'The First Time a Tumblr Has Been Used in an Argument in a Supreme Court Brief'

"Amicus Tumblr" has a certain ring to it, no?
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The Supreme Court, as it appears today, under construction (Charlie Loyd)

On October 8, the Supreme Court will hear arguments in McCutcheon v. Federal Election Commission. The case centers on whether aggregate limits on donations to campaigns are constitutional, an extension of the legal logic behind the infamous Citizens United decision.

Before the Court hears arguments, though, the justices will have already consulted something unique: A legal document predicated on a Tumblr. According to Lawrence Lessig, the Harvard Law professor filing the brief, it’s the first time a Tumblr has been used in a Supreme Court filing.

On his own Tumblr this morning, Lessig (who’s also a contributor to The Atlantic) explained the reasoning:

The basic argument of the brief is that the Framers of the Constitution used the word “corruption” in a different, more inclusive way, than we do today. The Tumblr captures 325 such uses collected from the framing context, and tags to help demonstrate this more inclusive meaning. 

The upshot of the collection is that the Framers meant more by “corruption” than simple “quid pro quo” (this for that) corruption. In particular, their main focus (or most common usage) was institutional corruption. And one prominent example of the institutional corruption they were concerned about was an institution developing an improper dependence. Like — to pick just one totally random example — a Congress developing a dependence upon its funders, rather than the dependence the framers intended — “on the People alone.”

The Tumblr is already online (at ocorruption.tumblr.com), and its sidebar promises to “[collect] every use of the term ‘corruption’ among the records of the Framers.” Every entry consists of the name of one of the founders, a date, a block quote with all usages of corruption in bold, and a source. On July 25, 1788, for instance, James Iredell pronounced to North Carolina’s Constitutional Convention that the King of England:

has the disposal of almost all offices in the kingdom, commands the army and navy, is head of the church, and has the means of corrupting a large proportion of the representatives of the people, who form the third branch of the legislature.

The emphasis there is Lessig’s. The reader can decide what kind of corruption is intended: the tit for tat type, or the deeper dependence Lessig alleges.

It’s fitting that a brief should rest upon a Tumblr, because many of the social network’s mechanisms are quasi-scholarly. The service limits users to certain post types, and one of these is a “Quote” post. By design the quote post encourages the user to annotate someone else’s words. (Many scholars use Tumblr just to highlight and preserve interesting passages of their own reading.) It’s this “quote” feature that Lessig’s “ocorruption” Tumblr uses.

Tumblr also encourages reblogging among its users: Users can take others’s words, roll them into a blockquote, and add their own thoughts at the end. Tumblr’s whole design ethos and structure may be a kind of intentional synecdoche for how discourse — scholarly, legal, hypertextual — works.

By sheer accretion, a blog can catalog a style, unfold a worldview, or make a point. Proponents of the form have long argued this idea. Tumblr, as a basic sort of blog, a blogging lite, may allow for a more discrete, focused argument. Unlike other popular social networks, Tumblr allows users to operate more than one blog from their username. A single user can access his or her quote blog, dogs-in-bikinis blog, and legal-framings-of-a-single-term blog from one dashboard.

Legally, Lessig’s blog is making an originalist argument, the kind normally associated with conservative justices. Lessig alleges the Constitution’s framers intended a wide meaning when they used corruption, and therefore limits on certain kinds of possible corruption are constitutional. How wise is that from a legal standpoint? Writing at Scotusblog in August, Adam Winkler thought it failed to fill a legal lacuna:

In McCutcheon, one question that remains unanswered by the history briefs [like Lessig’s] is whether the Framers believed it was constitutionally permissible to combat what they saw as corruption through limitations on First Amendment speech and association. It wouldn’t be surprising to see Justice Scalia write an opinion agreeing with the briefs that the Framers had a broad view of political corruption yet insisting that such corruption was remedied by the Constitution in general and the First Amendment in particular. 

So Lessig’s brief may make a successful argument unto itself, but only cover some of the ground he hopes hopes it will. Still, Lessig’s amicus brief is online and unusually readable, and on Thursday, he and Senator Elizabeth Warren will discuss it at the Constitutional Accountability Center. And part of the pleasure of this to me, frankly, is seeing dot tumblr dot com in the staid, knobby serifs of American legal typography:

Amicus briefs — one meaning of friends in discourse — integrated with the digital world, where friends means something discursively quite different. Or, to quote one of my Twitter friends:

 

 

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Robinson Meyer is an associate editor at The Atlantic, where he covers technology.

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