I should be getting a pedicure or something, but my addiction to news and opinion wins the day. Plus, it’s kind of gross out — hot, muggy, and cloudy. So, here. Glenn Greenwald has something interesting to say about free speech in these crazy times. Read it, plz.
first amendment Archive
In the most recent term of the United States Supreme Court, the Justices decided the high profile case of Brown v. Entertainment Merchants Association. The case dealt with a California law that banned the sale of violent video games to minors. In a 7-2 decision, the Court struck down the law as a violation of the First Amendment free speech clause. I won’t bore you with the substance of the Majority opinion or mundane legal rationale, but whether you like killing prostitutes on your PS3 or not, suffice it to say, this was decided correctly.
Justice Thomas disagreed. That in and of itself isn’t noteworthy, as Justices dissent from opinions quite regularly. On rare occasions, these dissents are actually superior to the majority opinions and are later vindicated by the Court when overruling a longstanding precedent. This, however, is not one of those dissents. Rather, it is a foray into the mind of a man who apparently wishes it were 1776, because those were the good ol’ days, man — when men were men and women/children/slaves and anyone else who wasn’t Thomas Jefferson kept their goddamn mouths shut.
Thomas’ rationale for believing the California ban to be valid is not grounded in any significant prior case law, or even common sense; instead, it is grounded on the fact that (and I’m paraphrasing here) children are stupid. Always have been, always will be. Due to this overwhelming stupidity, the founding fathers would have thought it crazy that their kids had any rights, and certainly not the right to speak or be spoken to by anyone but their domineering patriarch. I knew immediately that I liked where this was going. Let’s have a look at Thomas’ thoughts on children:
“The practice and beliefs of the founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors parents or guardians.”
Solid open. We’ve established that JT and his crew are from a different era and that in the 1700s, children were to be seen (maybe) and not heard. But why should we care? Hit me with some solid legal analysis from The Nine.
“Because the Constitution is a written instrument, its meaning does not alter.”
Strict Originalist; not surprising. My problem here is that Thomas is citing his own concurring opinion in another case. This is kind of like saying, “I am right because I said I was right last year.” Actually, scratch “kind of”; this is exactly like that. Accepted judicial practice, sure, but inarguably weak sauce. Surely Thomas has some supporting cases in his pocket which he will use to teach Scalia a lesson in First Amendment jurisprudence.
“. . . . . . .”
Nope, just a few cases that, frankly, illuminate very little, and a whole lotta industrial revolution-era Parenting 101. Here are a few excerpts to chew on:
When does exercising one’s right to religious expression cross over into legally actionable negligence?
We’ve all read or heard about the cases of highly religious families who claim it goes against their beliefs to administer certain aid or medicines to themselves or their loved ones, even in literal life or death situations. (In case you haven’t, here are a couple to get you started.) Whether or not you believe that the parents are in the wrong in these cases and should be prosecuted as such, it’s easily understood why the courts would involve themselves given the tragic and irreversible nature of the outcome. However, what happens when such “negligence” takes a slightly more benign form? Where is the legal line — if, indeed, one even exists?
Take, for example, the NPR article that Tom cited at the end of one of his posts yesterday. He used it as a throwaway line, but after reading it, I couldn’t get it out of my head. The article discusses a group of denominationally ambiguous Christians who believe that Judgment Day is literally upon us — specifically, that it arrives 10 days from now on May 21, 2011. As you might imagine, this belief is rather central to its adherents current lifestyles:
“Knowing the date of the end of the world changes all your future plans,” says 27-year-old Adrienne Martinez.
She thought she’d go to medical school, until she began tuning in to Family Radio. She and her husband, Joel, lived and worked in New York City. But a year ago, they decided they wanted to spend their remaining time on Earth with their infant daughter.
“My mentality was, why are we going to work for more money? It just seemed kind of greedy to me. And unnecessary,” she says.
And so, her husband adds, “God just made it possible — he opened doors. He allowed us to quit our jobs, and we just moved, and here we are.”
Now they are in Orlando, in a rented house, passing out tracts and reading the Bible. Their daughter is 2 years old, and their second child is due in June. Joel says they’re spending the last of their savings. They don’t see a need for one more dollar.
“You know, you think about retirement and stuff like that,” he says. “What’s the point of having some money just sitting there?”
“We budgeted everything so that, on May 21, we won’t have anything left,” Adrienne adds.
Ho. Lee. Ghost.
Let’s go out on a limb here and assume — just for the purposes of this blog post — that the world doesn’t end on May 21. Come May 22, if her math and claims are correct, Adrienne, her husband, and her daughter will be literally penniless and one month away from having yet another mouth to feed. At best (again, assuming Adrienne is being truthful), their tangible assets might consist of a car and a few pieces of furniture they can sell in a pinch. But then what? Neither of them have had a job for more than a year. If Adrienne’s evaluation of her ability to get into medical school is realistic, she is obviously intelligent enough (in some ways, at least — yes, I’m sorry, that was a judgment) to get a decent job — but that’s in a normal economy. If she has to explain to a prospective employer why she has been unemployed for the past year…well, it might make her stand out from the other candidates, but I’m guessing that that’s not going to work to her advantage in this case.
With it looking highly unlikely that either parent would be able to land a job that is instantly capable of supporting a family of four (at least in the near future), you’d hope that they have enough family and friends left in their lives willing to lend support regardless of past grievances, but that might not be feasible either, of course. So having slid down this worst case slide with me, I offer the following moral — and perhaps legal — quandary: At what point (if any) does some entity like Child Services step in if Adrienne and Joel are unable to provide a minimally reasonable life for their children following their miscalculated rapture?
Lawyers and theologians, the comments section is yours.
Quick question: What would your reaction be if a presidential candidate stepped before an audience of millions and decreed that Americans needed to be forced at gunpoint to embrace Islam? And then, in the awkward silence that followed, he added that if elected, he would change the Constitution to align it with good ole Islamic values?
I’m not asking if you’d vote for the guy. I’m asking if you think he’d be lynched by breakfast, or if he might survive until afternoon tea.
The question isn’t hypothetical, either. Like a weed that just won’t quit, Mike Huckabee is once again up in the polls, especially among the so-called Tea Party, but also with Republicans in general. Remember his first run at the White House, when he made his position on the U.S. Constitution resoundingly clear not once, not twice, but on no less than four public occasions?
“I have opponents in this race who do not want to change the Constitution. But I believe it’s a lot easier to change the Constitution than it would be to change the word of the living God. And that’s what we need to do — to amend the Constitution so it’s in God’s standards rather than try to change God’s standards so it lines up with some contemporary view.”
Interesting verdict in Minnesota. 1) Blogger does factual reporting. 2) Reporting leads to a man being dismissed from his job. 3) Man sues blogger not for libel (as the reporting was factual), but for “tortious interference” with man’s employment. 4) …..? 5) PROFIT!
The jury awarded Moore $35,000 for lost wages and $25,000 for emotional distress. The civil verdict culminated a nearly two-year legal scuffle between John Hoff, whose blog, The Adventures of Johnny Northside, has 300 to 500 readers daily, and Moore, former director of the Jordan Area Community Council.
North Minneapolis politicians and personalities, many of whom took the stand, watched the trial closely. So did First Amendment scholars and free-speech advocates who were concerned about the suit’s effect on “citizen journalism.”
Jane Kirtley, a U of M professor of media law and ethics, called the lawsuit an example of “trash torts,” in which someone unable to sue for libel, which by definition involves falsity, reaches for another legal claim. She predicted the verdict will be overturned.
Obviously, this is bad news for small-time bloggers, and we here at Brutish&Short will be consulting our team of legal scholars the next time we feel like slandering a public figure, but I do honestly wonder what on earth was going through the jurors’ heads when they reached their verdict. Was Hoff’s lawyer just wildly out-gunned by Moore’s? I cannot fathom a scenario in which a jury could be convinced that this was anything other than a journalist reporting facts and, you know, those facts having consequences.
Sometimes you look for a particular performance of a particular song on YouTube, and you watch it and you’re like, “Hey, cool,” and then you click on a tangentially related video on the sidebar, and you watch it and you’re like, “Hey, also cool.” And then you do that a few more times, and you find this:
I didn’t realize Crossfire was around in the 80′s. But anyway, you should watch the whole thing.