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Posts Tagged ‘supreme court’

I rarely agree with the NY Times editorial board, least of all on matters of free speech and association rights. But I think they get it exactly right in this oped that sharply criticizes the recent Supreme Court judgement upholding a federal law against providing material support to terrorist groups.

The trouble with this ruling, as the editorial points out, and others such as Eugene Volokh have described, is twofold.

The philosphy behind the ruling doesn’t seem to have been laid out with sufficient clarity, and that creates a not insignificant risk that this will pave the way for further speech restrictions, such as on independent advocacy, when this conflicts with state interests.

The law that this ruling upholds, criminalizes actions that are purely political speech. For instance, the law would allow prosecution of any newspaper that coordinates with the spokesperson of a designated terrorist organization and publishes their point of view in an oped.

In sum, the Supreme Court of the United States got it terribly wrong on this one. I am surprised and saddened that this Court, which got it so right on other recent free speech cases has chosen this time to legitimize expanded executive powers and curtail precious freedoms. As for the Obama administration — who have proved themselves as bad as the Bush one when it comes to civil liberty abuse — they are probably relishing the fact that they have yet another tool to harass and prosecute journalists, academics and independent organizations that stand in their way.

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In a huge victory for free speech, the Supreme Court of the US today struck down a law that banned recording, possession or distribution of videos featuring animal cruelty. The Supreme Court concluded that as written, the statute is overbroad and limits all sorts of speech that the Court believes is protected by the First Amendment.

The decision also strikes down the notion of “serious value” as a legitimate criteria for determining if certain offensive speech is worth legal protection. However, as Eugene Volokh notes, by the same logic, the obscenity law should also go. Will that happen anytime soon? Volokh opines, and I agree that it is very unlikely the Court will go that far. Weight on tradition will probably prevent the Court from overturning Miller and declaring all obscenity legal.

This naturally still leaves the question: How can all this be reconciled with the use of “serious value” as part of the obscenity test? I think that as a matter of logic it can’t be. But the Court isn’t just after logic; among other things, it also gives some weight to tradition, and the obscenity exception is very deeply rooted in American law.

Still, I dare hope. For this court has given us Heller, Citizens United and Stevens — three great decisions in favor of liberty in a span of two years. So maybe, just maybe, it is not completely absurd to hope for a day when the Supreme Court declares the obscenity law unconstitutional. (And such an occurrence will surely make the NY Times readership’s collective head explode. After fiercely criticizing the ‘right-wing’ court for Heller, Citizens United, and to a lesser extent Stevens, they will be flummoxed about what to do with a ruling that the progressive base will applaud and the conservatives will despise. What fun!)

Update: A NY Times commenter, clearly in the minority, expresses exactly what I feel about matters of free speech.

Thank God. The point of freedom of speech isn’t to protect the content that everyone agrees is acceptable or even desirable–there’d be no purpose to an amendment that protected what everyone agreed was worth protecting.

The point of freedom is speech is to protect the content that exists at the margins of society; the things that many people find to be objectionable or even reprehensible.

Without such protections, core values of our civil society are at risk (namely, the free flow of ideas and information).

As a practical matter, it is also worth remembering that the tables can quickly be turned on what is ‘acceptable’ vs. ‘unacceptable’ discourse–in a matter of a few years, the good can become the bad and the bad can become the good. The 1st Amendment offers protections against these vicissitudes of social norms.

In short, despite the terribleness of dog fighting–and I agree, it is a terrible and immoral sport–this was an excellent decision. No, wait, let me change that a bit: BECAUSE of the terribleness of dog fighting, this was an excellent decision.

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Judge Stevens has announced his retirement from the Supreme Court of the US.

He had a long career on the bench, spanning 35 years. His most prominent opinions include the following.

  • He wrote the majority opinion in Federal Communications Commission v. Pacifica, 1978, in which he held that the FCC has the power to ban ‘indecent’ speech in radio broadcasting.
  • He dissented in Texas v Johnson, 1989, the case where the Supreme court held that flag-burning as a means of political protest is protected under the First Amendment. In his dissent, an embarrassingly incoherent and ad-hoc piece of writing in my opinion, Stevens claimed that because the ideas of liberty and equality are worth protecting, the flag (which uniquely symbolizes these ideas) is also worth protecting.
  • He wrote the majority opinion in Kelo v City of New London, 2005, the egregious decision which handed the government the right to seize private property from individuals and hand it over to privately held corporations.
  • He dissented in D.C. v Heller, 2008, the landmark case which held that the Second Amendment protects an individual’s right to keep and bear arms for private self-defense.
  • He dissented in Citizens United v FEC, 2010, where the Supreme Court held that the First Amendment protects the right of incorporated organizations (which includes NGOs, labor unions and companies) to fund independent political broadcasts in candidate elections. In my opinion, this case was the biggest victory for free speech in the last five years.

As the above examples make clear, Judge Stevens was on the wrong side of individual liberty in some of the most important cases of his time on the bench. Yes, some of his other opinions did further the cause of liberty, typically cases that involved detainee rights. But on the whole, this libertarian is glad to see Judge Stevens go.

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An unusual tactic to stop make men from peeing on the floor:

Authorities at Schiphol Airport in Amsterdam have etched the image of a black housefly into each urinal. It seems that men usually do not pay much attention to where they aim, which can create a bit of a mess. But if you give them a target, they can’t help but try to hit it. Similar designs have been implemented in urinals around the world, including mini soccer goals, bulls-eyes, and urine video games (seriously). Do they work? Since the bugs were etched into the airport urinals, spillage has decreased by 80 percent.

This fits into the Sunstein philosophy of nudges and ‘libertarian paternalism’ that I have posted on several times in the past.

Incidentally Sunstein, a law professor is a friend and advisor of Barack Obama. I would love it if Obama — assuming he becomes president — appoints him to the Supreme Court. Sunstein is no libertarian; however his brand of ‘libertarian paternalism’ is definitely better (and more pro-freedom) than that of any of the mainstream leftist candidates the Dems are likely to propose.

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Bob Barr, the Libertarian nominee for president, speaks out on the jurisprudence on the two major presidential contenders and argues that people who will be voting for McCain because of worries about a possible left-turn of the supreme court under an Obama administration will be making a mistake.

The judiciary is becoming an important election issue. John McCain is warning conservatives that control of today’s finely balanced Supreme Court depends on his election. Unfortunately, his jurisprudence is likely to be anything but conservative.

The idea of a “living Constitution” long has been popular on the political left. Conservatives routinely dismiss such result-oriented justice, denouncing “judicial activism” and proclaiming their fidelity to “original intent.” However, many Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired.

Nor is it obvious that Barack Obama would attempt to pack the court with left-wing ideologues. He shocked some of his supporters by endorsing the ruling that the Second Amendment protects an individual right to own firearms, and criticizing the recent decision overturning the death penalty for a child rapist. With the three members most likely to leave the Supreme Court in the near future occupying the more liberal side of the bench, the next appointments probably won’t much change the Court’s balance.

But even if a President McCain were to influence the court, it would not likely be in a genuinely conservative direction. His jurisprudence is not conservative.

Mr. McCain has endorsed, in action if not rhetoric, the theory of the “unitary executive,” which leaves the president unconstrained by Congress or the courts. Republicans like Mr. McCain believe the president as commander in chief of the military can do almost anything, including deny Americans arrested in America protection of the Constitution and access to the courts.

Ok, Barr makes a common error here, as Ilya Somin and others have pointed out. The term “unitary executive” usually refers to expanded presidential power vis-a-vis the rest of the executive but not necessarily the other arms of the government. Nonetheless, there is a lot of sensible stuff in Barr’s op-ed and I recommend reading the full version.

If, like me, you are a libertarian with a preference for Obama over McCain, Barr increasingly looks like the candidate you should vote for (assuming of course you are eligible to vote — I am not!). I will expand on this point in a future post.

(Hat Tip: Reason Hit and Run)

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The Supreme Court judgement on the OBC reservation issue should not surprise anyone. After all, the Supreme Court’s job isn’t to make laws but merely to ascertain whether existing laws were broken. And in the present case, the Supreme Court decided that nothing in the Indian Constitution prevents Arjun Singh from adding a 27% quota in government institutions. Again, I have to agree — the Constitution itself has been weakened to such an extent through laws and precedents that it will be surprising if any law is ever again judged uncontitutional.

For those who are concerned that this will devalue the IIT and IIM brands, slow down development, heighten inter-caste animosity and reduce opportunities for much of the population without really helping the rest — well, of course you are right, but fret not! As Aristotle The Geek points out, the market will do its best to correct the situation.

So much of recent history can be viewed as a case study of the market systematically correcting (at least some of) the ills caused by ill-advised government action. Isn’t that ironic?

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The Supreme Court of India has once again put its weight behind freedom of expression, overruling the ban on the film “Jodha Akbar” by three state governments.

It is a sad matter that in India people think they have a moral right to ban things they don’t like. And the ludicrous loopholes in our constitution (think “free-speech for everyone, except those who really need it”) do not help either.

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