DebateGate
General Category => 3DHS => Topic started by: sirs on May 08, 2010, 06:10:10 PM
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...for SCOTUS?
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It would seem so (http://news.yahoo.com/s/ap/us_obama_supreme_court).
Now time to get to the more important consideratins. Nope, not her compotence or Judicial intellect. Per Sen Schumer and company, it's her ideology that's most important. Look forward to watching the rope-a-dope form of her not answering questions that would demonstrate just how far left she leans. Likely contrary to her record and past rhetoric, look instead for alot of answers that reference how she does not support judicial activism. She will likely claim support for a case by case ruling, and that past constitutional rulings are largely to be sacrosanct, thus RvW is to be off the table as far as consideration of any reviewing
Just MHO
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Couple of points.
The President gets to appoint whom he wants to Scotus.
The Senate simply advises and consents. Unless something comes up in vetting she will probably be seated.
But there is a rope a dope to this.
If the GOP fights her it will be said they are against her because
a: She is a woman
or b: she is possibly gay
either one of those are losing propositions.
If the GOP wants to stop the formation of a more liberal court, their best bet is to recapture the Senate in 2010.
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Agreed on all counts. The trick the GOP needs to be good on is educating the electorate
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She ran military recruiters off the campus at Harvard.
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GOP needs to let the electorate know that. You'll have the hard left saying...."So? She should be made Chief Justice for that." You'll have the majority of the rest of the country & electorate saying..."She did what??"
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She ran military recruiters off the campus at Harvard.
Not quite accurate
Kagan briefly restricted (but did not eliminate) access to recruiters only after the U.S Court of Appeals for the 3rd Circuit ruled that law schools could do so.
http://www.nytimes.com/2010/05/07/us/politics/07kagan.html?hpw=&pagewanted=all (http://www.nytimes.com/2010/05/07/us/politics/07kagan.html?hpw=&pagewanted=all)
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Instead of taking cheap shots at military recruiters who were merely complying with the law, did Kagan ever exclude from campus any of the politicians responsible for the law? Of course not. Indeed, whatever moral opposition Kagan had to the law when it was adopted didn't deter her from seeking and obtaining employment in the Clinton White House. Nor will it keep her from palling around with the many senators who voted for it, such as Vice President Biden. Kagan engaged in her cheap moral posturing in the aftermath of 9/11, at a time when American soldiers were at war defending our freedom. Many important people are complicit in what Kagan regards as the "moral injustice of the first order" of Don't Ask, Don't Tell. The only ones Kagan sought to make pay a price were those serving the ranks of the military. So Kagan needs to be asked: Why doesn't this reflect hostility to the military?
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Is she hostile to the military or is she hostile to the policy.
Even if she is hostile to the military establishment that does not translate to hostility to the rank and file in the military that is making the ultimate sacrifice.
No one at Harvard was denied access to recruiters. And when Scotus ruled against her and like minded school presidents recruiters were given back their office space.
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I guess that remains to be seen BT.
But yeah she may hide behind the mantra you mentioned of
"oh I love the rank & file... just hate the establishment".
And you can hide behind the "no one was denied access" BS
Kind of like Blacks weren't denied water with "black only" fountains.
Of course they were given their office space back after the 8-0 decision
or she would of got her ass kicked!
I cant wait to find out more about this leftist...I'm sure it will be interesting.
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She ran military recruiters off the campus at Harvard.
Not quite accurate Kagan briefly restricted (but did not eliminate) access to recruiters only after the U.S Court of Appeals for the 3rd Circuit ruled that law schools could do so.
Meaning, if it weren't for the unanimous ruling of the most liberal appealate court in the country, she would have had her way of subverting the constitution & law, and would have had these military recruiters eliminated....especially made noteworthy in a time of war
Right?
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Here's some excerpts from her college thesis:
"In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism's glories than of socialism's greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation's established parties?"(pp. 127)
"Through its own internal feuding, then, the SP exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but also a chastening one for those who, more than half a century after socialism's decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one's fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope." (pp. 129-130)
Her political sympathies (at the time) seem quite clear -- and radical
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US Senator Jeff Sessions:
Sessions: Unacceptable That Kagan Banned Military Recruiters From Harvard (http://www.youtube.com/watch?v=09tHLxjzAXg&feature=player_embedded#)
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And you can hide behind the "no one was denied access" BS
Kind of like Blacks weren't denied water with "black only" fountains.
I'm not hiding behind anything. You don't like her, i get that.
The fact is that her role in banning military recruiters on campus has been exaggerated but if you want to go to war over it, have at it. It is highly doubtful it will affect her seating on the court, and I'll just sit this one out.
The GOP squandered their majority, lost the presidency and now must accept what is given to them up until the electorate sees fit to give them another chance and/ or they can make a rational argument that is convincing enough to the majority of americans as reflected in the polls that this is a bad choice.
Just remember she was already approved by this Senate once as Solicitor General.
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The GOP squandered their majority, lost the presidency and now must accept
what is given to them up until the electorate sees fit to give them another chance
and/ or they can make a rational argument that is convincing enough to the majority
of americans as reflected in the polls that this is a bad choice
Exactly right BT....we can be defeatist or we can play hard ball
the Democrats as the minority have greatly influnced who was
appointed and not appointed to the US Supreme Court...I hope
we play just as hard as ball as they have played in the minority role.
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Bush nominated 3 people for the court.
Harriet Miers didn't make the cut as much because of dissent from conservatives as there was from the dems.
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And you can hide behind the "no one was denied access" BS
Kind of like Blacks weren't denied water with "black only" fountains.
I'm not hiding behind anything. You don't like her, i get that. The fact is that her role in banning military recruiters on campus has been exaggerated
How is it being exaggerated? If it wasn't for a unanimous court ruling, she would have had the recruiters eliminated from campus
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If it wasn't for a unanimous court ruling, she would have had the recruiters eliminated from campus
She limited access when the Circuit courts ruled that colleges could do that, she allowed full access when Scotus overruled the Circuit court.
Is your problem with her or the circuit courts that ruled wrongly?
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My problem is without the court's ruling(s), Military recruiters would have been completely eliminated
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My problem is without the court's ruling(s), Military recruiters would have been completely eliminated
You are misinformed.
She acted based on the 3rd Circuits opinion , Scotus said no. She didn't restrict recruiters until the 3rd said she could and she stopped once Scotus ruled. The courts are at the base of both actions.
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No, I don't believe so. She made a decision to ban recruiters, period, law be damned. That lead to the Appealate court ruling unanimously 8-0 that she was wrong, and acted unlawfully, if not unconstitutionally. SCOTUS simply put the icing on the cake, with their no
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I have been listening to NPR.
Many times today I heard said that this appointment will not change the balance of a right leaning court.
Who are they kidding?
She is quite young for a Justice , her appointment would establish, confirm , and ossify a leftist leaning core that the public will have to put up with for fifty years.
There isn't much chance that President Obama will appoint a moderate or anything less than a socialist really , but may we insist that the canadates be quite well experienced? In other words ; Old?
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No, I don't believe so.
I suggest you recheck your timeline.
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I suggest we recheck the facts, and more importantly, her intentions
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I suggest we recheck the facts, and more importantly, her intentions
Perhaps this will help:
Two laws at issue
The dispute involved two laws: the 1993 "don't ask, don't tell" statute, which excluded openly gay or lesbian soldiers, and the 1996 Solomon Amendment, which barred federal funding to any institution that denied equal access to military recruiters.
The amendment was seldom enforced until 2001, when the Bush administration threatened to cut off funds to any college whose law school restricted military recruitment.
Harvard, which stood to lose $328 million in federal aid, opened its doors to armed forces recruiters the following year. It had previously barred them under a 1979 university policy denying access to employers who discriminated based on sexual orientation. The Association of American Law Schools adopted a similar policy in 1990.
Free-speech question
Kagan became dean in 2003, and at first maintained military recruiters' access to the law school. But she barred them after a federal appeals court declared in 2004 that the Solomon Amendment appeared to violate law schools' freedom of speech by forcing them to spread an anti-gay message they opposed.
The Bush administration appealed to the Supreme Court while renewing its warning of a funding cutoff. Kagan, whose school was not involved in the court case, readmitted military recruiters before the high court issued a ruling, an action she told Harvard students she regretted.
"I believe the military's discriminatory employment policy is deeply wrong - both unwise and unjust," she said in a message to the student body. "And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that others of our students have."
Court unanimous
Kagan and other law school deans signed a brief urging the Supreme Court to overturn the Solomon Amendment, but the court unanimously upheld the law in March 2006. Military recruiters don't impose their message on law schools, which remain free to criticize government policy, Chief Justice John Roberts said in the court ruling.
Kagan has taken pains since then to stress her support for the armed forces while opposing its policy on gays and lesbians. In a recent speech at West Point, she expressed awe at the cadets' courage and dedication while lamenting the continuing conflict between the military and law schools.
Meanwhile, the Justice Department is defending "don't ask, don't tell" in a federal court in Riverside, despite Obama's opposition to the policy.
Kagan - who promised senators last year to defend the law if it was challenged - does not handle lower-court proceedings such as the Riverside case. But it is likely to come up at her confirmation hearing.
Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/05/10/BANF1DCC84.DTL#ixzz0nb5liLg1 (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/05/10/BANF1DCC84.DTL#ixzz0nb5liLg1)
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Thanks for the heads up, Bt
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"Kagan became dean in 2003, and at first maintained military recruiters' access to the law school.
But she barred them after a federal appeals court declared in 2004 that the Solomon Amendment
appeared to violate law schools' freedom of speech by forcing them to spread an anti-gay message
they opposed"...The Bush administration appealed to the Supreme Court while renewing its warning
of a funding cutoff. Kagan, whose school was not involved in the court case, readmitted military
recruiters before the high court issued a ruling, an action she told Harvard students she regretted.
Kagan and other law school deans signed a brief urging the Supreme Court to overturn the Solomon
Amendment, but the court unanimously upheld the law in March 2006.
In other words...she would ban them if she could.
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In other words...she would ban them if she could.
In other words the rule of law means more to her than her personal feelings towards the Don't Ask Don't Tell Policy.
In other words, maintaining federal funding to an institution she is in charge of is more important than her personal feelings towards Don't Ask Don't Tell Policy.
In other words she is more a pragmatist than an idealist.
In other words, the left has more reason for disappointment than the right has for fear.
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Except of course when she's in a position to make ultimate decisions based on her idealism. I remeber as a tennis player for my University, the decisions I felt were "bad" being made by my coach. But they were the coach's, and I had to deal with it. Then I became coach. My word became the law. I see a similar dynamic here, but on a much grander and repercussive scale
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My word became the law. I see a similar dynamic here, but on a much grander and repercussive scale
She was more autonomous as President of the Harvard Law School than she will be as a sitting justice (1 of 9) on the Supreme Court.
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Oh, I realize she's only 1 of 9. But her say so is an ultimate country wide binding decision. No longer having to ignore the law, she becomes the law.....with 4+ of her other justices
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I doubt the court will change direction, simply because she is added, because she is replacing a left leaning vote.
And let's get real here for a minute.
Did you expect Obama to appoint a conservative to the bench?
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Of course not. One would have thought that at least it would have been someone with some judicial experience, even a little
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Even a lack of judicial experience is not a disqualifier:
Supreme Court Justices Without Prior Judicial Experience Before Becoming Justices
Supreme Court Center > Supreme Court > Justices > No Prior Judicial Experience
Name of Justice Prior Occupations Years On Court Appointed By President:
1. William Rehnquist Asst. U.S. Attorney General 1972-2005 Nixon (Assoc., 1972),
Reagan (Chief, 1986)
2. Lewis Powell President of the American Bar Ass'n,
Private Practice 1972-1987 Nixon
3. Abe Fortas Private Practice 1965-1969 Johnson
4. Byron White Deputy U.S. Attorney General 1962-1993 Kennedy
5. Arthur Goldberg U.S. Secretary of Labor 1962-1965 Kennedy
6. Earl Warren Governor of California 1953-1969 Eisenhower
7. Tom Clark U.S. Attorney General 1949-1967 Truman
8. Harold Burton U.S. Senator 1945-1958 Truman
9. Robert Jackson U.S. Attorney General 1941-1954 F. Roosevelt
10. James Francis Byrnes U.S. Senator 1941-1942 F. Roosevelt
11. William O. Douglas Chairman of the S.E.C. 1939-1975 F. Roosevelt
12. Felix Frankfurter Asst. U.S. Attorney, Asst. Secretary of War,
Prof. of Law at Harvard 1939-1962 F. Roosevelt
13. Stanley Forman Reed U.S. Solicitor General 1938-1957 F. Roosevelt
14. Owen Josephus Roberts Special Counsel in "Teapot Dome" investigation and trials 1930-1945 Hoover
15. Harlan Fiske Stone U.S. Attorney General 1925-1946 Coolidge (Assoc., 1925),
F. Roosevelt (Chief, 1941)
16. Pierce Butler County Attorney, Private Practice 1923-1939 Harding
17. George Sutherland U.S. Senator 1922-1938 Harding
18. Louis Brandeis Private Practice 1916-1939 Wilson
19. James Clark McReynolds U.S. Attorney General 1914-1941 Wilson
20. Charles Evans Hughes Governor of New York,
U.S. Secretary of State 1910-1916,
1930-1941 Taft (Assoc., 1910),
Hoover (Chief, 1930)
21. William Henry Moody U.S. Attorney General 1906-1910 T. Roosevelt
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Even a lack of judicial experience is not a disqualifier
Never said it was
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Never said it was
You implied it was a shortcoming and history proves that is not always the case.
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"In other words the rule of law means more to her than her personal feelings towards
the Don't Ask Don't Tell Policy. In other words, maintaining federal funding to an .
institution she is in charge of is more important than her personal feelings towards
Don't Ask Don't Tell Policy. In other words she is more a pragmatist than an idealist"
Or in other words with her back against the wall she doesn't commit suicide.
In other words, the left has more reason for disappointment than the right has for fear.
I doubt that, although I hear she may be open to some limits on late term murder abortion.
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Never said it was
You implied it was a shortcoming and history proves that is not always the case.
Never said or even implied always, either. It is decidedly however, a shortcoming in this instance, IMHO
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SIRS....the thing about it is...if it's not this Kagan socialist/communist it
will just be different one....pick your poison...Obama isn't appointing Scalia II
I suppose the hope would be to get a disqualification on the 1st and/or 2nd candidate
hoping that in order to squash the controversy Obama would choose a moderate just
to make sure someone is quickly seated after a PR nightmare of 1 or 2 withdrawls.
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Oh I concur with both you & Bt, that this was a pick everyone should have expected....a hard core LW liberal ideolgue. In this case, even without any Judicial experience to boot. I don't see how highlighting that point is somehow below the belt. This merely needs to motivate the GOP & Conservatives to help educate the electorate all the more. Can't do a better job than at her confirmation hearing, and then taking that on to the campaign trail for both 2010 & 2012
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Kagan?s Just the Latest Radical Obama Lawyer
President Obama went back to the radical bullpen for his second Supreme Court nominee. Solicitor General Elena Kagan, former dean of Harvard Law School, is a legal activist who tried to boot recruiters off Harvard?s campus because of the military?s homosexuality policy.
Some observers thought D.C. Circuit Judge Merrick Garland might get the nod, since he drew favorable comment as a ?reasonable? choice to succeed John Paul Stevens. But President Obama is not into ?reasonable.? As a student of agitator/activist Saul Alinsky, he prefers to be ?in your face.?
While Kagan did some outreach to the conservative Federalist Society at Harvard, she also carries some baggage: no judicial experience, a pro-homosexual agenda and, yes, a mysterious ?sexual orientation.? The liberal media are going to have a tough time selling her as a ?mainstream? nominee. As Solicitor General, she has worked to undermine the military ban and also the Defense of Marriage Act, which is why the Human Rights Campaign, the largest gay pressure group, issued a press release hailing her nomination. Marriage defender Maggie Gallagher bluntly wrote on May 10, ?A vote for Kagan is a vote for Gay Marriage.?
Mr. Obama?s legal appointees to the courts and federal agencies comprise radicals who support an unlimited federal government, a ?living Constitution,? racial and sexual entitlement, contempt for American security and the elevation of foreign opinion over that of American lawmakers. Miss Kagan fits right in.
Here are some of the lawyers that Mr. Obama has appointed:
Goodwin Liu to the Ninth Circuit. In March, 42 of California's 58 district attorneys signed a letter urging the Senate Judiciary Committee to reject Liu, a UC Berkeley law professor, stating, ?his views on criminal law, capital punishment, and the role of the federal courts in second-guessing state decisions are fully aligned with the judges who have made the Ninth Circuit the extreme outlier that it presently is.? Outlier is the polite word for ?joke.?
In a book Liu co-authored, Keeping Faith with the Constitution, he wrote that ?evolving norms and traditions of our society? should be the key to interpreting the Constitution. He also joined a brief arguing that the equal protection clause contains a ?right? to same-sex marriage. During a Senate Judiciary Committee hearing on April 16, Liu cheerfully insisted that his radical writings provide no clue as to how he?d rule as a judge. Huh?
Eric Holder, Attorney General. Mr. Holder wants to bring terrorists to trial in civilian courts, has called America a ?nation of cowards? for not being obsessed with race, and allowed the Justice Department to drop counts against New Black Panther Party members charged with voter intimidation in Philadelphia in 2008.
David Ogden, Deputy Attorney General (confirmed March 12, 2009; resigned Dec. 2, 2009). Mr. Ogden not only defended child pornography during the Clinton years (Knox v. United States, 1993), but represented hard-core porn producers, plus Playboy and Penthouse. He also likened peaceful pro-life abortion protesters to mobsters by arguing for penalties under the RICO organized crime statute (Sheidler v. National Organization for Women, 2003).
Cass Sunstein, Administrator of the Office of Information and Regulatory Affairs. Sunstein has written that animals have the right to sue, that the government owns our vital organs, that marriage laws should be abolished, and that the Second Amendment doesn?t apply to individuals.
Harold Koh, State Department legal advisor. A self-described ?transnationalist,? Mr. Koh sided with European elites over Texas lawmakers (Lawrence v. Texas, 2003), and sued his fellow Yalie, John Yoo, over interrogation memoranda during the Bush Administration. In 2002, Koh urged the Senate Foreign Relations committee to approve the CEDAW treaty, which President Carter signed in 1980 but the Senate never ratified because CEDAW is a cauldron of radical feminism and collectivism.
Sonia Sotomayor, Associate Justice, U.S. Supreme Court. From 1980 until 1992, Sotomayor served on the board of the Puerto Rican Legal Defense and Education Fund. The New York Times described her as ?a top policy maker on the board? at a time when the fund filed briefs in six cases on behalf of ?abortion rights.? In Ohio v. Akron Center (1990), the fund wrote that it ?opposes any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade,? which would mean opposing bans on partial birth abortion and taking minors across state lines for abortions without parental knowledge. Sotomayor, who famously asserted privilege as a ?wise Latina,? has shown a fondness for racial preferences, and she joined the Court?s minority against the Mojave Desert veterans memorial cross (April 28).
Dawn Johnsen, appointed to Assistant Attorney General, Office of Legal Counsel. Johnsen was skipped in the 15 recess appointees made on March 27. An ACLU staff counsel and legal director for the National Abortion and Reproductive Rights Action League (NARAL), she equated having a baby with slavery in an amicus brief in Webster v. Reproductive Health Services (1989).
Chai Feldblum, Equal Employment Opportunity Commissioner. A lesbian activist at Georgetown Law Center, she said she can?t think of an instance in which religious freedom trumps ?gay rights.? Feldblum helped draft the Employment Non Discrimination Act (ENDA), which would impose the homosexual political agenda on every workplace with 15 or more employees. She signed a manifesto calling for legalizing multiple-partner relationships, a position she retracted at her Senate hearing.
Thomas Perrelli, Associate Attorney General. Perrelli was the lawyer for Michael Schiavo, who had his brain-damaged wife Terri taken off life support against the wishes of her brother and parents. As the No. 3 Justice Department official, Perrelli approved dropping charges in May 2009 against three New Black Panther Party members who had been charged with intimidating voters in Philadelphia in 2008.
David Hamilton, Judge, Second U.S. Circuit Court of Appeals. Hamilton is the U.S. District judge who enjoined the Indiana House in 2005 from allowing a pastor to mention the name of Jesus in an opening prayer, but in another case said it was fine to cite Allah.
The pattern is clear. Mr. Obama is front-loading the government with radicals who would be very much at home with Saul Alinsky, if not in style, then in political substance.
Elena Kagan?s willingness to work with a few conservatives has earned her some respect as a pragmatist. But it?s a good bet that she?d become a fire-breathing leftist when safely seated ? for life.
It is his pick to make, though (http://townhall.com/columnists/RobertKnight/2010/05/11/kagan%e2%80%99s_just_the_latest_radical_obama_lawyer)
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Please explain to me how she tried to boot military recruiters off campus when it was Harvard policy from 1979 onward almost consistently to limit recruiters on campus?
Her critics are going to end up looking stupid over this, because they aren't being honest.
Better to attack her over her lack of judicial experience, at least that is an honest argument.
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I think we've already addressed that point, Bt.
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Yes we did.
The timeline was demonstrated to you, yet you post some other opinion piece that misrepresents the truth like it would eradicate the facts of the case.
It doesn't.
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I posted another opinion peice that had prescious little to do with Kagan's role on recruiters, and far more to do with Obama's judgement in picks
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I posted another opinion peice that had prescious little to do with Kagan's role on recruiters, and far more to do with Obama's judgement in picks
Right.
Thus this is the lead paragraph.
President Obama went back to the radical bullpen for his second Supreme Court nominee. Solicitor General Elena Kagan, former dean of Harvard Law School, is a legal activist who tried to boot recruiters off Harvard?s campus because of the military?s homosexuality policy.
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And she did try. She failed, thanks to subsequent judicial rulings. Now how about the meat of the peice
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Yeah it certainly is radical to follow current law.
This whole painting her as a radical based on her actions at Harvard is a built on a lie.
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Please explain to me how she tried to boot military recruiters off campus when it was Harvard policy from 1979 onward almost consistently to limit recruiters on campus?
Her critics are going to end up looking stupid over this, because they aren't being honest.
Better to attack her over her lack of judicial experience, at least that is an honest argument.
When she assumed leadership at Harvard , she might have changed policys that she disagreed with.
Her position is being spun as freindly and respectfull of the military , I think that is streached like taffy.
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Her position is being spun as freindly and respectfull of the military , I think that is streached like taffy.
No. I think she believes that gays should be allowed to serve openly in the military.
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Her position is being spun as freindly and respectfull of the military , I think that is streached like taffy.
No. I think she believes that gays should be allowed to serve openly in the military.
So if the military agrees with that, she will then respect them?
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Yeah it certainly is radical to follow current law. This whole painting her as a radical based on her actions at Harvard is a built on a lie.
Yea, no radical here. Just a mild left leaner (http://cnsnews.com/news/article/65720), right?
Kagan Says "Governmental Motive" is Proper Focus in First Amendment Cases, Backs Limits on Speech That Can "Harm"
Wednesday, May 12, 2010
By Matt Cover, Staff Writer
Supreme Court nominee Elena Kagan said the high court should be focused on ferreting out improper governmental motives when deciding First Amendment cases, arguing that the government?s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech.
Kagan, the solicitor general of the United States under President Obama, expressed that idea in her 1996 article in the University of Chicago Law Review entitled, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine."
In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is "the most important" factor.
In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.
She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.
The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.
"The answer to this question involves viewing the Buckley principle [that government cannot balance between competing speakers] as an evidentiary tool designed to aid in the search for improper motive," Kagan wrote. "The Buckley principle emerges not from the view that redistribution of speech opportunities is itself an illegitimate end, but from the view that governmental actions justified as redistributive devices often (though not always) stem partly from hostility or sympathy toward ideas or, even more commonly, from self-interest."
Kagan notes, however, that such "redistribution of speech" is not "itself an illegitimate end," but that government may not restrict it to protect incumbent politicians or because it dislikes a particular speaker or a particular message.
She argued that government can restrict speech if it believes that speech might cause harm, either directly or by inciting others to do harm.
Laws that only incidentally affect speech are constitutional, Kagan said, because the government]s motive in enacting them is not the restriction of First Amendment freedom but the prohibition of some other, unprotected, activity.
She argues in the piece that a law banning fires in public places is not unconstitutional, even if it means that protesters cannot burn flags in public. A law outlawing flag burning protests, however, would be, because the motive is to stop a particular protest.
Kagan also argued that the Supreme Court should not be concerned with maintaining or protecting any marketplace of ideas because it is impossible for the court to determine what constitutes an ideal marketplace, contending that other types of laws, such as property laws, can also affect the structure of the marketplace of ideas and that a restriction on speech may "un-skew" the market, rather than tilt it unfavorably.
"If there is an 'overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might 'un-skew,' rather than skew, public discourse," Kagan wrote.
Instead, the Supreme Court should focus on whether a speaker's message is harming the public, argued Kagan in her article.
While Kagan does not offer an exhaustive definition of 'harm,' she does offer examples of speech that may be regulated, such as incitement to violence, hate-speech, threatening or "fighting" words.
The government, she concludes, may not express its disfavor with an opinion or speaker by burdening them with restrictions or prohibitions, unless it can show that their speech is causing some type of public harm.
"The doctrine of impermissible motive, viewed in this light, holds that the government may not signify disrespect for certain ideas and respect for others through burdens on expression," Kagan wrote. "This does not mean that the government may never subject particular ideas to disadvantage. The government indeed may do so, if acting upon neutral, harm-based reasons."
Kagan says that government is also prohibited from treating two identically harmful speakers differently. To do so, she argues, would be to violate what she views as the principle of equality -- making the unequal restriction unconstitutional.
"But the government may not treat differently two ideas causing identical harms on the ground that thereby conveying the view that one is less worthy, less valuable, less entitled to a hearing than the other," she wrote. "To take such action -- in effect, to violate a norm of ideological equality -- would be to load the restriction of speech with a meaning that transcends the restriction's material consequence."
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So if the military agrees with that, she will then respect them?
I don't see where she has shown disrespect to them, unless disagreeing with policy equals disrespecting those you disagree with.
Have we come to that?
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Now time to get to the more important considerations. Nope, not her compotence or Judicial intellect. Per Sen Schumer and company, it's her ideology that's most important. Look forward however, to watching the rope-a-dope form of her not answering questions that would demonstrate just how far left she leans. Likely contrary to her record and past rhetoric, look instead for alot of answers that reference how she does not support judicial activism. She will likely claim support for a case by case ruling, and that past constitutional rulings are largely to be sacrosanct, thus RvW is to be off the table as far as consideration of any reviewing
Senators to query Kagan, but don't expect answers
Supreme Court nominee Elena Kagan got a pledge from a key Democrat to help smooth her path to confirmation, while the top Senate Republican said she must prove she wouldn't be a rubber stamp for the White House.
Sitting beside her in his office, Senate Majority Leader Harry Reid, D-Nev., told Kagan he looked forward to making sure her transition from solicitor general to justice was "as smooth as possible."
Their meeting came as Kagan, President Barack Obama's choice to replace retiring Justice John Paul Stevens, kicked off a day of Capitol Hill courtesy calls to court the votes she'll need to be confirmed.
But Sen. Mitch McConnell of Kentucky, the Republican leader, said Kagan must prove that her current post on Obama's team wouldn't skew her rulings to favor his policies.
"It's my hope that the Obama Administration doesn't think the ideal Supreme Court nominee is someone who would rubber stamp its policies," McConnell said. "Americans want to know that Ms. Kagan will be independent, that she won't prejudge cases based on her personal opinions, that she'll treat every one equally, as the judicial oath requires."
Kagan was to meet next with McConnell, with visits later in the day to Judiciary Committee Chairman Patrick Leahy, D-Vt., top Judiciary Republican Sen. Jeff Sessions of Alabama, and three other top committee members.
But if any of them want to know Kagan's views on hot-button legal issues _ like the legality of the White House's new health care law, the constitutionality of gay marriage, or Arizona's new immigration law _ they're unlikely to learn much.
If Kagan follows the playbook for nominees, she won't be speaking her mind about legal, political or social issues raised by the senators whose votes she needs for confirmation.
Unless she breaks the traditional silence of other recent Supreme Court nominees _ something the nominee herself called for in 1995 _ senators will have to vote on elevating Kagan to the nation's highest court without finding out where she really stands on today's touchy topics.
Republicans are warning that a lack of candor could be detrimental to her getting bipartisan approval.
"Ms. Kagan failed to answer many questions posed by senators prior to her confirmation as solicitor general," Sen. John Cornyn, R-Texas, said. "This failure led many members to oppose her nomination. I hope that she will now more willingly respond to reasonable and relevant questions."
But ever since Robert Bork expansively explained his theories of the law to the Senate Judiciary Committee in 1987 and failed to get Senate confirmation, Supreme Court nominees have kept their personal opinions about controversial questions to themselves as much as possible.
Stevens, the man Kagan wants to replace, says that is the way it is supposed to be.
"It's quite unfortunate to be trying to pin down judges on particular issues," Stevens said while speaking at a judicial conference last week. "What they've said in published opinions is one thing, but speculating about issues is another."
Stevens was nominated less than three years after the landmark Roe v. Wade abortion decision in 1973 but wasn't asked a single question about abortion at his confirmation hearing. He also recalled longtime Senate Judiciary Chairman Strom Thurmond of South Carolina bringing him to his office to talk about Thurmond's view of capital punishment.
Thurmond never asked Stevens his opinion, thinking that would be improper.
Article (http://townhall.com/news/politics-elections/2010/05/12/senators_to_query_kagan,_but_dont_expect_answers)
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Yea, no radical here. Just a mild left leaner, right?
What is radical about her take on first amendment issues?
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The Bill of Rights is sacrosanct. I can't stress how important to this country the 1st and 2nd amendments are. Here you have a lawyer, arguing vague reference to potential "harm", from certain speech, that would necessitate the highest court in the land to subjugate & restrict such speech
It doesn't get much more radical than that, outside of hypothetical rhetoric to ban certain words/speech, deemed as "harmful". But i doubt you'll get that on-the-record proclaimation. At least not until she's a lifetime member, on that high court
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The Bill of Rights is sacrosanct.
No it isn't. You can't yell fire in a crowded theater, because of potential harm. And i doubt Kagan had a thing to do with that ruling.
If you read her opinion, she enhances the first amendment, because she urges the court to not only examine what speech is being infringed, but why the government felt it necessary to infringe that speech.
Now let's fast forward a bit. Suppose the Obama Administration tried to shut down the Tea Party movement based on the actions of a few of their outlier members. Would the courts be wise to examine why the administration wanted to shut them down as well as what speech was so the trigger for that action. Could the fact that the movement was a danger to public perception concerning the administration and its ability to forge a majority to push through it's policies ( perhaps healthcare or deficit spending) have any bearing on whether the administration was correct in infringing the movements speech rights?
Kagan advised that the definition of public harm should not be narrowed to the point that "public" was a particular party or administration, Public had to be broader than that.
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Yelling fire isn't what the 1st amendment is about, and you know it. So does Kagan
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Yelling fire isn't what the 1st amendment is about, and you know it. So does Kagan
Then why did Oliver Wendell Holmes mention it in an opinion concerning a First Amendment Case?
"Shouting fire in a crowded theater" is a popular metaphor and frequent misquoting of Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919. The misquote fails to mention falsely shouting fire to highlight that speech which is merely dangerous and false which can be distinguished from truthful but also dangerous. The quote is used as an example of speech which serves no conceivable useful purpose and is extremely and imminently dangerous so that resort to the courts or administrative procedures is not practical and expresses the permissible limitations on free speech consistent with the terms of the First Amendment of the United States Constitution.
The Schenck case
Holmes, writing for a unanimous majority, ruled that it was illegal to distribute flyers opposing the draft during World War I. Holmes argued this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war. Holmes wrote:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
Holmes wrote of falsely shouting fire, because, of course, if there were a fire in a crowded theater, one may rightly indeed shout "Fire!"; one may, depending on the law in operation, even be obliged to. Falsely shouting "Fire!" in a crowded theater, i.e. shouting "Fire!" when one believes there to be no fire in order to cause panic, was interpreted not to be protected by the First Amendment.
The First Amendment holding in Schenck was later overturned by Brandenburg v. Ohio, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot). The test in Brandenburg is the current High Court jurisprudence on the ability of government to proscribe speech after that fact. Despite Schenck being limited, the phrase "shouting fire in a crowded theater" has since come to be known as synonymous with an action that the speaker believes goes beyond the rights guaranteed by free speech, reckless or malicious speech, or an action whose outcomes are blatantly obvious.
http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater (http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater)
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Yelling fire isn't what the 1st amendment is about, and you know it. So does Kagan
Then why did Oliver Wendell Holmes mention it in an opinion concerning a First Amendment Case?
Can't tell you why. I can only go by what the Founders intentions were, which had prescious little to do with fires. It specifically was in referenced to political speech, and the clear limitations Government can place on it. It's why campaigns can get away wilth outright lies aimed at opposing parties, candidates, and/or positions, because it is protected. When Kagan argues about the possible "harm" coming from free speech, its generic, and is applicable to anything and everything speech, political speech included, if some higher power deems it "harmful" in some potential form
THAT's why its such wreckless and radical rhetoric
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The Same Phony "Moderate" Baloney
It's more than a little tiresome to contemplate that every current liberal Supreme Court justice was touted by the national media as a moderate or even a conservative when they were originally announced, from John Paul Stevens to Sonia Sotomayor. Dan Rather even claimed the last retiree, David Souter, was dangerously "anti-women's rights" when he was nominated in 1990. So it was less than shocking that the latest liberal nominee, Elena Kagan, drew the same phony "moderate" baloney.
ABC anchor Diane Sawyer greeted the nomination with goo: "She is expected to play a role as somewhat of a conciliator, the bridge across the conservative and liberal wings of the court. In fact, she loves opera, which Justice Scalia loves." What more evidence of her judicial philosophy do we need? CBS reporter Lesley Stahl announced on MSNBC that she was a conciliator that could bring the two parties together, just like Obama, conveniently placing both of them in the political middle. Washington Post editorialist Eva Rodriguez even complained that her terrorist-detention cases as solicitor general might suggest she looks like a "hard-right ideologue who would have fit right in" with Team Bush.
As with Sotomayor & Co., media liberals greeted Kagan's record as a great mystery, and because of that, no one should "pigeonhole" this woman as a liberal. But there it was in black and white in a sympathetic New York Times profile. She spent the summer of 1980 working to elect a left-wing Democrat, Elizabeth Holtzman, to the Senate. "On Election Night, she drowned her sorrow in vodka and tonic as Ronald Reagan took the White House and Ms. Holtzman lost to 'an ultraconservative machine politician,' she wrote, named Alfonse D'Amato."
Maybe she's not a liberal. If she thinks Al D'Amato is an "ultraconservative," then she might just be a radical leftist.
What may be a little more surprising is that liberal reporters were touting Kagan as a centrist before Obama won the White House. On Oct. 30, 2008, National Public Radio legal reporter Nina Totenberg insisted Obama would name a woman to the high court, and "the names mentioned most often as possible Obama appointments tend to the center-left. They include federal Judge Sonia Sotomayor (who has the additional plus of being Hispanic), Harvard Law School Dean Elena Kagan, Michigan Gov. Jennifer Granholm, and some commentators have talked about Hillary Clinton."
There you have it: NPR's definition of a roomful of centrists.
On May 9, 2008, liberal CNN legal analyst Sunny Hostin touted Kagan as an Obama pick: "She was counsel to President Clinton and clerked for Thurgood Marshall. So she would be an excellent choice." Despite these liberal associations, Kagan was not ideological at all, while John McCain would ruin the magic, since he would have picked "a very conservative type of judge." The Republicans are always picking an ultraconservative. The Democrats just have a great eye for quality.
Even back on March 5, 2004, a New York Times op-ed by Chris Sprigman argued that John Kerry should nominate a "shadow cabinet" to show voters how much more moderate and established his team would be. Kagan could have been prematurely declared Kerry's attorney general: "Elena Kagan, the first female dean of Harvard Law School and a former counsel to President Bill Clinton, could be shadow attorney general and draw attention to the worst excesses of John Ashcroft."
Kagan's complete lack of judicial experience would set the stage for controversy if the president were Republican. Remember Harriet Miers? Not even her real moderation helped in their eyes. The media blasted her, insisting there was more cronyism than qualifications there. But on some measures of the real world of lawyering, Miers had more experience than Kagan.
But the media don't question the qualifications of liberals. Anyone who's chosen the liberal side has already proven her intelligence. Anyone who's named dean of the Harvard Law School is "eminently qualified" to tell the rest of America what to think. And anyone who circulated in all the same Ivy League and Upper West Side "progressive" circles can't possibly be controversial.
The entire media jury pool on the matter of Kagan's ideology is galloping in the streets with their own liberal blinders firmly attached, like the New Yorker film critic Pauline Kael, who infamously expressed the thought in 1972 that Richard Nixon couldn't possibly be elected, since "No one I know voted for Nixon."
And then they have the audacity to maintain they are the uniquely "open-minded" ones. (http://townhall.com/columnists/BrentBozell/2010/05/12/reagan-hating_kagan)
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When Kagan argues about the possible "harm" coming from free speech, its generic, and is applicable to anything and everything speech, political speech included, if some higher power deems it "harmful" in some potential form
I think you might want to reread your post and the links that go with it. Hell, just read what she herself wrote instead of relying on other folks to tell you what she said.
If anything her opinion strengthens the first, not weakens or changes it
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I did, and you'd be wrong. "Redistribution of speech" were her words. She specifically referenced if such speech might be "harmful", and where the Supreme Court should step in to largely make new law, in identifying what is to be acceptable speech, and what is deemed "harmful", and thus restricted
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BT....you could be partly right....I suppose with the info shown below
we could probably have got someone much worse....I dont trust
her or Obama...but there are probably much worse SC candidates than Kagan.
(http://www.parklightinn.com/images/greenhotel-logo15.gif)
May 12, 2010
Elena Kagan's No Liberal
By Ellen Ratner
President Obama has nominated someone he thinks can make it through the confirmation process, not someone who can fill Justice Stevens shoes on the Court.
Anyone who thinks that Elena Kagan as a nominee for the Supreme Court is a replacement for Justice Stevens is dreaming. President Obama went for a choice that he knew would make it through the confirmation process. He wanted someone who would not ruffle too many of the feathers of the moderate Republican lawmakers he needs to pass his legislative agenda as well as approve her nomination.
The Tea Party right is already taking aim. They are accusing her of a left-wing agenda since she banned military recruiters on the Harvard Law School campus. They are all over her senior college thesis on the decline of socialism. The problem is that the thesis is not her view, it was an academic exploration on why socialism failed in the early part of the last century. Her thesis adviser said she was the furthest thing from a socialist and always had been.
My concerns have to do with some of her stated positions. When she appeared before Congress at her confirmation hearings to become solicitor general, she was asked if she agreed that we're at war. She said she did. And she stated that indefinite detention without trial could apply even if someone was not picked up on a literal battlefield, such as somebody in the Philippines who might be suspected of financing Al Qaeda terror networks around the world. She agreed with this statement. There isn't a liberal in the world that would agree on indefinite detention, let alone picking up someone not in a battlefield situation.
Her other opinions include a declaration that gay marriage is not a constitutional right. Her views on a strong executive branch fly directly in the face of those who believe in more balance among the three branches of government.
Her hiring record at Harvard Law School is scary. Out of thirty-two tenure and tenure track positions, one was a minority and seven were women. That is not exactly a sterling record for someone whom the right would like to paint as a liberal. She may bring diversity to the Court, but her hiring practices at Harvard Law School certainly did not bring them there.
President Obama has chosen somebody with a scant paper trail, who hired conservatives at Harvard Law School. Elena Kagan is not someone who will fill Justice Stevens' shoes. That time has probably passed and it saddens those of us who hope that the Court remembers Justice Earl Warren and the more liberal interpretation of the law. Elena Kagan just doesn't fit the bill.
Ellen Ratner is Washington Bureau Chief for Talk Radio News Service and a Fox News contributor.
http://www.foxnews.com/opinion/2010/05/12/ellen-ratner-obama-elena-kagan-supreme-court-stevens-liberal-harvard/ (http://www.foxnews.com/opinion/2010/05/12/ellen-ratner-obama-elena-kagan-supreme-court-stevens-liberal-harvard/)
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Y tu, Cu4? ;)
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Y tu, Cu4? ;)
SPEAK ENGLISH SIRS!
THIS IS THE UNITED STATES
I REFUSE TO "PRESS 3" FOR SIRSISM
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:D
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plus i heard she opposed late term
murder abortion!
we could do worse....and SIRS looking at her...I dont see
her living to be elderly.....so we could do much worse and
she wont serve that long compared to most.
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She's only 50 Cu4. She'll be there for likely the rest of my lifetime. and no, I'm not buying the phony "moderate" baloney (http://debategate.com/new3dhs/index.php?topic=9624.msg100864#msg100864)
Not from what I've read and seen from her so far. Al D'Amato is an "ultraconservative", in her view??
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i never said she was a moderate
she may be ok on 5 issues in 30
thats still very liberal
but a hell of a lot better than bad on 30 out 30 issues
the point being we could do much worse
we dont hold the cards
and yeah she is 50
but look at her
(http://media.mlive.com/news_impact/photo/kaganjpg-4c7b12e821d9a84a_large.jpg)
i assure you she wont see 70...maybe not 60
michelle obama should outlaw Ms Kagan's cookies and ice cream!
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So if the military agrees with that, she will then respect them?
I don't see where she has shown disrespect to them, unless disagreeing with policy equals disrespecting those you disagree with.
Have we come to that?
Do you think that she respectfully banned military recruiters on the Harvard Law School campus?
Do you suppose that she presented a "clear and present danger" to the government's recruitment efforts for the war?
Harvard lawyers were not being drafted after all , why was it good to shield them from persuasion?
I am thinking that this attitude could be summed up as " All of you bigots are not welcome here , you must go away, with all due respect to each of you.".
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Do you think that she respectfully banned military recruiters on the Harvard Law School campus?
Recruiters were effectively banned since 1979 except for a brief period between the 3rd circuits decision and Kagan's decision to rescind the policy prior to the Scotus decision.
Making it sound like the banning was all on her is disingenuous at best.
Do you suppose that she presented a "clear and present danger" to the government's recruitment efforts for the war?
That wasn't the issue. The issue was whether Harvard's policy of banning entities that discriminate could be banned from campus and the resulting ban allow for the Solomon Amendment to kick in, defunding Harvard of Federal Dollars. The 3rd agreed they could ban the entity because of discriminatory practices and the Solomon Amendment would not apply. Scotus disagreed and said the Feds would be justified in withholding funding.
Harvard lawyers were not being drafted after all , why was it good to shield them from persuasion?
No one was being drafted at the time of the controversy.
But you do bring up a salient point. She allowed the Executive Branch of the government to recruit Harvard Law grads and that branch was as responsible for DADT as the DOD was for implementing it.
Then again often that is the difference between pragmatism and symbolic protest. My guess is more Harvard grads would end up at Justice than they would as JAGS.
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I do not see any big deal about banning military recruiters at Harvard Law School. It's not like Harvard students were banned from enlisting if they wished.
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I did, and you'd be wrong. "Redistribution of speech" were her words. She specifically referenced if such speech might be "harmful", and where the Supreme Court should step in to largely make new law, in identifying what is to be acceptable speech, and what is deemed "harmful", and thus restricted
From your article and your emphasis:
She argued that government can restrict speech if it believes that speech might cause harm, either directly or by inciting others to do harm.
Are you aware that that is settled law?
The First Amendment holding in Schenck was later overturned by Brandenburg v. Ohio, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot). The test in Brandenburg is the current High Court jurisprudence on the ability of government to proscribe speech after that fact.
Seems her opinion piece specifically says that Obama can't suppress Rush's speech just because he doesn't like what Rush says. Even if Timothy McVeigh had Rush's name tattoed on his butt, Kagan advocated looking into Clinton's motivation when he accuses Rush of inciting violence.
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Making it sound like the banning was all on her is disingenuous at best.
I know it was not her alone , but when she became cheif she became responsible , even for policys she continued from previous administrators.
Was she just one of the croud or a leader in the situation?
If she takes on a leadership role but does not lead , just follows along , this is a worser problem than merely being wrong.
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If she takes on a leadership role but does not lead , just follows along , this is a worser problem than merely being wrong.
The time line does show she led, also shows she is capable of changing positions with changing circumstances.
She's pragmatic. hardly the radical anti-military zealot some are trying to paint her as.
And i doubt she will be called on to lead anymore than Clarence Thomas is called on to lead.
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If she takes on a leadership role but does not lead , just follows along , this is a worser problem than merely being wrong.
The time line does show she led, also shows she is capable of changing positions with changing circumstances.
She's pragmatic. hardly the radical anti-military zealot some are trying to paint her as.
And i doubt she will be called on to lead anymore than Clarence Thomas is called on to lead.
Weathervane.
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Weathervane.
Yeah They do what they are supposed to do, adapt to changing circumstances, much like Bush listening to the commanders on the ground.
Adaptability is not necessarily a bad thing.
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so.....when are BT & Elena Kagan getting married?
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so.....when are BT & Elena Kagan getting married?
We're not.
I just don't want to see the right do to Kagan what the left did to Palin.
You know, exaggerate shit just to demonize her. Because from what i see so far, the seat on the bench is hers to lose. Obama has the right to appoint whom he wants and the GOP doesn't have the votes to stop him.
And i really don't see them retaking the majorities by out-Borking the dems. I honestly think that will backfire on them.
I think the voting public wants them focused on the economy.
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Palin?.....you gotta be kidding?
I wish Palin had got this kind of treatment!
(http://leslievaleska.com/wp-content/uploads/2010/02/dancing-couple-moonlight-dance.gif)
Going To The Chapel Of Love- The Dixie Cups (http://www.youtube.com/watch?v=cMfrLFirGWc#)
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demonizing is demonizing. does it really matter the scale?
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demonizing is demonizing. does it really matter the scale?
Yes .
The scale is the diffrence between reasonable and excessive.
Should the right withhold all criticism because we know we are outnumbered?
Advise and consent implys due dilligence , isn't provideing an advasary part of the process of looking after the public intrest?
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Should the right withhold all criticism because we know we are outnumbered?
No but it would be nice if the criticism was not embellished.
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Yes .
The scale is the diffrence between reasonable and excessive.
So Hitler gets a pass because Stalin killed more?
Advise and consent implys due dilligence , isn't provideing an advasary part of the process of looking after the public intrest?
Due diligence implies getting the facts correct and reporting them fairly.
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lemme know when Kagan:
has her e-mail criminally hacked and stolen.
is referred to on national TV/Letterman as having a "slutty flight attendant" look".
has a young teeneage daughter referred to on national TV/ Letterman as "being knocked up by A-Rod"
has a young daughter with Down's Syndrome made fun of on televsion.
is referred to as "lipstick on a pig"
is caricatured as an inexperienced rube, a baby-making automaton, an uneducated underachiever,
a bad mother, trailer-park trash, a rightwing religious fanatic, a sexual fantasy, and of course,
a fascist.
when Salon Magazine likens her to a "dominatrix," or University of Michigan Middle East studies
professor Juan Cole compares her to a "Muslim fundamentalist" and a member of the Taliban.
when US Weekly runs a trashy cover story on Kagan titled, "Baby, Lies & Scandal"
(two months after a glowing cover story on the Obamas)
when mainstream media outlets run with a lurid rumor originating with an anonymous diarist
at the leftist blog Daily Kos that insinuated a son is actually her grandson
ect ect ect ect ect ect ect ect ect ect ect etc etc
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She has already been called a lesbian by CBS and is under attack as unqualified due to lack of judicial experience. The WSJ journal has a picture of her playing softball that appears to make her look like a dyke.
It's early in the game, give the zealots time to come up with nasty ways to attack her.
Wasn't it you earlier in the thread advocating opening fire with both pistols drawn?
This country is in serious trouble, i don't see why we should waste our time going after a woman who is the Presidents choice to sit on the bench and the GOP doesn't have the votes to stop her.
Why waste time going through the motions. Focus on the important things that can be changed.
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This country is in serious trouble, i don't see why we should waste our time going after a woman who is the Presidents choice to sit on the bench and the GOP doesn't have the votes to stop her. Why waste time going through the motions. Focus on the important things that can be changed.
Like educating the electorate (http://www.breitbart.tv/obama-flashback-a-supreme-court-nominee-with-no-judicial-experience-requires-extreme-scrutiny/) on Obama's consistent trend of piss more judgement & ideoligical extremism, in his effort to "fundamentally change" (http://www.reuters.com/article/idUSTRE64B53W20100512) the way this country is going to work. That's a very functional waste of time, IMHO, come 2010 & 12
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(http://media.townhall.com/Townhall/Car/b/100513beelertoon_c20100513021158.jpg)
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Like educating the electorate....
Yeah we have already covered numerous justices including Chief Justices who came to the bench with no previous experience.
Rehnquist and Warren come to mind.
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I like my links (http://www.reuters.com/article/idUSN1219978020100512?type=marketsNews) to educating, better. Provides a more accurate picture (http://www.ocregister.com/opinion/data-248115-financial-bill.html) of this "fundmental change" being forced upon this country
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Like educating the electorate....Yeah we have already covered numerous
justices including Chief Justices who came to the bench with no previous
experience. Rehnquist and Warren come to mind.
BT can you pass that along to Obama?
Who said when he was a US Senator:
"A Supreme Court Nominee With No Judicial
Experience Requires Extreme Scrutiny"
http://www.breitbart.tv/obama-flashback-a-supreme-court-nominee-with-no-judicial-experience-requires-extreme-scrutiny/ (http://www.breitbart.tv/obama-flashback-a-supreme-court-nominee-with-no-judicial-experience-requires-extreme-scrutiny/)
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*snicker*......now that looks familiar (http://debategate.com/new3dhs/index.php?topic=9624.msg100929#msg100929)
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BT can you pass that along to Obama?
Sure next time i see him.
But in the meantime a lack of previous judicial experience doesn't seem to have affected the work of the many justices i listed in that previous post. So that lack is not a disqualifier, perhaps something else in her resume might need scrutiny.
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That sounds a little redundant, Bt. Hard to scrutinize what's non-existant, such as a judicial record. it would have to be other areas of her "resume'"
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BT...I'm not sure I even want her dis-qualified
because i think we could end up much worse
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That sounds a little redundant, Bt. Hard to scrutinize what's non-existant, such as a judicial record. it would have to be other areas of her "resume'"
Sure her writings and teachings are fair targets.
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BT...I'm not sure I even want her dis-qualified
because i think we could end up much worse
Yeah i think Obama played it safe on this one. She was approved as Solicitor General a little over a year ago, by the same Senate that is vetting her now.
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Yeah i think Obama played it safe on this one.
She was approved as Solicitor General a little over a year ago, by the same Senate that is vetting her now.
'cept this guy...that kicked ass!
quite a nice trade...Ted Kennedy for Scott Brown!
(http://reddogreport.files.wordpress.com/2010/02/scott-brown-wins.jpg)
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http://news.yahoo.com/s/ynews/20100513/ts_ynews/ynews_ts2040 (http://news.yahoo.com/s/ynews/20100513/ts_ynews/ynews_ts2040)
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Kagan's Just the Latest Radical Obama Lawyer
Here are some of the lawyers that Mr. Obama has appointed:
Eric Holder, Attorney General. Mr. Holder wants to bring terrorists to trial in civilian courts, has called America a "nation of cowards" for not being obsessed with race, and allowed the Justice Department to drop counts against New Black Panther Party members charged with voter intimidation in Philadelphia in 2008.
Attorney General Eric H. Holder Jr., who has been critical of Arizona's new immigration law, said Thursday he hasn't yet read the law and is going by what he's read in newspapers or seen on television.
Mr. Holder is conducting a review of the law, at President Obama's request, to see if the federal government should challenge it in court. He said he expects he will read the law by the time his staff briefs him on their conclusions.
"I've just expressed concerns on the basis of what I've heard about the law. But I'm not in a position to say at this point, not having read the law, not having had the chance to interact with people are doing the review, exactly what my position is," Mr. Holder told the House Judiciary Committee.
This weekend Mr. Holder told NBC's "Meet the Press" program that the Arizona law "has the possibility of leading to racial profiling." He had earlier called the law's passage "unfortunate," and questioned whether the law was unconstitutional because it tried to assume powers that may be reserved for the federal government.
Rep. Ted Poe, who had questioned Mr. Holder about the law, wondered how he could have those opinions if he hadn't yet read the legislation.
"It's hard for me to understand how you would have concerns about something being unconstitutional if you haven't even read the law," the Texas Republican told the attorney general.
The Arizona law's backers argue that it doesn't go beyond what federal law already allows, and they say press reports have distorted the legislation. They point to provisions in the law that specifically rule out racial profiling as proof that it can be implemented without conflicting with civil rights.
But critics said giving police the power to stop those they suspect are in the country illegally is bound to lead to profiling.
Mr. Holder said he expects the Justice and Homeland Security departments will finish their review of the Arizona law soon.
Ooops (http://www.washingtontimes.com/news/2010/may/13/holder-hasnt-read-ariz-law-he-criticized/)
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I did, and you'd be wrong. "Redistribution of speech" were her words. She specifically referenced if such speech might be "harmful", and where the Supreme Court should step in to largely make new law, in identifying what is to be acceptable speech, and what is deemed "harmful", and thus restricted
From your article and your emphasis:
She argued that government can restrict speech if it believes that speech might cause harm, either directly or by inciting others to do harm.
Are you aware that that is settled law?
The First Amendment holding in Schenck was later overturned by Brandenburg v. Ohio, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot). The test in Brandenburg is the current High Court jurisprudence on the ability of government to proscribe speech after that fact.
Seems her opinion piece specifically says that Obama can't suppress Rush's speech just because he doesn't like what Rush says. Even if Timothy McVeigh had Rush's name tattoed on his butt, Kagan advocated looking into Clinton's motivation when he accuses Rush of inciting violence.
Once upon a time we could count on lawyers and law school professors to defend the First Amendment, the most important 46 words in the Constitution. Those 46 words make everything else possible. Shut up the people and the government can shut down every other freedom.
The genius of the Founding Fathers was their ability to write the Constitution in the plain English that everybody could understand. Lawyers, who can employ entire boring paragraphs to say "good morning" (many young women have dozed off while their lawyer swains were on their knees with a proposal of marriage) would inflict damage later.
A good lawyer, or even a bad one, can put loopholes in any proposal. To wit, Elena Kagans explanation of the First Amendment. It's perfectly OK, she wrote in the University of Chicago Law Review, for the government to restrict free speech as long as it means well and calls it something else. The word "restrictions" sounds bad, like a leather restraint, but Mzz Kagan's "redistribution of speech" can sound benign, like free cheese. Who doesn't like cheese? She argued that the government can employ Orwellian restrictions on speech if it thinks such speech might "harm" others, either by direct action or inciting someone else to take direct action. Who gets to decide when such restrictions are imposed for the greater good? Why, the government, of course.
Here's how the Founding Fathers, ever suspicious of ambitious Lilliputians, wrote the guarantee of free speech: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Note that the First Amendment does not say that Congress "should" make no law abridging the freedom of speech, or that it would be nice if it didn't. The operative words are "shall make no law."
The Constitution has "evolved" since then, of course, and now the liberal left, led by the Warren Court and its bastard progeny, has discovered all manner of "emanations" and "penumbra," like an embedded Da Vinci code, that the Constitution doesn't really mean what the words say it means. What part of "shall" can Mzz Kagan not understand?
She does not identify, exactly, what speech the government could regard as inflicting such "harm" as to justify suspending the Constitution, but she offers as examples incitement to violence, "hate speech" and "fighting words." Since certain friends of the White House have suggested that "tea party" activists may have already been guilty of sedition, we can imagine what some of the violations might one day be.
President Obama's selection of Mzz Kagan is of a piece with what is emerging as his operating philosophy of government. The president's thin skin, his irritation with constructive criticism, is well known, and we can all be sympathetic. Who among us relishes criticism? But he's not content to retire to the cosseting comfort of the Oval Office to sulk. He complained to the Class of '10 at Hampton University the other day that Internet blogs, certain cable television networks and talk radio make life tough and inconvenient at the White House. Mzz Kagan's "redistribution of speech" could fix this.
Elena Kagan has no large body of work that makes it easy to see what kind of justice she might be. This is the most important reason the president selected her. The White House is trying to keep her away from even the most polite questions until she has to face softballs from sympathetic senators. He expects quick partisan confirmation. So he can't object to the despised pundits, bloggers, cable-TV commentators and radio talk-show hosts and guests speculating from whatever meager hints and clues they find in her past. Mr. Obama himself is the model for these speculators.
He was frustrated by the lack of a paper trail for Harriet Miers, the White House lawyer for George W. Bush and a Supreme Court nominee whom Elena Kagan, with her abundant inexperience, resembles in many ways. Mr. Obama, then a very junior U.S. senator, called Mzz Miers "a blank slate" and said that "in the absence of a judicial record" she would have to be more forthcoming, and the White House would have to be more forthcoming, in answering fundamental questions about who she really was. Mr. Bush, properly chastened by the uproar over the Miers nomination, much of it led by conservatives, summoned the grace to withdraw the nomination.
but naaa....she acutally strengthens free speech. ::) (http://www.washingtontimes.com/news/2010/may/14/the-first-amendment-under-progressive-siege/)
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I am saddened to see Pruden has joined the chorus of those misreporting what she said.
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Or, dare I say, perhaps more likely, Bt has misunderstood what Kagen actually said. Given her hx and past rhetoric, including recent revelations (http://www.bloomberg.com/apps/news?pid=20601087&sid=aPI35t8uR6Gs) at her thoughts regarding the 2nd amendment (http://kaganwatch.com/2010/05/11/kagan-on-second-amendment-like-freedom-of-speech-enjoys-strong-but-not-unlimited-protection/), the latter would seem more likely than the former
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I read the CNS article (http://cnsnews.com/news/article/65720)you posted and even in that article it shows that both you and Pruden misrepresent what she says. Let's review: Emphasis mine
In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is ?the most important? factor.
In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.
She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.
Yet Pruden uses the Tea Party as an example of who would be affected if Kagan's position became standard practice. In my opinion the Tea Party's protection is enhanced.
The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.
?The answer to this question involves viewing the Buckley principle [that government cannot balance between competing speakers] as an evidentiary tool designed to aid in the search for improper motive,? Kagan wrote. ?The Buckley principle emerges not from the view that redistribution of speech opportunities is itself an illegitimate end, but from the view that governmental actions justified as redistributive devices often (though not always) stem partly from hostility or sympathy toward ideas or, even more commonly, from self-interest.?
Kagan notes, however, that such ?redistribution of speech? is not ?itself an illegitimate end,? but that government may not restrict it to protect incumbent politicians or because it dislikes a particular speaker or a particular message.
She argued that government can restrict speech if it believes that speech might cause harm, either directly or by inciting others to do harm.
Laws that only incidentally affect speech are constitutional, Kagan said, because the government?s motive in enacting them is not the restriction of First Amendment freedom but the prohibition of some other ? unprotected ? activity.
She argues in the piece that a law banning fires in public places is not unconstitutional, even if it means that protesters cannot burn flags in public. A law outlawing flag burning protests, however, would be, because the motive is to stop a particular protest.
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You may not realize this, but you actually reinforce my (& Pruden's points) about Government delving further into the area of exercising law on the 1st amendment, based on lawyer-like vagueness surrounding hurtful & hateful, to which the Constitution clearly says Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech
Meaning it CAN be hurtful, it CAN be hateful. It can even be a bald faced lie, if its political speech. Kagan believes that can and should be "redistributed" (aka regulated). The Constitution says otherwise.
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Meaning it CAN be hurtful, it CAN be hateful. It can even be a bald faced lie, if its political speech. Kagan believes that can and should be "redistributed" (aka regulated). The Constitution says otherwise.
Show me where she says that, in context.
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"The answer to this question involves viewing the Buckley principle [that government cannot balance between competing speakers] as an evidentiary tool designed to aid in the search for improper motive," Kagan wrote. "The Buckley principle emerges not from the view that redistribution of speech opportunities is itself an illegitimate end, but from the view that governmental actions justified as redistributive devices often (though not always) stem partly from hostility or sympathy toward ideas or, even more commonly, from self-interest."...that the Supreme Court should focus on whether a speaker's message is harming the public.
And who gets to define "harm", and to what extent that speech is being "harmful
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OK
and does she advise Scotus to examine government motive when restricting free speech?
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She DOES advise that Scotus examine the "motives" of the speaker
&
She DOES use alot of lawyer legal speak, to do an end around the clear wording of the 1st amendment.
Not sure why you're trying to defend her, Bt. Perhaps you've made a comittment to your position, and must not stray. And yes, perhaps I'm doing the same. But I'm reading HER words. I'm reading HER use of harmful, hateful, "redistribution of speech", for crying out loud. The 1st amendment doesn't allow for that.
Or so the founders were hopeful. But hell, as the constitution continues to "evolve" perhaps there is no real right to bear arms, if such arms are deemed harmful. Maybe searches of private residences are going to be routine in a time of high anxiety, I mean, groups may be organizing hateful events, and we'll need to make sure no one can be harmed from such groups.
Yea, I'm being extreme, but that's easy to do, when you can write up legalize to ram rod loopholes into Bill of Rights big enough to drive a hummer thru.
Her words vs the Founders'. Dare I say, it's a no brainer
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That sounds a little redundant, Bt. Hard to scrutinize what's non-existant, such as a judicial record. it would have to be other areas of her "resume'"
Sure her writings and teachings are fair targets.
Think we'll get a gander at this (http://www.washingtonexaminer.com/politics/Will-the-Senate-see-Kagan_Ss-long-paper-trail_-93725434.html)?
Will the Senate see Kagan's long paper trail?
By: Byron York
"We're talking about tens of thousands of pages," says Susan Cooper, spokeswoman for the National Archives and Records Administration. "It's a massive job."
Cooper is discussing the work of processing papers from Supreme Court nominee Elena Kagan's two years, 1995 and 1996, in the Clinton White House Counsel's Office. During that time, Kagan, like any overworked staff lawyer, handled a wide variety of issues and wrote or contributed to thousands of memos, e-mails and other documents. Those papers, boxes and boxes of them, are at the Clinton Presidential Library in Little Rock, under the supervision of the archives.
You've probably heard a lot of talk about Kagan not having a paper trail. It's not true. In fact, she has a long paper trail. The only question is whether the senators who vote on her confirmation will be allowed to see it.
There have already been some stories -- articles like "Memos Reveal Elena Kagan's Centrist Side" -- based on documents from Kagan's White House service, but those are from her time, 1997 to 1999, on the White House Domestic Policy Council. Cooper says those papers have already been processed by government archivists and many, although not necessarily all, of them have been posted on the Internet.
But what Cooper calls the "bulk of the [Kagan-related] records that we have" come from Kagan's time in the counsel's office. They have not yet been processed and are not yet open. And, of course, they are likely to cover issues that would be useful to senators seeking to learn more about Kagan's legal thinking.
So the question is: Will senators get to see them? If history is any guide, the answer is yes.
In 2005, when John Roberts was nominated for the Supreme Court, minority Democrats wanted to see papers Roberts had written while serving in the Reagan White House Counsel's Office in the mid-1980s. President George W. Bush complied, and the Senate Judiciary Committee was given more than 50,000 pages of material detailing Roberts' positions on issues like civil rights, the separation of powers, school prayer and other topics.
Although Bush declined to produce everything Roberts wrote while at the Justice Department in another job, the White House papers gave the Senate unique insights into Roberts' legal thinking. The public learned a lot, too, since the papers were also the source for hundreds of press accounts describing Roberts' writing style and personality.
Now, we have another Supreme Court nominee who spent time in the counsel's office.
"There is now a precedent that a White House lawyer's materials will be produced," says Bradford Berenson, an associate counsel in the Bush White House. "I think it will be very difficult for the Obama administration, given everything they've said about transparency and openness, to withhold these documents."
That applies even to cases in which the Clinton White House claimed executive privilege. For example, in 1996, Kagan was involved in a controversy in which the Clinton administration was accused of siding with a group of radical environmentalists locked in a standoff with federal agents in Oregon. Officials at the U.S. Forest Service suspected that a staffer at the White House Council on Environmental Quality tipped off the protesters about a coming federal crackdown.
The situation drew the attention of Republicans on the House Committee on Natural Resources, who found that Kagan, in the White House Counsel's Office, did little, if anything, to find or punish the leaker, even though that person had revealed confidential information that potentially endangered the lives of Forest Service agents. GOP investigators asked for Kagan's notes on the matter at the time, but the White House refused, claiming executive privilege.
It's possible Senate Republicans will want to see those documents today. Given the Roberts precedent, there seems no reason for the papers to remain secret.
It's not yet clear whether there will be a battle over White House papers. Republican Senate Judiciary Committee sources say it's too early to know what documents GOP senators will want to see, and it's also too early to know how the White House will respond to Senate demands.
But remember: Elena Kagan has a very long paper trail. The Senate will need to see a lot of it before she is elevated to the nation's highest court.
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She DOES use alot of lawyer legal speak, to do an end around the clear wording of the 1st amendment.
Not a whole lot of legal speak in saying that because a an administration or party does not like the type of speech, that is not a good enough reason to pass legislation against it, and if that legislation is passed then scotus if called upon should consider the motivation of the majority party in writing the restrictive law.
Which is just the opposite of Pruden saying that she would be an ally of Obama-ites who would want to restrict the tea party folks.
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Are you actually reading her words? or are you simply rearranging them in your head to come out with what you propose she's trying to say? Because her words, as vague & verbose as she tries to make them, makes it clear that she believes that with an evolving Constitution, Government & SCOTUS have a role in determining "motive" and level of "harm" in someone's clear right to free speech.
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Because her words, as vague & verbose as she tries to make them, makes it clear that she believes that with an evolving Constitution, Government & SCOTUS have a role in determining "motive" and level of "harm" in someone's clear right to free speech.
What she brings to the table is investigating the motive of the government in legislating or restricting st forms of speech. Whether the speech in question causes harm is already settled law and restricting harmful speech has been ruled constitutional back in 1969.
In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is ?the most important? factor.
In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.
She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.
http://debategate.com/new3dhs/index.php?topic=9624.msg100852#msg100852 (http://debategate.com/new3dhs/index.php?topic=9624.msg100852#msg100852)
So to answer your questions, i am reading her words, i do not see them as overly couched in legal terms nor do i see them as verbose, in fact the article you posted makes it crystal clear what she meant. And i happen to agree that government motivation is always a concern for any legislation they pass.
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Because her words, as vague & verbose as she tries to make them, makes it clear that she believes that with an evolving Constitution, Government & SCOTUS have a role in determining "motive" and level of "harm" in someone's clear right to free speech.
What she brings to the table is investigating the motive of the government in legislating or restricting st forms of speech. Whether the speech in question causes harm is already settled law and restricting harmful speech has been ruled constitutional back in 1969.
What she "brings to the table" is the advocation that Government & SCOTUS need to examime motives of the speaker, further determing some level of "harm" that may come about from someone exercisting their 1st amendment right to free speech. Not sure why we're going in circles here. Her words are there for all to see. You want to chose that Government needs to take a greater role in deciphering intent?, have at it. Not my cup of tea to support any further intervention by the government in the name curtailing harm or hate. Especially given the clear limitations the constitution is supposed to be provide upon Government
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Kagan's Just the Latest Radical Obama Lawyer
Here are some of the lawyers that Mr. Obama has appointed:
Eric Holder, Attorney General. Mr. Holder wants to bring terrorists to trial in civilian courts, has called America a "nation of cowards" for not being obsessed with race, and allowed the Justice Department to drop counts against New Black Panther Party members charged with voter intimidation in Philadelphia in 2008.
Attorney General Eric H. Holder Jr., who has been critical of Arizona's new immigration law, said Thursday he hasn't yet read the law and is going by what he's read in newspapers or seen on television.
"I've just expressed concerns on the basis of what I've heard about the law. But I'm not in a position to say at this point, not having read the law, not having had the chance to interact with people are doing the review, exactly what my position is," Mr. Holder told the House Judiciary Committee.
When it rains, it pours (http://www.realclearpolitics.com/video/2010/05/13/holder_refuses_to_use_the_term_radical_islam.html)
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Is it clear what sort of thing is "harm" that the Government may restrict free speech rights to prevent?
And how much of this "harm " is enough to justify restriction on free speech?
Or what example of government motive would be found proper by the court when examining a restriction for constituionality?
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Hmmmm....inquiring minds would love to know
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What she "brings to the table" is the advocation that Government & SCOTUS need to examime motives of the speaker, further determing some level of "harm" that may come about from someone exercisting their 1st amendment right to free speech.
Your claim.
Her Claim.
In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court
Her words are there for all to see.
The speaker is not the government. The government is restricting the speakers speech. She says the courts should examine why. This would strengthen the first, not weaken it.
As far as harm goes, she says this according to the article sirs posted.
While Kagan does not offer an exhaustive definition of ?harm,? she does offer examples of speech that may be regulated, such as incitement to violence, hate-speech, threatening or ?fighting? words.
Pretty much settled law since Buckley vs Ohio which clarified the falsely crying fire in a theater ruling.
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In her article it was a tad more broad, that of the motives of the speaker
For all to see
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In her article it was a tad more broad, that of the motives of the speaker
Then you should be able to quote where she mentions the motives of the speaker and not the government so that all can see.
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Been there, done that already.
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sorry must have missed that post, could you point out where you did so?
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The last one was posted here (http://debategate.com/new3dhs/index.php?topic=9624.msg100995#msg100995), while the article in greater context was located here (http://debategate.com/new3dhs/index.php?topic=9624.msg100852#msg100852), along with its link. "She argued that the government can employ Orwellian restrictions on speech if it thinks such speech might "harm" others, either by direct action or inciting someone else to take direct action"
And what the hell is this "motives" function?? If one is mad, angry, even pissed at a sitting administration, and wants to vent, how is the "motive" any business of the government or SCOTUS?
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The last one was posted here,
deals with government motive in suppressing free speech, not the speakers motivation for speaking.
From her actual article:
Consider the following snapshot of impermissible motives for speech restrictions. First, the government may not restrict expressive activities because it disagrees with or disapproves of the ideas espoused by the speaker; it may not act on the basis of a view of what is a true (or false) belief or a right (or wrong) opinion.45 Or, to say this in a slightly different way, the government cannot count as a harm, which it has a legitimate interest in preventing, that ideas it considers faulty or abhorrent enter the public dialogue and challenge the official understanding of acceptability or correctness. Second, though relatedly, the government may not restrict speech because the ideas espoused threaten officials' own self-interest-more particularly, their tenure in office.46 The government, to use the same construction
as above, cannot count as a harm, which it has a legitimate interest in preventing, that speech may promote the removal of incumbent officeholders through the political process. Third, and as a corollary to these proscriptions, the government may not privilege either ideas it favors or ideas advancing its self-interest- for example, by exempting certain ideas from a general prohibition.47 Justice Scalia summarized these tenets in R.A.V.:"The government may not regulate [speech] based on hostility-
or favoritism-towards the underlying message expressed."'4
http://www.scotusblog.com/wp-content/uploads/2010/03/Private-Speech-Public-Purpose.pdf (http://www.scotusblog.com/wp-content/uploads/2010/03/Private-Speech-Public-Purpose.pdf)
Again she is talking about governmental motivation for restricting speech, not the speakers motivation for speaking.
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Have a nice day.
(of course I say this meaning ,as I am thinking, the most malicious and hatefull things that I can possibly can mean , I might ought to be locked up.)
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harmful speech has already been defined
And your motivation for saying have a nice day was not the subject of Kagan's paper.
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harmful speech has already been defined
And your motivation for saying have a nice day was not the subject of Kagan's paper.
So Judges are not liable to acheive the ability to interpret offensive language?
They won't be decideing how much harm was intended when evaluateing words or actions of the government and citizens?
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Precisely
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So Judges are not liable to acheive the ability to interpret offensive language?
They won't be decideing how much harm was intended when evaluateing words or actions of the government and citizens?
judges are free to go in whatever direction they choose, but then that wasn't the point of Kagan's paper. Her point was that when evaluating ordinances and other legislative actions regarding the First Amendment that justices would be wise to understand the legislative intent behind that legislation.
Her position was based on the ruling the court had handed down in r.a.v. vs. st. paul (http://en.wikipedia.org/wiki/R._A._V._v._City_of_St._Paul)