Jaci’s Coast Guard cutter

So we had a full day yesterday describing what had to happen before the First Amendment could be a vital, vibrant (or true) protection of expression. In these descriptions, we used several metaphors — a golf ball, a Coast Guard cutter breaking the ice for the ships of thought and expression behind it to safely follow through to freedom, and the Chronicles of Narnia wardrobe, a doorway or portal for the First Amendment to pass through from federal power to state power (incorporation).

All of these metaphors were bouncing around in my head on my run last night when Jaci’s description of how she would rule in Citizens United hit me. Access theory! This might be the way to break the ice recently frozen into granite-like place by the 5-4 Citizens United decision (Stevens’s 90 pages of throwing salt on that ice to keep it from calcifying not withstanding). Jaci’s Coast Guard cutter.

In the theory of public access theory, the assumption is that the purpose of the First Amendment is to allow the public to openly voice the various opposing views surrounding a public issue. (You might detect elements of the “marketplace of ideas” theory or metaphor Holmes pushed.) The people should be guaranteed access to media in order to voice their views, in particular broadcast television. This theory is best seen in the Fairness Doctrine, established for TV in 1949 but abolished in 1987.

OK, it might be a stretch, but the precedent is there to show that where people’s voices are being overwhelmed or silenced, the government can and perhaps even should step in to level the playing field. I predict this overwhelming by big corporations spending big bucks to target specific issues and candidates, just as Hillary: The Movie is an attempt to do. (Irrelevant here, by the way, is what I happen to think of Hillary Clinton; the point here is a plurality of voices and a vibrant free flow of ideas and opinion.)

Also, two notes: Despite Colbert’s comic and veiled pledge to run in 2012, Doritos still couldn’t sponsor him. Citizens United doesn’t change that. The verdict does, however, allow Doritos to spend whatever it wants on specific issues or to go after certain candidates (an anti-cheese or anti-fake cheese candidate, perhaps?).

And remind me to mention Stromberg v. California Tuesday. (Or maybe I’ll just remind myself — with this blog post!) Holmes believed expression was action? How about action as expression! The suspense is building . . .

Citizens United v. F.E.C

In this hypothetical, you are a U.S. Supreme Court justice faced with a decision on Citizens United v. F.E.C. How would you rule? The important thing here isn’t your ultimate verdict, for or against Citizens United, but how you would approach the legal question(s). What would guide you? What would your jurisprudential philosophy be? What principles would you hold to to guide you in interpreting the U.S. Constitution and, in particular here, its first amendment?

Presumably, your answer would help us predict how you might decide in future cases, as well, so your choice is more than fad or fashion. It should be about how you would go about making the difficult choices in matters of law.

Some possibilities:

• Originalism (the Constitution is dead, not “living.” What did the founders intend?)
• Absolutism (if it says “no law,” it means no law. Period.)
• Utilitarianism (a means to an end, so judge the end)
• Balancing theory (and preferred position balancing theory) >> scroll down to the entry on preferred position
• Meiklejohnian theory, from Alexander Meiklejohn, that advocates free expression is essential to accomplishing a greater good, which is democracy. A form of utilitarianism, arguing that the First is valuable in promoting self-government through “the voting of wise decisions.”
• The priority of “the marketplace of ideas,” or that a free trade in ideas will ensure the emergence and acceptance of truth as it competes with untruth. Our hero Oliver Wendell Holmes gave this idea great currency.
• Others?

That we can ask this question and potentially have so many “right” answers points to Habermas’s statement that the law exists between facts and norms, and that it is more important for the law to claim validity than either facticity or its practice as a social norm.

I eagerly await your answers to see who on the current USSC (.pdf download of justices’ bios) are your kissing cousins (at least ideologically).

Logo competition call

The Southern Association of Colleges and Schools Commission on Colleges (SACSCOC) is pleased to announce a logo design competition for students, faculty, staff, alumni, and retirees of member institutions.

Due to the recent separate incorporation of the Commission from the Association, a new logo is needed apart from the SACS seal. The winning logo will become the property of SACSCOC and will be presented at the Annual Meeting in December 2010. The new logo will be phased in and will completely replace the current logo that appears on Web pages, stationery, business cards, and official publications of the organization.

Prizes for the competition include:

• First prize: $500.00
• Second prize: $300.00
• Third prize: $200.00

Deadline for receiving entries is Friday, April 30, 2010.

Entries should be mailed to:

Logo Competition
Southern Association of Colleges and Schools
Commission on Colleges
1866 Southern Lane
Decatur, GA 30033-4097

Submission details:

• Entries should be submitted on paper and in electronic format. We are looking for a logo that presents well in both media.
• All submissions should be completed as vector art and saved as an EPS file. Linked files should be embedded and all type outlined. A low resolution PDF file should also be sent for review.
• Entries should include the design with no identifying designer marks or affiliation.
• Designer identification should be included with the entry but should not be on the entry.
• Designer identification should include the designer’s name, mailing address, email address, and telephone number. Designer identification should also include the name and address of the institution, as well as the affiliation of the designer (student, faculty, staff, alumni, or retiree).
• All entries will be acknowledged upon receipt.
• All entries will become the property of the Southern Association of Colleges and Schools Commission on Colleges.
• Entries will not be returned.

Judging details:

• Identification will be removed from each entry.
• A team of Commission staff will screen the anonymous entries and select the top ten designs.
• The SACSCOC Board of Trustees will make the final selections from the anonymous entries.
• Winners will be announced at the December meeting, where the winning logo will be presented.

About SACSCOC:

The Southern Association of Colleges and Schools Commission on Colleges is the regional body for the accreditation of degree-granting higher education institutions in the Southern states. The Commission’s mission is the enhancement of educational quality throughout the region and it strives to improve the effectiveness of institutions by ensuring that institutions meet standards established by the higher education community that address the needs of society and students. It serves as the common denominator of shared values and practices among the diverse institutions in Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia and Latin America and other international sites approved by the Commission on Colleges that award associate, baccalaureate, master’s, or doctoral degrees. The Commission also accepts applications from other international institutions of higher education.

Contact:

Dr. Pamela Cravey
Coordinator of Communications and External Affairs
pcravey@sacscoc.org
(404) 679-4501 ext. 4504

What is culture? You decide

We’ve been discussing various definitions or ways of thinking about culture, and by now I hope everyone has plugged into the idea that culture isn’t fixed, that it is something we do, something we make, something we negotiate with — that it is a process. Below I’ve provided several (very) different was of thinking about culture. For this mental exercise, you choose which one you like best, then elaborate with a paragraph or two on why you like that particular quote. Here are the nominees:

• “Culture — the lifeblood of a people, the flow of moral energy that holds society intact.” –Gottfried Herder, who coined the term, in German (kultur), in the mid-1700s.
• “Cultures are maps of meaning through which the world is made.” — Peter Jackson, film director
• “Culture is everything you don’t have to do. Cuisine is culture, but eating is not; fashion is culture, but clothing is not.” — Brian Eno, musician and artist
• “Culture is a process — fluid, interactive, communal, ongoing and always negotiated.” — Brian Carroll, Berry dude
• “Culture is what we do with the contradictions in our lives.” — Carol Greenhouse, anthropologist, professor
• ” ‘Culture’ names a rather amorphous entity. Human beings produce culture in the same sense that they produce carbon dioxide: they can’t help it, but the stuff has absolutely no value in itself. It’s just there. It is one thing to attribute a group’s characteristics to its culture; it is another thing to elevate that culture into a discrete set of traditions and practices in which the members of the group can take pride simply because they are, willy-nilly, theirs. Culture is only a response to the conditions of life; when those conditions change — and in modern societies they change continuously — culture changes as well.” — Louis Menand, The Metaphysical Club
• “There are at least two ways of using the word ‘culture.’ The evaluative use has been more common when we are thinking about ‘the arts’ and ‘literature’: to be ‘cultured’ is to be the possessor of superior values and a refined sensibility, both of which are manifested through a positive and fulfilling engagement with ‘good’ literature, art, music and so on. The analytic one is used in the social sciences and especially anthropology: it seeks to describe the whole system of significations by which a society or a section of it understands itself and its relations with the world.” — Cairns & Richardson, Writing Ireland

What do you think? What is culture? What is it to you? What is it not? Post your response to these questions by 9 a.m. Friday (Jan. 22).

The Twilight Zone

I really enjoyed our discussion this afternoon; a great start to the semester. You brought up questions and ways of looking at their answers that were fresh and insightful. What were our basic questions? To summarize:

• What IS law? What is it supposed to do?
• How do social forces influence or even force change in the law?
• Can immoral law be valid and binding? (slavery)
• Does the law have to make moral claims?
• What is justice? Can law be unjust? (slavery) Can justice ever be unlawful?
• Were the LAPD officers beating Rodney King in fact “doing” law?

A few thoughts on these questions, and some clarity. What is law? The command of the sovereign backed by sanction. In the U.S. context, the sovereign is “We the people.” So in a way, we are obeying ourselves when we obey the law. This is a thin definition. A thicker one would have to include aspirations, and it would have to include morality. Law has a contingent but not necessary relationship to morality.

What is justice? We should think about this more deeply. Lindsay offered that it should include equal standing before the law. We might think of it as the proper treatment of other people, but we would then still need to define “proper” in this context. We also might consider three different kinds of justice:

• Distributive: Justice that distributes equally (or fairly) wealth, resources, divisible goods.
• Corrective: You agreed to give me $3,000 for my car, I gave you my car, I didn’t get $3,000. Corrective justice extracts that $3,000 from you or punishes you for not paying it (or both).
• Reciprocal: We both decide my car is worth $3,000. You give me $3,000; I give you my car.

By midnight Monday (Jan. 18), I’d like you to respond to a few things — your choice. First, Habermas‘s statement (and book title) that “the law exists between facts and norms,” a sort of twilight zone. Law isn’t fact, and it can only strive for norms, or seek to mirror them. What does this make the law, or how does this influence what the law can and cannot do?

Do you have to be convinced of the moral validity of the law before it merits your allegiance? Why or why not?

Why do you obey the law and, when and where you don’t, why don’t you? Walk us through your decision process and rationalization.

Is evil every right? Ooh, this is a great one. Platonic. Can you ward off evil with or by evil, and should you? These were questions salient during the Civil Rights Movement in America, and, if the U.S. financial sector doesn’t get its head out of its own ass, they might become salient again.

Finally, as you read the two cases I assigned (and the torture memos), really think about this question: What is the rule of law? When you hear this phrase, what does it mean to you? We (the United States) like to say that we live under “the rule of law.” Or, we are a society “of the law,” meaning the same thing, however vaguely. What do we mean? (Hint: It might have much to do with how we “constitute” ourselves, legally. The U.S. Constitution.)