Posted on 04/11/2003 5:07:27 PM PDT by bourbon
OK, I just finished looking at that dissent, and it didn't look to me like he was railing against "symbolic speech", but at the notion that "Congress* shall make no law" means "school officials shall adopt no policy". He didn't leave me with the impression at all that he would uphold a law that puts people in jail for wearing black armbands.
but I'll look around to line up a few others, if you're interested.
I would be interested, thanks, but don't put yourself through any trouble over it.
Well, banning it outright wouldn't discriminate based on viewpoint - if nobody gets to use it, then everyone's ability to communicate is stifled, and no particular viewpoint is suppressed. But is that really consistent with what we understand the First Amendment to mean?
Probably not. That may have been a little extreme, since it can scarcely be argued that the internet creates a public nuisance. I was just making a point that the primary effect of the 1st amendment is to protect viewpoints, and laws that are clearly designed to do something other than stifle political debate (such as nude-dancing laws) can't be considered a violation, provided they're administered impartially.
I was just making a point that the primary effect of the 1st amendment is to protect viewpoints, and laws that are clearly designed to do something other than stifle political debate (such as nude-dancing laws) can't be considered a violation, provided they're administered impartially.
So if the thing is a public nuisance, and it affects people regardless of the viewpoint being expressed, then we don't have to consider it a protected form of expression?
So can we ban rap music? I bet you I can dig up a lot of people who consider it a public nuisance - in fact, I bet I could dig up nearly as many as consider nude dancing a public nuisance - and if we ban all rap music regardless of the opinions being expressed in the performances, we're clean, right?
OK, I can see your point there. In defense of Black, he did point out that the ban applied regardless of what the flag-burner's opinions were, so therefore he wasn't prosecuted for engaging in an opinion, just for engaging in a particular act that the state decided to outlaw. There's a subtle difference between this and the black armband, because the latter wasn't prohibited because people didn't like the sight of black armbands, but because of the message it contained. It's hairsplitting, I know, but it still seems to preserve the basic intent of the first amendment.
So can we ban rap music? I bet you I can dig up a lot of people who consider it a public nuisance - in fact, I bet I could dig up nearly as many as consider nude dancing a public nuisance - and if we ban all rap music regardless of the opinions being expressed in the performances, we're clean, right?
Actually what I think people find noisome is the blasting of rap music from car stereos and such. It would be much harder to argue that rap music confined to a concert hall is a public nuisance - unless of course you start talking about the secondary effects it's believed to have (violent behavior, etc.), but that's opening up a whole new can o' worms.
Right, but also notice that implicit in that is the dismissal of the notion that the burning of a flag is itself an expression of a particular opinion. And we all know very well what that opinion is - burning a US flag in public is shorthand for some variation on the I-hate-the-United-States theme.
Now, I can't help but think that people usually reach for the secondary-effects argument when considering nude dancing, pornography, and the like, so let's try our hands at a little creative editing.
Actually what I think people find noisome is the blasting of rap music from car stereos public display of nudity and such. It would be much harder to argue that rap music nude dancing confined to a concert hall private club is a public nuisance - unless of course you start talking about the secondary effects it's believed to have (violent behavior, etc.), but that's opening up a whole new can o' worms.
:^)
AAAGHH! You got me. So let's see how I might be able to sum things up in a way we might both agree upon.
Basically, there's always going to be cases with every law where drawing the line can be tricky. This does not mean, however, that we can't know the core meaning of the law, and what principles we should use in determining where that line should be drawn. Every reasonable person knows that "speech" and "press" in the context before us are not simple references to vibrations of vocal cords, and block letters smushed against paper. This understanding can both expand protections (symbolic speech, internet) and restrict them ("Fire!" in the crowded nightclub). Further, almost anyone on the street knows, deep down, that the reason for this amendment was to protect public debate on public issues. The "hard cases", therefore, need to be judged in that light.
And I fully maintain that the meaning of this and other provisions of the Constitution have not changed in 200 years, and will not change in the next 200, unless they're amended. I know you've agreed on that point already, but it's worth emphasizing, as it cuts to the heart of the notion of a "living, breathing" document susceptible of "progressive" (to use Strategery's word) interpretations.
"Strict constructionist", in a nutshell, I don't think ever meant "obsessive literalist". It simply means that judges take pains to apply the Constitution for what it says (reasonably, common-sensically understood), and not for what they think it should say.
Depends on what you mean by "extend". If you mean that the Court has declined to apply the secondary-effects analysis to areas beyond adult businesses, then I agree. If, hoever, you mean that the secondary-effects analysis of Renton remains the same now as it was in 1986, that's not at all the case - City of Los Angeles v. Alameda Books has made the secondary effects analysis of Renton into a complete joke. If it holds up, municipalities won't have to do much more than assert that negative secondary effects exist, where any evidence at all supporting the existence of secondary effects is acceptable, and therefore any old fig leaf will do...
Thank you for your vote, but I declined that nomination long ago.
Besides, one needn't be too intelligent to be far smarter than a leftist.
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