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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."
Dear Kagan, I hate you.
Don't mess with porn, it's the only thing keeping some people sane.
Never underestimate the power of stupid people in large groups.
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.
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).
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
supposed to start to day
I wonder when Slashdot will be burned down to the ground by English teachers.
Carbon based humanoid in training.
As an angry wanker, I find this very troubling.
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.
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.
I guess my Nazi porn collection is completely unacceptable then?
SJW: Someone who has run out of real oppression, and has to fake it.
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.
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?
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
The biggest difference between Republicans and Democrats is that they disagree about which of your rights should be taken away first.
Free Martian Whores!
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
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.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
When I got this on my RSS ticker in firefox, it said "SCOTUS Nominee Kagan on F...". For some reason, I genuinely thought the next word would be fire, and I excitedly clicked on it. I think my disappointment should be obvious at this point.
Support the EFF and Creative Commons. The war is coming, and they're supporting you...
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.
/* MAGIC THEATRE
ENTRANCE NOT FOR EVERYBODY
MADMEN ONLY */
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
I am Slashdot. Are you Slashdot as well?
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).
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
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.
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".
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
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.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
They also disagree to what group of corporate interests get to bend you over first, and which one has to settle for sloppy seconds.
I also favor some form of pornography, and I also hate speech regulation.
Oh, wait...
What a depressingly stupid machine.
The Constitution is no longer law around here. Get with the times bro!
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.
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).
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
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.
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.
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.
I'm not sure what your point is. The constitution is a part of the law. Sticking to the constitution is a subset of sticking to the law. In cases where the constitution and other laws disagree, sticking to the law means sticking to the constitution and overturning the other law. In cases where the constitution says nothing on the issue, it means sticking to what the other law says.
I am TheRaven on Soylent News
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?
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.
Blar.
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
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.
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.
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.
That makes Hitler a politician.
Shocking to think about it that way, eh?
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.
I am officially gone from
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.
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.
$_ = "wftedskaebjgdpjgidbsmnjgcdwatb"; tr/a-z/oh, turtleneck Phrase Jar!/; print
No, because we're talking about the Supreme Court and Dred Scott was a Supreme Court decision. It's a relevant example of where the Supreme Court made a bad decision.
If a job's not worth doing, it's not worth doing right.
Seriously, if Obama is Hitler and Bush is Hitler, what does that make Hitler?
I wonder if there were any hyperbolic editorialists in those days saying, "Hitler is just like Napoleon!"
Libertarians somehow believe that private businesses should be stronger than governments but weaker than individuals.
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.
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.
"I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009
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.
"I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009
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 .
Living With a Nerd
I don't have an official position on pornography. I like to switch between multiple positions.
Nice challenge - I just turned up this WWII political cartoon comparing Hitler to a child eating wolf - but look at the author, none other than Dr. Seuss!
[ parent page of graphic ]
try { do() || do_not(); } catch (JediException err) { yoda(err); }
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.
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.
John
It's pretty well known that the US's version of "left" is about the same as most European countries' version of "right".
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.