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i think the most surreal moment after Citizen’s United was when the NYT published an editorial arguing that corporations had right to freedom of expression at all. mind you, this was an unsigned editorial and thus the voice of NYT Company, a corporation.

the government’s–and current Supreme Court nominee, Elena Kagan’s–position was that broad. no corporation had any speech rights. the statute had exceptions for the press, but the constitution did not.

Which if you follow that to its logical conclusion, means every single decision involving freedom of expression and a corporation was wrongly decided. For instance, take NYT v. Sullivan. The NYT won that one, but according to her, what the Sup. Ct. should have said was “the NYT is not covered by freedom of the press, so they lose.” Or the famous case in the People v. Larry Flynt. Contrary to the title of the movie, it was not the people who sued, but Jerry Fallwell. And it was not Flynt getting sued–at least not him alone, he might have been further down the caption. It was Hustler magazine, the corporation. That case said that it is not defamation to write a parody that states false facts, at least if you label it somewhere “parody” giving people fair warning. So I guess Kagan considered that wrongly decided, too?

Btw, on Kagan, my original take was this. For a basically conservative guy like me, Kagan was the best case scenario: a really, really unpersuasive liberal. But since then, I have come to think the woman is either slow, or faking slowness. Watch the now infamous clip where one of the senators asks if congress can force a person to eat vegetables. She doesn’t even seem to undersand there is a constitutional issue. I mean i don’t expect her necessarily to say she would strike that law down, but i do expect her to understand that there are reasonable theories of interpretation that need to be addressed. that is a matter of competancy. and she didn’t understand there was even an issue.

I have come to think she is a dim bulb, and for that reason i now oppose her nomination. yeah, she might still be good for my side, but the supreme court has to have intellectual standards, and she ain’t up to them.

i will add that the video games line in the editorial only adds to the contradiction. I am an avid player and i can say bluntly I can’t think of a single game made within 10 years that was a one person affair. it takes a villiage, if you will, to make Grand Theft Auto IV. The closest I can think of is a download-only title, called Joe Danger, which is actually supposed to be a pretty good game for the money. It was created by four people, and even then they incorporated to do it. Indeed, most games are the product of the efforts of at least two different corporations. Just watch the loading screens and they will run about 3-4 corporate cinematics. Like Marvel Ultimate Alliance will first have the Marvel cinematic, then I think the Raven Software cinematic, and finally the Activision cinematic. Then the game starts. Not to mention annoucements that a game uses the havoc engine, or dolby sound.

So to say that there should be freedomof speech for games is to say alot of corporations deserve freedom of speech.

Kagan understands there’s a constitutional issue on the eating-vegetables scenario, but understood that if she gave an honest answer, it would turn into a soundbite. See, for example, Bork, who was made to look like an idiot because he gave honest answers explaining the tortured equal-protection jurisprudence of the Supreme Court. By giving a muddy disingenuous answer, Kagan sufficiently confused the mainstream media into not reporting the degree to which she thinks the Constitution does not limit Congressional intervention.