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 published on April Fool’s Day, only exacerbates the judicial monastery’s “perception problem.” 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 in an embarrassing opinion authored by Justice Kavanaugh, 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.
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