The Charlie Kirk Thread

[ZenMode]

Ooo, man. Then you are fugly.

 

[superrific]

Jimmy absolutely has standing under existing precedent to bring suit against any government officials who coerced ABC into kicking him off the air for violation of his first amendment rights

All right, fair enough. I shouldn't put it in terms of standing. Point is, he's not going to be able to prove coercion. Pressure isn't enough for him to win on a First Am theory, I don't think.

To analogize to NRA v Vullo, the NRA is like Kimmel -- the victim of a governmental attempt to enforce certain viewpoints. ABC would be like the banks/financial institutions in the NRA case. ABC can sue when it alleges pressure, just like Harvard. So could the banks sue the state to prevent the selective enforcement. But the NRA has to successfully allege that the banks were in fact influenced by the government's campaign. It was not hard to allege, though, because the state agency wrote it down. It agreed with Lloyd's, in writing, that it would overlook technical violations of law if Lloyd's stopped doing business with gun groups.

So the NRA won that case because they had evidence. But I very much doubt Trump's people put anything in writing. They might not even have spoken about it. Rather, the threat might have been implied. Carr says "this might affect licensing decisions" and Nexstar says, "well, we're fucked in our merger if we don't do this." But Kimmel has to prove that Nexstar was actually so influenced. Maybe they could, but based on what it seems right now, I'm not sure that would really be possible. How do you produce evidence that Nexstar was thinking about its merger prospects when thinking about Jimmy? They aren't going to cop to it, because that would a) basically be admitting to corruption, bribing officials for favorable antitrust treatment; and b) earn the wrath they are trying to avoid.

That's how I see it, anyway. Kimmel would win if Carr sent Nexstar an email saying, "cancel Jimmy or you're going to have trouble at your merger hearing" and Nexstar emailed back, "understood, sir." But absent that sort of thing, I think the burden of proof will be extremely difficult to meet.

I phrased it in terms of standing because the idea is that Kimmel isn't positioned in the best way to sue. The best party to sue would be ABC. All they have to allege is pressure. Kimmel is differently situated. Obviously that's a concept that often sounds in standing (or maybe we should say standing often turns on different situations), but conceptually it's separate and in this case, the language of standing doesn't precisely pair with the actual legal theory.

I'm kind of irritated with myself for writing that, because the casual use of the concept/terminology of standing is something that irritates me about state courts. Not exclusively state courts, and maybe not all state courts, but state courts are, in my experience, more likely to write something like, "a party who comes to the court with unclean hands lacks standing to seek a remedy in equity." That's not really what standing means. And there's no reason to write it like that. Except maybe your brain turns to mush, as mine apparently did this evening, when you turn 50.

 

[superrific]

You cannot restore virtue by abandoning virtue. It does not work. It is impossible. You will find no example in history where it worked. Please stop looking at this as the way forward. I know why you are thinking this way. But Ii is not the way forward and it will never be. You cannot out-fascist the fascists.

This is a much, much deeper conversation which requires a lot of defining of terms and precision in analysis. I'll just offer a couple of thoughts.

1. Germany made the Nazi party illegal. That's restoring virtue by abandoning it. That is, they managed to create the conditions for free speech, but only after they violated free speech norms to do it. Habermas spent fifteen years or so trying to justify it per the traditions of German philosophy.

By analogy, we could make MAGA illegal. Once upon a time, it was believed that if you let the Nazis march in Skokie they will reveal themselves to be asses and nobody will buy their philosophy. That empirical prediction has been proved false. You can think of the failure in a number of ways, but it has clearly failed.

The reason that it's hard to make MAGA illegal is that MAGA itself is so undefined. It's fealty to an malignant idiotic narcissist, basically. How could you write a law preventing that? You can write a law saying it's illegal to advocate white supremacy (i.e. the German anti-Nazi laws include this, I think), but how can you write, "you shall not show fealty to a leader if the fealty is too much or the leader too bad." It's precisely because we can't write this law that we would need other mechanisms.

But making the core offensive ideas in MAGA illegal to express? Well, how has it worked in Germany? Yes, the AfD has some weight to throw around, but our version controls the government. Whatever Germany has done on the anti-fascist front has worked better than ours.

2. The civil war was nothing but abandoning virtue to restore it -- or establish it, in the particular case of anti-slavery. It doesn't really matter for the analysis that SC seceded or was pushed out; that's like arguing that being fired is somehow meaningfully different than resigning under pressure. The point was that Lincoln wouldn't compromise to save the union. He (and collectively the north) thought it was worth it to go to war. I'm reciting history in two sentences so obviously I've sanded down a lot of detail, but am I wrong about the basic logic? Doesn't it go like this, logically?

South: "we care about slavery more than we care about the union."
North: "we care about slavery AND the union. Also, we want you to stop the slavery regardless. We're not OK with it happening in a different nation. No slavery in America."
South: Make us stop.
North: Challenge accepted.

And slavery was ended. The union was mended. The country became better off having fought the war.

 

[Calheel]

Jimmy absolutely has standing under existing precedent to bring suit against any government officials who coerced ABC into kicking him off the air for violation of his first amendment rights

And how do you think the Supreme Court would handle a civil claim against Trump arising out of his “official” duties?