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SCOTUS Nominee Kagan On Free Speech Issues
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."
I knew there was a reason I voted for Obama, and not the Republicans.
Wait, what's the difference, again?
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).
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.
For every problem, there is at least one solution that is simple, neat, and wrong.
She has the wrong mindset for a judge at any level. Her job is not to force her views and values down the public's throat, but to interpret the law as closely as the writers had in mind while trying to close the huge loopholes.
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.
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?".
OTOH, I guess if you changed your thinking over the course of seventeen years, you're a weak-ass no-good hippie flip-flopper?
Belief is the currency of delusion.
Freedom of speech means exactly that, freedom. And freedom is above the right, the rule or stature if you want me use the formal language. 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.
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?
Are you a Senator? Not to be rude, but does your judgement matter in the long run with this nominee? I know mine sure as hell doesn't.
As a conservative, you would think I would be all for this, but no. How do you define what is or is not pornography or hate speech. One could argue the pornography may be easier to define based on the physical activities involved, but what about hate speech? Does Shawn Penn's comments qualify? David Duke? Rossie O'Donnell? This is right up there with defining racially motivated crime.
Conservative, mod down for violating
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.
Repeal the 17th Amendment TODAY! Also Please Read http://www.gnu.org/philosophy/right-to-read.html
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 do schools really teach in the first place? Would we be better off without it?
Crushing racism and sexism are more important to most American leftists than freedom of speech today. The ACLU, which is a left-wing organization, is in the minority of American leftists today in that it actually does still take a fairly left-libertarian stance. If it weren't for the first amendment, we'd long have had an official federal censorship system aimed at finding and prosecuting "hate speech" and pornography because both sides would've come together "in the spirit of bipartisanship."
The only people who actually give a rat's ass consistently about these things and want to leave people alone are libertarians. Right or left-wing, it's only the libertarian elements of the left and right that care about freedom today.
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.....
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
No, it's "Dear Ms. Kagan. Fuck you."
We don't hate you because you hate pr0n more than we like it (although lots of us do like pr0n!) We hate you becase we hate censorship more than you do.
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.
~/ssh slashdot.org ssh: connect to host slashdot.org port 22: too many beers
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.
Living With a Nerd
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."
The problem is that we've gone too far in being accommodating of hate speech. And I say that as a legitimate civil libertarian. If you've read the kind of vile, hateful, bigoted things that I've seen attached to mainstream blogs you'd see the problem. The first amendment is there to ensure that there's public discourse and an airing of issues which the government might find to be inconvenient. It's never been a completely unrestricted right, you've never had the right to libel or slander people, nor have you had the right to commit fraud. Hate speech is similar in the fact that it's not something that advances any meaningful purpose.
A lot of it is just made up like like those bigoted Barrack Husein Obama posters. And the folks that claim that giving equal rights to the GLBT community is somehow undermining their rights. These are not people engaging in legitimate free speech, nor is there a good faith effort on their part to do so. The harm to society is great when trying to push a constitutional ban on same sex marriage is viewed as more important to the country than dealing with two wars of questionable intent and an ever rising national debt.
This statement is demonstrably false. Prior to modern public schools kids learned all of those things and in fact 19th century children were generally more knowledgeable in these subjects than their 20th and 21st century counterparts. This is well documented in Gatto's book which I linked above.
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".
And that's the really scary part. Its reasonable to conclude she doesn't understand the Constitution, doesn't understand why its protected by the Constitution, and likely considers herself to be an authority on the Constitution. Even worse, someone who has these types of views almost always believe themselves to be the absolute authority on how to interpret and apply such views to the world. Basically she considers herself Emperor. Not only is she above the law, she is the law.
No matter how you slice it, she's unfit to live in the US, let alone interpret its laws. The mere fact its the highest and easiest to understand laws of the nation are beyond her comprehension seriously brings into question her most basic level of intelligence. And even if you believe she absolutely understands the Constitution, that paints her in an even darker light as an inescapable conclusion. As that implies she believes she's above the Constitution; which brings us full circle, back to Emperor status. There is no higher power than her as she thinks nothing of sweeping the highest laws of the land aside to bend to her final morale authority. In short, there's no point in having laws because SHE AND ONLY SHE, IS THE LAW.
That's one scary fucking lady! And yet, scarier yet, are those who would nominate her!
You don't get the idea of free speech, do you? It is the right of idiots to say stupid things. If it isn't that, then it isn't anything at all.
"I disapprove of what you say, but I will defend to the death your right to say it."
Rule #1 -- Politics always trumps technology.
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.
You are no civil libertarian if you deem a particular type of speech not to be 'legitimate'
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
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.
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.
So because it's regulated everywhere means you can no longer discuss if it should be regulated?
Once the U.S. starts implementing "hate speech" laws, the concept of free speech will be dead. It already is in places like the UK and Canada. Someone will get to decide what speech is "hate." Freedom of speech is designed to protect speech we don't like. People wanting to regulate speech they don't like are, in fact, running contrary to the constitution.
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.
"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?
We didn't invade yet. With the way things are heating up over there it's a little too soon to call.
The wierdest part of porn and prostitution is: It is illegal to sell what it is legal to give away.
They are not saying they are "Experts", doctors or such, where you are selling advice as an expert.
They are just doing a "service" that is ok when it is free, but if you give money, it becomes a crime.
We have yet to learn the lesson of the Weimar republic - although I wish we could learn from Germany's (hell, anybody's) mistakes, we haven't had much luck in that area as of yet.
Proud neuron in the Slashdot hivemind since 2002.
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.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
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.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
legitimate free speech
This is a phrase that never ceases to frighten me.
John Roberts is more right than wrong when he says a SCOTUS judge should be an umpire, calling balls and strikes.
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.) 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.
Libertarians somehow believe that private businesses should be stronger than governments but weaker than individuals.
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.
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.
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.
A patriot must always be ready to defend his country against his government. -edward abbey
Of course that's how the bill of goods is sold, but what were the architects of the public school system saying when they built it?
If you read the article, Kagen seems to think that the Government should have the power to outlaw the production of pornography altogether.[...]
“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.....
Why is it always just the women who are presumed to be victimized here anyhow? There is plenty of porn with men involved too. Shall we assume they also are suffering from violence against them since they are in porn? It sounds like Kagan is asserting that women are in porn only because they are being forced into it.
Laws to prevent true violence and coercion are one thing. But it sure sounds like she is actually pushing a veiled reason to enact laws to enforce a particular moral view.
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." 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.
Gods don't kill people, people with gods kill people.
The problem with the "people need an outlet" argument is that it's fundamental disrespectful to the individual on a basic level. People are not simply a collection of insatiable urges that must be controlled or managed or released. Viewing people that way objectifies them whether you think their urges should be controlled or satisfied.
In reality it is always wrong to view people as objects. We need to accept people as willful individuals who cannot be controlled or satisfied. Until we can recognize this, all our efforts to help will be in vain.
It's better not to make those objects angry, sad, or upset because their behavior becomes unpredictable and uncontrollable. It's also just plain wrong to abuse an object by constantly beating on it, complaining about it, punishing it in all kinds of ways, taking away it's entertainment (porn), taking away its video games, taking away it's movies, taking away it's rock and rap music, taking away, taking away, taxing, taxing, taking, prison, removing, banning, restricting.
Then you wonder why those objects with feelings can't trust you anymore.