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

[daishi5]

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

ban any category of speech if Congress deems that category not "worthy" of protection under the First Amendment guarantee of free expression.

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:

The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the Americanpeople that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses anyattempt to revise that judgment simply on the basis thatsome speech is not worth it.

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

 

[OutHouse]

i must still be asleep because i can not tie your title "animal cruelty" with the body of your post about free speech...

 

[daishi5]

i must still be asleep because i can not tie your title "animal cruelty" with the body of your post about free speech...

The law outlawed the creation, depiction, or ownership of material depicting animal cruelty if it is sold in an area that makes that form of animal cruelty illegal. The man convicted by the law wanted it dismissed because it violated the first amendment. The supreme court found that the animal cruelty law did violate the 1st amendment.

Edit: The law was about animal cruelty, but one of the potential supreme court nominees signed a brief that states the law is constitutional because congress can ban any form of speech that it does not think is worth protecting. I am sorry if it was not clear, but after all my reading I guess I just forgot that most people would not see the link between the two at a glance.

 

[Genx87]

i must still be asleep because i can not tie your title "animal cruelty" with the body of your post about free speech...

The brief is about an animal cruelty law passed by congress. It was pretty broad but was done so to stop so called crushing videos. Where a chick with high heels would impale small animals, usually kittens. Then the videos were sold. I remember reading about this and of course my emotion wanted the SCOTUS to uphold the law. But the case did outline the really broad nature of the law. And so I was in between and curious to see how the SCOTUS would rule.

 

[OutHouse]

The law outlawed the creation, depiction, or ownership of material depicting animal cruelty if it is sold in an area that makes that form of animal cruelty illegal. The man convicted by the law wanted it dismissed because it violated the first amendment. The supreme court found that the animal cruelty law did violate the 1st amendment.

ahh thank you

< shambles down to the lunch room for more coffee

 

[spidey07]

The law outlawed the creation, depiction, or ownership of material depicting animal cruelty if it is sold in an area that makes that form of animal cruelty illegal. The man convicted by the law wanted it dismissed because it violated the first amendment. The supreme court found that the animal cruelty law did violate the 1st amendment.

Edit: The law was about animal cruelty, but one of the potential supreme court nominees signed a brief that states the law is constitutional because congress can ban any form of speech that it does not think is worth protecting. I am sorry if it was not clear, but after all my reading I guess I just forgot that most people would not see the link between the two at a glance.

Thanks. That kind of thinking by anybody even being considered for supreme court or other federal judgeship is very scary.

 

[daishi5]

ahh thank you

< shambles down to the lunch room for more coffee

Is there any way to edit the subject to be more clear?

 

[dullard]

Is there any way to edit the subject to be more clear?

Yes, click on your post and hit edit. If you want to edit more than just the body, click the "go advanced" button after you hit edit.

 

[Patranus]

Thanks. That kind of thinking by anybody even being considered for supreme court or other federal judgeship is very scary.

Yup.

That is the "progressive" motto.
Free speech as long as I approve it.

 

[heyheybooboo]

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

John Roberts is full of shiite -- and the SCJs dropped the ball on this one.

Janet Jackson's 'wardrobe malfunction' is obscene, but crush videos are not. Yeah. Right.

If ever "..material, taken as a whole, must lack serious literary, artistic, political, or scientific value..." this would be the one.

The decision says "...depictions subject to §48, like obscenity or child pornography, are categorically unprotected by the First Amendment..." then goes on to say:

"We made clear that Ferber presented a special case: The market for child pornography was “intrinsically related” to the underlying abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the Nation.”

LOLwut? The marketing of crush videos are not depictions or “intrinsically related” to animal abuse, which is illegal across the United States?

And they go on to r-e-a-c-h claiming hunting video as 'entertainment' would be outlawed under the statute because the law does not properly 'define' cruelty ????

And the law essentially states that the animal cruelty "..material, taken as a whole, must lack serious literary, artistic, political, or scientific value..."

The pillar in the definition/test for 'obscenity' is good enough for child porn but not good enough for animal cruelty?

LOLwut? again ...





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[shira]

Thanks. That kind of thinking by anybody even being considered for supreme court or other federal judgeship is very scary.

It would be pretty ironic if Republicans opposed Kagan on the basis that she defended the law in question, Public Law 106-152 (passed in 2000), since the law was introduced by a Republican Senator (Jon Kyl) and a Republican Congressman (Elton Gallegly). Here's the text of the bill.

http://thomas.loc.gov/cgi-bin/query/z?c106:H.R.1887.ENR:

The bill was passed on a 372 - 42 vote in the House and unanimously in the Senate.

So, a vast majority of lawmakers on both sides of the aisle apparently AGREE with Kagan that they can outlaw specific classes of speech (otherwise, on what basis would they have introduced a bill that banned a particular class of speech?). How, then, would Republicans oppose Kagan (assuming she's nominated for the SCOTUS) as beyond the pale on the issue of Congress's power to ban particular categories of speech?

 

[JSt0rm]

girls crushing kittens with their heels is art.

 

[Linflas]

Seems to me that Wayne Pacelle is correct when he says that the law can be crafted in such a way that it would pass Constitutional muster. It doesn't state where HSUS stood on the initial law but it seems that as written it could have been used not only against hunting videos and the like but against organizations like HSUS that use videos and photos of animal cruelty for purposes having nothing to do with entertainment.

 

[Double Trouble]

It would be pretty ironic if Republicans opposed Kagan on the basis that she defended the law in question, Public Law 106-152 (passed in 2000), since the law was introduced by a Republican Senator (Jon Kyl) and a Republican Congressman (Elton Gallegly). Here's the text of the bill.

http://thomas.loc.gov/cgi-bin/query/z?c106:H.R.1887.ENR:

The bill was passed on a 372 - 42 vote in the House and unanimously in the Senate.

So, a vast majority of lawmakers on both sides of the aisle apparently AGREE with Kagan that they can outlaw specific classes of speech (otherwise, on what basis would they have introduced a bill that banned a particular class of speech?). How, then, would Republicans oppose Kagan (assuming she's nominated for the SCOTUS) as beyond the pale on the issue of Congress's power to ban particular categories of speech?

Lawmakers can pass whatever laws they want, and they frequently pass stupid laws. It's up to the courts to decide if those laws are constitutional.

I don't get the whole crush stuff, it just seems like sick crap to me, but the supremes nailed it 100% with this ruling. They basically said "hey guys, just because you don't like it doesn't mean the constitution doesn't protect it".

 

[Daedalus685]

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....

 

[ayabe]

So is this the best you can do to Bork her nom?

 

[Linflas]

So is this the best you can do to Bork her nom?

I doubt it since she has not even been nominated yet.

 

[Genx87]

Lawmakers can pass whatever laws they want, and they frequently pass stupid laws. It's up to the courts to decide if those laws are constitutional.

I don't get the whole crush stuff, it just seems like sick crap to me, but the supremes nailed it 100% with this ruling. They basically said "hey guys, just because you don't like it doesn't mean the constitution doesn't protect it".

I dont think the supreme court protected this sick form of expression as much as it said the law was too broad. I think they definately left open the possibility a much more direct law be passed and would be constitutional.

 

[Daedalus685]

I dont think the supreme court protected this sick form of expression as much as it said the law was too broad. I think they definately left open the possibility a much more direct law be passed and would be constitutional.

I agree, and truly hope it is speedy. Kind of makes me depressed with the ineptness of law makers that they could not see unforeseen consequences with something like this..

I can't imagine they would open the doors on folks being allowed to film cruel acts oversees and sell them for a living in the states. They just need to quickly modify the law with the "unless for scientific, etc... use." Hell, once upon a time all of Canada's animal cruelty laws were the same as the child cruelty laws (The SPCA used to be responsible for both).. It would not be unheard of for them to just change the keyword in another obscenity law.

 

[daishi5]

John Roberts is full of shiite -- and the SCJs dropped the ball on this one.

Janet Jackson's 'wardrobe malfunction' is obscene, but crush videos are not. Yeah. Right.

If ever "..material, taken as a whole, must lack serious literary, artistic, political, or scientific value..." this would be the one.

The decision says "...depictions subject to §48, like obscenity or child pornography, are categorically unprotected by the First Amendment..." then goes on to say:


LOLwut? The marketing of crush videos are not depictions or “intrinsically related” to animal abuse, which is illegal across the United States?

And they go on to r-e-a-c-h claiming hunting video as 'entertainment' would be outlawed under the statute because the law does not properly 'define' cruelty ????

And the law essentially states that the animal cruelty "..material, taken as a whole, must lack serious literary, artistic, political, or scientific value..."

The pillar in the definition/test for 'obscenity' is good enough for child porn but not good enough for animal cruelty?

LOLwut? again ...
--

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.

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....

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.

It would be pretty ironic if Republicans opposed Kagan on the basis that she defended the law in question, Public Law 106-152 (passed in 2000), since the law was introduced by a Republican Senator (Jon Kyl) and a Republican Congressman (Elton Gallegly). Here's the text of the bill.

http://thomas.loc.gov/cgi-bin/query/z?c106:H.R.1887.ENR:

The bill was passed on a 372 - 42 vote in the House and unanimously in the Senate.

So, a vast majority of lawmakers on both sides of the aisle apparently AGREE with Kagan that they can outlaw specific classes of speech (otherwise, on what basis would they have introduced a bill that banned a particular class of speech?). How, then, would Republicans oppose Kagan (assuming she's nominated for the SCOTUS) as beyond the pale on the issue of Congress's power to ban particular categories of speech?

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.

So is this the best you can do to Bork her nom?

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.

 

[shira]

Lawmakers can pass whatever laws they want, and they frequently pass stupid laws. It's up to the courts to decide if those laws are constitutional.

I don't get the whole crush stuff, it just seems like sick crap to me, but the supremes nailed it 100% with this ruling. They basically said "hey guys, just because you don't like it doesn't mean the constitution doesn't protect it".

I agree with you. The point of my previous post was that it would be awfully hypocritical for righty Senators to oppose Kagan in part because of her SCOTUS filing on this case, considering that most of those very Senators demonstrated by their actions in passing this very bill that THEY believe that do indeed have the power to ban particular classes of speech (even if in fact they don't).

 

[shira]

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.

See my previous post.

Why is the point I was making so difficult to understand? This isn't about whether Congress believes it has power it does not in fact possess. This is about Senators contriving the following argument to oppose Kagan for the SCOTUS:

"You're not qualified for the SCOTUS because you claim that Congress possesses a certain legislative power that we in fact also think we possess (but we're temporarily pretending that we don't believe that because we need a pretext to oppose you)."​

 

[daishi5]

See my previous post.

Why is the point I was making so difficult to understand? This isn't about whether Congress believes it has power it does not in fact possess. This is about Senators contriving the following argument to oppose Kagan for the SCOTUS:

"You're not qualified for the SCOTUS because you claim that Congress possesses a certain legislative power that we in fact also think we possess (but we're temporarily pretending that we don't believe that because we need a pretext to oppose you)."​

I am sorry, I thought you were going for something more deep than the republicans are hypocrites. The republicans have given up any pretense of acting on some form of principle or beliefs. Almost all of them are acting only to gain more power and support. You know they will resist her on this basis if she is nominated, and yes it is hypocritical, but it is also all they know how to do.

 

[thraashman]

Um. Whether or not solicitor general agrees with the law or thinks it too broad isn't even examined here. Lawyers, by their nature, have to argue a point. In the case of the solicitor general, she has to defend the law as passed and the government's position. If she were to show up and say "um, I think this law sucks and it violates free speech" she'd be one shitty solicitor and wouldn't be doing her job. Just like if a soldier decides in the battlefield that he doesn't like guns and as a result refuses to defend his position with one, he'd be in dereliction of duty.

 

[daishi5]

Um. Whether or not solicitor general agrees with the law or thinks it too broad isn't even examined here. Lawyers, by their nature, have to argue a point. In the case of the solicitor general, she has to defend the law as passed and the government's position. If she were to show up and say "um, I think this law sucks and it violates free speech" she'd be one shitty solicitor and wouldn't be doing her job. Just like if a soldier decides in the battlefield that he doesn't like guns and as a result refuses to defend his position with one, he'd be in dereliction of duty.

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.