Kincaid: Vegas Shootings Caused by The Pot »« Medical Fraud at the Cleveland Clinic

Dumbest Legal Argument Ever?

Paul Clement is widely considered one of the most brilliant constitutional attorneys in the country. The former Solicitor General under George W. Bush is revered for his legal skill even by those who think he’s wrong most of the time. But he may well have just made the dumbest legal argument I’ve heard offered by anyone not named Mat Staver, Larry Klayman or Orly Taitz.

The case is a suit filed against the city of Seattle over its recent adoption of an ordinance that will eventually push the minimum wage to $15 in that jurisdiction. The entire lawsuit isn’t frivolous; the part about treating franchises differently from other types of businesses is legally plausible. But one of the bases for the suit in the complaint is that it violates the First Amendment because every extra dollar a company has to spend on wages is a dollar it can’t spend on advertising:

166. The First Amendment to the U.S. Constitution provides in part that “Congress shall make no law … abridging the freedom of speech … or the right of the people to peaceably assemble ….”

167. The First Amendment applies to state action through the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.

168. The First Amendment protects commercial speech and freedom of association.

169. Commercial speech “is a form of expression protected by the Free Speech Clause of the First Amendment,” and
the Ordinance will curtail franchisee commercial speech in at least three important respects. First, by increasing the labor costs of franchisees, the Ordinance will reduce the ability of franchisees to dedicate funding to the promotion of their businesses and brands. Second, the increased labor costs the Ordinance mandates may cause some franchisees to shut their doors, reducing the amount of relevant commercial speech they engage in to zero. Third, and relatedly, the Ordinance will likely cause potential franchisees to forgo purchasing a franchise because of the associated higher operation costs, again eliminating all associated speech.

Wow. That is spectacularly stupid. If a first year law student made an argument that dumb in a con law class, they might well get thrown out on sheer principle. By this “reasoning,” every single government policy that increased a company’s costs in any way whatsoever would violate the First Amendment, including child labor laws and laws against dumping toxic waste into a river or lake. Ordinarily, one would assume that a complaint that contained a claim that idiotic was written by someone in prison and representing themselves, not the foremost appellate advocate in the country. You can read the full complaint here.

Comments

  1. says

    Ed, here’s a thought. Create a page, on which is a numbered list of dumb lawyers or presumed lawyers. Call it the Brayton Scale. Then, when you want to write something like “dumbest legal argument I’ve heard offered by anyone not named”, you can instead describe it as “a 6.3 on the Brayton Scale.” Think of the time you’d save!

  2. robertfoster says

    Does this mean I don’t have to pay taxes anymore? My combined Federal, state, county and sales taxes come in at about 35% of my gross salary. Let me tell you, this is just stifling my right to free speech.

  3. dingojack says

    Every dollar Paul Clement does not give to me is a dollar I can’t spend saying what a moron Paul Clement is.
    Therefore, Paul Clement I demand you stop infringing on my 1st amendment rights and pay me $75000 p.a (along with every other person who demands this kind of payment, naturally).
    @@
    Dingo

  4. Snoof says

    Here we have it: proof positive that certain segments of the US population think that money is identical to speech.

  5. says

    By this “reasoning,” every single government policy that increased a company’s costs in any way whatsoever would violate the First Amendment, including child labor laws and laws against dumping toxic waste into a river or lake.

    Year 2018: “A 5-4 decision by the Supreme Court today narrowly upheld currentl tax, labor and environmental laws…”

  6. colnago80 says

    Re #6

    Actually, now that I think of it, it was DOMA that Clement didn’t do too well defending.

  7. Trebuchet says

    Here we have it: proof positive that certain segments of the US population think that money is identical to speech.

    Certain segments including the Supreme Court, in the Citizens United decision.

  8. dingojack says

    Rent? How dare you infringe on my 1st Amendment rights!
    Parking fine? How dare you infringe on my 1st Amendment rights!
    Electric bill? How dare you infringe on my 1st Amendment rights!
    What, you actually expect me to pay for goods from your shop? How dare you infringe on my 1st Amendment rights!
    .
    .
    .
    National Debt? How dare you infringe on my 1st Amendment rights!

    Wheee – what fun! Finally, a cashless society.

    Dingo

  9. dukeofomnium says

    They’d be better off going back to the legal doctrine of freedom to contract, which stated that states could not abridge the rights of workers to accept any number of detrimental working conditions at their workplace. Employers thwarted overtime and minimum wage laws for years under this doctrine.

  10. Pierce R. Butler says

    The case is a suit filed against the city of Seattle over its recent adoption of an ordinance that will eventually push the minimum wage to $15 in that jurisdiction.

    On whose behalf? Unless Clement operates a franchise or operates a business in Seattle which pays its employees minimum wage, he can’t file this suit pro se, but has to have a client who can claim damages.

    Perhaps he represents one or more advertising agencies or venues?

  11. Randomfactor says

    Wait until he doubles down and files an addendum that taxes, minimum wage laws, etc. prevent McDonald’s from exercising their SECOND Amendment laws.

    Because obviously if corporations can have protected speech, and religious beliefs (maybe…fingers uncrossed) they have to have the right to PROTECT those rights from government infringement, right?

  12. says

    But one of the bases for the suit in the complaint is that it violates the First Amendment because every extra dollar a company has to spend on wages is a dollar it can’t spend on advertising.

    Hey, the argument worked when the subject was political advertising.

  13. whheydt says

    This strikes me as a brilliant lawyer attempting to defend the indefensible. Much like those trying to defend anti-SSM laws (which–as noted–Clement also did), he’s reduced to “pound on the table” arguments.

  14. grumpyoldfart says

    Corporate lawyers are paid for one thing only – to examine new laws and then find a loophole which allows the corporation to circumvent that law.

  15. says

    I’m sure he isn’t relying on the argument, but rather is hoping to win in the strength of his other arguments. This is probably only in there in the hopes that it will be an argument attached to a winning case, and can start to bios the basis of later arguments to dismantle pretty much all the regulations Ed mentioned.

  16. Moggie says

    Also, the second amendment. Every dollar a JOB CREATOR has to spend on wages is a dollar they can’t spend on GUNS and FREEDOM.

  17. says

    By this “reasoning,” every single government policy that increased a company’s costs in any way whatsoever would violate the First Amendment, including child labor laws and laws against dumping toxic waste into a river or lake.

    I think that’s the point of including the argument in this case. If they can get it in here, then they can use it to challenge all regulation. Don’t ever forget what the ultimate goal is — a Randian paradise where the marketplace governs everything and there are no regulations.

  18. Larry Kearney says

    Sigh. Seriously, autocorrect? Bios?

    Evidently, somnus, you haven’t installed the browser plug-in, “Type What I Meant, Damn it!”. Trust me. It can save you from any number of really embarrassing posts.

  19. laplanck says

    I would be very careful about just assuming this is a stupid argument that would get a first-year law student laughed out of class. This is a test case in an effort to get all sorts of business regulations thrown out the door on the grounds that money equals speech, so dictating how a business spends its money is an impermissible restriction on speech.

    And as much as we all want to point out that money isn’t speech, and that this argument is laughable, the truth is that (at least for some purposes) the Supreme Court has held money is speech. Clement is trying to expand that category, and we should be worried, not laughing him out of the room.

  20. says

    “By this “reasoning,” every single government policy that increased a company’s costs in any way whatsoever would violate the First”

    Is feature, Ed, not bug.

  21. rabbitscribe says

    Gonzales v. Raich: growing your own dope and smoking it is interstate commerce because if you didn’t do that you might instead buy dope from another state. Just sayin’ …

  22. sawells says

    The argument would have been dumb until Citizens United. Now, it’s not dumb – it’s evil.

  23. lorn says

    Money equals free speech so higher minimum wages = restraint of speech. It strikes me as weak.

    They might try: Corporations are people, corporations gain happiness by watching employees suffer. The primary method of inflicting suffering is keeping wages low —> raising minimum wage interferes with corporate pursuit of happiness.

    I can see Roberts and Thomas going for that logic after a few shots of tequila.

  24. D. C. Sessions says

    Roberts is very fond of slipping little details like this into decisions where they don’t make any difference, and then coming back a while later in an unrelated case and citing them as precedent to make radical rulings seem to have prior basis.

    Or, in other words, the fix may be in.

  25. fmitchell says

    Under Citizen’s United, money is speech now.

    Soon, money will be the only valid form of speech. Dollars will become votes, and net wealth will determine who may speak. All amendments and laws related to “protected speech” and “free speech” will be retroactively redefined as laws about money. “Congress shall make no law … abridging the freedom of money.”

    This comment has been brought to you by StrexCorp Synernists Inc. StrexCorp: Get To Work.

  26. says

    By paying low wages and refusing to increase the minimum wages, corporations are conspiring to violate the 1st amendment rights of their employees.

    Or does it not work in reverse? Is money only speech if you’re rich or a corporation?

  27. kraut says

    “Dollars will become votes, and net wealth will determine who may speak”

    I thought that was a given – at present.

Leave a Reply