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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'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.
Living With a Nerd
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.
Back in 1995, Kagan said (widly reported .. and first link off google Vapid hollow)
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
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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.
Making decisions in ambiguous cases is quite different from advocating new approaches to skirt around the first amendment. She's thinking like a Mafia defense lawyer, not a judge.
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 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. 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.
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!"
The world's burning. Moped Jesus spotted on I50. Details at 11.
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".
Life is hard, and the world is cruel