SC case - animal cruelty - Gov claims Congress can ban any speech it deems unworthy.

[thraashman]

Is that actually how it works? I thought in a position such as the Solicitor General we expected the person to attempt to uphold the constitution. If we gave a soldier orders that were against the constitution, such as he was to be quartered in a citizens home against their will, he is supposed to resist those orders. Maybe I was wrong, but I thought the Solicitor General was supposed to act in a manner like that.

It's shocking to me that you seem to think that a Solicitor General's job is to be the person to interpret whether or not a law is Constitutional. Apparantly in your world everyone agrees with everyone in how to interpret something so she should just know the law won't be upheld by the courts and not argue the government's position. I guess we just don't need a solicitor general. Hell, why have the courts everyone interprets everything the same way anyway. Why even have laws or lawmakers or a president? The Constitution is the end all be all and everyone in the U.S. agrees at ALL times how to interpret it. Wow, what a fucking break through argument you've made. It's made everything so clear now!

 

[daishi5]

It's shocking to me that you seem to think that a Solicitor General's job is to be the person to interpret whether or not a law is Constitutional. Apparantly in your world everyone agrees with everyone in how to interpret something so she should just know the law won't be upheld by the courts and not argue the government's position. I guess we just don't need a solicitor general. Hell, why have the courts everyone interprets everything the same way anyway. Why even have laws or lawmakers or a president? The Constitution is the end all be all and everyone in the U.S. agrees at ALL times how to interpret it. Wow, what a fucking break through argument you've made. It's made everything so clear now!

Actually, it was an honest question. I just assumed that her job included protecting the constitution, and therefore she should not be trying to to advance a view that the congress has unchecked power to ban types of speech. That seems to be the argument she was making, that congress can ban types of speech that it does not think should be protected.

 

[Linflas]

Actually, it was an honest question. I just assumed that her job included protecting the constitution, and therefore she should not be trying to to advance a view that the congress has unchecked power to ban types of speech. That seems to be the argument she was making, that congress can ban types of speech that it does not think should be protected.

Actually you are right, anyone in government service takes an oath to uphold and defend the Constitution. Far too many in Congress ignore that basic oath as they go about their business in crafting legislation and they have somehow convinced the American people that this is how laws should be made.

 

[CallMeJoe]

Actually, it was an honest question. I just assumed that her job included protecting the constitution, and therefore she should not be trying to to advance a view that the congress has unchecked power to ban types of speech. That seems to be the argument she was making, that congress can ban types of speech that it does not think should be protected.

The Solicitor General's primary job is to represent the government in arguments before the Supreme Court. The SG also determines which cases the government shall take to appellate courts and has the power to decline to argue cases if, in the Solicitor's opinion, the government's position lacks merit.
It is possible for the Solicitor to argue as Devil's Advocate to prompt the Supreme Court to set a binding precedent or refine an existing precedent, since the Court very rarely declines to hear cases the Solicitor's office requests.

 

[thraashman]

Actually you are right, anyone in government service takes an oath to uphold and defend the Constitution. Far too many in Congress ignore that basic oath as they go about their business in crafting legislation and they have somehow convinced the American people that this is how laws should be made.

But seeing as how a law was passed and exists, she is defending the law as passed. Which is her job because she does not interpret if that law is Constitutional. The Congress wrote and passed it. The President signed it. And up until the Supreme Court hears it and rules, it's not unconstitutional. So she IS upholding the Constitution. Free speech isn't blanket. Many things in the Constitution can really end up being not completely blanket. That's why things like child porn aren't considered a free speech right. And why the right to bear arms doesn't allow a private citizen to keep his own personal nuke collection in his basement. Her position was to try to point out that there are things that are speech that are not protected because they do harm and abridge the rights of others as a result. And if the Congress writes a law that says that a certain type of speech (threats of harm to others for example) do not fall under the protections of free speech, then they aren't protected. In this case the SC didn't even disagree with her about a law limiting heinous acts as being allowed to be limited, they said the law being too broad ended up violating what is protected by free speech.

 

[daishi5]

But seeing as how a law was passed and exists, she is defending the law as passed. Which is her job because she does not interpret if that law is Constitutional. The Congress wrote and passed it. The President signed it. And up until the Supreme Court hears it and rules, it's not unconstitutional. So she IS upholding the Constitution. Free speech isn't blanket. Many things in the Constitution can really end up being not completely blanket. That's why things like child porn aren't considered a free speech right. And why the right to bear arms doesn't allow a private citizen to keep his own personal nuke collection in his basement. Her position was to try to point out that there are things that are speech that are not protected because they do harm and abridge the rights of others as a result. And if the Congress writes a law that says that a certain type of speech (threats of harm to others for example) do not fall under the protections of free speech, then they aren't protected. In this case the SC didn't even disagree with her about a law limiting heinous acts as being allowed to be limited, they said the law being too broad ended up violating what is protected by free speech.

I went out and found the actual brief: http://www.justice.gov/osg/briefs/2009/3mer/2mer/2008-0769.mer.rep.html

Before this, I had only read the supreme court opinion. I am now confused, the brief sounds like she believes this law is constitutional because it is very focused, and very specific, while the supreme court states she wants to judge all speech on a basis of merit. I don't think I have any expertise to claim I understand her position better than the SC does. But, I just don't see the simple merit test in her brief that the supreme court claims is there on page 7 of the majority opinion.

I don't know what to think, but I am still concerned about her position if the SC is right.

Edit: and she is arguing that the law is constitutional based upon the merits of the law itself. She argues that it fits within the rights of the government to limit speech in this matter. From the brief, I think it is clear that it is not her job to support the laws as written, but to argue for their merit.

 

[NeoV]

our entire judicial system - and this is a great example - is broken

to imply that this law would somehow mean that hunting videos, in any way, shape, or form, could be outlawed - since dog fighting videos were the 'target' of the law - is absurd.

I am perfectly fine in the federal govt wants to pass a law that says 'you cannot make, sell, possess, or buy videos depicting dog fighting' - all this other BS is just a way for the legal system to play one-ups at various levels.

 

[CanOWorms]

our entire judicial system - and this is a great example - is broken

to imply that this law would somehow mean that hunting videos, in any way, shape, or form, could be outlawed - since dog fighting videos were the 'target' of the law - is absurd.

That wasn't the target of the law. The legislative history shows that it was to stop crush videos.

One of the videos Stevens was charged for was regarding hunting techniques, too.

 

[cwjerome]

How does possessing something that required an illegal act have anything to do with free speech? Why does it matter where the material was made? If you want to talk about the act, be my guest, but you're damned right I want you charged if you profit off of handing out video of the act....

What if a news story shows stock footage of people smoking crack?

What if a documentary shows kids tagging or prostitutes banging?

Those were illegal acts, should they be charged?

What if these things were not video, only audio? Or maybe written word accounts? Free speech?

I don't have a strong position on this, just asking...

 

[nonlnear]

Is that actually how it works? I thought in a position such as the Solicitor General we expected the person to attempt to uphold the constitution. If we gave a soldier orders that were against the constitution, such as he was to be quartered in a citizens home against their will, he is supposed to resist those orders. Maybe I was wrong, but I thought the Solicitor General was supposed to act in a manner like that.

No lawyer can rise to the rank of Solicitor General without sufficient ego to believe that they can bend the Constitution with the sheer force of their own will. To such a person, the oath to uphold the Constitution becomes more an affirmation of their own legal acumen than a statement of values.

 

[heyheybooboo]

The law was used to prosecute a man for distributing a "documentary" that included dog fighting, it has never been used to prosecute someone for a "crush video." Supposedly, he edited out the graphic parts to depict the animals natural behavior, but I have not seen the videos so I don't know for sure.

This would be like child obscenity laws making national geographic illegal because other cultures do not always clothe their children.



The act in question, dog fighting, was not illegal where the video was produced. And, the act made videos of legal activities illegal, if the act was illegal anywhere in the nation.



Is it a surprise that Congress would believe it has power? One of the jobs of the supreme court is to identify when Congress has gone too far, and on this, it seems that all the justices agree. Only Alito dissented, and he did so because he thought the acts powers were not as broad.



Yes, I really wanted to prevent a justice from being nominated and I chose P&N as the place to launch my plan to control who is on the supreme court.

I'm not 100% up to date on the particulars so the prosecution of this individual may have been a poor application of the statute itself.

I guess my point was that the 'test' of prurient materials that "...lack serious literary, artistic, political, or scientific value..." is deemed a sufficient standard/definition for child porn, but did not suffice for 'cruelty' in the eyes of the SC.




--

 

[alphatarget1]

Good thing is that the SCOTUS struck this down almost unanimously. That doesn't happen very often these days.

 

[daishi5]

I'm not 100% up to date on the particulars so the prosecution of this individual may have been a poor application of the statute itself.

I guess my point was that the 'test' of prurient materials that "...lack serious literary, artistic, political, or scientific value..." is deemed a sufficient standard/definition for child porn, but did not suffice for 'cruelty' in the eyes of the SC.

--

From my reading, the reason child porn is banned is not due to a lack of value, but because the creation of child porn is criminal abuse of a portion of society that cannot protect itself. Child porn was deemed to be lacking in value, but that was not enough to ban it. The creation of child porn required the abuse of a child, and the continued distribution of it continued to harm the child. The government wanted to ban animal cruelty videos on the same basis, creating it required harming animals in a way that was illegal. It seems a more specific law could still be passed on those grounds, but this law was too broad and was based on more of a cost benefit grounds.

The poor application of the statute is amusing, because apparently the government promised that even if the law was badly written it was not unconstitutional because the government promised to be good about only using it when it was a good thing.

 

[woolfe9999]

http://www.npr.org/templates/story/story.php?storyId=126148497

There is not too much that matters in this case, except for the governments assertions, and who signed the government's brief. The part that worries me is that Elena Kagan signed a brief that states congress has the power to I don't see how this could have made it past anyone who is thinking. I have not seen the actual brief, but it seems to me that our Solicitor General thinks that Congress can ban any category of speech that it deems is not worth protecting from bans. I understand they may not be able to ban any form of speech, because some have been explicility protected already, but if the group that decides which speech to ban is also the group that is allowed to decide which types of speech not to ban, then there is no protection.

The law was voted unconstitutional 8-1, with only Alito dissenting. From the majority opinion: It seems that our government thinks that it can ban any speech that it decides is not worth protecting. I think that would equate to the statement, I won't ban any speech that I do not ban. But, even Alito only thinks the law should remain constitutional if it is restricted to only apply to videos of illegal activity that depict depraved acts, like the torture of animals. And, from my reading he does not believe the government has the powers it claimed it had in the brief.

I think it is disgraceful that someone so close to the supreme court would support an interpretation of a law like this.

http://www.supremecourt.gov/opinions/09pdf/08-769.pdf

Unfortunately you cannot rely on media reporting of court cases any more than you can for science reporting. This can be true even of NPR, particularly when you see the following disclosure at the beginning of NPR's article, to wit:

Editor's note: NPR joined other news organizations in filing a brief in this case arguing that the statute was unconstitutional.

In other words, NPR has a definite viewpoint and a horse in this particular race.

The truth is that the government's brief does not say precisely what the NPR article claims it says. It should have been an immediate red flag to anyone thinking critically that only the word "worthy" appears in quotes, while the rest is a paraphrase. Beware of the media parahphrasing anything. It didn't seem like something that would appear in a government brief to me, so I checked Westlaw and reviewed both U.S. briefs that appear in the matter. In fact, the only thing resembling NPR's paraphrase is the brief quoting the dissenting opinion in the Circuit Court of Appeals, and even that quotation isn't being properly paraphrased. Here is the language in question, with the relevant part bolded and the rest provided for context:

Finally, section 48's exceptions clause ensures that the statute reaches only material which lacks serious societal value. "By the very terms of the statute," any material that "has serious utility - whether it be religious, political, scientific, educational, journalistic, historic, or artistic - falls outside the reach of the statute." 1999 House Report 4. The Court of Appeals discounted the significance of the exceptions clause on the ground that it "cannot on its own constitutionalize section 48." Pet.App. 25a. But the clause does not "on its own" make the statute constitutional. Instead, Congress started "with the legislative judgment that the category of speech at issue - depictions of animals being intentionally tortured and killed - is of such minimal redeeming value as to render it unworthy of First Amendment protection," and then exempted from that class any "subsets of these materials" with redeeming societal value. Id. at 48a-49a (Cowen, J., dissenting.) Congress added the exceptions clause to protect any isolated depictions that have value within the class of generally valueless depictions of unlawful animal cruelty. The Court of Appeals had no basis to read out that provision of the statute.

That is the full quotation from the government brief. In short, the government is quoting the dissenting opinion in the lower court, which, in turn, is merely describing Congress' intent at the time it passed the statute. So the quote is descriptive - it merely says that Congress deemed depictions of animal cruelty as unworthy of First Amendment protection. One can only assume that this is an accurate description of the legislative intent here, or Congress would never have passed this law!

There is a huge leap from that to the NPR quote, which has the government somehow arguing that Congress can just go ahead and ban whatever it deems unworthy of protection. That is not the government's position, but rather NPR's strawman.

This is yet another object lesson in why we don't leap to conclusions based on media soundbites which have been culled out of complex writings.

- wolf

 

[daishi5]

Unfortunately you cannot rely on media reporting of court cases any more than you can for science reporting. This can be true even of NPR, particularly when you see the following disclosure at the beginning of NPR's article, to wit:



In other words, NPR has a definite viewpoint and a horse in this particular race.

The truth is that the government's brief does not say precisely what the NPR article claims it says. It should have been an immediate red flag to anyone thinking critically that only the word "worthy" appears in quotes, while the rest is a paraphrase. Beware of the media parahphrasing anything. It didn't seem like something that would appear in a government brief to me, so I checked Westlaw and reviewed both U.S. briefs that appear in the matter. In fact, the only thing resembling NPR's paraphrase is the brief quoting the dissenting opinion in the Circuit Court of Appeals, and even that quotation isn't being properly paraphrased. Here is the language in question, with the relevant part bolded and the rest provided for context:



That is the full quotation from the government brief. In short, the government is quoting the dissenting opinion in the lower court, which, in turn, is merely describing Congress' intent at the time it passed the statute. So the quote is descriptive - it merely says that Congress deemed depictions of animal cruelty as unworthy of First Amendment protection. One can only assume that this is an accurate description of the legislative intent here, or Congress would never have passed this law!

There is a huge leap from that to the NPR quote, which has the government somehow arguing that Congress can just go ahead and ban whatever it deems unworthy of protection. That is not the government's position, but rather NPR's strawman.

This is yet another object lesson in why we don't leap to conclusions based on media soundbites which have been culled out of complex writings.

- wolf

I don't have time to read the supreme court opinion again at work, but I double checked a few things. On page 7 of the opinion, they made it seem like the brief makes a claim that speech can be determined to be unworthy of protection on a cost-benefit basis. The next paragraph goes on about how that phrase alone is a terrifying concept. It seems like the majority did believe that she was making the case that the government could ban speech on a cost-benefit analysis, but from her brief, which I also linked, she seems to be much more nuanced.

I only read the NPR story, and the supreme court opinion before posting the OP. After reading her brief myself, I don't see as much of a problem with the government's position, because it does seem to be very restricted in what it thinks it can ban. But, at the same time, it does seem that the SC sees a little more in the brief than I do. I am slightly confused about how to approach it. I don't see the huge issue in her brief, but the SC does, and I trust their interpretation more than I do my own. So, if I trust the people who know more than me, her brief is still troubling to me, even though I don't see the problem myself.

The part I am referring to is:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.
As a free-floating test for First Amendment coverage,that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balanc-ing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Govern-ment outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

 

[woolfe9999]

I don't have time to read the supreme court opinion again at work, but I double checked a few things. On page 7 of the opinion, they made it seem like the brief makes a claim that speech can be determined to be unworthy of protection on a cost-benefit basis. The next paragraph goes on about how that phrase alone is a terrifying concept. It seems like the majority did believe that she was making the case that the government could ban speech on a cost-benefit analysis, but from her brief, which I also linked, she seems to be much more nuanced.

I only read the NPR story, and the supreme court opinion before posting the OP. After reading her brief myself, I don't see as much of a problem with the government's position, because it does seem to be very restricted in what it thinks it can ban. But, at the same time, it does seem that the SC sees a little more in the brief than I do. I am slightly confused about how to approach it. I don't see the huge issue in her brief, but the SC does, and I trust their interpretation more than I do my own. So, if I trust the people who know more than me, her brief is still troubling to me, even though I don't see the problem myself.

The part I am referring to is:

I can actually see how the SCOTUS majority would interpret that from the government's brief. The cost-benefit concept is actually well worn in constitutional law. It applies to just about every area of it. For example, with equal protection, the state must show a "compelling interest" in order to justify a discriminatory law. With the First Amendment, we are supposed to be more absolutist than that. In other words, we simply carve out a few exceptions and leave everything else protected. In reality, every exception already carved out relies, at least implicitly, on some sort of cost-benefit analysis. This sort of back and forth that you're seeing here is very common in First Amendment legal writings. The party who is advocating the First Amendment protection in a given case (in this instance the SCOTUS majority) will accuse the other party of advocating a cost-benefit approach and say the approach is a dangerous slippery slope, and as it happens, there is usually at least some merit to the charge.

However, this is neither here nor there with respect to the NPR paraphrase of the government's position. It should have been an immediate red flag that NPR is suggesting that the government took the position that Congress can just go ahead and ban speech that it deems unworthy, as that at least implies that Congress, not the SCOTUS, is the true arbiter of what is and isn't protected under the First Amendment. Clearly, no party would every even remotely imply in a brief submitted to the SCOTUS that Congress is the true arbiter here. Only a moron would write anything like that in a SCOTUS brief. That is why I knew something was wrong with this NPR paraphrase.

In any event, I see no particular reason to be concerned about Kagen as a SCOTUS nominee, at least not on the basis of what is in that brief. I don't agree with this particular law because I am very close to a First Amendment absolutist. However, it is generally the government's job to defend statutes that are on the books, and only very rarely will they decline to do so. Kagen is acting as an advocate here, not a judge. Lawyers take whatever position in court that they are paid to take, or that their job requires. I would hesitate to even assume that Kagen herself would not have been in the majority had she been on the SCOTUS while this case was heard.

- wolf

 

[daishi5]

Good points.