First Amendment: Chief Justice Roberts and Justice Scalia Agreeing with Philosophy of Justice Kagan?

Discussion in 'Legal Philosophy' started by Dante, Jan 7, 2015.

  1. Dante
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    Dante On leave Supporting Member

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    First Amendment: Chief Justice Roberts and Justice Scalia Agreeing with Philosophy of Justice Kagan? “The distinction between content-based and content-neutral regulations of speech,” she wrote, “serves as the keystone of First Amendment law.”

    Much more interesting to look at the philosophies of the Justices rather than pin political party labels on them, no?

    In 1996, a young professor named Elena Kagan published an article in The University of Chicago Law Review. It sketched a way to make sense of the Supreme Court’s approach to the First Amendment.

    Chief Justice John G. Roberts Jr. cited the article in his majority opinion in a decision in June that struck down buffer zones for demonstrators around abortion clinics in Massachusetts.

    In a case to be argued next week, the Kagan article is featured in four briefs. Solicitor General Donald B. Verrilli Jr. cites it twice, and a brief filed by two religious groups devotes four pages to it.
    ...

    It is not clear, though, whether Justice Kagan believes in the approach she identified. Her article says it means to analyze a hidden pattern in modern First Amendment law and serve as “primarily a descriptive theory."
    ...

    “I make no claim,” Justice Kagan added in the article, “that a sensible system of free speech should be concerned exclusively with governmental motivation.”
    ...

    In 2011, at the end of her first term on the court, she joined the majority opinion in a decision striking down a California law that banned the sale of violent video games to minors. The problem, Justice Antonin Scalia wrote, was that California wished “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”

    That decision continues to trouble Justice Kagan. In remarks in November at Princeton, she said she had wanted to uphold the law.

    “But I could not figure out how to make the First Amendment law work to make it O.K.,” she said. “It was clearly what is called a content-based distinction.”

    She said the decision had haunted her.

    “That is the one case,” she said, “where I just don’t know, I just don’t know, if that’s right.”

    http://www.nytimes.com/2015/01/06/us/kagans-words-echo-at-the-supreme-court-19-years-later.html
     
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  2. Agit8r
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    Agit8r Gold Member

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    The court takes a ridiculously absolutist stance on "freedom of speech" in certain instances.

    Selling children video games where people are sawed in half is wrong. If enjoyment can be derived from such entertainment, it is certainly perverse. I see no difference in such than marketing pornography to children.

    Harassing the families of dead soldiers is not free speech. It is just harassment.

    Bribing public officials is not free speech either. It is just selling governance to the highest bidder. It is pure anarchy.

    Meanwhile, freedom of peaceable assembly for a redress of grievances against GOVERNMENT ACTION (one actual intent of the amendment) and the freedom of the press, are readily disregarded by the troglodytes who wear badges.

    This country is being fucked by ignoramuses in robes :(
     
  3. C_Clayton_Jones
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    C_Clayton_Jones Diamond Member

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    Disagree.

    The Court has been overall consistent and correct in addressing First Amendment issues.

    It is not the role of government to decide what video games citizens might purchase provided such games do not cross the line into obscenity; video games may be 'perverse' but not obscene, and entitled to Constitutional protections. The issue is not whether such video games are appropriate for children, they're clearly not, and that's for parents to address, the issue is whether it's appropriate for government to seek to ban video games perceived to be violent.

    That there are those who use their rights enshrined in the First Amendment to engage in offensive speech, to exhibit their ignorance, stupidity, and hate, is not justification for government to restrict that speech, even in the venue of a soldier's funeral; the nature of a truly free society is its ability to protect the speech of a hated, despised minority.

    Although inalienable our First Amendment rights are not absolute, and subject to reasonable restrictions by government. Over the decades the Court has successfully charted a course ensuring the rights of citizens to express their opinions absent unwarranted interference from government – no matter how offensive or hateful, while at the same time recognizing when government has used its authority appropriately to preempt or limit speech or actions pursuant to a compelling governmental interest and a proper legislative end.
     
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  4. Agit8r
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    Agit8r Gold Member

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    Well your opinion was victorious, but I still believe that the justices exercised considerable license in coming to certain conclusions. Liberty, after all is not only what we may do, but what we would not have done to us. If we put ourselves in the shoes of the grieving family, or the voters whose will is not respected by the coerced politician, we see that the damage is greater than the restriction would be.
     
  5. Dante
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    Dante On leave Supporting Member

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    :cuckoo:

    an absolutist stance cannot be taken in 'certain circumstances'

    I guess a reading and comprehension toolkit is not in your toolbox

    then again, maybe you have never read rulings you whine about?
     
  6. Dante
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    Dante On leave Supporting Member

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    negative liberty? I didn't know we ask that the law put itself into the shoes of grieving people before considering the law
     

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