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Obama’s Supreme Court pick looks wobbly on freedom of speech

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posted on May, 13 2010 @ 07:39 AM
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The Bounds Of Silence


Last month New York Times legal writer Adam Liptak said two recent Supreme Court cases "suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech." Elena Kagan, President Obama’s nominee to replace retiring Justice John Paul Stevens, was on the losing side in both.



As solicitor general, of course, Kagan has an obligation to defend federal laws against constitutional challenges. But her pro-censorship positions went beyond the call of duty. Together with some of her academic writings, her arguments in these cases provide grounds to worry that she will be even less inclined than Stevens, who has a mixed First Amendment record, to support freedom of speech.




posted on May, 13 2010 @ 08:31 AM
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I find the attempts to quell the discussions concerning her sexual orientation quite telling, whether she's gay or not.
Perhaps I am just some crazed conspiracy nut, but I think I detect some sort of ruse.



posted on May, 13 2010 @ 08:36 AM
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Originally posted by 23refugee
I find the attempts to quell the discussions concerning her sexual orientation quite telling, whether she's gay or not.
Perhaps I am just some crazed conspiracy nut, but I think I detect some sort of ruse.


Of all the questions you could have about a Supreme Court nominee, one of sexual orientation is the least important. The cases she has made for censorship, for example, are quite frightening indeed.



posted on May, 13 2010 @ 08:40 AM
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reply to post by traditionaldrummer
 


It seems that for the last 15 years from presidents to congress they all attacking Americans right to speech and more.

Having the supreme court embedded with anti free speech members is troublesome, but them again the supreme court can never change the constitution and have to abide by what is in it, their record shows that.



posted on May, 13 2010 @ 08:42 AM
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She is a communist. It is only natural that she will use the Supreme Court as a tool to bludgeon the citizenry instead of as tool for dispensing Constitutional decisions.



posted on May, 13 2010 @ 08:44 AM
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There is simply too much NOT to like about her. From her support of government sponsored censorship to her lack of objective support of the rules in her handling of two law professors found guilty of plagiarism - she has repeatedly demonstrated that she is an activist and NOT a quilified adjudicator.

I hope to G-d that the Senate has the good sense to deny this confirmation!



posted on May, 13 2010 @ 08:58 AM
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Originally posted by traditionaldrummer

Originally posted by 23refugee
I find the attempts to quell the discussions concerning her sexual orientation quite telling, whether she's gay or not.
Perhaps I am just some crazed conspiracy nut, but I think I detect some sort of ruse.


Of all the questions you could have about a Supreme Court nominee, one of sexual orientation is the least important. The cases she has made for censorship, for example, are quite frightening indeed.


Maybe a quote from a thread questioning her sexuality might shed some light on my apparent bigotry.
"As a gay man, I feel that Ms. Kagan's sexual preference is pertinent to a discussion of her appointment to the USSC.
Just as others are free to wonder aloud as to whether she may have a "gay rights agenda" as some gays do, I'm free to wonder aloud as to whether she may have an "anti-gay rights agenda" as some closeted gays do."
I don't care if she's gay. I simply question how such a fervent opponent of DADT can defend the DOMA. It's the same question I have about the President.



posted on May, 13 2010 @ 09:06 AM
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Originally posted by 23refugee
Maybe a quote from a thread questioning her sexuality might shed some light on my apparent bigotry.
"As a gay man, I feel that Ms. Kagan's sexual preference is pertinent to a discussion of her appointment to the USSC.
Just as others are free to wonder aloud as to whether she may have a "gay rights agenda" as some gays do, I'm free to wonder aloud as to whether she may have an "anti-gay rights agenda" as some closeted gays do."
I don't care if she's gay. I simply question how such a fervent opponent of DADT can defend the DOMA. It's the same question I have about the President.


To me, the question of sexual orientation is more of a distraction from more important issues. I did not mean to be belittling with my comment. I can see how there could be legitimate concerns about how that may affect future rulings, but to me there are more salient issues in play than whether her potential homosexuality would affect constitutional interpretation.



posted on May, 13 2010 @ 09:57 AM
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reply to post by traditionaldrummer
 


To many who supported Obama during the last election, the question of sexual orientation was of the utmost importance. Sadly, they bought into the media's portrayal of Hope and Change with a Big Helping of Equality for All without reading the under-reported fine print.
The importance of the perception of Ms. Kagan as a homosexual opponent by the right and as a homosexual ally by the left shouldn't be underestimated.
If a significant amount of voters think the President they elected is installing a Justice that will interpret the Constitution according to their beliefs and it simply isn't so, this should be a concern. A President appointing a Justice who doesn't represent the will of the people who elected said President has been a valid point of contention in the past. Does the inclusion of sexual orientation invalidate such contention now?



posted on May, 13 2010 @ 10:07 AM
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Originally posted by 23refugee
Does the inclusion of sexual orientation invalidate such contention now?


No, and as I stated in my last post, I do see the relevance of the question. However, I still find this issue less concerning than some of her First Amendment positions detailed in the link. I'd like to see more focus on those positions.



posted on May, 13 2010 @ 10:19 AM
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reply to post by traditionaldrummer
 


To return to the topic, I was confused buy the insistence of many that her views sited were actually the opinions of those she represented, not her own. It sounds good, but in your opinion, is it true?



posted on May, 13 2010 @ 10:21 AM
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So, you are aware, I'm sure that there are already some exceptions to the First Amendment for the good of society. For example, screaming FIRE in a crowded theater when there is no fire is NOT protected under the First Amendment. Neither are defamation, fighting words, incitement to crime, sedition and obscenity.

Free Speech Exceptions

Kagan wanted to limit the creation, sale and possession of depictions of illegal animal cruelty, mutilation, torture and killing for personal gain.

Geez, we better look more closely at this woman, huh? She wants to stop me from filming while I torture and mutilate my animals for money... What a nut-job, huh?



Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) EXCEPTION.—Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) DEFINITIONS.—In this section—

(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State


Source

Just to be clear, I disagree with her, as I stand by the First Amendment strongly. But I think it's important to look at EXACTLY what she had in mind when suggesting these limits.


[edit on 5/13/2010 by Benevolent Heretic]



posted on May, 13 2010 @ 10:50 AM
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Originally posted by Benevolent Heretic
Geez, we better look more closely at this woman, huh? She wants to stop me from filming while I torture and mutilate my animals for money... What a nut-job, huh?


I certainly don't want that either, but that particular law was so poorly written that it needed addressing.

Her argument in defending the poorly-written law? ""Whether a given category of speech enjoys First Amendment protection," she wrote, "depends upon a categorical balancing of the value of the speech against its societal costs."

I'd have to agree with Roberts that this is "startling and dangerous".



posted on May, 13 2010 @ 11:09 AM
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Originally posted by traditionaldrummer
Her argument in defending the poorly-written law? ""Whether a given category of speech enjoys First Amendment protection," she wrote, "depends upon a categorical balancing of the value of the speech against its societal costs."


But it's true. The examples I gave above of exceptions to free speech balance the value of the speech against its societal costs. There's nothing wrong with that.

Incitement, mass panic, obscenity, sedition... They ALL are exceptions because when balanced against societal costs, they are not worth it to protect. I know her argument is a bit general, but her law (which I don't find poorly-written at all) was very specific.

By the way, all the rags are using that one quote. I wonder if there was any more to her argument that fleshed it out a bit more... Don't you even wonder? No one seemed to wonder about the specifics of the law, they just jumped on the WND and freeper bandwagon to make this woman look like a direct threat to our freedoms and you all jumped on for the ride. Don't you have any curiosity left at all? Don't you wonder if you might be demeaning this woman for no good reason? Do you even care if it makes sense?

A search of that quote brings up the examiner, WND, Freeper, ATS (this thread), daily radar, republican operative and godlike productions on the first page. DO you LIKE seeing ATS buried in those rags?

It's embarrassing, really.



[edit on 5/13/2010 by Benevolent Heretic]



posted on May, 13 2010 @ 11:20 AM
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Originally posted by Benevolent Heretic

But it's true. The examples I gave above of exceptions to free speech balance the value of the speech against its societal costs. There's nothing wrong with that.


If that is so in certain cases then it is purely incidental. Plenty of free speech is protected which can certainly be deemed to have societal costs. The First Amendment is pretty clear and it does not include a new requirement to interpret "societal costs".

Also, I'm sorry that certain magazines you don't like are focusing on this issue. It should be equally as revealing which ones are ignoring it also. Which media outlets focus on this phrase is no argument.

Keep in mind I do not want animal abusers profitting from their activities. I foster dogs and volunteer at an animal rescue facility. The case at hand is not the issue. Her mutant interpretation of the First Amendment is the issue.



posted on May, 13 2010 @ 11:26 AM
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Originally posted by traditionaldrummer
The case at hand is not the issue. Her mutant interpretation of the First Amendment is the issue.


Well, since this argument (societal costs) has been used before to limit free speech, I'm not sure why HER suggesting that it be used in this case would be considered a "mutant interpretation".

Is it a mutant interpretation to say that the societal cost of mass panic is enough to outweigh the freedom of someone to falsely yell FIRE in a crowded theater?



posted on May, 13 2010 @ 11:47 AM
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Originally posted by Benevolent Heretic
Well, since this argument (societal costs) has been used before to limit free speech, I'm not sure why HER suggesting that it be used in this case would be considered a "mutant interpretation".

Is it a mutant interpretation to say that the societal cost of mass panic is enough to outweigh the freedom of someone to falsely yell FIRE in a crowded theater?


"Societal costs" is not the barometer by which free speech is deemed protected or not. Period. In some cases, "societal costs" may have been a factor, but it is not any kind of determining factor.

The Supreme Court also agreed with an 8-1 decision against Kagan, including a rebuke and explanation of the 1st to Kagan. She has an incorrect view of the First Amendment and because of this, is not a good candidate for the court that is supposed to guarantee our freedoms.



posted on May, 13 2010 @ 11:50 AM
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So far we can be happy that Obama picked a good person for the job. We are grateful Bush is out of office. It appears that Obama's choice does not have anything to attack him on and was logically patriotic again.



posted on May, 13 2010 @ 12:06 PM
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Originally posted by Paradigm2012
It appears that Obama's choice does not have anything to attack him on and was logically patriotic again.


Have you been reading any of the thread?

How about the title?



posted on May, 13 2010 @ 01:10 PM
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Wobbly is an understatement. She touted a speech made by Thurgood Marshall in which he said the Framers of the Constitution weren't smart men and they produced a "flawed document" from the start (speaking about the Constitution). He idealized that the Constitution shouldn't apply to present time since much has changed over 200 years and that the Constitution's first amendment was 'outdated'.

If there was ever a true threat to your personal freedoms, Kagan is the one to watch.



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