Speech and Money Followup: Action-Effect distinctions lost on Supreme Court

Basically, in Arizona Free Enterprise Club's Freedome Club PAC v. Bennett the Supreme Court majority opinion makes a truly disturbing error.  They argue that the right to free speech is not one of action (you can say what you want) but rather efficacy (actions limiting the efficacy of your speech towards its goals are apparently problematic).  In other words, not by censorship, but merely by providing content-neutral funding for competing opinions, the government can be considered to be impeding free speech.  Elena Kagan hits the nail on the head in her dissenting opinion (second half of the linked opinion).  Here's her most terse description of the perceived problem.

According to the Court, the
special problem here lies in Arizona’s matching funds
mechanism, which the majority claims imposes a “sub-
stantia[l] burde[n]” on a privately funded candidate’s
speech. Ante, at 2. Sometimes, the majority suggests that
this “burden” lies in the way the mechanism “ ‘diminish[es]
the effectiveness’ ” of the privately funded candidate’s
expression by enabling his opponent to respond. Ante, at
10 (quoting Davis v. Federal Election Comm’n, 554 U. S.
724, 736 (2008)); see ante, at 21–22. At other times, the
majority indicates that the “burden” resides in the deter-
rent effect of the mechanism: The privately funded candi-
date “might not spend money” because doing so will trig-
ger matching funds. Ante, at 20. Either way, the majority
is wrong to see a substantial burden on expression.

Just a quick gloss: the worry is that the possibility that their opponents might be able to say something about their speech is what the Majority worries will discourage that speech.  And here is her most effective analysis of the error of the Majority Opinion.

Most important, and as just suggested, the very notion
that additional speech constitutes a “burden” is odd and
unsettling. Here is a simple fact: Arizona imposes nothing
remotely resembling a coercive penalty on privately
funded candidates. The State does not jail them, fine
them, or subject them to any kind of lesser disability. (So
the majority’s analogies to a fine on speech, ante, at 19, 28,
are inapposite.) The only “burden” in this case comes from
the grant of a subsidy to another person, and the opportu-
nity that subsidy allows for responsive speech. But that
means the majority cannot get out from under our subsidy
precedents. Once again: We have never, not once, under-
stood a viewpoint-neutral subsidy given to one speaker to
constitute a First Amendment burden on another. (And
that is so even when the subsidy is not open to all, as it is
here.) Yet in this case, the majority says that the prospect
of more speech—responsive speech, competitive speech,
the kind of speech that drives public debate—counts as a
constitutional injury. That concept, for all the reasons
previously given, is “wholly foreign to the First Amend-
ment.” Buckley, 424 U. S., at 49.

The Plutocracy co-opts the Supreme Court for Bad

I've taken up reading supreme court decisions on matters I find interesting.  Here's a particularly fraught one showing how even our highest courts can make mistakes, and still have lots of right people on them.  This particular case discusses the rights of companies to restrict individuals from seeking class arbitration.  When I first saw the headline on slashdot I knew I was going to get angry about this one, and boy was I right.  The Argument:

 Some people have a dispute with AT&T.  They had to pay sales tax on ostensibly free phones, so they claimed a dispute and according to the AT&T service contracts were forced to subject themselves to third party arbitration.  However, AT&Ts contract additionally stipulates that they may not be rolled into a class arbitration.  In other words, every arbitration with AT&T must be one wronged party v. AT&T.  Clearly this is in AT&Ts favor as they can go about intimidating, avoiding, and inconveniencing the majority of claimants out of bothering to pursue arbitration.  They are assisted in this endeavor by piles of legalese, and also by the small size of each individual claim ($30 in this case).  The state of California in its wisdom wrote a law invalidating such clauses precisely because they allow a large company to defraud large numbers of people out of small amounts of money without much chance of ever getting in trouble for it.

The Ruling:

The 5 justices that made this ridiculous ruling seem to have based it on the idea that California's law goes against the FAA.  Their ruling is in the first link of this post.  It says that the FAA allows state laws to supersede it only if they are consistent with the intent of the bill (which is to put arbitration agreements on the same footing as all other contracts).  They basically say that since California's law specifically targets arbitration agreements it is contrary to the intent of the FAA and therefore it is not upheld.  They are all wrong.

The 4 justices who dissented in this one have it exactly right in my view.  They are in the second half of the first link of this post.  Basically they say: If you have to hire a lawyer to file a claim, or even spend a lot of time and effort or have any sort of expertise, and the amount of money in question is small, then no one will ever file claim, and the bad company will get away with its bad practices forever.  This is obvious.  They also point out a delicious and hilarious number of flaws in the majority opinion.  This rather undermines their final words: With respect, I dissent.