How would a rape/incest exception be implemented?

[Wiglaf]

What?

[kentonio]

What's your next rebuttal going to be, a monologue from Karl Rove?

[Wiglaf]

You're the one who quoted Toobin, who is as big a tool as any. Thanks for not responding to the argument, though, and proving you're just a brainless hack.

[DaShi]

Wiggy, stop sniffing glue.

[Wiglaf]

I'll quote it again, since it is indeed an epic takedown of Toobin:

Toobin's effort does not end with the initial scene setting. Proceeding to oral argument, Toobin suggests that Ted Olson, counsel for Citizens United, urged the Court to avoid the First Amendment question altogether:

In response to Souter’s questions, Olson made a key point about how he thought the case should be resolved. In his view, the prohibitions in McCain-Feingold applied only to television commercials, not to ninety-minute documentaries. “This sort of communication was not something that Congress intended to prohibit,” Olson said. This view made the case even more straightforward. Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case. Olson simply sought a judgment that McCain-Feingold did not apply to documentaries shown through video on demand.

Again, to anyone familiar with the case, this description of Olson's argument does not pass the laugh test. Far from minimizing the case's constitutional stakes, Ted Olson and Citizens United made the First Amendment the centerpiece of their opening brief. In the very title of the lead argument, Olson's brief argued that McCain-Feingold's corporate campaign speech restriction "IS UNCONSTITUTIONAL AS APPLIED TO THE DISTRIBUTION OF CITIZENS UNITED’S DOCUMENTARY FILM THROUGH VIDEO ON DEMAND."

And Olson's reply brief reiterated this point: "As applied to Video On Demand dissemination of Hillary: The Movie, BCRA’s criminalization of election-related debate plainly exceeds Congress’s sharply limited authority to abridge the freedom of speech."

Full story: http://www.weeklystandard.com/print/...93.html?page=2

[Wiglaf]

In the face of the briefs, Toobin attempts to advance his own narrative by selectively quoting from Olson's oral argument, and omitting Olson's comments that disprove Toobin's point. Take, for example, Toobin's account of an exchange between Olson and Justice Scalia, which ends with Toobin paraphrasing—but not quoting—Olson's final rejoinder:

Scalia was disappointed by the limited nature of Olson’s claim.

“So you’re making a statutory argument now?” Scalia said.

“I’m making a—” Olson began.

“You’re saying this isn’t covered by it,” Scalia continued.

That’s right, Olson responded.

But that's not right—that's not how Olson actually responded to Scalia's question.

Olson did not argue that the Supreme Court could decide the case on strictly statutory grounds, avoiding the First Amendment question. Rather, Olson argued that the First Amendment prohibits Congress from regulating Citizens United's political speech, and that one way to protect Citizens United's First Amendment right would be to re-interpret the statute to exempt Citizens United. Toobin knows this, because Olson's explanation came immediately after the lines that Toobin quotes:

JUSTICE SCALIA: So you're making a statutory argument now?

MR. OLSON: I'm making a—

JUSTICE SCALIA: You're saying that this isn't covered by it.

MR. OLSON: Yes, I am making a statutory argument in the sense that you will construe the statute in the ways that doesn't violate the Constitution. The Constitution, as—as the Court said in Wisconsin Right to Life [v. FEC], gives ties to the speaker, errs on the side of permitting the speech, not prohibiting the speech. And so all those things may be statutory arguments, Justice Scalia, but they are also constitutional arguments.

It is impossible to reconcile Olson's closing point with Toobin's description of Olson's argument: namely, that "Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case." Confronted with a choice between quoting Olson's full remarks, and advancing his own anti-Roberts narrative, Toobin chose the latter.

[DaShi]

Toobin is a national hero!

[Wiglaf]

“As a lifelong member of the Columbia Business School community, I adhere to the principles of truth, integrity, and respect. I will not lie, cheat, steal, or tolerate those who do.”

You are a disgrace to Columbia Business School for tolerating Jeffrey Toobin.

[DaShi]

Stop being jealous.

[kentonio]

You're the one who quoted Toobin, who is as big a tool as any. Thanks for not responding to the argument, though, and proving you're just a brainless hack.

I scarcely thought it worth the effort. Olsen clearly stated that the current law didn't apply to his video on demand movie and therefore that applying it in that case would be unconstitutional. Picking out the word 'unconstitutional' and going 'See he wanted to change the law!' is pretty retarded.

The parts you'll want to concentrate on are..

As applied to Video On Demand dissemination

..and..

AS APPLIED TO THE DISTRIBUTION OF CITIZENS UNITED’S DOCUMENTARY FILM THROUGH VIDEO ON DEMAND.

[Wiglaf]

Yes, that is called an "as applied" challenge arguing that the law is unconstitutional, precluding enforcement in some cases.

It says nothing about the broader First Amendment implications of the law, which Olson also brought up and Toobin ignored.