Judicial Problem: Defending Free Speech Is More Likely When Justices Agree With The Speech
from the doing-it-wrong dept
Democracy, as they say, is messy, but I think the messiest aspect of the American political system is the Supreme Court. Maybe messy isn't the right word. Maybe baffling would be better. The reason for my thinking so is that, growing up, I was always under the impression that Supreme Court Justices were something they really aren't. I pictured them as men and women of such knowledge and character that they were almost super-human. After all, these are the supreme-iest judges in the land; you'd think they'd be so far beyond you and I that they'd be almost incomprehensible. An idiot Senator? Sure, I can picture that. Some jackass President? Hell, we jackasses are the ones that vote them in, so sure. But the Supreme Court? Gods, right?
Of course not. It turns out, much to my unfortunate shock, that SCOTUS Justices are every bit as human as the rest of us and that they're just as guilty as us when it comes to allowing ideologies cloud their judgement. One recent study looked at this, highlighting First Amendment cases to serve as an example.
The study considered 4,519 votes in 516 cases from 1953 to 2011. It was conducted by Professor Epstein, who is about to join the faculty at Washington University in St. Louis; Christopher M. Parker, a political scientist at Centenary College of Louisiana; and Jeffrey A. Segal, a political scientist at Stony Brook University.That article highlighted Justice Scalia's voting record, noting that he voted on free speech issues in favor of conservative speech sixty-five percent of the time, but only twenty-one percent of the time in favor of liberal speech. That said, don't confuse that highlight to indicate that this is a problem only for conservative justices.
“While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”While this may represent a "duh" moment for many of us, it's not a problem we should be ignoring. This pervasive kind of group bias represents a very real threat to the supreme law of the Untied States and, if recent trends on the polarization of politics is any indication, it's only going to get worse. And, while many people might see this as (sigh) yet another opportunity to fall back on their stupid party lines and go to war with the guys on the other side of the aisle, here's the question specifically about free speech that the article doesn't address: what if the speech in question is something both sides disagree with?
Fun thought, right? The whole point of free speech rights is that they don't go away even if you disagree with the speech, yet the study shows that there is a tendency for Justices to vote against speech with which they don't agree. Take the famous case between the National Socialist Party of America v. Village of Skokie, for instance, and ask yourself whether you think that ruling, which allowed the Nazis to march and assemble in a largely Jewish community was the exception or the rule. It was an immensely important case, even though it allowed some truly horrific people to march in a community that would be most offended by their presence (though they never actually marched). That didn't matter. The First Amendment is the First Amendment.
Would that same ruling occur today? The study paints an unfortunate picture.
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Filed Under: first amendment, free speech, supreme court
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Re:
First, they came for the Nazis, and I did not speak up, for I was not one of them...
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Would that same ruling occur today?
It would be split 5-4 against allowing it, focusing on a narrow aspect of the case rendering it completely useless for later precedent.
Scalia would say he could tell because he knew it when he saw it.
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Not surprised anymore
That common ground has been replaced by an 'all for me, and none for thee' attitude. Taking a what may be utopian, but worthy ideals, and caring only for an rigidly ideological grab for power.
It really is a sad and terrible thing to consider that the only thing our political powers-that-be care about in regard to the First Amendment, and for the rest of the Constituion, is the power to dictate it to others.
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Re: Not surprised anymore
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"You voted for the jerk and you are supposed to be clairvoyant therefore it's all your fault" .... this is total bullshit.
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Freudian?
the Untied States? :)
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Re: Freudian?
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My turning point
I have to admit that I did, too. Not superhuman, but I thought of them as a pretty close approximation of a judicial bench that was impartial, knowledgeable, and doing their best to find justice in very difficult cases. I defended them on many cases even when I disagreed with their ruling, even.
Then I hit my turning point: Bush v Gore. It was a decision so incredibly craven and corrupt that my view of the Supreme Court was altered forever. Now, in my view, they're no better than Congress or the Presidency.
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Re: My turning point
It's not that I expect perfection from the court: it's that I expect a principled reading of the law and the Constitution leavened with a healthy dose of good sense: conclusions that cannot be reached except by twisting and distorting the existing corpus are quite likely bad conclusions and should be eschewed by the court. Moreover, I expect that they should have read at least as many of the papers of the Founders as I have (hopefully many more!) and should have internalized a sense of what they intended. Jefferson and Paine, Franklin and Madison, all of them, would be rightly appalled at some of the decisions that have been issued.
People -- many people -- fought, bled and died for the Constitution. I expect the justices to be equally tenacious in its defense.
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Re: Re: My turning point
Not content with the violation of the Constitution, they're repudiating it now. Lovely!
So tell me what's wrong with the Bill of Rights.
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Also my turning point
SCOTUS was my first taste of "wow, that was crap they taught us in school".
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Leagaleze
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Honor
""I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God."
see:
http://www.supremecourt.gov/about/oath/textoftheoathsofoffice2009.aspx
for a bit of history.
Old oath, new oath, combined oath, it is not honored.
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Judges
Like cops, majority are corrupt.
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Sadly, this actually makes more sense than the whole free-speech thing.
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Amusement continues
If the SCOTUS agrees with the speech, it is very likely that the speech in question is more mainstream or more generally acceptable, and thus less likely to run afoul of someone else's rights. Replace "SCOTUS" with "American public" and you are likely to have seen similar results.
So yeah, junk science.
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Re: Amusement continues
More likely? - I doubt that.
For example, what percentage of the public thinks
1) corporations are people?
2) racism is non existent?
3) voter suppression is not a problem?
4) bribing politicians is ok?
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Re: Re: Amusement continues
2) cite an example. The courts have ruled over and over again that racism is a real issue, but at the same time that affirmative action is not always the right answer.
3) cite an example. Is there any true voter suppression in the US?
4) cite an example. Contributing to, participating in, and offering support to a political campaign is the ultimate in free speech, and one that most people agree with. There are always extreme examples in the Super Pacs, but they are extreme cases in a system that otherwise works well and that the American people generally participate in and support.
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Re: Re: Re: Amusement continues
FWIW, the examples were chosen based upon recent SCOTUS rulings and the resulting revulsion felt by many in the public. The SCOTUS rulings were definitely not "mainstream" and certainly were not acceptable.
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I've learned from life that even if you disagree it does not mean the other person is wrong. In fact disagreeing opinions may be both right and merely different paths to the same goal. We still have plenty of evolution and learning before we can truly accept free speech.
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Skokie
But Skokie? Odds are it would come out the same today. Look at the Phelps case from a couple of years back, where an attempt to regulate equally offensive speech (the Wesboro Baptist Church nutbags) was found unconstitutional.
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Lest the day come when you speak out but those who would protect free speech find it abhorrent
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