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The Courts United States

SCOTUS Nominee Kagan On Free Speech Issues 664

DesScorp submitted one of a few stories I've seen about Supreme Court nominee Elena Kagan, whose confirmation hearings are supposed to start today (despite being a formality, given that she has the votes pretty much locked up). "SCOTUS nominee Elena Kagan hasn't left much of a paper trail during her legal career, which may make gauging her ideas and opinions somewhat difficult. But there are some positions she has made clear statements on, among them, pornography and 'hate speech.' In a 1993 University of Chicago seminar on the subject, Kagan argued that the government wasn't doing enough about the spread of porn or hate speech. She argued that new approaches were needed to fight their spread, as well as taking a fresh look at old approaches, such as obscenity laws. Kagan included herself among 'those of us who favor some form of pornography and hate speech regulation,' and told participants that 'a great deal can be done very usefully' to crack down on such evils."
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SCOTUS Nominee Kagan On Free Speech Issues

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  • 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 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.
  • There's a few. (Score:5, Informative)

    by FatSean ( 18753 ) on Monday June 28, 2010 @10:31AM (#32716356) Homepage Journal

    We didn't invade Iran like McCain promised. We're not staying in Iraq for "100 years if need be " as McCain promised. DADT is going away. He's gotten the federal gov't to lay off pot users where states have allowed pot us.

    Obama is a moderate, we knew that when he campaigned, he was just the lesser of two evils.

  • Re:Yay, Obama (Score:5, Informative)

    by Domint ( 1111399 ) on Monday June 28, 2010 @10:40AM (#32716454) Homepage Journal
    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.
  • Re:Yay, Obama (Score:3, Informative)

    by nbauman ( 624611 ) on Monday June 28, 2010 @11:01AM (#32716690) Homepage Journal

    So, if FN says she is middle of the road, and a libertarian agrees that she is speech-protective, is there a legal expert who agrees with the articles premise?

    I guess the computer screen just isn't a good way to read.

    “I think the Stevens case is really a very recent smoking gun. Never in any administration would I expect to see a brief like that out of the Justice Department in terms of a frontal assault on the most basic First Amendment principles,” Crosson said. “Even the very conservative Supreme Court tore them a new one. I was just gobsmacked by the positions they took.”

    “Judges who casually assume the alleged harms of unpopular speech can't be trusted with First Amendment freedoms,” said Wendy Kaminer, a Boston attorney and early leader in the anti-censorship camp.

  • Re:Yay, Obama (Score:1, Informative)

    by commodore64_love ( 1445365 ) on Monday June 28, 2010 @11:18AM (#32716912) Journal

    Factcheck is also liberal (pro-big government) biased.

    Also Republicans/libertarians make a mistake when they say "liberal media bias". What they really mean is TV media is bias, which is dominated by Democrat-friendly reporters (ABC, CBS, NBC, PBS, CNN, MSNBC). In other non-TV media there is a balance for both sides, but of course most Americans only watch TV News. In any caes the R's and L's should be more careful when they speak. *TV* is liberal biased not the media in general.

  • Re:Yay, Obama (Score:2, Informative)

    by Anonymous Coward on Monday June 28, 2010 @11:19AM (#32716928)
    (including both "communist" and "fascist", despite being contradictions in terms).

    Communism and fascism are two sides of the same totalitarian coin.

    The Nazi's were the National Socialist party, after all...
  • Re:Yay, Obama (Score:2, Informative)

    by Pharmboy ( 216950 ) on Monday June 28, 2010 @11:26AM (#32717000) Journal

    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".

  • Re:Yay, Obama (Score:4, Informative)

    by fishexe ( 168879 ) on Monday June 28, 2010 @11:29AM (#32717032) Homepage

    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.

  • by Asylumn ( 598576 ) on Monday June 28, 2010 @11:50AM (#32717282)

    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.

    You may be correct, but that is really not relevant as she has never been a judge before. Would you advocate appointing as justices only those whom have never voiced an opinion before? That would limit the pool rather drastically, don't you think?

  • Re:There's a few. (Score:5, Informative)

    by gambino21 ( 809810 ) on Monday June 28, 2010 @12:02PM (#32717424)
    Just wanted to add a few items to your list.

    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))

    5 - Protect whistleblowers. (Instead of protecting them, Obama has decided to attack whistleblowers more strongly than any previous president. For example, Thomas Drake [] and Bradley Manning).
    6 - Government transparency. (Obama negotiated away the public option in secret meetings [] with the big pharma companies)
    7 - Obama has taken punishment without trial to a new level by authorizing assassination of US citizens [] who are no where near a battlefield.

    Obama said a lot of great stuff during his campaign, it's too bad he has reversed himself on a lot of the most important issues.

  • Look north (Score:3, Informative)

    by butterflysrage ( 1066514 ) on Monday June 28, 2010 @12:17PM (#32717628)

    Canada has had hate-speach laws for decades, last I checked our civilzation has yet to end.

  • Re:Yay, Obama (Score:2, Informative)

    by Anonymous Coward on Monday June 28, 2010 @12:35PM (#32717876)

    You Americans sure are amusing. Where I come from, a right-wing leaning watchdog would be praising Obama all day. It seems to me that you have two right wings which might explain while you always fly in circles.

  • Re:Porn? (Score:3, Informative)

    by DrJimbo ( 594231 ) on Monday June 28, 2010 @12:37PM (#32717904)
    Shakrai said:

    Kagen seems to think that the Government should have the power to outlaw the production of pornography altogether.

    But Kagen said:

    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 ...

    Label me a freedom hating liberal if you wish but to me there is a world of difference between "outlawing $XXX altogether" and "prohibiting the worst of $XXX". In fact Kagan specifically said "language that goes to sexual violence" which is very different from your conclusion that she thinks we can or should outlaw the production of pornography altogether or outlaw whatever the government deems to be hate speech. Kagan specifically tied her argument to sexual violence.

    In fact, your argument is so weak and distorted, if Kagan had made a similarly twisted and weak argument, I wouldn't be surprised if you used her use of a strawman argument as a basis for rejecting her.

    IMO "the worst of pornography" certainly includes snuff films. ISTM the production of such films should be (and probably already is) illegal. The idea that you have a First Amendment right to kill someone for the purposes of sexual titillation is absurd. Therefore the issue is not nearly so black and white as you pretend it is. The question is not whether we can draw a line at all, the question is: where do we draw the line? If you think current laws offer ample protection from all forms of sexual violence that are used in the creation of the very worst of pornography, then say so and admit you have an honest disagreement with Kagan.

    The problem created by your twisting of Kagan's words is easily seen in the responses to your post that quote your misinterpretation of her words as if they were a direct quote from Kagan.

    There are plenty of valid objections to Kagan. I don't see why you felt compelled to just make stuff up.

  • by phantomfive ( 622387 ) on Monday June 28, 2010 @01:00PM (#32718206) Journal
    I am not sure you understand what 'well documented' means. I couldn't find the citation page, and I couldn't find a page where he talks about things like learning reading, which is probably one of the easiest of any to investigate. Now, for comparison, the literacy rate in the US is 99%.

    If we look back in the 1800s, figuring out the literacy rate is harder because official statistics weren't taken like they are today, and they tend to be slanted towards richer people, but one estimate [] from a Rhode Island town's records puts the estimate of literacy at around 40%. I would love to see how your guy figures out the literacy rate, but I couldn't find it.

    I do agree there are lots of things wrong with the US schooling system, but one thing it does generally well is teaching kids how to read.
  • by dkleinsc ( 563838 ) on Monday June 28, 2010 @01:00PM (#32718212) Homepage

    Prior to modern public schools kids learned all of those things

    Which kids?

    In 1870, which is when the US government first started keeping statistics on literacy, about 20% of the US population over age 14, including 80% of the black population, was illiterate (source []). By 1959 that was down to about 2% of the US population, including 8% of the non-white population.

    A reasonable assessment of education in 19th century in the US, based on government stats and contemporary literature, might go something like this:
    - Upper-class kids got education from mostly private schools, private tutors, and possibly some parental instruction. They frequently went on to study at a university at some sort.
    - Middle-class kids got some education from a combination of public and parochial schools, Sunday schools (which would have emphasized biblical reading and the like), and home instruction, but rarely finished what we'd now consider to be a high school education. Farm kids, for instance, frequently stopped attending school at around 8th grade to help out on the farm.
    - Poor white kids would possibly get basic literacy from public schools, and not much more than that. They often dropped out early to go work in factories once the Industrial Revolution really started to take hold.
    - Black kids got essentially no education at all. This was a matter of policy - many southern states banned teaching slaves, and many teachers who arrived in the south during Reconstruction to teach ex-slaves were run out of town by force or intimidation.

  • Re:Porn? (Score:2, Informative)

    by Shakrai ( 717556 ) * on Monday June 28, 2010 @01:17PM (#32718630) Journal

    I twisted nothing. She went on to advocate in favor of laws that would prohibit the hiring of women for commercial purposes to engage in sexual activities. That would effectively ban pornography, at least of the commercial variety.

    She's also on record as saying that speech is only protected if the "value" of that speech exceeds it's "societal cost".

  • Re:Yay, Obama (Score:3, Informative)

    by Anonymusing ( 1450747 ) on Monday June 28, 2010 @02:50PM (#32720304)

    Factcheck does not "take a position" -- they analyze political statements and present the relevant facts, better than any other watchdog. If they have "bias by omission" then they've got huge biases in every direction. They hardly tackle every false statement made.

  • Re:Yay, Obama (Score:3, Informative)

    by Anonymusing ( 1450747 ) on Tuesday June 29, 2010 @09:54AM (#32730146)

    Well, we will just have to disagree on this.

    Factcheck analyzes a tremendous number of political statements, whether from Democrats or Republicans or even a few libertarians. If Obama gives a speech, they check his facts and conclusions against current data. If Palin says something on a talk show, they check her facts and conclusions against current data. They frequently correct misquotes from both the conservatives and liberals; hence, no real bias. But they generally pay attention to volume, so if Ron Paul has been widely misquoted, then they will pay attention to him.

    Find me an example of Ron Paul being misquoted and I will happily submit it to them with a beg to analyze it (and you should too, since numbers count).

    I'll also note that Factcheck and MSNBC are radically different organizations. MSNBC ought to air politicians like Ron Paul. (He was on MSNBC on February 23 []... but he's sure not there very often.) But MSNBC is a 24-hour for-profit news channel, while Factcheck is a small non-profit news watchdog. I agree with you on MSNBC, which tends to be a bunch of leftist hacks. However, I strongly disagree about Factcheck, because I think they're doing an excellent job.

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