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The Courts United States

SCOTUS Nominee Kagan On Free Speech Issues 664

Posted by CmdrTaco
from the she's-a-shoo-in-anyway dept.
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."
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SCOTUS Nominee Kagan On Free Speech Issues

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  • by Anonymous Coward on Monday June 28, 2010 @09:37AM (#32715660)

    Dear Kagan, I hate you.

  • by Meneth (872868) on Monday June 28, 2010 @09:38AM (#32715680)
    A court isn't supposed to be able to make policy decisions. That power should be reserved for the parliament (House/Senate in the US case), the ones that were actually elected by the public.
    • by Anonymous Coward on Monday June 28, 2010 @09:41AM (#32715722)

      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).

      • by Culture20 (968837) on Monday June 28, 2010 @10:06AM (#32716034)
        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.
      • Re: (Score:3, Insightful)

        by gumbi west (610122)

        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."

      • by khallow (566160) on Monday June 28, 2010 @10:17AM (#32716174)

        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)

        by DesScorp (410532) <DesScorpNO@SPAMGmail.com> on Monday June 28, 2010 @10:35AM (#32716396) Homepage Journal

        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)

          by twoallbeefpatties (615632) on Monday June 28, 2010 @11:25AM (#32716986)
          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. [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)

      by Improv (2467)

      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)

        by Meneth (872868)

        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)

    by BVis (267028) on Monday June 28, 2010 @09:38AM (#32715682)

    Don't mess with porn, it's the only thing keeping some people sane.

    • Re:Porn? (Score:5, Insightful)

      by chrb (1083577) on Monday June 28, 2010 @09:48AM (#32715822)

      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)

        by Shakrai (717556) * on Monday June 28, 2010 @10:01AM (#32715986) Journal

        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)

          by fm6 (162816) on Monday June 28, 2010 @12:29PM (#32717794) Homepage Journal

          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.

  • Comma (Score:5, Funny)

    by Anonymous Coward on Monday June 28, 2010 @09:39AM (#32715702)

    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)

    by Pojut (1027544) on Monday June 28, 2010 @09:41AM (#32715730) Homepage

    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.

  • by Mathness (145187) on Monday June 28, 2010 @09:43AM (#32715746) Homepage

    supposed to start to day

    I wonder when Slashdot will be burned down to the ground by English teachers.

  • by DoofusOfDeath (636671) on Monday June 28, 2010 @09:43AM (#32715748)

    As an angry wanker, I find this very troubling.

  • by b4dc0d3r (1268512) on Monday June 28, 2010 @09:46AM (#32715802)

    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)

      by Wonko the Sane (25252) *

      Not every parent is capable of, nor interested in, schooling their own children, and the kids would not learn much.

      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?

      • by Devout_IPUite (1284636) on Monday June 28, 2010 @10:14AM (#32716138)
        Reading, math, geography, history, these things are actually useful. I know how to communicate with other humans, how to take a derivative, and what happens if you give a fire oxygen. People who don't have access to the school system of America often don't know these things. If we left schooling to parents only, many kids would not learn math, science, reading, history, or geography.
    • by GooberToo (74388) on Monday June 28, 2010 @10:37AM (#32716416)

      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.

  • by Spazed (1013981) on Monday June 28, 2010 @09:47AM (#32715814)
    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.
    • Re: (Score:3, Insightful)

      by MattSausage (940218)
      Well, for what it's worth, it is possible for a grown adult to put their personal feelings aside and try their best to keep an open mind when you sit on the highest court in the land.

      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)

      In order to be considered to be a Supreme Court judge, you must have a deep, thorough understanding and appreciation of the law, and you must hold no opinions about it whatsoever. Good luck with that one.
  • So... (Score:5, Funny)

    by elrous0 (869638) * on Monday June 28, 2010 @09:48AM (#32715818)
    I guess my Nazi porn collection is completely unacceptable then?
  • by eddy (18759) on Monday June 28, 2010 @09:51AM (#32715860) Homepage Journal

    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)

    by Spazntwich (208070) on Monday June 28, 2010 @09:52AM (#32715876)

    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)

    by m0s3m8n (1335861) on Monday June 28, 2010 @09:53AM (#32715890)
    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.
    • Re: (Score:3, Insightful)

      by Shakrai (717556) *

      It will be defined as whatever best suits the agenda of the base of the political party currently in power.

    • by NevarMore (248971) on Monday June 28, 2010 @10:29AM (#32716336) Homepage Journal

      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.

      • by MBGMorden (803437) on Monday June 28, 2010 @11:40AM (#32717160)

        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.

  • by DarkOx (621550) on Monday June 28, 2010 @09:55AM (#32715906) Journal

    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.

    • by hedwards (940851) on Monday June 28, 2010 @10:27AM (#32716306)
      Those laws exist as a way of guaranteeing that some hick sheriff in a backwater precinct can't look the other way. It allows for the FBI to investigate when the local law enforcement refuses to. It's definitely not bigoted. They are really the only rational response to the all to common bigotry that infects this nation. The laws can and do protect everybody. While it isn't common for people of the majority to get beaten or threatened for being so, the hate crimes legislation does give them protections as well, when they might go into a minority community.

      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.
  • Vapid and farce (Score:5, Interesting)

    by OzPeter (195038) on Monday June 28, 2010 @10:02AM (#32715994)

    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)

    by dasheiff (261577) on Monday June 28, 2010 @10:06AM (#32716026) Homepage

    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)

    by CAIMLAS (41445) on Monday June 28, 2010 @10:08AM (#32716050) Homepage

    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)

    by Chrisq (894406) on Monday June 28, 2010 @10:13AM (#32716128)

    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)

    by vegiVamp (518171) on Monday June 28, 2010 @10:14AM (#32716134) Homepage
    I also favor some form of pornography, and I also hate speech regulation.

    Oh, wait...
  • Free Speech (Score:5, Insightful)

    by DaMattster (977781) on Monday June 28, 2010 @10:26AM (#32716288)

    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)

      by Chirs (87576)

      "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)

    by tompaulco (629533) on Monday June 28, 2010 @10:27AM (#32716310) Homepage Journal
    I mean, I'm sure she is a great person and all and I respect her views and her right to them, and the constitution allows her to have those views and to speak them freely. But how can I be sure that her views will not influence her position as a supreme court justice and upholding the constitution, including the parts which are in complete opposition to her views?
  • Hate speech (Score:5, Insightful)

    by jav1231 (539129) on Monday June 28, 2010 @10:36AM (#32716404)
    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.
    • 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

  • by zogger (617870) * on Monday June 28, 2010 @11:17AM (#32716900) Homepage Journal

    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.

  • by mhollis (727905) on Monday June 28, 2010 @02:27PM (#32719918) Journal

    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:

    ... crying "Fire" in a crowded movie house

    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.

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