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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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  • 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.

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

    by Pojut ( 1027544 ) on Monday June 28, 2010 @09:44AM (#32715772) Homepage

    Sotomayor is a Mussolini style fascist just like Obama is

    Source? 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.

    You can show me all kinds of skelatons in her closet, but can you give me specific examples of her being facist since she took her place at the bench?

  • 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.

  • 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 [])

    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

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

    by turing_m ( 1030530 ) on Monday June 28, 2010 @10:03AM (#32716006)

    You can show me all kinds of skelatons in her closet, but can you give me specific examples of her being facist since she took her place at the bench?

    Indeed. Just one googling of Sotomayor or Kagan, and it will be immediately obvious that both have waged a lifelong struggle against facism. They will no doubt stand firm lest it once again rear its, err, ugly head.

  • Free Speech (Score:5, Interesting)

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

    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.

  • 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.
  • 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 [] 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.

  • Re:Freedom of speech (Score:3, Interesting)

    by hedwards ( 940851 ) on Monday June 28, 2010 @10:22AM (#32716240)
    So, you're going to send death threats to the President? Mailings about prime real estate properties in Florida? Assert that there's a brothel being operated out of a local garage? Free speech has never been completely free, nor should it be. There's speech which furthers public discourse and there's speech which hinders it. The first amendment is there to ensure that speech is free unless it's demonstrated to fall into the latter category.
  • Re:Yay, Obama (Score:5, Interesting)

    by MightyMartian ( 840721 ) on Monday June 28, 2010 @10:25AM (#32716272) Journal

    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!"

  • by Meneth ( 872868 ) on Monday June 28, 2010 @10:26AM (#32716280)

    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 [] use it.

  • 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?
  • SCOTUS is different (Score:5, Interesting)

    by DesScorp ( 410532 ) <> 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".

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

    by Compholio ( 770966 ) on Monday June 28, 2010 @10:51AM (#32716568)

    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.

    Actually, the constitution gives SCOTUS the power to make a decision for whatever reason they please. They have simply chosen historically to make those decisions primarily based on the constitution. However, it is important to note that the congress could easily make them completely impotent with the whole "... with such Exceptions, and under such Regulations as the Congress shall make."

  • Re:Excited (Score:3, Interesting)

    by Pojut ( 1027544 ) on Monday June 28, 2010 @11:12AM (#32716834) Homepage

    What else am I supposed to go on? The handful of things that the liberal and conservative sides are focusing on? No thanks. I think I'll make my judgements based on how she responds to the questions posed to her. You know, that whole "decide for yourself instead of as you've been told" thing that so many people seem to ignore nowadays.

    C-SPAN is your friend.

  • Re:Yay, Obama (Score:0, Interesting)

    by Darby ( 84953 ) on Monday June 28, 2010 @11:24AM (#32716972)

    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!"

    No, not at all.
    Fascism is the merger of state and corporate power. So secret meetings with the oil and gas companies to set energy policy to their benefit is fascism by definition pure and simple.
    Your ignorance of the meaning of the word and the Right's attempts to paint the purely right wing (again, by definition) ideology of Fascism as leftist is just lying. The constant demonization of the Left also paints Republicans as adherents of Nazism..again, by definition. "Rabid opposition to the left" *is* Nazism summed up in one sentence and as a pure right wing, purely reactionary ideology, it is a complete description of current Republican ideology.

    So, yes, Republicans, each and every one, are Fascist Nazis. You're getting tied up in specific implementation details and demonstrating your inability to reason abstractly or understand general cases or the big picture.

    So killing the gays, the handicapped, the Jews, Union supporters and various other groups of "undesirables", and current Republican policy of pushing for rabidly anti-American gay hatred legislation are two specific examples of the general case of promoting hatred of a minority group in order to promote cohesion among the "elite".
    It's just that America was constructed carefully and specifically to oppose Right wing ideology. "We hold these truths the be self evident that all men are created equal" is a direct statement of complete and utter rejection of Right wing ideology.

    If you don't like those definition, too fucking bad. They were invented by Mussolini and Hitler respectively, and are the definitions of the words, common usage is worthless to actually understand the situation as you've clearly demonstrated.

  • 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.

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

    by ch-chuck ( 9622 ) on Monday June 28, 2010 @11:50AM (#32717278) Homepage

    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 [] ]

  • Re:1st... (Score:3, Interesting)

    by shutdown -p now ( 807394 ) on Monday June 28, 2010 @01:51PM (#32719334) Journal

    The 1st amendment has been incorporated against the states.

    This is interesting. I've read the article, and the problem with it, so far as I can see, is that it's essentially something that SCOTUS did on its own, essentially changing its interpretation of the Constitution as it went along:

    Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

    Not only that, it's piecemeal:

    Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed, are the Second Amendment right to bear arms, the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.

    The obvious major problem with this arrangement is that it opens the possibility of SCOTUS changing their interpretation again, thereby reversing the doctrine. It's not like it would be the first time they'd change themselves on some matter (heck, they did change themselves on incorporation itself when they started applying it!).

    This all is to say that US Constitution today is a bit of a clusterfuck in how it's interpreted. Part of the problem is that it's written in a not very clear language at times (e.g 2nd), part is that back when it was written, the country was very different, part is that it makes some assumptions that may have been obvious back in the day but not anymore. The real problem is that, whenever there is ambiguity, there is opportunity to abuse it - and it has been consistently taken up by forces which seek to curtail rights rather than expand them. This is how you get legal abominations such as the modern interpretation of the commerce clause.

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

    by commodore64_love ( 1445365 ) on Monday June 28, 2010 @01:56PM (#32719440) Journal

    >>>There has always been bias in the "mainstream press", but not to the degree we see now.

    You're right. It used to be much worse. Newspapers pre-1930 used to proudly proclaim they were biased, sometimes even putting the bias directly in the name: the Philadelphia Republican News or the Pittsburgh Democrat Gazette. You think there's bias now but it's nothing compared to how it was from circa 1700 to 1930.

    And that's good. I'd rather have people TELL me their bias (I am pro-make government as large as possible), rather than LIE and say they have no bias.

  • Re:Hate speech (Score:4, Interesting)

    by 99BottlesOfBeerInMyF ( 813746 ) on Monday June 28, 2010 @02:52PM (#32720328)

    The example you gave is not about hate, it makes it illegal to incite violence whether the target is a social or ethnic group, or "people that work for BP", or "that guy over there".

    Actually, your last example is not apt. There are already laws covering telling someone or a group to go kill a specific individual. Laws about inciting violence not against a specific person, but a social group, however, have not traditionally existed. Such laws have appeared more recently in response to individuals and groups who tell their followers to go "kill blacks" or "kill jews" or "kill faggots" or what have you. They are referred to as "hate speech" laws because they are about stopping a specific kind of hate speech that is likely to cause violence against some group by drumming up hate against that group. In fact, these type of "hate speech" laws are the most common, but because both individuals and the media don't differentiate when speaking about the laws, it all gets lumped together and people are confused about the issue. I don't know why you think hate speech laws only apply to ethnic minorities or something and that people can't hate "people that work for BP". Hate speech laws are about stopping speech that leads to violence against a group by inciting hate for that group. What the group is, is not the defining characteristic of hate speech.

  • by elucido ( 870205 ) * on Monday June 28, 2010 @03:59PM (#32721456)

    No, you don't have enough control to make someone angry, sad, or happy, because they're individuals not objects. You can affect someone's mood, but you don't make it and you can't control it. People can't trust society because society because society is not trustworthy, because it treats them like objects. The solution is not satisfying their urges, but allowing them to be free.

    Sure I can. If I punch you in the face a few times you'll punch me back. That is proof I can make you angry or scared. Not to mention you can drug people, apply hypnosis, or seduce people. Yes you can influence someones mood easily.

    What you cannot do is influence someones behavior so easily. Just because they feel a certain way it doesnt mean they cannot apply reasoning to their situation and decide what to do.

    That said I agree with you that liberty is the point of society. It's what we work for. To live without liberty is no different than being in prison.

    As for society treating them as objects, you can recognize that all human animate objects prefer to be happy. You can create a society that doesn't get in the way of the pursuit of happiness. It's like each object is on a road, and the laws being passed sometimes are direct roadblocks that cause them to drive in ways which are less predictable and more erratic because they aren't happy.

    On top of that you have people using all kinds of drugs and medication because society sucks so bad. Lets just be real about it, most people are depressed because society legitimately sucks. Every year and every decade society tells you what you can't do, makes you work harder and harder, makes you sacrifice more, pay more taxes, gives you more risk and danger, don't break the law even though thousands of new laws are created all the time. So it's possible that a lot of people are going to be miserable in hell.

    Maybe we should make it heaven instead?

System checkpoint complete.