems. Especially with a measure like § 5 that touches on such fundamental matters in American society as racial equality and voting rights, Congress and the courts should make every effort and consult every relevant source in order to understand fully the issues at stake. As a chronicler of the pre-VRA South that Congress was responding to when it enacted and reauthorized § 5, Faulkner could prove a valuable resource in this undertaking. Ignoring his examinations of the role of memory in this context risks losing out on the insights of a uniquely astute observer of Southern culture and psychology.

Id. at 4.

The ongoing question in VRA § 5 litigation is whether the prophylactic measure still is needed, and this inquiry requires a court to determine what evil remains present in the governed jurisdictions and whether that evil necessitates the continued application of § 5. Heller continues:

Just as § 5 is a solution uniquely concerned with the past, Faulkner’s novels show that the lingering power of the past is also part of the problem. Rather than punishing the sons for the sins of the fathers, § 5 can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present. . . . By focusing on the extent to which “things have changed in the South,” the Court ignored the possibility that, for some, “the past is never dead, it is not even past.”

Id. at 4-5. In short, Heller has identified a theme common to the creation, implementation, and judicial interpretation of § 5 and Faulkner’s novels: “the question of how the past and memories of it continue to shape current attitudes and actions.” Id. at 28.

Heller’s article is thorough and thoughtful, and after thinking about it for four or five months, I still find little to add to it or comment upon. As a matter of mere judicial mechanics, strict jurists may reject the notion that judges should consider much beyond the language of the statutes and rules at issue in the case, but they would completely miss the point of the article. Moreover, where courts in VRA § 5 cases already routinely are considering things beyond the narrow scope of legal authority, judges’ abilities to define the bounds of permissible authority for consideration are diminished. In this vein, Heller has made his case for the necessity of the inclusion and consideration of material like Faulkner’s works, which speak to the very inquiry in which the courts in these cases are engaging in both a historical and thematic manner.

The full text of the article is available for download here.

Michael Sandel’s Untimely Response to the Libertarian Critique

July 11, 2011 4 comments

Last week, I had the fortunate opportunity to hear two presentations by (and briefly meet) Michael Sandel, a leading political theorist and, less magnanimously, a substantial influence on my undergraduate thesis. While a review of his latest book, the New York Times bestselling Justice: What’s the Right Thing to Do?, will have to wait until I finish Justice Breyer’s book, I wanted to make a timely note of the experience of hearing and meeting Sandel.

The morning lecture, thoroughly covered by The Chautauquan Daily, was a traditional presentation in which Sandel familiarized the audience with his approach to public discourse. Sandel carries the mantle of Aristotelian civic republicanism into this late-modern age, arguing that deliberation over the good life, morality, and spirituality, is an appropriate and necessary part of our public discourse. Rather than restraining public debate to a narrow set of political values and leaving things like religion and morality to the private sphere, Sandel believes– contrary to the prevailing view– that people should not have to hold back parts of themselves when participating in public discourse. While I’m not sure he’s gone so far as to say this outright, I think his approach rejects the public-private division contemporary liberal society mandates, instead advocating a broad spectrum of public life in which the public-private deliberative division melts away.


The afternoon lecture, by contrast, was styled after one of his interactive classroom presentations, in which he engaged the audience on questions of policy. Did the handicapped golfer, Casey Martin, have a right to use a cart in PGA events? Should state governments limit marriage to heterosexual couples?

At the end, he took audience questions, the last of which presented a good opportunity to explain his approach. The question came from a self-described libertarian, who told Sandel that he didn’t think the government had any business even answering the questions Sandel posed. The questioner said that the PGA, a private organization, should be able to include or exclude whomever it wants, and the government has no authority to say otherwise. As for state governments, the questioner explained, they should not be regulating activities, such as marriage, between consenting adults.

Sandel used this opportunity to “test” the questioner to see if he really would adhere to a libertarian viewpoint as applied to more controversial facts. For example, would the questioner allow the PGA to restrict its events to white golfers? The questioner said he would boycott the events, but the PGA could do so. Sandel also inquired of the questioner’s acceptance of various extreme activities between consenting adults, but the questioner stood by his position. Apparently satisfied that the questioner was, in fact, a true libertarian, Sandel concluded the presentation without further substantive comment.

This exchange was a missed opportunity for Sandel. Rather than defend his view, or at least helpfully contrast it with the libertarian perspective for the attentive audience, Sandel did little more than put the questioner through the paces of a libertarian litmus test. What’s unfortunate is that he had a good response. In his 1996 book Democracy’s Discontent, Sandel wrote about the Lincoln-Douglas debates of 1858, when the two politicians debated slavery and other issues. Stephen Douglas supported a liberal position: because people disagreed as to the morality of slavery, the federal government ought to maintain a neutral position and allow the states and territories to decide the question for themselves. Abraham Lincoln, on the other hand, took a position in line with Sandel’s civic republican view and in opposition to slavery on moral grounds, observing that anyone can advocate political neutrality “who does not see anything wrong in slavery, but no man can logically say it who does see a wrong in it; because no man can logically say he doesn’t care whether a wrong is voted up or voted down.” Michael Sandel, Democracy’s Discontent 22 (The Belknap Press of Harvard University Press, 1996).

Lincoln’s view is a direct challenge to those like the questioner, who say that while they personally (morally) oppose a particular activity, the best public policy respecting it is one of neutrality. This is the query Sandel should have put before his libertarian questioner.

Judicially Speaking, Cut the #$*@%!

July 15, 2010 4 comments

On Tuesday, the U.S. Court of Appeals for the Second Circuit rejected the Federal Communications Commission’s strict broadcast indecency rule as unconstitutionally vague. The Los Angeles Times first reported the news here. The Second Circuit already heard the case once, Fox v. FCC, 489 F.3d 444 (2d Cir. 2007), and when its initial ruling was appealed, the Supreme Court upheld the FCC’s rule in a limited holding, FCC v. Fox, 129 S.Ct. 1800 (2009). The Court decided only that the rule was not arbitrary and capricious under the Administrative Procedure Act; it reserved judgment on the constitutional question, which the Second Circuit answered Tuesday.

Fox news: For Justice Thomas, the 21st Century Fox means closing the doors on 20th century precedent.

Communication between judges can be different from communication between other types of public officials. Court-watchers find Supreme Court oral arguments to be important, in part, because the justices can try to influence each other or tip their hands to counsel and the public through their questioning. Judges in different courts try to communicate with and influence each other too. Most obviously and frequently, this happens when a higher court sends an appealed case back to the lower court (called “remanding”) for further proceedings in light of the instructions and guidance in the higher court’s written opinion. Intra-court communication can happen in less obvious ways too. Judge Diarmuid O’Scannlain’s concurrence in Ceballos v. Garcetti, 361 F.3d 1168, 1185 (9th Cir. 2004) is one example. In that case, dealing with the First Amendment speech rights of public employees, O’Scannlain voted in favor of the court’s opinion because it followed Ninth Circuit precedent, but he disagreed with that precedent and the accordant outcome of the case before him and wrote as much in a separate concurring opinion. This separate opinion by a noted conservative judge on a court with a liberal reputation served as a message to the justices of the Supreme Court, which trended conservative. The Supreme Court took the case and reversed the Ninth Circuit’s decision. Garcetti v. Ceballos, 547 U.S. 410 (2006). O’Scannlain’s concurrence served as a blueprint for Justice Anthony Kennedy’s majority opinion, which Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito joined, and Kennedy even mentioned O’Scannlain by name and cited his concurring opinion. See id. at 416-17.

Something similar is going on in the FCC case, the latest chapter of which the Second Circuit wrote Tuesday. When the Supreme Court passed on the case after the Second Circuit’s first ruling, Justice Thomas concurred in the majority decision that upheld the ruling. FCC v. Fox, 129 S.Ct. at 1819 (Thomas, J., concurring). In his separate opinion, Thomas explained that the majority correctly upheld the FCC’s rule as a matter of administrative law, but he expressed a willingness to strike down the rule on First Amendment grounds. As Mike Sacks reports, Tuesday’s Second Circuit opinion echoes Thomas’ concurrence. The Second Circuit reached the end Thomas prescribed, rejecting the rule on constitutional grounds, but had to use different reasoning to reach that result because Thomas’ approach required overturning Supreme Court precedent, means only available to the Supreme Court. See id. at 1819-20 (“I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.”) (citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) and FCC v. Pacifica Foundation, 438 U.S. 726 (1978)). Unlike the Garcetti example mentioned above, which featured a court of appeals judge sending a message to the Supreme Court justices, it was a Supreme Court justice signaling the court of appeals judges in Fox. As such, there may be one more audience for Thomas’ concurrence: his fellow justices. If the government appeals this most recent ruling, Thomas’ view will be before his colleagues, who, unlike the court of appeals judges, have the authority to affirm his result (striking down the rule) with his reasoning (overruling Red Lion and Pacifica and holding that the rule is unconstitutional under the First Amendment). If nothing else, a second appeal to the Supreme Court will allow Thomas to achieve a judicial communication hat trick— 1) his original concurrence; 2) sent as a message to the Second Circuit; 3) a version of which would return to the Supreme Court in the form of the appealed decision, should the government appeal the latest ruling.