SCOTUS Nominee Kagan On Free Speech Issues 664
DesScorp submitted one of a few stories I've seen about Supreme Court nominee Elena Kagan, whose confirmation hearings are supposed to start today (despite being a formality, given that she has the votes pretty much locked up). "SCOTUS nominee Elena Kagan hasn't left much of a paper trail during her legal career, which may make gauging her ideas and opinions somewhat difficult. But there are some positions she has made clear statements on, among them, pornography and 'hate speech.' In a 1993 University of Chicago seminar on the subject, Kagan argued that the government wasn't doing enough about the spread of porn or hate speech. She argued that new approaches were needed to fight their spread, as well as taking a fresh look at old approaches, such as obscenity laws. Kagan included herself among 'those of us who favor some form of pornography and hate speech regulation,' and told participants that 'a great deal can be done very usefully' to crack down on such evils."
While it is still legal to say so... (Score:5, Funny)
Dear Kagan, I hate you.
SCOTUS has too much power (Score:3, Informative)
Re:SCOTUS has too much power (Score:4, Insightful)
Courts have made policy decisions since time immemorial. When laws are ambiguous, somebody needs to decide what the fuck is supposed to happen, and those people are called "judges". People whining about "legislating from the bench" are invariably people without legal backgrounds (or deliberately hypocritical politicians, but then I repeat myself).
Re:SCOTUS has too much power (Score:5, Interesting)
Re: (Score:3, Insightful)
AND often when they make policy, they will layout how the legislative body can change the law if they don't like the outcome. Sometimes they decide on a constitutional ground, but even then they might say something like, "if the legislature had done this... it would have been acceptable."
Re:SCOTUS has too much power (Score:5, Interesting)
People whining about "legislating from the bench" are invariably people without legal backgrounds (or deliberately hypocritical politicians, but then I repeat myself).
Cute generalization there. That group also happens to include people who are concerned about the courts abusing their powers. For example, the classic case is Roe v. Wade [wikipedia.org] where abortion was made legal over the entire US. From Wikipedia:
In Section X, the Court explained that the trimester of pregnancy is relevant to the weight of the factors in this balancing test. Thus, during the first trimester, the state cannot restrict a woman's right to an abortion in any way; during the second trimester, the state may only regulate the abortion procedure "in ways that are reasonably related to maternal health"; during the third trimester, the state can choose to restrict or proscribe abortion as it sees fit when the fetus is viable ("except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother").
The Court could have merely struck down the Texas law without claiming a right to abortion based on a trimester system. In my view, they went beyond their legal power in doing so. It is legitimate for them to declare anti-abortion laws to be unconstitutional. It's not legitimate for them to work out the details of valid abortion laws. That's what Congress does. For an example, which I don't think crosses the line, is Miranda v. Arizona [wikipedia.org]. Here, the court states a requirement (the arresting officer has to inform the suspect of their rights) to be done at the arrest of a person. They don't say exactly what the wording of this statement should be (it turns out that the court's own words were used with slight modifications) and there's apparently a number of changes made to this statement. That's an aggressive court, but it stayed out of the legislative side.
SCOTUS is different (Score:5, Interesting)
Courts have made policy decisions since time immemorial. When laws are ambiguous, somebody needs to decide what the fuck is supposed to happen, and those people are called "judges".
Not in the US legal system, at least not at the Federal High Court level. The three branches were designed not only to have their powers limited, but the scope of their duties as well. John Roberts is more right than wrong when he says a SCOTUS judge should be an umpire, calling balls and strikes. At SCOTUS, if you're doing anything other than declaring a law "Constitutional" or "Unconstitutional", then you're infringing on the duties of the Congress. In messy reality, sometimes they do it anyway, but the point is they're not supposed to under the design of the US federal government. Not even John Marshall... arguably the most influential SCOTUS judge in history... thought that the bench should be legislating. "Saying what the law is" doesn't not include making legislation. That's Congress' job.
Now, lower courts are a bit different in America. Judges there have more of a traditional English Common Law duty, including decreeing specific remedies to specific problems. But the Constitution clearly lays out the duties of the SCOTUS, and unlike other courts, their scope of action was created from the start to be limited, for the sake of keeping limited government, and in the views of the Founders, preventing too much power in any branch. "Limited Government" doesn't just mean that three sets of bodies are balanced in power... it also means that what they can do is also limited in the American model of government.
People whining about "legislating from the bench" are invariably people without legal backgrounds (or deliberately hypocritical politicians, but then I repeat myself).
You don't need a legal background to understand how the United States government was designed to work. A basic civics class will do. Perhaps you need a refresher on the American concept of "seperation of powers".
A misnomer (Score:5, Insightful)
Would that be the same John Roberts who, when given a court case about the narrow legality of a certain case involving campaign contributions, declined to give a simple balls-or-strikes vote and instead called for a new hearing to decide whether or not the entire law should be overturned? (Link. [wikipedia.org]) Whether or not you agree that the law was constitutional, you can't deny that this was an extraordinary step beyond the call of what the judges were asked to do. This is the problem that liberals have with your "umpire" analogy - that the people who call for judges to be umpires would not hesitate to advance their own ideologies if put on the court, same as everyone else.
Re: (Score:3, Insightful)
There's a system we have called common law, where judges actually do play an active (although very subdued) role in protecting the public good, flexibly interpreting law, and other uses of judgement. "Judicial activism" has been part of the system for longer than we've been a nation.
Re: (Score:3, Interesting)
There's a system we have called common law, where judges actually do play an active (although very subdued) role in protecting the public good, flexibly interpreting law, and other uses of judgement. "Judicial activism" has been part of the system for longer than we've been a nation.
Didn't think of that. I've been brought up in a society with civil law. Most nations [wikipedia.org] use it.
Porn? (Score:5, Funny)
Don't mess with porn, it's the only thing keeping some people sane.
Re:Porn? (Score:5, Insightful)
Don't mess with porn, it's the only thing keeping some people sane.
Pornography is regulated everywhere in the world; the lawmakers of various nations have mostly decided that bestiality, child porn, etc. are not to be allowed. In addition to the laws covering the actual pornographic content, there are laws regulating who you may sell pornography to, where, at what times, and under what circumstances.
So, the question is not "regulation?" but "how much regulation?".
Re:Porn? (Score:5, Insightful)
If you read the article, Kagen seems to think that the Government should have the power to outlaw the production of pornography altogether. Significantly more troubling is the fact that she thinks we need to prohibit "hate speech".
We should be looking for new approaches, devising new arguments,” Kagan declared, according to video of the event reviewed by POLITICO. She seemed to count herself among “those of us who favor some form of pornography and hate speech regulation” and told participants that “a great deal can be done very usefully” to crack down on such evils.
“Statutes may be crafted in ways that prohibit the worst of hate speech and pornography, language that goes to sexual violence. Such statutes may still be constitutional,” Kagan assured the meeting. She pressed for “new and harsher penalties against the kinds of violence against women that takes place in producing pornography, the use of pandering statutes and pimp statutes against pornographersperhaps the initiation—the enactment of new statutes prohibiting the hiring of women for commercial purposes to engage in sexual activities.”
So, we can outlaw the production of pornography (by making it illegal to pay actresses for performing in it) and whatever the Government deems to be "hate" speech. So much for the 1st amendment. So where's the outrage from the civil libertarians in the Democratic Party? Russ Feingold, I'm looking at you.....
Dictionary? (Score:4, Insightful)
Did you notice her use of the word "regulation"? If so, you need get a dictionary, because it does not mean the same thing as "ban".
Not that I'm with Kagan on this issue. But then, I'm an extremist: I feel the same way about the 1st amendment that Charlton Heston felt about the 2nd. But I know I'm an extremist, and respect more nuanced opinions.
And no, banning kiddie porn and hate speech (which I don't put in quotes: some text, such as "kill the niggers" is clearly hate speech) is not the first step down a slippery slope. People tend to see slippery slopes in every trend they don't like. They're actually pretty rare.
Re:Porn? (Score:5, Insightful)
Re:Porn? (Score:5, Insightful)
You'll do fine when the people who get to decide what is or is not a "meaningful purpose" are on your side but when the shoe is on the other foot it won't seem like such a good thing. Unfortunately at that point it will be too late.
Re: (Score:3, Insightful)
You are no civil libertarian if you deem a particular type of speech not to be 'legitimate'
Re:Porn? (Score:5, Funny)
From what I can tell (roughly) at least half of /. is civil libertarian, and at least half of /. is against spam. Therefore, by pidgeonhole principal, at least one person on /. is a hypocrite.
(OK, that was a complete and utter troll.)
Re:Porn? (Score:5, Insightful)
The problem is that we've gone too far in being accommodating of hate speech. And I say that as a legitimate civil libertarian.
No, you don't.
Re:Porn? (Score:5, Insightful)
Judging from your post, you are probably NOT a civil libertarian.
As a civil libertarian, free speech should be as unencumbered as humanly possible. Yes, where there a possiblilty of actual harm against an individual there should be a bit more vigilance, but for the most part it should completely unfettered. This means accepting people who say nasty and hateful things, which are, and should be, repugnant to the majority of Americans. This includes hate speech.
The only hate speech that we need to be mindful of is the type that is directly inciting violence against individuals or groups. Mind, I said "mindful of", not prohibit. There is a fuzzy line that we should be aware of. This goes with civil libertarian principles: the government exists to keep us from infringing on each others rights and causing harm to one another (i.e. to protect order), when there is no direct harm to another individual the government does NOT have the right to step in.
This is a balancing act. Yes, hate speech is harmful on a very broad level, but stepping on the freedom of speech is much MORE harmful. To reap the benefits of freedom, we often must live with lowest of human nature. Its a trade-off, and a worthy one.
These are not people engaging in legitimate free speech...
What is "legitimate free speech?", is it speech that you agree with? I'm not sure I know the definition of this, and it sure as hell isn't contained in the phrase.
The problem is who defines "legitimate speech"? I don't trust government enough to really be able to say much more than "pretty much everything is covered by free speech". I especially don't trust the government (any government) to be able to dictate speech about the government. Another problem with the idea of "legitimate speech" is that it borders on enforcing thought crime laws. Is it illegal to hate a group of people, even if you never actually act on it (outside of, perhaps, words)?
Also, to stretch this reply a bit overlong, one of the great things about American politics is the spirit raucous debate. You have the right to say outrageous things, and I have the right to mock you. The current nasty trend in politics isn't actually very current, its been with us since the start. It is pretty much an inevitable feature of democracy.
Re: (Score:3, Insightful)
Comma (Score:5, Funny)
They left out the comma, I think she means
""those of us who favor some form of pornography, and hate speech regulation"
There we go, now we're all on the same page.
Excited (Score:5, Interesting)
I'm really looking forward to her hearing later today...there isn't much to go on about her, so I'm reserving judgement exclusively to how she handles herself during the questioning.
Re:Excited (Score:5, Insightful)
Not to be rude, but does your judgement matter in the long run with this nominee? I know mine sure as hell doesn't.
True...but would you rather citizens not pay attention to what their government is doing? One of the biggest problems in this country is that not enough people listen.
I'm trying to increase that number by at least 1.
Re: (Score:3, Interesting)
What else am I supposed to go on? The handful of things that the liberal and conservative sides are focusing on? No thanks. I think I'll make my judgements based on how she responds to the questions posed to her. You know, that whole "decide for yourself instead of as you've been told" thing that so many people seem to ignore nowadays.
C-SPAN is your friend.
Editors, who needs them? (Score:5, Funny)
supposed to start to day
I wonder when Slashdot will be burned down to the ground by English teachers.
Cause for concern (Score:5, Funny)
As an angry wanker, I find this very troubling.
Re:Cause for concern (Score:5, Funny)
As an angry wanker
Doesn't that hurt? Or at the very least, chafe?
Re: (Score:3, Funny)
A little, but the make-up sex is great!
Science disagrees with you Kagan (Score:5, Interesting)
Milton Diamond, The Scientist magazine, March 2010. "Porn: Good for Us?"
This opinion piece takes a look at scientific research around pornography. Higher consumption levels os correlated with lower abuse. Many studies have shown the opposite, but they tend to study abusers like rapists, find they use pornography, and say that porn is bad. You should be able to see the flawed methodology easily.
When you look at the entire population, the percentage of male porn users stays around 100% in countries where it is allowed and available, and abuse is low. In countries where it is not allowed or available, usage is obviously lower and abuse rates are higher.
People need an outlet, and if you don't want to see it you don't have to. But make your decisions based on what's best for the country, not your own moral stance. Outlawing alcohol was not intended to start the Chicago mob into overdrive, but it did, unintended consequence.
By restricting porn, you are essentially saying that men should satisfy their urges using real women instead of pictures or videos. Is that what you want Kagan? Are you that anti-female that you are calling for their abuse of a massive scale? I know it sounds like I'm twisting your words around, but given the evidence in question the law of unintended consequences makes it clear that's what you would prefer.
If I called for country-wide home schooling of kids, I would be calling for the death of America. Not every parent is capable of, nor interested in, schooling their own children, and the kids would not learn much. I don't mean for education to stop for most families, but that's what would happen. Unintended consequences, learn them.
Re: (Score:3, Insightful)
You're jumping to conclusions when you assert that learning nothing is worse than the status quo.
If, in fact, what's learned in school is a net negative then learning nothing would be an improvement.
What exactly [cantrip.org] do schools really teach in the first place? Would we be better off [johntaylorgatto.com] without it?
Re:Science disagrees with you Kagan (Score:5, Informative)
Re:Science disagrees with you Kagan (Score:4, Insightful)
Several sources place 18th and 19th century literacy rates above 95%.
Well, I don't know where they get their numbers from, but the official statistics (http://nces.ed.gov/naal/lit_history.asp) show a steadily increasing literacy rate over time that didn't break 95% until 1930. 1 in 4 blacks were illiterate until 1920, historical data showing more like 80% illiteracy among blacks around the time of emancipation (1870, the oldest figures immediately available).
There has long been a tradition of excellent elite schooling among the upper class, but the data just doesn't support the thesis for the population as a whole. Public education was key for all those who weren't already on top of the social ladder.
Re:Science disagrees with you Kagan (Score:5, Insightful)
People need an outlet, and if you don't want to see it you don't have to.
Even the Catholic church used to agree with you. Back when they and their priests ran brothels and it was widely accepted, pedophilia within the church was exceedingly rare. If anything, the church itself has become the poster child of what happens when you condemn and outlaw a species' natural, biological imperative; which is in fact, contrary to their own bible's teachings.
In short, any religion which is actively preventing consensual sex or marriage of their leaders is actively endorsing deviant sexual behavior; regardless of however much they may cry foul as such accusations.
Are you that anti-female that you are calling for their abuse of a massive scale?
Yes, that's exactly what they want. That's also why prostitution is outlawed, despite the fact that globally, where its legalized and regulated women are treated much, much better, and often remains healthy, ensure they receive fair compensation, becomes a tax base, and johns bring home far, far fewer diseases, if any.
Treating consensual sex as a crime, is in itself a crime against biology. Sociologically it has an endless list of associated crimes, deviant behaviors, and medical issues which everyone then pretends doesn't exist. This directly translates into oppression and victimization of women and children; which is extremely ironic in the end, given that its largely those who fight to stop victimization of women and children who are largely responsible for creating it.
She has the wrong mindset for a judge (Score:5, Insightful)
Any judge who speaks out in a professional manner about any activity's moral/ethical/philosophical components is not fit to rule. Those parts are reserved for the people to decide upon.
Re: (Score:3, Insightful)
I'm sure there are several examples of Supreme Court Justices that have mentioned in their bench-opinions that while they may disagree with an action or another, that action is still constitutionally protected. I don't think past opinions are necessarily hard and fast (or even fair, sometimes) things to judge a candidates cap
Re: (Score:3, Insightful)
So... (Score:5, Funny)
Re:So... (Score:4, Funny)
I can just picture Dirk Hilter saying "who's your Fuhrer?" while spanking a Nazi medic.
1993? Hardly fresh. (Score:5, Insightful)
OTOH, I guess if you changed your thinking over the course of seventeen years, you're a weak-ass no-good hippie flip-flopper?
Just what we need! (Score:4, Insightful)
Another egotistical prick who knows what's best for us and is all-too-willing to save us from ourselves.
Maybe once she saves us from looking at naked people and hearing mean comments we can move on to tackling other such pressing social ills like power-hungry sociopaths who systematically defraud an entire population of various liberties under the guise of protecting them.
Oh wait. Sorry, let me get back in line for my RFID chip and social reeducation. Did you guys SEE what happened on Cat the Midget Bounty Ghost Hunting Cake Survivor last night?
Definitions please (Score:5, Insightful)
Re: (Score:3, Insightful)
It will be defined as whatever best suits the agenda of the base of the political party currently in power.
Re:Definitions please (Score:4, Insightful)
I think perhaps you need to reconsider what you mean when you define yourself as a conservative.
Are you "conservative" in that you don't get into other peoples business or are you "conservative" in that you want to restrict things that you find immoral or distateful?
The label of "conservative" and "liberal" are really misnomers, they both distort and fail to describe what people use the terms for.
Re:Definitions please (Score:4, Interesting)
It's hard to find a blanket label to apply to one's ideals sometimes.
I personally fit virtually no current political party.
I am 100% pro-personal freedom. That means that I fully support (in full) the first amendment, the right to keep and bear arms, etc. I think that whatever chemicals people wish to put into their own bodies is their own business, and I think that whatever happens between two legally consenting adults (whether it involves cash transfer or not) is not the governments business.
Basically, I'm mostly Libertarian oriented when it comes to personal liberties.
At the same time however, I DON'T have any problem with applying some sane regulations to businesses. Treating a huge corporation the same as a person is just nonsense IMHO. The government SHOULD have regulatory power to prevent monopolies, promote competition, and prevent stupid decisions like those that lead to the housing bubble.
I also don't mind the government providing some level of social services. Public schools, the road system, even healthcare and homeless shelters (welfare I do take some issue with. I think that people who have fallen on hard times deserve help but I think that help should be provided in the form of lodging, basic clothing, and food - not directly paid funds). I don't mind paying my fair share of taxes for those services to be provided (admission: my job is closely tied to the the calculation and collection of property taxes, so I may be biased on that issue).
Unfortunately, no political party even comes close to matching my ideals. Instead I end up having to vote for a candidate's opposition to vote AGAINST them more often than not. It's truly a sucky situation.
Hate crime laws are bad law (Score:5, Insightful)
There is no such thing as hate speech only speech and its supposed to be free. Even advocationg violence I do not think meets the clear and presant danger test. As to hate crimes laws; its those laws that are biggoted. There is a very specific enumerated list in every state of when you are permitted to use violence against other citizens. Those are mostly when they are endangering your life or that of family member.
The rest of the cases its boolean matter or it should be. The issue is you beat someone half to death without one of the few good reasons we have listed. Why you specifically did it does not matter, it was wrong and equally so no matter weather it was because you hate gays or the guys dog defecated in your yard. It is an in excuseable crime. I don't think as a society we should go down the path deciding when its more or less ok to hurt someone. Its ok because you had not other legitimate choice or its not ok. Its unforgivable and you should be kept away from society forever if it was premeditated, and if it was a crime of passion well made some reform and you can rejoin the rest of us at some point.
Re:Hate crime laws are bad law (Score:4, Insightful)
But, at the end of the day, I don't expect you to buy into that, given the lack of thought that went into your post. David Duke has been advocating that line of reasoning for sometime as an excuse to not have to do the right thing.
Re:Hate crime laws are bad law (Score:5, Insightful)
Why wouldn't it be ok? Everyone is entitled to their opinion.
What they are not necessarily entitled to is acting on an opinion like you mention. However, we already have laws that punish people who commit acts of violence, and they even take intent into account such that someone acting on the opinions you mention with premeditation is removed from society for far longer than someone who has an impulsive lapse in judgment.
The first amendment doesn't mean shit if it doesn't protect unpopular speech. The whole set of arguments with regard to "hate speech" are patronizing bullshit that imply people don't possess free will and aren't responsible for their own actions. If someone goes out and kills someone because "the cleric told me to," they're obviously unwell in the first place and would find an excuse sooner or later. I would think a slashdotter would appreciate this point considering its similarity with "I killed that hooker because of GTA" type rationalizations.
Vapid and farce (Score:5, Interesting)
Back in 1995, Kagan said (widly reported .. and first link off google Vapid hollow [go.com])
When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.
So it should be an interesting nomination
Free Speech (Score:5, Interesting)
If you believe in Free Speech you will defend even those you disagree with.
However, not being able to shout fire in a full theatre is censorship that I have trouble arguing against.
Censorship of sexuality is what kept information about birth control from women in the 19th Century and Abortion in the early 20th.
Censorship of porn is censorship of women. Literally.
Poison (Score:3, Insightful)
This woman is poison. Every. Single. View. That she has demonstrated has been contrary to the primary tenants of our country: free speech, peaceful assembly and security of our persons, the right to keep & bear arms, and so on. The only demographic she's appealing to is the "let's trample the rights and liberties of the populace" demographic.
She's got no history to speak of - 2 years of actual practice - and everything she has done has been "activist". She's a SC variant of Obama.
Me too (Score:3, Funny)
Kagan included herself among 'those of us who favor some form of pornography and hate speech regulation"
Me too. I am in favour of regular pornography and hate speech.
Hey... (Score:4, Funny)
Oh, wait...
Free Speech (Score:5, Insightful)
I am a major proponent of free speech and I am Jewish. If someone wants to write speeches against me or my group, fine, it is their right to do so so long as speech is all that it is. One of the most important and cherished freedoms in the United States is free speech, even if it's racist or what people deem vile and disgusting. The best way to counter racism and hatred is not through laws that regulate its associated speech and expression, but through education. Combatting racism begins with education! I hate racism as much as any educated person but I realize that regulating speech leads down a slippery slope where there is no return. I can cite Governor Lester Maddox as a result. Lester Maddox was probably a last symbol of the bastion of Jim Crowism in America. As he got older and became more educated, he realized he was wrong and publicly admitted being so.
Finally, pornography does not need regulation beyond child pornography. Child pornography does exploit children and minors and needs to be rigorously enforced, but beyond that, the government need not further regulate/criminalize the industry. I see absolutely no harm in adult pornography. We as Americans are puritanical and hypocritical about sex and pornography - look at the Europeans and Japanese as they take a much more liberal stance. Overall, they have a healthier and less conflicted society.
just checking... (Score:3, Insightful)
"If someone wants to write speeches against me or my group, fine, it is their right to do so so long as speech is all that it is."
So you'd be fine if someone went around inciting other people to violence against you but never suffered any consequences himself because he never personally did anything other than talk?
Oops, sorry Kagan (Score:3, Interesting)
Hate speech (Score:5, Insightful)
Re: (Score:3, Insightful)
Once the U.S. starts implementing "hate speech" laws...
"Hate speech laws" is used to describe a wide array of laws, many of which are already on the books in much of the US. For example, laws against telling others to commit violent crimes against other people of a certain social group. Then there are "hate speech laws" that make it illegal to make discriminatory, but nonviolent comments about some social group. The fact that the phrase refers to both, makes it pretty much impossible to have a relevant argument about constitutionality without going into more de
Re:Hate speech (Score:4, Interesting)
The example you gave is not about hate, it makes it illegal to incite violence whether the target is a social or ethnic group, or "people that work for BP", or "that guy over there".
Actually, your last example is not apt. There are already laws covering telling someone or a group to go kill a specific individual. Laws about inciting violence not against a specific person, but a social group, however, have not traditionally existed. Such laws have appeared more recently in response to individuals and groups who tell their followers to go "kill blacks" or "kill jews" or "kill faggots" or what have you. They are referred to as "hate speech" laws because they are about stopping a specific kind of hate speech that is likely to cause violence against some group by drumming up hate against that group. In fact, these type of "hate speech" laws are the most common, but because both individuals and the media don't differentiate when speaking about the laws, it all gets lumped together and people are confused about the issue. I don't know why you think hate speech laws only apply to ethnic minorities or something and that people can't hate "people that work for BP". Hate speech laws are about stopping speech that leads to violence against a group by inciting hate for that group. What the group is, is not the defining characteristic of hate speech.
Kiss 'em goodbye (Score:3)
If she gets on the court, you can go up and down the list of born with rights and start kissing them goodbye. Just today, with the important second amendment issue, that would have failed.
She is a Constitutional disaster and has NO business on the Supreme court..or any court for that matter.
There is no good single word equivalent of an extreme left wing fascist, but if it existed, her picture would be next to it in the dictionary.
"Free" Speech?! since when? (Score:4, Insightful)
My good friend, John Wirenius some time ago published a book on free speech called "First Amendment, First Principles: Verbal Acts and Freedom of Speech." [paperbackswap.com] The book is kind of hard-going, so unless you're interested in carefully-researched legal argument covering the subject, you're in for a slow read.
My point is this (and John makes it in detail): Immediately upon the adoption of our current Constitution here in the United States, the Supreme Court began hacking away at this First Amendment -- and with a really large axe, rather than an ice pick. There are current definitions for what one may present or do or say that consider speech a "verbal act" that may be Constitutionally limited. It is this tortured creation of an action from one's words that really defies any and all logic.
Everyone is familiar with the "limitation" on "free speech" that is described thusly:
Something like this is, presently no problem for the Supreme Court, as saying that word in that situation is re-defined, not as "speech" but as a "verbal act," and thus, not protected by the First Amendment. So, I don't really see Elena Kagan as proposing anything different than what has been going on in the United States for 200 plus years. The definition of "Free Speech" versus "verbal act" is one that is entirely subject to interpretation of any Court, be it local, federal, a court of original jurisdiction or an appellate court.
Re:Yay, Obama (Score:5, Insightful)
The biggest difference between Republicans and Democrats is that they disagree about which of your rights should be taken away first.
Re:Yay, Obama (Score:5, Insightful)
They also disagree to what group of corporate interests get to bend you over first, and which one has to settle for sloppy seconds.
Re:Yay, Obama (Score:4, Insightful)
The biggest difference between Republicans and Democrats is that they disagree about which of your rights should be taken away first.
Not so much anymore, evidently.
Re:Yay, Obama (Score:5, Funny)
There's a few. (Score:5, Informative)
We didn't invade Iran like McCain promised. We're not staying in Iraq for "100 years if need be " as McCain promised. DADT is going away. He's gotten the federal gov't to lay off pot users where states have allowed pot us.
Obama is a moderate, we knew that when he campaigned, he was just the lesser of two evils.
Re: (Score:3, Insightful)
We didn't invade yet. With the way things are heating up over there it's a little too soon to call.
Re:There's a few. (Score:4, Insightful)
Okay you listed all the positive things about Obama. I'll grant you that, but for balance here are the negative things. Obama's broken promises:
1 - Stop snatching people off streets. Provide a Right to fair trial. (REALITY: No longer have Miranda rights even for U.S. citizens.) (Obama's advisers say americans can be held indefinitely w/o trial)
2 - Protect our Right to Privacy. (REALITY: They now spy on us via warrantless wiretaps and track our cellphones.) (Patriot Act renewed by Obama and the Pelosi Democrats.)
3 - Stop interrogation. Close Guantanamo. (Revoked - Club G is still open and now they interrogate US citizens too, not just foreigners.)
4 - End the war. (Nope. Instead it's been extended two more years and apparently involves killing children & journalists not soldiers (see wikileaks))
Bush. Obama. Two halves of the same ass. And on another note: I just noticed that the national debt jumped from 10.5 to 13 trillion since Obama took office. That's ~$130,000 owed by each American home. Think about that. Can you afford to pay off ~$130,000 in debt? I sure as hell can't. And that doesn't include unfunded liabilities (medicare, SS, etc) which I suspect will eventually be discontinued due to lack of money.
I paid off my debt. Now it's time for the government to do the same. When the Communist Cold War ended in 1990, that's when the government should have cut spending and paid-off the debt. It was only 3 trillion then. Now it's much bigger and harder to tackle.
Re:There's a few. (Score:5, Informative)
5 - Protect whistleblowers. (Instead of protecting them, Obama has decided to attack whistleblowers more strongly than any previous president. For example, Thomas Drake [wikipedia.org] and Bradley Manning).
6 - Government transparency. (Obama negotiated away the public option in secret meetings [huffingtonpost.com] with the big pharma companies)
7 - Obama has taken punishment without trial to a new level by authorizing assassination of US citizens [thenewamerican.com] who are no where near a battlefield.
Obama said a lot of great stuff during his campaign, it's too bad he has reversed himself on a lot of the most important issues.
Re: (Score:3, Insightful)
P.S.
>>>We didn't invade Iran like McCain promised.
I don't remember this. Do you have a youtube or video link so I can hear McCain say this in his own voice? If not then I'll consider it as not true.
Re: (Score:3, Insightful)
Well, while we're talking about Kagan... Myths and falsehoods about Elena Kagan's Supreme Court nomination [mediamatters.org].
(from a left-leaning watchdog, but still)
Re:Yay, Obama (Score:5, Insightful)
From your link, in which it is attempting to reconcile Kagan's seemingly lax respect for the First Amendment.
In her defense: The New York Times reported, "There are indications ... that [Kagan's] views on government regulation of speech were closer to the Supreme Court's more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens."
Is that a good thing?
I read through your link, and it isn't just from a left-leaning watchdog, it reads as if it is from the campaign page of a politician running for office. (IE: it only 'corrects' negatives, and doesn't address any myths and falsehoods that exist which may appear to be positive for her).
Re: (Score:3, Insightful)
I read through your link, and it isn't just from a left-leaning watchdog, it reads as if it is from the campaign page of a politician running for office. (IE: it only 'corrects' negatives, and doesn't address any myths and falsehoods that exist which may appear to be positive for her).
I agree. That site, Media Matters, is pretty much only reactionary to messages from Republicans. You've got to look elsewhere for research in the other direction, e.g. Newsbusters [newsbusters.org] for a right-leaning watchdog, and Factchec [factcheck.org]
Re:Yay, Obama (Score:4, Insightful)
Unfortunately, too often, it is up to citizens to read all the sources and attempt to extract the truth from the pile of bias.
We used to have an institution that would do that for you, present all sides, including sections that are fact only, plus separate editorial pieces, all in once convenient package. I think they used to call it "the press".
And that's why we need to pay to keep the press alive. If we don't support the news financially, the only news sources we'll be left with are those operated by the $(var)-wing nutjobs to push their agendas.
Re:Yay, Obama (Score:5, Insightful)
Re:Yay, Obama (Score:5, Insightful)
That's no left-leaning watchdog, that's an Obama-leaning watchdog. There's a definite difference - the real left-wingers are generally upset with Kagan's ideas about civil liberties and keeping people prisoner in Gitmo without charges for years on end, among other things.
Oh, and the accusation that she's too inexperienced definitely still carries weight for me. Your link attempts to argue that it's OK, because she has not much less experience than Clarence Thomas. If Clarence Thomas is your model of everything a good Supreme Court justice should be, I guess that's ok, but for the rest of us that's hardly a ringing endorsement.
Re:Yay, Obama (Score:5, Insightful)
That's no left-leaning watchdog, that's an Obama-leaning watchdog. There's a definite difference - the real left-wingers are generally upset with Kagan's ideas about civil liberties and keeping people prisoner in Gitmo without charges for years on end, among other things.
This is a very important difference. People who think Obama is synonymous with "left-wing" are missing a lot of the picture.
Re: (Score:3, Informative)
So, if FN says she is middle of the road, and a libertarian agrees that she is speech-protective, is there a legal expert who agrees with the articles premise?
I guess the computer screen just isn't a good way to read.
“I think the Stevens case is really a very recent smoking gun. Never in any administration would I expect to see a brief like that out of the Justice Department in terms of a frontal assault on the most basic First Amendment principles,” Crosson said. “Even the very conservative Supreme Court tore them a new one. I was just gobsmacked by the positions they took.”
“Judges who casually assume the alleged harms of unpopular speech can't be trusted with First Amendment freedoms,” said Wendy Kaminer, a Boston attorney and early leader in the anti-censorship camp.
Re: (Score:3, Interesting)
Sotomayor is a Mussolini style fascist just like Obama is
Source? All the Supreme Court hearings I've heard Sotomayor take part that have been broadcasted on C-SPAN have shown that she does just what someone in her position should do: stick to the law.
You can show me all kinds of skelatons in her closet, but can you give me specific examples of her being facist since she took her place at the bench?
Re:Yay, Obama (Score:5, Insightful)
All the Supreme Court hearings I've heard Sotomayor take part that have been broadcasted on C-SPAN have shown that she does just what someone in her position should do: stick to the law.
Dred Scott was part of "the law" at one time. This line about respecting precedent is utter BS when the precedent was wrongly decided to begin with.
Re:Yay, Obama (Score:5, Informative)
It is the sole responsibility of the SCOTUS to interpret existing laws, just or unjust. If a law is "wrong", it is the sole responsibility of Congress to rewrite/revoke it.
Re:Yay, Obama (Score:4, Insightful)
And when the law conflicts with the Constitution? Judicial review has been around since Madison. If the Judiciary can't "revoke" a law that directly conflicts with the Constitution, then the Constitution may as well not exist.
Similarly, the concept of common law (precedents established by the court without direct legislation) has existed since *long* before the U.S. was founded; we inherited it from the British along with a lot of other cultural and legal constructs. Removing it now would leave gigantic gaping holes in the legal system. Switching from a common law to a civil law system is non-trivial to say the least. Just because you happen to disagree with it doesn't mean everyone should hop on your 4th grade Civics class understanding of the design of government.
Re: (Score:3, Insightful)
Isn't ruling from the heart and not from the head exactly the sort of thing people rail against when it comes to Supreme Court nominees?
Only when their own heart disagrees with the nominee's.
Re:Yay, Obama (Score:5, Insightful)
Isn't ruling from the heart and not from the head exactly the sort of thing people rail against when it comes to Supreme Court nominees?
Following the text of the Constitution is not "reading from the heart". Regarding two rights that Ms. Kagen apparently takes issue with, the document plainly states that Congress shall make no law (1st amendment) and that the right shall not be infringed (2nd amendment).
Re: (Score:3, Insightful)
So wait...you're saying you want her to inject opinion into her rulings, instead of basing her rulings solely on law? Isn't ruling from the heart and not from the head exactly the sort of thing people rail against when it comes to Supreme Court nominees?
I think his point was more that precedent can be wrong if it was unconstitutional in the first place. This is why I hate hearing Stare Decisis... "the issue is settled". What if it was settled contrary to the Constitution? "Seperate but Equal" was almost certainly unconstitutional, as it was a blatant violation of fourteenth amendment. And yet it was precedent for many years. Until it wasn't. It seems we "respect precedent" until we decide not to respect precedent. Stare Decisis really means "It's settled
Re:Yay, Obama (Score:4, Insightful)
Commodore....seriously?
His point was that a judge should follow the Law not the Supreme Court's opinions/precedents.
THAT WAS MY FUCKING POINT. From my OP that he was responding to:
All the Supreme Court hearings I've heard Sotomayor take part that have been broadcasted on C-SPAN have shown that she does just what someone in her position should do: stick to the law.
He, however, said what if the law was "wrong"? Calling a law wrong is a matter of opinion, especially considering back when the law he mentioned was brought about, slavery was entirely constitutional and legal.
Come on, dude. You can't accuse me of doing something, then try to tell me what his point is when what you are trying to convince me of was mentioned BY ME in my original post .
Re:Yay, Obama (Score:4, Insightful)
Re:Yay, Obama (Score:5, Insightful)
All the Supreme Court hearings I've heard Sotomayor take part that have been broadcasted on C-SPAN have shown that she does just what someone in her position should do: stick to the law.
I thought that they were supposed to stick to the Constitution.
Re:Yay, Obama (Score:4, Insightful)
Re:Yay, Obama (Score:5, Insightful)
Re:Yay, Obama (Score:4, Informative)
No, that is wrong.
The Constitution is to protect the people from the government.
The Law is to protect the government from the people.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;"
--US constitution, article VI, clause 2. When even the Constitution refers to itself as the Law, you can't really argue the two are distinct.
Re: (Score:3, Interesting)
Actually, the constitution gives SCOTUS the power to make a decision for whatever reason they please. They have simply chosen historically to make those decisions primarily based on the constitution. However, it is important to note that the congress could ea
Re: (Score:3, Funny)
Source?
Don't bother. Their "source" is Glenn Beck or similar, whom they believe without reservation.
It didn't matter who the nominee was. They've got their preferred epithets (including both "communist" and "fascist", despite being contradictions in terms). Obama could have nominated an aardvark and it would have been a communist, fascist, death-panel-craving aardvark.
Re:Yay, Obama (Score:5, Interesting)
I'm afraid my patience for people lobbing the word "fascism" around is dwindling quickly. From being a word used to describe with reasonable explicitness a group of political ideologies it has now become "any politician or political assertion I don't like." You've got people on the Right calling Obama a fascist, people on the Left calling the Cheney-Bush-Borg Collective fascists, and the word has come to mean virtually nothing at all.
A comparison of the US even at the height of GWB's stupidity (and that's what it was, whatever the neo-Cons were plotting and planning, they put a simpering moron in the White House) and, say, Mussolini's Italy, suggests that calling GWB a fascist was hyperbole to such a point that you just had to say "Bullshit!"
Re:Yay, Obama (Score:5, Insightful)
If this comment was attacking Bush a few years ago, calling him a fascist, it might very well have been modded up (it also would've been true...). If we want a truly open forum here, we really shouldn't so quickly silence those who disagree with us.
Re:Yay, Obama (Score:5, Insightful)
If we want a truly HONEST forum here, we really shouldn't toss out the term "facist" like it was Halloween candy.
Seriously, if Obama is Hitler and Bush is Hitler, what does that make Hitler?
Re:Yay, Obama (Score:4, Insightful)
That makes Hitler a politician.
Shocking to think about it that way, eh?
Re:Yay, Obama (Score:5, Funny)
I wonder if there were any hyperbolic editorialists in those days saying, "Hitler is just like Napoleon!"
Re:Freedom of speech (Score:4, Insightful)
Freedom is irrevocable, as the base constitution says. So, even if there is a some stature that restrains it, it is invalid and void. And it is very important that every single person is aware of that fact.
Your view is overly simplistic. Laws can restrain speech and still be constitutional, provided they are striking a balance between different enumerated rights. A law that says ordering your employees to commit murder restricts free speech, but is still constitutional because it simply judges the right to particular free speech versus the right of an individual to live and makes a law in favor of the latter. For more information please do a search for "yelling fire in a crowded theater".
Re: (Score:3, Interesting)