Justice Thomas Is Apparently Serious About Completely Upturning Over 50 Years Of 1st Amendment Law
from the opening-up-our-libel-laws dept
It appears that Supreme Court Justice Clarence Thomas has decided to drop quite a First Amendment bombshell this morning -- suggesting that over half of a century of "settled" First Amendment law might not be so settled.
But, first, back during the 2016 campaign, then candidate Donald Trump uttered his famous "big idea" to "open up" libel laws in response to his displeasure that some of the media was criticizing much of his usual nonsense. This was, quite clearly, an attack on the 1st Amendment -- and it was those strong 1st amendment protections for free speech that have actually helped protect Trump himself from multiple lawsuits.
However, when discussing Trump's original promise to "open up" libel laws, many people pointed out that there really wasn't very much he could do. The 1st Amendment is the 1st Amendment -- not something that Trump can easily change. And specific defamation laws are from each state, not the federal government (and must be bounded by what the 1st Amendment allows). We did note that there were some ways that Trump could create free speech problems, but it was generally agreed upon that it was unlikely to happen in the courts. In 2016, Ken "Popehat" White had a detailed post on how it was exceedingly unlikely that the courts would change the key aspects of 1st Amendment law, with a particular focus on New York Times v. Sullivan, which is the seminal 1964 Supreme Court ruling credited with creating a "re-birth of the 1st Amendment."
As Ken wrote in his piece, NYT v. Sullivan is so settled that there's basically no movement at all to change it.
Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above.1 You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.
In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.
The key bit of NYT v. Sullivan was to establish that there's a very high bar in defamation cases involving a "public figure." Specifically, the standard the Supreme Court established is that in such cases, a plaintiff need to show "actual malice" -- which doesn't just mean that the defendant really dislikes the plaintiff. The actual malice standard isn't actually about "actual malice," but rather that the speaker made the statements knowing they were false, or exercising "reckless disregard" for whether or not they were true. The Supreme Court established that this high bar was necessary to satisfy the First Amendment, and guarantee that no laws were made that infringed up on the right of free expression.
So, the bombshell this week was a concurrence by Justice Thomas in denying a petition to rehear a defamation case concerning Bill Cosby and one of his accusers. The specifics of the case revolved around whether or not the accuser qualified as a "public figure" and thus had to clear the higher bar as established by the NYT's case. The 1st Circuit had ruled in 2017 that McKee was a public figure. The cert petition tried to challenge that decision. The Supreme Court decided not to hear it, which isn't all that surprising. What was surprising is that Thomas decided to use this decision not to hear the case (with which he agreed) to assert something much more controversial: that NYT v. Sullivan was bad law and shouldn't bind the court:
New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” Gertz, supra, at 334, 348 (quoting New York Times, supra, at 279).
We should not continue to reflexively apply this policydriven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.
As Ken White had written in his piece, this is somewhat surprising -- bordering, but not quite, on chemtrails level nuttiness. Thomas goes on for pages explaining why he disagrees with the ruling in Sullivan, first arguing that because the standard itself is not in the Constitution, there's no Constitutional support for it:
But the Court also addressed “the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.” Id., at 256. The Court took it upon itself “to define the proper accommodation between” two competing interests—“the law of defamation and the freedoms of speech and press protected by the First Amendment.” Gertz, 418 U. S., at 325 (majority opinion). It consulted a variety of materials to assist it in its analysis: “general proposition[s]” about the value of free speech and the inevitability of false statements, New York Times, 376 U. S., at 269– 272, and n. 13; judicial decisions involving criminal contempt and official immunity, id., at 272–273, 282–283; public responses to the Sedition Act of 1798, id., at 273– 277; comparisons of civil libel damages to criminal fines, id., at 277–278; policy arguments against “selfcensorship,” id., at 278–279; the “consensus of scholarly opinion,” id., at 280, n. 20; and state defamation laws, id., at 280–282. These materials led the Court to promulgate a “federal rule” that “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279–280. Although the Court held that its newly minted actual-malice rule was “required by the First and Fourteenth Amendments,” id., at 283, it made no attempt to base that rule on the original understanding of those provisions.
That's a... somewhat bizarre version of Constitutional originalism, and would suggest that basically none of the standards the Supreme Court has established in its history have any merit. Yikes.
New York Times was “the first major step in what proved to be a seemingly irreversible process of constitutionalizing the entire law of libel and slander.”
Well, yeah. Because, by definition, libel and slander impact speech, and the 1st Amendment says that you can't pass laws that prohibit free expression. So, unless Thomas is actually arguing that all defamation law is unconstitutional (which would be an even more extreme position), then this argument makes no sense. But he's not arguing that at all. It goes on for pages, talking about how early in the US's history libel laws were super important -- especially in protecting the reputations of famous people:
Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man”); 4 id., at *150 (defining libels as “malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule” (emphasis added)). Libel of a public official was deemed an offense “‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”
After talking about a bunch of highly questionable cases from a century or so before the NY Times decision, Thomas concludes with the claim that states are more than capable of "balancing" the rights of free expression with "reputational harms":
We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.
This is an ahistorical take on reality. Defamation laws were routinely used by the powerful to silence criticism. Indeed, that is still the case in many other countries that don't have a standard akin to the actual malice standard in the US. We routinely write about speech squelching cases in places like the UK and Australia. As the Atlantic's coverage of the 50th anniversary of the NYT v. Sullivan decision states:
If there were no Sullivan, there likely would not have been a release of the Pentagon Papers or a rigorous investigation into Watergate or much of any withering criticism of government that appears today in any medium.
The NYT v. Sullivan is a supremely important case in establishing the 1st Amendment as truly protecting free speech -- and specifically protecting the rights of anyone to criticize public officials. It is disappointing and somewhat shocking that any Supreme Court Justice is willing to even consider going back on that standard. Hopefully, the other 8 Justices retain their recognition of its importance.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, actual malice, bill cosby, clarence thomas, defamation, free speech, libel, mckee, nyt v sullivan
Reader Comments
The First Word
“…be a slave.
made the First Word by Gary
Subscribe: RSS
View by: Time | Thread
'... I thought you were going to list a downside?'
If there were no Sullivan, there likely would not have been a release of the Pentagon Papers or a rigorous investigation into Watergate or much of any withering criticism of government that appears today in any medium.
Given the idea that he seems to be supporting, that famous/powerful people should have more protection, rather than less, I suspect that for him, and more than a few other people this would be a feature, not a bug.
[ link to this | view in chronology ]
Unconstutional
Strict application of the 1st amendment would make Libel and Copyright laws go away. So no downside there!
[ link to this | view in chronology ]
Re: Unconstutional
For the record strict literal constitutionalism isn't how things are supposed to work. Those are guidelines that congress builds up with actual laws, and the courts expand upon with their rulings and interpretations. But there are strict constitutionalists out there - and if they love the first amendment they should hate the current state of copyright. (And really hate what copyright enforcement means to the 4th amendment.)
[ link to this | view in chronology ]
Re: Re: Unconstutional
Not only hate copyright state, but fact google is still spying and in the business making alarms for homes with microphones Hidden in them!!! Where is that story?
[ link to this | view in chronology ]
Re: Re: Re: Unconstutional
I have no idea, as you haven't provided a link to it. Might you have a source that we can go to to edify ourselves regarding this issue?
[ link to this | view in chronology ]
Re: Re: Re: Unconstutional
Google isn't the government. So it isn't a constitutional violation for Google, Apple, and Amazon to put microphones on their "Smart" tech. Also isn't something you need to buy, if it worries you.
Not sure how this connects to the 4th amendment?
[ link to this | view in chronology ]
Re: Re: Re: Unconstutional
I suppose you are free to submit a story to the website for consideration, but you do not want to do that?
[ link to this | view in chronology ]
Re: Here ya go bro
https://www.techdirt.com/submitstory.php
[ link to this | view in chronology ]
Re: Re: Re: Unconstutional
Google says the microphones were there for future use when the software was upgraded to make use of them. They have since done that to make the devices voice-activated.
There's not a hell of a lot of reason to trust google (why do people buy their IoT devices at all?) but you're engaging in pure, unadulterated tinfoil-hattery here. You're assuming google was using those microphones to spy on people. Perhaps they were, but that's an extremely unlikely scenario despite what we learned about how Amazon used Alexa recordings or what Samsung did with their smart TVs.
It's smart not to trust anything IoT since none of it is particularly secure. And it's wise to avoid those devices that contain microphones or cameras in particular. But never attribute to malice that which can adequately be explained by stupidity. Both on the part of the vendor and the consumer.
[ link to this | view in chronology ]
Re: Re: Re: Re: Unconstutional
"You're assuming google was using those microphones to spy on people. Perhaps they were, but that's an extremely unlikely scenario despite what we learned about how Amazon used Alexa recordings or what Samsung did with their smart TVs."
That's ok, they will find someone to do it for them thus providing the much sought after plausible deniability.
[ link to this | view in chronology ]
Re: Re: Re: Re: Unconstutional
A few months after your comment it was revealed that microphone was used for eavesdropping : https://www.vrt.be/vrtnws/en/2019/07/10/google-employees-are-eavesdropping-even-in-flemish-living-ro oms/
[ link to this | view in chronology ]
Re: Unconstutional
Not necessarily copyright, because the First Amendment did not explicitly repeal the section of the Constitution that authorizes it. Had that been the intent, one imagines there would have been some specific statement.
[ link to this | view in chronology ]
Re: Re: Unconstutional
That is fair if you go by "intent" by by strict reading, the 1st Amendment amends and supersedes the body of the constitution. Therefore it overrides the copyright clause and congress "shale make no law" restricting speech.
But of course I'm not saying that I'm just pointing out a flaw of reading it that way.
[ link to this | view in chronology ]
Constitutional originalism — noun — The belief that a group of dead men should have the absolute final say over the laws of the United States
[ link to this | view in chronology ]
Re:
Living Document - noun - The idea that the Constitution can mean whatever we want it to mean making it a completely useless document.
[ link to this | view in chronology ]
Re: Re:
The Constitution is the foundation of United States law; it should be respected as such. But America must be allowed to create new laws and bolster old ones as changes in society — especially technological changes — warrant those new laws and interpretations. The laws of the United States must adapt to society; keeping them in stasis to “respect” a bunch of men who never lived in a world with cellphones and cars is as disrespectful to the people of the United States as it is to the Constitution.
[ link to this | view in chronology ]
Re: Re: Re:
So you're for allowing destructive speech -- unless YOU deem it "hate speech", in which case it's to be ruthlessly stamped out? Deplatformed on all possible platforms by arbitrary choice of corporations?
[ link to this | view in chronology ]
Re: Re: Re: Re:
Explain how deplatforming is illegal or destructive.
why should the government force a private business to keep you as a customer or user?
[ link to this | view in chronology ]
Re: Re: Re: Re:
Flag on the Play:
Bailey Deast has asserted that Stephen Stone has said something that Stephen Stone has not said in the post Bailey Deast is replying to, and has failed to point to where this might have been said elsewhere by Stephen.
Strawmanning appears to be in full force. Recommended penalty: ignore attempt to create tangent entirely and continue with original discourse.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Less strawmanning and more otherwording, though they’re close enough to be interchangable in this situation.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
IMO, Otherwording is strawmanning. Otherwording frames itself as attempting to rephrase the argument to legitimately highlight a fallacy, inconsistency or contradiction. In reality, other wording is serving to establish a strawman of the original argument and hide the way the argument changes behind the change in word choice. If it does not establish a strawman, it is not a fallacy.
[ link to this | view in chronology ]
Re: Re: Re: Re:
You interpret the capacity to change the law as being in support of a specific interpretation, despite none of that being said.
Stone did not in this statement support barring hate speech. He stated antagonism to the idea that our understanding of the law must be bound to 300 year old perspectives of society and the law. He is also doing so in an article about Justice Thomas seeking to reverse all interpretation and standards laid out by the court, throwing out the principles of precedent established in the constitution in favor of bespoke applications of statute.
Your connection to hate speech seems to come out of the quoted Ken White comments in the article, that the only people seeking to undo NYT vs Sullivan are those in support of hate speech laws. Which since Stone here is not expressing support for Justice Thomas's originalism arguments it is better to assume he does not want to overturn NYT vs Sullivan and therefore does not support stamping out hate speech.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
And for the record, I do not support barring so-called “hate speech”. (At least not by the government. Privately-owned platforms and private entities such as social clubs can ban whatever speech they want.) “Hate speech” is a vague term that can be defined in so many ways that landing on one objective definition is nigh impossible. One definition might make something like, say, Blazing Saddles an “illegal“ film; another definition might make an exception for parody/pastiche/satire such as that film, though it might require a legal ruling to deem the film “protected”.
I abhor what we would colloquially refer to as “hate speech” — the Klan, the Westboro Baptist nuts, that sort of thing. But for all that I would want such speech silenced forever, I temper my desire with the knowledge that such people have the same civil rights as I do. They have as much right to shout racial slurs and bash gay people as I do to call them a bunch of bigoted assholes…something which the assholes would themselves consider “hate speech”.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Exactly. For all the pontificating out there about banning "hate speech", one needs to look no further than 9/11 and the FBI, NSA, Jim Clapper, etc to see the reality of reactionary laws impacting civil liberties in a broad way. 5% of the time it'll be used to shut up WBC, Infowars and the nuts 95% of the time it'll be used to police a new definition of "un American activities". An encrypted phone, for example, might contain "hate speech". By god people are naive. The problem isn't the law, it's the agencies tasked with enforcing and "interpreting" the law.
[ link to this | view in chronology ]
Re: Re: Re:
Luckily the Founders left us a mechanism in the Constitution to do just that and it isn't "let judges change it whenever they see fit".
[ link to this | view in chronology ]
Re: Re:
Round 1 - fight!
Here's my view:
There is a legislative body given the power to create laws, so clearly there was a recognized need for laws to be created and changed.
There is a judicial body given judicial power - they are authorized to hear and decide cases and make binding judgments upon them. This is constitutional authority, and I don't know of any way to make a binding judgment without interpreting law.
Article V provides a venue for making Amendments to the Constitution, so clearly there was an understanding that the Constitution may at some point need to be amended.
From a position of constitutional originalism, I find that the constitution was intended to be a living document.
[ link to this | view in chronology ]
Re: Re: Re:
Yes, an amendment is the proper way of making changes to the constitution. The entire living document nonsense is that those changes can be made without a formal amendment. It changes based on the whims of those in charge.
https://www.law.uchicago.edu/news/living-constitution
[ link to this | view in chronology ]
Re: Re: Re: Re:
Having read your link, the author of that article (an excerpt from a book called the Living Constition) does not appear to be in favor of constitutional originalism, and holds that the current legal approach of common law (otherwise known as case law, aka judicial precedent and tradition, and where precedent fails, principles of fairness and sense stand in) is what allows for a living constitution to be viable.
Excerpt from the excerpt: "So it seems we want to have a Constitution that is both living, adapting, and changing and, simultaneously, invincibly stable and impervious to human manipulation. How can we escape this predicament?
The good news is that we have mostly escaped it, albeit unselfconsciously. Our constitutional system, without our fully realizing it, has tapped into an ancient source of law, one that antedates the Constitution itself by several centuries. That ancient kind of law is the common law. The common law is a system built not on an authoritative, foundational, quasi-sacred text like the Constitution. Rather, the common law is built out of precedents and traditions that accumulate over time. Those precedents allow room for adaptation and change, but only within certain limits and only in ways that are rooted in the past. Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written Constitution itself. A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges (or anyone else) can simply manipulate to fit their own ideas."
I really do encourage people to read the full text, it's an interesting and in my opinion insightful read.
AC, your provided link is arguing for the current system of law that does not require formal amendment to the constitution, but rather takes precedent, tradition, and principles and applies them to the current era and current challenges. So... thank you for agreeing with me?
[ link to this | view in chronology ]
Re: Re:
Bullshit. It's not useless because the interpretation can change. It's even more meaningful and useful because the interpretation can change. It's adapatable and practical. It's only completely useless if we applied 300 year old meanings to our laws when a significant number of things have changed over the last 300 years.
[ link to this | view in chronology ]
Re: Re: Re:
I've never been able to see how "Congress shall make no law ... abridging the freedom of speech" can be "interpreted" such that Congress is allowed to make laws (e.g. anti-defamation laws) that punish people for speech. That's not interpretation, it's contradiction.
It's problematic that the text of the Constitution prevents punishment for things such as threats and perjury, but I only see two ways around it: change the Constitution (most other countries have some "except" clause with their freedom of speech), or just make shit up.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Nonsense. The First Amendment was certainly not written with the assumption that it would ban defamation laws, threats, or copyright (which is explicitly allowed in the Constitution).
You have to interpret the First Amendment in a way that is deliberately obtuse and ignorant of the context of its authorship and the past hundred or so years of First Amendment jurisprudence to reach the conclusion that the First Amendment was intended to preclude defamation laws.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
I agree—of course that wasn't the intent, but that's the law they wrote and passed. Where do we draw the line, if not at the clear written meaning? How is anyone supposed to obey the law if they can't know what the law is without understanding what was in the minds of various people over several hundred years? That's extremely messy.
Case law is useful to interpret truly ambigious things, but this is not one of them. This is simply a law with an (obviously) unintended consequence; it happens all the time, and the solution is to change the law rather than pretend it says what you want.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
We have an entire branch of government whose purpose is to interpret laws.
Yes, it is, because human beings are messy.
What alternative do you propose besides a court system?
Of course it is. It refers only to Congress, but does that mean that state legislatures are allowed to make that sort of law? Does it mean a private citizen can sue another private citizen for something he says? We know the answers to these questions because the courts have answered them.
Oh, yeah, great fucking idea. We should just amend the Constitution every time someone has trouble understanding what it means. What a simple and well-thought-out solution.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
I'm not proposing an "alternative", I'm proposing that courts not be allowed to interpret things in a way contrary to what's written. If a law says "subject to reasonable limitations", the court gets to decide what's reasonable; if the law makes an absolute statement, courts would be expected to enforce it as written (if legal) and higher courts would smack them down if they don't.
Fair point; SCOTUS can decide that (probably already has) and Congress can react if appropriate—they can overrule any state law if they wish.
If the government's not involved in the suit or its enforcement, sure, but few would describe that as "suing". That means that for example Youtube could ban people without it being unconstitutional.
No. We amend it when we want to do something it flatly doesn't allow, such as abidging the freedom of speech. Interpretation is what courts are for, but what's really up for interpretation if Congress passes an anti-defamation law? The 1st amendment is crystal clear, inconvenient and unintentional as it may be.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
The problem with this proposal is determining who decides whether the court has interpreted the Constitution in a way contrary to what is written.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
Hello! You've Been Referred Here Because You're Wrong About The First Amendment.
YouTube can ban people without it being unconstitutional.
YouTube can't use the courts to silence people for protected speech. Because the courts are instruments of the state, and any sensible reading of the First Amendment will indicate that it applies to the courts, not just Congress, even though it only specifically mentions Congress.
Yes, it is crystal clear; you just want judges to interpret it like Amelia Bedelia instead of rational adults.
[ link to this | view in chronology ]
Re: Re:
Originalism establishes the idea that the strict historical meaning of the constitution is the only way to approach understanding the meaning of the constitution.
Most progressives who you claim to adhere to a 'living document' standard, don't quite follow the definition you apply. Instead, the progressive approach is to apply the principles of the Constitution to an evolving world.
By strict historical standards if you were not a white, wealthy, male property owner, you were not a person. If you want strict originalism, no one who was not a white, wealthy male property owner has any rights what so ever.
We evolved that meaning. It admittedly took constitutional amendments to define person to be more than that, a fact that I think should shame this country.
The country is a living, evolving country. You take a principle, that all men are created equal, and apply it more broadly because you accept that women are people too. You take a principle, that the government should not decree what speech is permissible, and form a framework around the idea of not unduly burdening speech.
Copyright, the power granted to congress, is wholly incompatible with the historical understanding of what power congress was granted. But we took the principle of the exchange of value enshrined in the Consititution, that the government would grant limited exclusivity in the exploitation of the 'sweat of the brow' needed to implement an idea, in exchange for the creator providing that implementation to the public. (abstract to cover different forms of copyright and patents). We took that principle, and applied it to more and more types of works. And loosened the limited exclusivity (as debatable as that is).
Because its not the document that is living. the country and the world are living entities, and a static document is unable to continue to provide guidance as what exists in the world continues to move beyond what existed at the time of its writing.
[ link to this | view in chronology ]
"...all men are created equal..."
I hate when people use that "argument" when talking about the Constitution.
It's from the Declaration of Independence, NOT the Constitution, which was basically a "FU" Letter of Intent to King George.
It has ZERO meaning or binding in Constitutional (or any other) Law.
Much like the "give me your huddled masses..." It's a POEM. No standing anywhere.
[ link to this | view in chronology ]
Re: "...all men are created equal..."
Yes, that is a DOI quote. However it is a statement of intent by the founding fathers, a core important feature of Constitutional Originalism. These kinds of documents of intent are very important for understanding of the Constitution.
I do agree that it has no legal power. But it is a principle upon which the Constitution and the Bill of Rights are founded, and therefore I feel supports my argument. I also feel my post stands absent that one sentence.
[ link to this | view in chronology ]
Re: "...all men are created equal..."
I suppose that it is not so "self evident" to some aye?
[ link to this | view in chronology ]
Re: Re: Re:
No, that’s not it at all. I doubt you understand the meaning of the phrase ‘exclusive rights’ and neither copyright nor patent law have ever had anything to do with ‘sweat of the brow’ which is why we don’t measure creative or inventive effort and grant rights proportionately. In fact, we don’t measure effort at all. And while publication and disclosure are vital, please note that that hasn’t stopped copyrights from being granted on unpublished works.
I would agree that originalism in jurisprudence is bunk, though.
[ link to this | view in chronology ]
Re:
You're missing what the Constitution IS.
It's a set of rules that CONSTITUTE what the Government created under it may and may not do.
Which all goes in the crapper when you have a Government appointed group that redefines, re-imagines, re-invents, and re-interprets the words of the document.
[ link to this | view in chronology ]
Re: Re:
Should we need to create and pass a Constitutional amendment for every proposed change in the law that might be constitutional if we interpreted the Constitution in a way that made sense for 2019 instead of 1819?
[ link to this | view in chronology ]
Re: Re: Re:
Yes, if you want to change the constitution it should be amended. I get that you prefer the easy way of just imagining it means something new and different. Childish people tend to do that.
[ link to this | view in chronology ]
Re: Re: Re: Re:
The law would stand still if we needed to wait for a Constitutional amendment every time we needed a modern interpretation of the Constitution for a given law/legal situation. I mean, consider the gridlock in Congress right now.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
The AC provided a link to a rather insightful piece exploring why law is done the way it is now:
https://www.law.uchicago.edu/news/living-constitution
I find it very appropriate and supportive of the idea that the Originalist position isn't workable.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Don’t you love it when they hand you a piece of evidence that destroys their entire arguement.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
An opinion is evidence? I provided that link because it provides the definition of living document as applied to the constitution. It provides both arguments in support of and against the living constitution idea. Just because the author comes to a conclusion supporting one side of the argument does not constitute evidence. The author literally wrote a book called the living constitution in favor of that viewpoint.
It only destroys the argument to you because you lack the cognitive ability to distinguish between fact and opinion.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
TFG provided that link. You (assuming the random avatars are consistent) replied to TFG, arguing against his point.
Are you using sock puppets to argue both sides of this and stir up contention or something?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
Sorry Mason, but the AC in question was the one who originally provided the link:
https://www.techdirt.com/articles/20190219/10524041632/justice-thomas-is-apparently-serious-ab out-completely-upturning-over-50-years-1st-amendment-law.shtml#c320
I relinked it here to provide support for my view on this whole thing.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
*facepalm*
You're right. Sorry. I missed that because it was way off in a different branch of the conversation.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Mistakes happen!
I find it amusing that the AC linked a very well-thought-out and well-written piece in support of the current system. While the AC can wax eloquent regarding the difference between fact and opinion, what I don't find happening is the AC addressing any of the problems with the originalist viewpoint presented in the article the AC linked.
The intent behind linking it is rather irrelevant at this point - I'm for the current system of a living constitution in the sense of it being a common law constitution (the actual common law, not this fictional version you find used by certain other entities), and thus I agree with the linked article.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
The onionion, which argued against you stated opinion. Which you used as evidence for your stated opinion. Who’s lacking the cognitive ability now?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Are you going to support the living constitution concept if Trump appoints a couple more justices giving a strong majority? Is it still a good concept if the Republicans completely control the supreme court?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
Yes.
Idiot
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
OK, idiot. I hope you get what you wish for.
[ link to this | view in chronology ]
Re: Womp Womp
Sorry your “gotcha” question didn’t work out the way you hoped. Better luck next time.
[ link to this | view in chronology ]
Re: Re: Womp Womp
Oh it worked, it shows how much you despise the constitution.
[ link to this | view in chronology ]
Re: Re: Re: Womp Womp
I respect the constitution as a document presenting the powers and limitations of a government, and a document displaying principles upon which law should rest. I believe that those who ascribe a legalistic, originalist view of constitutional interpretation are disrespectful of the constitution. I hold that the consitution must be a living document, not in the sense of being entirely malleable and being able to mean whatever people want it to mean, but in the sense of it being a set of principles which, combined with judicial and legal precedent and tradition, can create a living body of common law.
[ link to this | view in chronology ]
Re: Re: Re: Womp Womp
Sure it does.....
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
"if Trump appoints a couple more justices "
I thought congress had a say - wtf do I know
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
"But doing it the right way is hard!" is not a valid argument for ignoring the fundamental law of the land.
The fact the Constitution is difficult to amend is a feature, not a bug. Otherwise you end up with something like the California Constitution, which can be amended with a sneeze and is 400+ pages long and repeatedly contradicts itself.
[ link to this | view in chronology ]
Re: Re: Re:
No, but you should need to pass an amendment for every change to the Constitution.
[ link to this | view in chronology ]
Re: Re: Re:
Could you perhaps give an example?
The Constitution is, in principle, the only thing giving government any power. Anything that needs to be interpreted in a modern context should be done in the context of limiting government power (per the 9th Amendment). The 4th Amendment leaves some room for interpretation, like about whether "papers" includes computer documents (it should—government power should not expand without an Amendment). The 1st leaves comparatively little room; whether text written on the Internet is "speech" could be debated (per the above I'm saying "yes"), but words yelled at someone definitely are, and the 1st explicitly prohibits any punishment for that.
Constitutions and other laws don't have to be written in such a "closed" way. We could explicitly define certain areas as being open to clarification by Congress or regulators, without formal Amendments. But where there's no such escape clause and room for interpretation, proper process should be followed. (And technically, the Supreme Court has the final say on "interpretations", but historically a lot of those have been clear bullshit.)
[ link to this | view in chronology ]
Re:
You forgot the bit about changing it properly when necessary, via amendment, rather than at the whim of nine unelected people, who are answerable to no one, and who have their jobs for life.
[ link to this | view in chronology ]
Re:
"Constitutional originalism — noun — The belief that a group of dead men should have the absolute final say over the laws of the United States"
The constitution is changeable. there is a process for doing so outlined in the document itself. if the people want to change some part of it they can follow the process for doing so. They have done this many times in the past. Don't act like because some parts may be outdated we should ignore the whole thing or make it up as we go along. yes it is hard to change that is a feature not a bug. If it contradicts itself it should ideally be changed to clarity its meaning but barring that there can be some interpretation to resolve the contradiction. but i believe should be followed as written.
[ link to this | view in chronology ]
I do no think it means what you think it means...
Yes Justice Thomas, this is WHY the bar must be set higher. So that it does not become an easy tool for censorship and oppression in the hands of those with more power than the common man.
[ link to this | view in chronology ]
A real originalist would challenge his foe to a duel
If Justice Thomas is serious about keeping with the founders' wishes he would simply challenge his foes to meet him on the Heights of Weehawke for a duel with a weapon befitting two gentlemen.
[ link to this | view in chronology ]
…be a slave.
[ link to this | view in chronology ]
Re:
Unless in the North. If Southerners had been able to break away, there'd still be slavery. That's why Federalism / Constitution is so important. Even to ENFORCING at cost of over a million lives of Northerners.
[ link to this | view in chronology ]
Re: Re:
You mean Justice Clarence Thomas, the man born in Georgia, a state which succeeded and therefore would likely have been born a slave?
In Originalism, being a northerner did not bar the ownership of slaves even. Northern slaves existed and in fact remained slaves until after the civil war - the emancipation proclamation only freed the slaves from states in rebellion.
The issue of slavery was contentious, and i would not ascribe Stone's claimed intent to the founding fathers as a whole myself. But under originalism, Justice Thomas was not a Person, in the way the founding fathers saw it. He would be unlikely to have been a judge, let alone a supreme court justice.
[ link to this | view in chronology ]
Re: Re: Re:
No it didn't. It attempted to secede, but it (and all the other states that tried to pull the same stunt) famously did not succeed at this attempt.
[ link to this | view in chronology ]
Re: Re: Re:
Did it succeed at seceding?
[ link to this | view in chronology ]
Re: Re:
"there'd still be slavery"
There still is
[ link to this | view in chronology ]
Re:
No, not really. Because the Founders wished that we would change the Constitution as society evolved via the amendment process and we have indeed passed and ratified the 13th Amendment, which outlawed slavery.
[ link to this | view in chronology ]
Re: Re:
Sort of!
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
[ link to this | view in chronology ]
Re: Re: Re:
You say that as if it were particularly significant. It's really not. It's nothing more than an anti-troll clause. It's there so that you can put convicts to work without some wise guy showing up with a lawyer saying "this is no different from slavery!"
[ link to this | view in chronology ]
Re:
If only there was an amendment to end slavery. If such an amendment existed your statement would make you and everyone who thought your statement to be clever absolute fools. If only some amendment between the 12th and 14th existed.
[ link to this | view in chronology ]
Re:
There were free black people even back then. But what he would not have been is a citizen -- which would preclude him being a judge.
[ link to this | view in chronology ]
Okay. Now defend WashPo attacking high school students.
My bet is that's going to cost WashPo tens of millions. The First Amendment simply doesn't cover intentional harm. -- The other day, YOU said that FA only prohbits gov't from making laws abridging freedom of press, because suited your purpose then, but here you are again saying that FA covers dang near every last instance of speaking and writing.
But just on this: as usual you're freaking out because need safe hook for a piece. Thomas mused narrowly, as I read from reliable source, specifically on whether a person becomes a public figure by charging another with a crime. And so on, off into anomalistic cases.
Oh, common law pops up! And implies that it's separate from and superior to judicial decisions -- because it is.
[ link to this | view in chronology ]
Re: Okay. Now defend WashPo attacking high school students.
You aren't even coherent.
[ link to this | view in chronology ]
And the incompatability in those two positions is supposed to be…what, exactly?
[ link to this | view in chronology ]
Re:
Syllogisms aren't his strong suit...
[ link to this | view in chronology ]
Re:
Difference between "only" and "dang near every last instance".
[ link to this | view in chronology ]
Re: Re:
Again, I’m not seeing any incompatability between the factual statements of “the First Amendment prevents the government from abridging the freedom of speech and expression” and “the First Amendment protects nearly all kinds of speech and expression”. What you fail to grasp is the third position that bolsters the other two: “The First Amendment does not protect a small amount of narrowly specific types of speech that have been ruled ‘illegal’, or at least punishable, in the eyes of the law.”
[ link to this | view in chronology ]
Re: Re: Re:
There is NO prohibited speech, it is all protected. There are no laws that say you CANNOT say something. What there are are laws adjacent to such, creating consequences for speech used in specific ways. Inciting a riot. Defamation. Libel. Inducement to commit. You are still free to say anything you want. You can indeed yell Fire in a crowded theater, yell Bomb in the middle of a crowded airport... but you will be held responsible for the damage you cause by doing so if the intent was to cause damage. And it is because we have a 1st Amendment (and 4th and 5th) that the Judiciary must be careful and require actual proof of intent before deciding on guilt and any punishment that may follow when speech is the central question. And that is the argument here, the bar for public figures was set higher to prevent those public figures using their power and wealth to oppress the common man and suppress his freedom of speech.
[ link to this | view in chronology ]
Re: Okay. Now defend WashPo attacking high school students.
I tried to understand what was written, but was unable to do so due to what was written being incoherent and lacking in clear arguments.
Please try again, kid.
[ link to this | view in chronology ]
Re: Okay. Now defend WashPo attacking high school students.
How did the Washington Post intentionally harm the students?
How is their posting news not protected opinion?
[ link to this | view in chronology ]
Re: Okay. Now defend WashPo attacking high school students.
Most of your comment was incoherent gibberish, but just to respond to this:
Oh, common law pops up! And implies that it's separate from and superior to judicial decisions -- because it is.
You are -- again -- incorrect. He is referring to judicial rulings during the early decades of the country. Judicial rulings. Not something else. It's quite incredible. Normally you ignore us when we point out that "common law" does not mean what you think it means... and here you have a Supreme Court justice using it correctly and you insist that it means the exact opposite of what he says it means.
I sometimes want to believe you seriously believe the nonsense you spew, but this just confirms you're a garden variety troll.
[ link to this | view in chronology ]
Re: Okay. Now defend WashPo attacking high school students.
That’s because you are a numpty and don’t understand how things work. Even though has been explained to your dumb ass man many times. Now piss off like you promised.
[ link to this | view in chronology ]
Thomas's position is hard to support in this one with a straight face. You could make a case against a generalized public figure doctrine, but not for government employees.
[ link to this | view in chronology ]
Dar Justice Thomas: Get out of your home every once in a while
Saying:
Shows clearly you are completely out of touch with the reality of how many states have tried to specifically attack the first amendment protections. Go visit them once in a while and see what states are actually trying to do to destroy the first amendment.
Also, it is blatantly ignorant of how many states have no internal checks and balances to preserve a fair process to encourage rigorous discourse. Too many states have both the governor and legislature (or even the courts) so heavily slanted on one side of the political spectrum, nobody can realistically speak up to counter bad laws. Nor do they have to listen to their constituents because far too many have no actual political competition.
[ link to this | view in chronology ]
Re: Dar Justice Thomas: Get out of your home every once in a whi
My translation of Thomas's point: "I am an old man, stop annoying me with these cases. Let them be someone else's problem".
[ link to this | view in chronology ]
Re: Dar Justice Thomas: Get out of your home every once in a whi
Here's the thing:
Thomas knows all that stuff, and he doesn't care.
It's not that he's not aware of what's going on with First Amendment policy in the states. It's that he thinks those things are the states' problem, not the Supreme Court's. His view is that if you want the Supreme Court to make decisions about defamation law, then you need to put defamation law in the Constitution, by way of an amendment. If it's not in the Constitution, then it's none of the Supreme Court's business.
As Mike notes in the article, that doesn't make a hell of a lot of sense, considering that defamation law necessarily relates to the First Amendment.
But don't mistake Thomas for lazy or out-of-touch. If you do, you risk misunderstanding just how extreme his views are.
[ link to this | view in chronology ]
Oh it's just a trim, with a little off the top
So near as I can tell, the US Constitution does two things:
A, it tells the government what powers it does have
B. It tells the government what powers it cannot have
The purpose of the Supreme Court is to determine whether laws passed by Congress violate either of those two basic precepts. It is not to micromanage society.
Justice Thomas wants to micromanage society in avoidance of what the Congress wanted, when what Congress wanted didn't violate either of those two basic precepts.
[ link to this | view in chronology ]
Re: Oh it's just a trim, with a little off the top
Actually, under constitutional originalism, that is not the Supreme Courts job. Under originialism, no body had the explicit power to review the constitutionality of the law. The Supreme court had the same job as any other appellate court, it was just the last step in the appeals process. The supreme court effectively granted itself the power of judicial review in Marbury V Madison and everyone accepted it because it made sense - otherwise the constitution was a worthless piece of paper.
[ link to this | view in chronology ]
Re: Oh it's just a trim, with a little off the top
No, just the opposite. He believes that the Supreme Court making decisions about state defamation law is micromanagement, and the Court shouldn't be doing it because there are no explicit references to defamation in the Constitution.
It's nuts -- because, again, defamation law is necessarily related to the First Amendment, which applies to the states because of the Fourteenth Amendment -- but it's not micromanagement, it's the epitome of a hands-off approach.
[ link to this | view in chronology ]
Re: Re: Oh it's just a trim, with a little off the top
Defamation is a speech boundary and thus a First Amendment issue.
[ link to this | view in chronology ]
Re: Re: Re: Oh it's just a trim, with a little off the top
Thanks for rephrasing the thing I just said!
[ link to this | view in chronology ]
Wow
Will he take on Marbury v. Madison next?
[ link to this | view in chronology ]
"suggesting that over half of a century of "settled" First Amendment law might not be so settled. "
So much for their proclamations of "Rule Of Law".
Let me see now ... Rule Of Law for the masses and Rule Of Man for the rich elite ruling bozos.
Better hold that tongue if you want to stay out of the pillory because some of our illustrious leaders have very thin skin and become enraged when the truth about their transgressions is known because they want to be thought of as some sort of perfect all knowing being that is worshiped. They can force you to act in certain ways but they can never force the respect they so crave.
[ link to this | view in chronology ]
Libel law should be abolished so everyone can play by the same rules, but not for the reasons Thomas said. The internet has made libel lawsuits impractical for too many.
Thomas is focusing on how a public figure suffers more from a loss of reputation, but that ignores that the public figure got all that extra money and fame because of the First Amendment. It's kind of like Hollywood celebrities who spend their lives trying to be public figures, then demand privacy when someone snaps a photo of them in public.
I doubt Times is going anywhere. It's excellent law in that it sets clear, unambiguous boundaries.
[ link to this | view in chronology ]
"It's kind of like Hollywood celebrities who spend their lives trying to be public figures, then demand privacy"
It's kinda like when politicians brag about something and then deny it the next day.
[ link to this | view in chronology ]
Double standard?
My best guess is Justice Thomas is looking at this difference between how "public figures" and non-public figures are treated and seeing a problem with unequal treatment of a specific class of citizens. The question is particularly problematic in cases where the claimed defamation arises in direct relation to actions/events that propelled the victim into the class of "public figures".
One could make an argument that on the internet, everyone is a public figure, so maybe the malicious/reckless disregard for facts standard should apply to all of us.
[ link to this | view in chronology ]
I'm pretty sure that that is the whole point of this exercise.
[ link to this | view in chronology ]
Re:
A more likely (and far less cynical) interpretation springs from examining what he actually wrote.
He mentions twice in there that especially bad harm can come from defamation of a magistrate, or in other words a judge, like himself. Keep in mind that the person writing this is Clarence Thomas, who was famously smeared by political opponents, accused of sexual harassment and misconduct, without any evidence whatsoever, during his Supreme Court confirmation hearing. (If this sounds eerily familiar, it's because they recently recycled the exact same playbook for Brett Kavenaugh.) It's not surprising that somebody who's been through a traumatic experience like that, but who was unable to take any legal action to put a stop to it due to the standard, might want to see that standard done away with.
The rule exists for a good reason--it's one of the few checks that exists in our laws anywhere that holds powerful people to a higher standard, rather than the all-too-common status quo of allowing wealth and power to buy immunity from responsibility and accountability--but that's likely small comfort to someone who's ended up as collateral damage from it.
[ link to this | view in chronology ]
Re: Re:
...fucking wow, dude.
[ link to this | view in chronology ]
Re: Re: Re:
Found the bigot!
[ link to this | view in chronology ]
Re: Re: Re: Re:
Technically, Mason outed himself long ago.
[ link to this | view in chronology ]
Re: Buy now get free knockoff polo shirt and stupid haircut.
Oh yeah he has. Just look at the Gavin McInnes thread he shit. You’d almost think he was a tiki torch carrying member the way he defended them despite “having never heard of that guy before.”
[ link to this | view in chronology ]
Re: Re: Buy now get free knockoff polo shirt and stupid haircut.
I did look at that thread. What I saw was him being practically the only one willing to stand up for a worthwhile principle--innocent until proven guilty--in the face of an unpopular application thereof.
That's not bigotry; that's courage. Idiot.
[ link to this | view in chronology ]
Re: Re: Re: Buy now get free knockoff polo shirt and stupid hair
FTFY
[ link to this | view in chronology ]
Re: Re: Re: Buy now get free knockoff polo shirt and stupid hair
Er, that's the exact opposite of what he was doing in that thread, Mr. Coward.
Gavin McInnes is the plaintiff in that suit, and the SPLC is the defendant.
Mason assumed, without knowing anything whatsoever about Gavin McInnes, that he must be right, because Mason doesn't like the SPLC. That's not presumption of innocence, it's presumption of guilt.
[ link to this | view in chronology ]
Re: Re: Re: Re: Buy now get free knockoff polo shirt and stupid
Oh, look who has no sense of nuance, dood! The case was about false accusations, involving a group with a long history of making false accusations against people, who made an accusations against this guy, and he went to court to clear his name.
This is why they say that truth is an absolute defense against defamation, dood. If you show that your accusation was true, you prove them guilty. If not, they should be considered innocent until you do. That's a good general principle, not just something to apply in court and abandon everywhere else, dood!
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Buy now get free knockoff polo shirt and stu
This is why they say that truth is an absolute defense against defamation, dood. If you show that your accusation was true, you prove them guilty.
Please return your legal degree to Trump university.
You are mixing up a whole bunch of things here, and making yourself sound incomprehensible.
SPLC is the defendant. If it shows that the "accusation" is true then it doesn't prove anyone "guilty." It just shows that there's no defamation. But that's not even the issue in that case. The issue is that the statements McInnes argues is defamatory are statements of opinion WHICH MCINNES'S OWN LAWYERS admit.
So truth being a defense against defamation and proving someone "guilty" is... not at all relevant. "Dood."
(Also, I know you're doing a bit, but the continued Prinny/dood schtick is not funny or entertaining. It makes you look like a really ignorant teenager.)
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Buy now get free knockoff polo shirt and stu
You don’t seem to understand the concept of “burden of proof”. The plaintiff has the burden of proof to show that the statement is a false statement of fact. That is, we actually presume a statement is true or opinion (and that the defendant is innocent) until proven to be false (i.e. the defendant is proven guilty).
“Innocent until proven guilty” doesn’t mean that citizens and corporations can’t make wild but not disproven statements of fact, and it certainly doesn’t mean that statements of opinion need to be proven true to be legally okay.
Also, whether or not it’s a good general principle outside the courtroom became irrelevant the moment McInnes sued someone. At that point, the only principle that matters is the legal side, and there it’s the defendant who’s innocent until proven guilty.
[ link to this | view in chronology ]
Re: Re:
Mason: I wouldn't call what was done to Brett Kavanaugh a smear play. I'd call it an accusation that received barely any due investigation, and the reaction of Kavanaugh to it was an indicator that, regardless of the veracity of the accusations, he was not fit to sit the bench.
That he was confirmed with the barest of nods towards an investigation that failed to be an actual investigation is a mark of shame.
[ link to this | view in chronology ]
Re: Re: Re:
Ordinarily I might agree, but in a case like this... what more could possibly have been done to investigate?
There was no physical evidence to substantiate any of the claims that were made, and no possibility of recovering any due to the alleged crimes having occurred decades ago. All of the people named as witnesses were duly questioned, and all of them--including friends of the accuser, who one might imagine "should have" been on her side--said it never happened. Once you reach that point... what else is there?
[ link to this | view in chronology ]
Re: Re: Re: Re:
"But Democrats argue that the parameters that Republicans initially set chartered a course for the FBI that was never going to uncover anything that could corroborate the assault accusations from Christine Blasey Ford, Deborah Ramirez and Swetnick. In particular, they charged that the White House prevented the FBI from interviewing Kavanaugh and Ford themselves."
"Frustrated potential witnesses who have been unable to speak with the F.B.I. agents conducting the investigation into sexual-assault allegations against Donald Trump’s Supreme Court nominee, Brett Kavanaugh, have been resorting to sending statements, unsolicited, to the Bureau and to senators, in hopes that they would be seen before the inquiry concluded."
The only people who testified that it never happened were Judge and Kavanaugh, the two people accused of the sexual assault. Numerous people testified that they had either no knowledge or memory of the event, which is very different.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Don't be silly, dood. It's not very different at all. It's the "proper" way to say it never happened in CYA Legalese, so that just in case you turn out to be wrong, it's that much harder for them to go after you for making false statements.
[ link to this | view in chronology ]
Re: Mason where’d you go buddy?
Oh damn the luck. He left his oven on, and it was the day he washes his hair, and look at the time oh how late it is, and the dog needs walks. He’s totes not running away again.
[ link to this | view in chronology ]
Re: Re: Re: Re:
How about actually interviewing everybody?
https://globalnews.ca/news/4520376/brett-kavanaugh-fbi-investigation-who-was-interviewed/
There was no FBI interview of either Kavanaugh or Ford. There was no FBI interview of witnesses who may have corroborated the similar allegations of Deborah Ramirez.
There was no interview of Kavanaugh's classmates at the time of the events that were allegated - notably, even if acquitted of sexual assault, these classmates indicated he lied under oath about a drinking problem. A drinking problem on its own would not be an issue, necessarily, but lying under oath is for a justice of the supreme court.
There was no interview of Elizabeth Rasor, Judge's former girlfriend, who offered testimony of Judge recounting the events to her.
They did not interview everyone. They likely weren't allowed to. They were given a single week to conduct the investigation. That isn't thorough. That isn't close to thorough.
There was a hell of a lot more that could have been here, and Kavanaugh's appointment remains a mark of shame. In my view, every judgement from him is now tainted: not because he was accused, but because the accusation was brushed aside and was not properly investigated. It smacks of "something to hide."
In Kavanaugh's reaction to this, he also proved himself unfit to hold the position. From testimony, he lied under oath about drinking. He got legal professionals writing in to tell Congress not to confirm him based solely on his behavior on the stand. He made a mockery of himself.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
More troublingly still, he threatened the Democrats who questioned him, and indicated that as a justice he would rule against their interests as retaliation for their treatment of him.
He followed up with an op-ed in the Wall Street Journal where he insisted he didn't actually mean any of that stuff, he just said it because he was mad.
Be that as it may, his behavior on the stand showed a profound lack of judgement, which is kind of a problem for someone whose job description is "judge".
Liberal or conservative, innocent or guilty, any judge who would threaten partisan rulings as retaliation against politicians who made him angry is unfit to serve.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Liberal or conservative, innocent or guilty, any judge who would threaten partisan rulings as retaliation against politicians who made him angry is unfit to serve.
Exactly. Even if said "in the heat of the moment" a justice of the highest court in the land should never have even entertained the notion.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Oh, I totally agree. The guy's unfit to be a justice, and he'll likely contribute to some completely awful rulings.
This. Does. Not. Make. It. OK. To. Smear. Him.
It's disgusting what was done to him, and everyone ought to find it objectionable, if for no other reason than that it legitimizes the other side turning around and doing the same thing to someone you like the next time around.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
If I learn that someone I like assaulted someone, then they swiftly become a person I no longer like.
It's not about partisan politics, and it's not about personality. I found Al Franken funny and charming and I agreed with his politics more often than not. But I believe his accusers (and not just the one who had a photo), and I believe his resignation was entirely justified.
[ link to this | view in chronology ]
Is anyone really surprised that Justice Clarence "Vending Machine" Thomas would suggest a major change of Constitutional interpretation that would benefit a wealthy person?
The only surprising thing here is that Justice Thomas wrote anything at all. He's not known for expressing any legal opinions whatsoever.
[ link to this | view in chronology ]
Re:
https://ballotpedia.org/Clarence_Thomas_(Supreme_Court)#Opinions_by_year
[ link to this | view in chronology ]
Re: Re:
I think he's got it mixed up. Thomas writes opinions, he just spent 10 years on the Supreme Court where he didn't ask a single question from the bench.
[ link to this | view in chronology ]
Re:
The only surprising thing here is that Justice Thomas wrote anything at all. He's not known for expressing any legal opinions whatsoever.
This is a common misconception, but it is wrong. What Thomas is "known" for is not speaking or asking questions during oral arguments. He does, however, write a fair number of opinions. Those two are not the same thing.
[ link to this | view in chronology ]
And this campers why the power is shared by various branches, so that 1 insane asshole can't force the country to never talk about pubic hairs on cans of coke, the fact the commander in chief told yet more lies, or that someone with power can crush anyone daring to say anything that hurts their feelings.
While its so trendy to scream fake news and say how unfair it is, when the screams of fake news try to drown out he actually said that, there is video of him saying it, and somehow its all just made up so you should have to spend millions fighting a stupid lawsuit so that the fear of lawfare stifles more coverage of the truth that doesn't meet the approval of someone who lies at the drop of an adult diaper.
[ link to this | view in chronology ]
Re:
I have never seen a week with more fake news that has been called out (beyond question) as fake news. The black gay guy vs. MAGA, the Indian chanter with a drum vs. the young white teen, more and more on and on. It’s time to admit that fake news is a problem, and as a society, to deal with it and reduce it and punish those who employ it to make money.
[ link to this | view in chronology ]
Re: Re:
Justice "Silence Doodoo" Thomas
Supreme Court Upholds Freedom Of Speech In Obscenity-Filled Ruling 5/04/10 5:00PM http://tinyurl.com/y2e5fefx
[ link to this | view in chronology ]
Re: Re:
:eyeroll:
[ link to this | view in chronology ]
Re: Re: Re:
The black gay guy who said MAGA attackers beat him, put a rope around his neck and poured bleach on him turns out to be a complete fraud, which was echoed again and again by the liberal media. There is much higher demand for bigots in America than there is supply, so fakers like this get a lot of attention. Fake news. Tell me it was not a hoax. His buddies bought the red caps and ski masks and bleach and rope ON CAMERA, the whole story was completely fake.
He’s committed a felony, and should go to jail, as should the reporters who propagated his bullshit false narrative. If not jail, punish them with money. Same goes for WAPO, take all their money, I hope the young white teen wins his case and buries them. That would be great.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Hey bro. He’s been charged with a felony. I’m not sure why you panties are in such a twist about it. WAPO on the other hand was reporting the news. They didn’t incite shit or break any laws and entitled Whitney is gonna get his ass handed to him. I’m sorry that you failed basic civics class. And in future, I suggest you spend more time at the library learning and less time making sure everyone knows just how much of an ignorant ass you are.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
:eye roll:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Great defence of your points bro. Thanks for proving mine.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Fake news: The media makes up a fake story for attention. AKA neither of your examples.
Not fake news: Some douchbag makes a hoax that the news reports accurately on.
[ link to this | view in chronology ]
Re: Re:
"I have never seen a week with more fake news"
Wow, and that all happened in just one week - OMG!
"It’s time to admit that fake news is a problem, and as a society, to deal with it and reduce it and punish those who employ it to make money."
I would like to suggest that a starting point would be infowars and breitbart.
[ link to this | view in chronology ]
Of course he is
He'd love to see a world where someone such as himself could retaliate against an accuser like Anita Hill.
Just because congress doesn't care about the ethical standard of justices they appoint to the court doesn't mean the accusers of misconduct are lying.
I'm sure Thomas would love to punish people for losing a case with a high burden of proof like discrimination or sexual harassment. But who are we kidding?
The Supreme Court almost always rules in favor of the most powerful party. Jim Crow laws endured because of the Supreme Court not in spite of it.
[ link to this | view in chronology ]
Thank You
For pointing out this wonderful & important opinion by Justice Thomas. Of course, he is completely right.
Especially in this age we find ourselves in where screaming totalitarians brand every view that they disagree with as hate and racism, which then are used to destroy the livlihoods of the totalitarian harpys' victims (via deplatforming, SLPC hate ratings, withdrawal of credit card services, etc., etc.), leaving the injured party unable to fight it off and/or collect damages for the real costs incurred by false hate and racism, etc. charges thrown by irresponsible totalitarians who know they cannot ever face consequences because the person they libel is a "public" person.
We can only hope that Clarence Thomas' wise opinion succeeds in overturning a precedent that was mistaken when it was done and is very mistaken now in this age of internet and academic hate mobs.
[ link to this | view in chronology ]
Re: Thank You
Two questions. One: are you serious? Two: ifyes have you recently suffered massive head trauma? Because I’d hate to call someone a fucking regard who has a legit handicap.
[ link to this | view in chronology ]
Re: Re: Thank You
I am sorry but I cannot reply to an obviously brain-damaged troll, except to say this:
If a person or organization commits blood libel against you, which causes you to loose your livlihood, crushes your ability to make money to support yourself and your family, but because you are classified as a "public figure" you cannot sue and get damages for the real damages you have sufferred at the hands of this mob craziness, is that right?
Why is that right? Why is it right, in your totalitarian world, to destroy a person who has a different opinion?
Moreover, why is it not right to sue the fuck out of a blood libel banshee who has caused you real damages?
The answer, my friend, is blowing in the wind. The answer is clear. Listen to it.
Listen more; troll less.
[ link to this | view in chronology ]
Re: Re: Re: Thank You
But what if the price of tea in China insults you?
[ link to this | view in chronology ]
Re: Thank You
Are you being paid in rubles or dollars?
[ link to this | view in chronology ]
Re: Re: Thank You
Are you being paid in stupidity or cupidity?
The TechDirt Troll is saying stupid shit for why now?
It's obvious that real damages are now common in slanderous nonsense spewed by everyone and his uncle on the left: if you disagree with us you are either homophobic, transphobic, anti-semitic, racist, supremicist, or a deplorable.
You can lose your career, have your accounts terminated, have payment companies refuse to process your followers supporting payments.
What is wrong with you, man? How can you not see what is happening daily?
[ link to this | view in chronology ]
Re: Re: Re: Thank You
Because none of us partake in such a potent combimation of hallucinogens as you.
[ link to this | view in chronology ]