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Prometheus is the Titan god of ancient Greece characterized by forethought. He was credited with stealing fire from the most hoity-toity of the gods and then gifting it to humanity as a cornerstone for civilization. The United States Supreme Court’s unanimous decision was published on April Fool’s Day. It rejected the chief cornerstone for our constitutionally grounded democratic republic in the Prometheus case, a case challenging a recent Federal Communications Commission decision ditching the ownership rules originally intended to elevate the public discourse.
By unanimously discounting the refiner’s fire of viewpoint diversity, the Court has once again brought attention to its lack of intellectual rigor; for it ignores the declaration of intent, the value proposition, the mission statement, and the cardinal precepts of The United States Constitution as they were so carefully delineated in the Preamble. That front matter is, arguably, the spirit of the law. The Court’s perception problem is really one of clear discernment by an increasingly honked-off public.
While Kavanaugh referred to Section 706(2)(A) of the Administrative Procedure Act, the APA, he was highly selective in the actual treatment of the way the court had arrived at its conclusion. The APA instructs courts reviewing regulation to invalidate any agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The arbitrary-or- capricious test is used by judges when reviewing the factual basis for agency rule-making. Courts can overturn agency rules if they find the underlying rationale or factual assertions to be unreasonable.
In the Prometheus case, the hop-skippety-jump logic of the FCC, that was focused exclusively on gender and race diversity while ignoring the more general diversity of viewpoint factors, is clearly problematic. We are blessed with two eyes and two ears precisely because of the value of such diversity and the way it favors depth of perception. And, once we move beyond the excessively prominent head cases, there is value to considering the viewpoint of our fellow citizens as we move to form a more perfect union.
Kavanaugh wrote: “A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision.” The Supreme Court, throughout its history, has steadily contracted this “zone of reasonableness” in ways that run well afoul of constitutional imperatives with respect to our nation’s movement towards a more perfect union. As the framers worked meticulously to dovetail the “consent of the governed” phrasing contained within the Declaration of Independence, to that of a “We the People” initiative as reflected in the Preamble to the United States Constitution, the Justices have again “strained at gnats while swallowing camels.”
In other areas of law, consent must be properly informed. The incoherent reasoning of the Supreme Court in this case has shown its contempt for democracy and favored the prevarications of autocratic wannabes. We have seen the rise of a fictitious corporate personhood in tandem with the demise of the fairness doctrine. Our so-called independent judiciary has exhibited a high tolerance for dark money in its own nominations, confirmations, and accommodations. Is there any linkage between such covert bribery and the First Amendment hits our country has sustained through the more recent attacks attacks on net-neutrality and the ownership rules?
As we labor to make our democracy more authentic, to what extent will we tolerate deceptive practices by those occupying positions of honor and trust? When judges, masquerading as originalists and textualists, segment the constitution in such a way as to render it devoid of context, is that a deceptive practice? When legislators stand before cameras to convince the public that a bill contains something other than what it really spelled out, is that a deceptive practice? When executives selectively amplify, filter, and contextualize facts, is that a deceptive practice?
Judges operate in an arena where facts are facts and alternative facts are perjury. And yet, they seem to be entirely ok with political candidates that secure prestigious positions through perpetrating a fraud on the public. They appear to be equally sanguine when elected representatives actively deceive the electorate while holding office.
The Prometheus case is about preventing a concentration of media power within individual markets. The SCOTUS decision advances the kind of monopoly power that autocracies favor and democracies do not. As the justices work deliberately to distract us from noticing just how very far they have strayed from constitutional imperatives, their own systematized delusions, with respect to corporate personhood, proceed unabated.
What our country’s founders called “foreign potentates,” are often the ones in control of the so-called corporate persons. The addled Supremes have clearly demonstrated they lack the forethought long ago attributed to Prometheus. The court has, in effect and actual fact, converted what Marshall McLuhan once described as a “whirlpool of information” into a cesspool of disinformation.