Jan 12, 2013

Sotomayor on Thomas on Affirmative Action

Interesting discussions from Nina Totenberg’s interview of Justice Sotomayor about her new book.

“As much as I know Clarence, admire him and have grown to appreciate him,” she says, “I have never ever focused on the negative of things. I always look at the positive. And I know one thing: If affirmative action opened the doors for me at Princeton, once I got in, I did the work. I proved myself worthy. So, I don’t look at how the door opened.”

At Princeton, where she went to undergraduate school, there were fewer than 30 Latinos, she says, “but all of us had done spectacularly well in our high schools.” And while Sotomayor cannot explain why Thomas, the nation’s second African-American justice, feels so differently from her, she says, “I do know one thing about me: I don’t measure myself by others’ expectations or let others define my worth.”

It was only when she was close to graduating from Yale Law School several years later that she encountered the kind of stereotyping that Justice Thomas has often written about. At a recruiting dinner, a partner in a large Washington, D.C., firm looked at her and asked, “Did you get into Yale only because you are Puerto Rican?”

She was stunned.

“It took me aback to think that someone was actually looking at me that way,” she says, noting that the man apparently knew nothing about her academic successes.

“Now that’s the price of affirmative action that Clarence Thomas talks about … and it’s one that can lead to the sense that the benefits might be outweighed by the negative impressions it leaves. But that was my first moment experiencing that kind of overt discrimination.”

And, because I was told that Sotomayor’s book could not be summarized in Hakiu form:
[tweet https://twitter.com/JoshMBlackman/status/290264682042900480]

H/T Michelle Olsen

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Jan 12, 2013

Wait a minute. So a nonprofit organization that fights AIDS has First Amendment rights?

Maybe I’m missing something here.  The case of  Agency for International Development v. Alliance for Open Society International, Inc. presents the question whether a statute that “requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.”

The full name of the party in this case is ALLIANCE FOR OPEN SOCIETY INTERNATIONAL INC.

Inc. stands for incorporation. That is, this group is a corporation.

Since when do corporations have First Amendment rights?

The Second Circuit’s opinion makes no mention of the most obvious precedent on point–Citizens United.

The Second Circuit’s opinion does address associational standing:

Because [**7]GHC and InterAction are suing on behalf of their members, each must establish associational standing by demonstrating that (a) at least one of the association’s members would otherwise have standing to sue in its own right — i.e., has constitutional standing; (b) the interests the association seeks to protect are germane to its purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm’n,432 U.S. 333342-4397 S.Ct. 243453 L.Ed.2d 383 (1977). The district court held that Plaintiffs had established standing. As explained below, we conclude that the district court was correct.

But this misses the question. As I understand it, the relevant statute applies directly to the organization seeking funding, not individuals. From the SG’s petition for cert:

Pursuant to the Leadership Act, the United States has provided billions of dollars to nongovernmental organizations so that they can assist in the fight against the HIV/AIDS epidemic overseas. See 22 U.S.C. 2151b-2(c), 7671 (2006 & Supp. IV 2010). In order to ensure that those funds are spent consistently with the Act’s objectives, Congress has placed two limitations on the use of those funds. First, 22 U.S.C. 7631(e) provides that no funds made available under the Act “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.” Second, 22 U.S.C. 7631(f)—the provision at issue in this case—provides that no funds made available under the Act “may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” That statutory restriction does not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria; the World Health Organization; the International AIDS Vaccine Initiative; or to any United Nations agency. See ibid

Could Citizens United have been brought on behalf of members of the group of had standing? Or, is it simply the fact that people who choose to speak through entities such as a corporation do not lose their rights.

Am I missing something?

This is why I never thought the idea of corporate personhood was so strange. For years the courts have considered alternate businesses structures as having First Amendment rights. As Justice Alito mentioned, the Pentagon Papers case could not have been decided unless the Court understood that the Times had First Amendment rights. Of course, some may hang their hats on the Press Clause.

But that won’t help the nonprofit in this case. They decidedly need to rely on the First Amendment speech clause for the rights of a corporation to speak.

Update: It would be interesting to do a search of all Supreme Court cases where corporations were the Plaintiffs, and they argued on behalf of various constitutional rights (New York Times and other newspapers come to mind, as does Planned Parenthood).


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