Supreme Court Upholds the FCC's New Indecency Rules

Jacob Sullum | April 28, 2009

Today the Supreme Court overturned a decision in which the U.S. Court of Appeals for the 2nd Circuit concluded that the Federal Communications Commission violated the Administrative Procedure Act when it announced that, contrary to a longstanding FCC policy, fleeting expletives on live television can trigger fines for broadcast indecency. The 2nd Circuit ruled that the 2004 policy reversal, provoked by comments that Cher and Nicole Richie made during music award shows carried by Fox, was "arbitrary and capricious" because the commission failed to "articulate a reasoned basis" for it. Five members of the Supreme Court disagreed, finding that the standard applied by the appeals court was insufficiently deferential.

Notably, the Court did not address the constitutionality of the FCC's policy regarding broadcast indecency or the statute underlying it, sending the case back to the 2nd Circuit for further consideration. "It is conceivable that the Commission's orders may cause some broadcasters to avoid certain language that is beyond the Commission's reach under the Constitution," Justice Antonin Scalia wrote in the majority opinion. "Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case." It seems likely, given the doubts it expressed about the constitutionality of the FCC's censorship, that the 2nd Circuit will rule that it violates the First Amendment, in which case the government certainly would appeal again to the Supreme Court.

Although he joined the majority's conclusion that the FCC complied with the Administrative Procedure Act, Justice Clarence Thomas wrote a concurrence in which he reiterated his skepticism about the government's disparate treatment of broadcasting, which is subject to content restrictions that would be clearly unconstitutional in any other medium. "The text of the First Amendment makes no distinctions among print, broadcast, and cable media," Thomas wrote (quoting an opinion in an earlier case), "but we have done so." He said "this deep intrusion into the First Amendment rights of broadcasters" is based on rationales that never made much sense and seem more outmoded every day: "the scarcity of radio frequencies," plus the idea that broadcast TV and radio are "uniquely pervasive" and "uniquely accessible" to children. "Even if this Court's disfavored treatment of broadcasters under the First Amendment could have been justified" at the time of the decisions upholding the "fairness doctrine" and the ban on broadcast indecency, Thomas wrote, "dramatic technological advances have eviscerated the factual assumptions underlying those decisions."

A year ago, I discussed Fox's challenge to the FCC's regulations. Last fall I noted the oral arguments in the case. More (much more) on broadcast indecency here.

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Xeones|4.28.09 @ 4:03PM|#

Yo, fuck the FCC.

|4.28.09 @ 4:11PM|#

Deciding this on APA grounds avoids the fact that the rule and the previous court opinions have a substantial chilling effect on speech. Not to mention that the scarcity justification is totally dead.

MOTHER! FUCKERS!
I fucking SWEAR. I'm this close *holds up thumb and forefinger* to a multi-state killing spree.

Warty|4.28.09 @ 4:13PM|#

This completely ruins my plans to pitch the Xeones show to FOX.

|4.28.09 @ 4:13PM|#

We still think Clarence Thomas is the worst SCOTUS justice ever, right?

|4.28.09 @ 4:16PM|#

This completely ruins my plans to pitch the Xeones show to FOX.

It'd get canceled within a few episodes anyway.

MNG|4.28.09 @ 4:20PM|#

Guess who was in the pro-liberty dissent AGAIN? That's right, those pesky liberals Stevens, Souter, Ginsburg, and Breyer, that's who.

The Angry Optimist|4.28.09 @ 4:29PM|#

you can beat that partisan drum, MNG (and others!), but it's a far cry from the truth. If this had been the EPA enforcing an environmental statute in the same way, I bet I wouldn't hear peep-fucking-one out of you when the four liberals want to defer to the EPA.

|4.28.09 @ 4:30PM|#

Episiarch,

Each year, a man in a brown coat should vandalize Fox HQ on the anniversary of the Firefly cancellation.

MNG,

I think you need to read all of the opinions. The big point referred to by just about everyone appears to be that the wrong issue was before the Court--i.e., that the challenge was based on the FCC behaving in an arbitrary and capricious manner, not on the Constitutionality of its content regulation. I think the concurrences and the dissent make it clear that the Pacifica case no longer holds. Unfortunately, whether a majority would actually zap the FCC's content regulation authority is doubtful, especially given that the government keeps rattling the saber over extending content regulation to cable and the web.

The opinions of the court are fasinating..

Stevens, Ginsburg, Breyer all had separate dissents.

Thomas, and Kennedy both wrote separate concurrences.

Thomas, Kennedy and Ginsburg seem to be open to the idea of possible overturning Pacifica.

Breyer's dissent mainly focused on the impact of the penalties and the cost of "bleeping" technology on smaller independent broadcasters (not a very compelling dissent, IMHO)

Also keep in mind, there was a very narrow question here...basically whether the FCC exceeded it's authority -- the question of whether that authority is constitutional wasn't up for discussion at the time.

Not to be too optomistic, but it seems POSSIBLE that Kennedy and Thomas might vote to overturn Pacifica (I think both would be needed, because I don't think Breyer would rule the FCCs authority unconstitutional).

|4.28.09 @ 4:34PM|#

ChicagoTom is reading the case correctly, I think. There's a hint of an anti-Pacifica bias in the Court, but whether that will result in a groundbreaking First Amendment ruling is another question entirely.

Breyer is a huge disappointment. He was sold as much more of a scholar and even a libertarian of sorts, but he's really just a fan of government. Meh.

MNG|4.28.09 @ 4:36PM|#

Sorry TAO, but its my duty to point out that over and over the Cons are on the anti-Liberty side and the Libs on the pro-liberty side. That way you might get a rare glimpse into this world I live in, "reality."

|4.28.09 @ 4:36PM|#

Unfortunately, whether a majority would actually zap the FCC's content regulation authority is doubtful, especially given that the government keeps rattling the saber over extending content regulation to cable and the web.

Normally I would have agreed with this statement, but now, after reading most of the opinions, I wouldn't be surprised to see Pacifica overturned.

Thomas's "concurrence" was a good read, and seemed to be tipping his hand that he doesn't think the FCC authority is Constitutional :

This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic on two levels. First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the "scarcity of radio frequencies," Red Lion, supra,at 390, to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad." District of Columbia v. Heller, 554 U. S. ___, ___ (2008) (slip op., at 63). In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution. Denver Area, supra, at 813 (Thomas, J., concurring in judgment in part and dissenting in part) (" First Amendment distinctions between media [have been] dubious from their infancy"). Indeed, the logical weakness of Red Lion and Pacifica has been apparent for some time: "It is certainly true that broadcast frequencies are scarce but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media." Telecommunications Research & Action Center v. FCC, 801 F. 2d 501, 508 (CADC 1986) (Bork, J.).

...

Second, even if this Court's disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago. See Brief for Respondents NBC Universal et al. 37-38 (hereinafter NBC Brief). As NBC notes, the number of over-the-air broadcast stations grew from 7,411 in 1969, when Red Lion was issued, to 15,273 by the end of 2004.

Moreover, traditional broadcast television and radio are no longer the "uniquely pervasive" media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services. See App. to Pet. for Cert. 107a. Broadcast and other video programming is also widely available over the Internet. See Stelter, Serving Up Television Without the TV Set, N. Y. Times, Mar. 10, 2008, p. C1. And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices....The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today

These dramatic changes in factual circumstances might well support a departure from precedent under the prevailing approach to stare decisis. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 855 (1992) (asking "whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification"); see also American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 302 (1987) (O'Connor, J., dissenting) ("Significantly changed circumstances can make an older rule, defensible when formulated, inappropriate …"). "In cases involving constitutional issues" that turn on a particular set of factual assumptions, "this Court must, in order to reach sound conclusions, feel free to bring its opinions into agreement with experience and with facts newly ascertained." Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 412 (1932) (Brandeis, J., dissenting). For all these reasons, I am open to reconsideration of Red Lion and Pacifica in the proper case.

MNG|4.28.09 @ 4:41PM|#

I mean, this is like the third or fourth case in recent weeks that's made that point...Getting kind of hard for those arguing the Cons care about liberty to keep citing Kyllo and running.

|4.28.09 @ 4:42PM|#

ChicagoTom,

I agree that the writing is on the wall, but sometimes these more aggressive-sounding dicta don't hold up when it comes time to actually rule in another case that is on point.

|4.28.09 @ 4:46PM|#

Breyer is a huge disappointment. He was sold as much more of a scholar and even a libertarian of sorts, but he's really just a fan of government. Meh.

I'll second this whole-heartedly. I had seen him a few times, and thought he was a thoughtful and intelligent jurist, but reading many of his opinions of the court, he strikes me as someone without an real principle, who is always looking to find some kind of compromise instead of standing up for what is right.

The Angry Optimist|4.28.09 @ 4:49PM|#

You do realize that this is primarily about agency deference, right? This is a narrow question about whether the FCC's policy change was a reasonable one or whether that change was "arbitrary and capricious", according to jurisprudence set regarding agency decisions in the past AND in accordance with the APA.

Would you like to take bets, MNG, how the "side" breakdown is going to occur if the actual constitutional issue is litigated?

|4.28.09 @ 4:53PM|#

The Janet Jackson Superbowl thing was bullshit anyway. Talking to a child about a boobie falling out is easier than addressing the what's a four hour erection question.

""""Even when used as an expletive, the F-word's power to insult and offend derives from its sexual meaning," Scalia said."""

The term "make love" also derives from its sexual meaning. So does screw, as in screw you or I've been screwed.

|4.28.09 @ 4:56PM|#

"""Sorry TAO, but its my duty to point out that over and over the Cons are on the anti-Liberty side and the Libs on the pro-liberty side."""

Sorry MNG it's my duty to point out that the anti-liberty philosophy is shared by both sides.

|4.28.09 @ 4:58PM|#

I agree that the writing is on the wall, but sometimes these more aggressive-sounding dicta don't hold up when it comes time to actually rule in another case that is on point.

ProLib,

You are very correct. Things do change when its put up or shut up time.

I am cautiously optimistic, but optimistic nonetheless.

Or maybe I am just getting overly excited by Thomas's opinion.

Like I said before, I don't think Breyer would overturn Pacifica, so it would take Kennedy and Thomas to come over along with keeping the others. I don't see Roberts, Alito or Scalia overturning Pacifica either.

The cynic in me would predict 5-4 against overturning Pacifica with the votes to uphold coming from :
Roberts, Alito, Scalia, Breyer and Kennedy

The optomist in my would say 5-4 the other way with Kennedy voting to overturn.

Alan Vanneman|4.28.09 @ 4:58PM|#

Missing from this review was Nino Scalia's bitching about "foul-mouthed glitteratae from Hollywood," specifically, Nicole Richie and Cher (Paris Hilton, not so much). Please note the show-offy "ae" ending on "glitteratae," to indicate that he's only talking about chicks.

(Fucking feminine declension, for those fortunate enough not to have "studied" Latin)

As for Clarence, well, we know he digs porno.

Clarence yes, Nino no!

|4.28.09 @ 5:03PM|#

Even when used as an expletive, the F-word's power to insult and offend derives from its sexual meaning," Scalia said

Stevens took a different positions:

There is a critical distinction between the use of an expletive to describe a sexual or excretory function and the use of such a word for an entirely different purpose, such as to express an emotion. One rests at the core of indecency; the other stands miles apart. As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent. But that is the absurdity the FCC has embraced in its new approach to indecency. FN4
...
FN4: It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom.

|4.28.09 @ 5:07PM|#

Fuck the draft!

The Court can be good on speech, and I think there's a reasonable chance that Pacifica could be overturned. Of course, the political howl that would come after such a decision would be enormous, and it would come from both sides.

Look for the word "fuck" to be incorporated into more TV show titles if the FCC loses the power to regulate content. And, of course, cable will turn the porn to '11'.

MNG|4.28.09 @ 5:23PM|#

"You do realize that this is primarily about agency deference, right?"

Oh yes, it's an APA issue (remember my skoolin' is in Political Science, had to take a few Public and Administrative Law courses). But lets get down to it, an administrative agency acted to restrict liberty, and the Cons upheld the action (which will have a liberty restricting effect) while the Libs dissented.

I know it makes your borderline traditionalist conservative ass wanna holler, but just admit it. They've been better on quite a bit of cases lately.

|4.28.09 @ 5:27PM|#

I've yet to muddle through this mess, but I imagine the real fault lies in the challenge not focusing on the FCC's constitutional authority, rather than on the Court's unwillingness to review it.

MNG|4.28.09 @ 5:29PM|#

Let's take a look at the breakdown in the Pacifica case itself:

Anti-Liberty Pro FCC Majority: Stevens, Burger, Blackmun, Rehnquist, Powell

Concurrence: Powell and Blackmun

Dissent, Stewart, Brennan, White and Marshall

Bit of a pattern there too I would say, Marshall and Brennan being perhaps two of the most liberal justices this century. What say you TAO?

|4.28.09 @ 5:38PM|#

MNG,

Cherries and picking.

|4.28.09 @ 5:57PM|#

I've yet to muddle through this mess, but I imagine the real fault lies in the challenge not focusing on the FCC's constitutional authority, rather than on the Court's unwillingness to review it.

I imagine the reason is that the petitioners (Fox et. al.) believed it was settled law and that challenging the constitutionality of the FCC and broadcast regulations wouldn't get them anywhere -- stare decis and all that.

I admit that I was quite surprised to see the level of discomfort towards the Pacifica decision and the repercussions of those decisions reflected in the opinions of the jurists.

Until today, I would have believed a constitutional challenge to the FCC's authority and the indecency standard would be a non-starter.

|4.28.09 @ 6:00PM|#

Anti-Liberty Pro FCC Majority: Stevens, Burger, Blackmun, Rehnquist, Powell

Stevens is quite liberal, and even more important since he wrote the opinion of the court in the Pacifica decision.

I get where you are going MNG, but I don't know that I can support the premise. I think both the liberal and the conservative justices tend to be "pro-liberty" in different contexts.

MNG|4.28.09 @ 6:04PM|#

ChicagoTom
Stevens was orginally appointed by Ford and has drifted leftward, but compared to Brennan and Marshall he was pretty right...

"Cherries and picking."

Whut? Pacifica is certainly relevant to this case...

MNG|4.28.09 @ 6:06PM|#

I'm certainly not saying the Libs on the court are going to consistently satisfy libertarians or even just civil libertarians, I am simply maintaining that they were often better than the conservatives on the court.

If you think both sides suck, then I'm not aiming at you. I'm aiming at the "right leaning" folks here like TAO, RC Dean, SIV, etc. Just getting them to think in terms of equivalency is a feat.

|4.28.09 @ 6:13PM|#

I find it hard to get too worked up over the freedom lost in not being able to say "fuck" (shit, cunt, whatever) on the public airwaves. This only has a chilling effect on your ability to say fuck. Limiting political speech before an election is a far more serious violation of the 1st amendment, and virtually nobody gives a fuck. Some even celebrate it as a victory.

|4.28.09 @ 6:16PM|#

I am dissappointed with the fact that it will probably take another couple of years for this to get back to the supremes to answer the ultimate issue. At least the one we around here care about.

But I was impressed with what Thomas wrote. To actually take reality (i.e. the dubiousness of the scarcity of the whole electromagnetic spectrum stupidity) into consideration was a nice breath of fresh air.

|4.28.09 @ 6:17PM|#

I am simply maintaining that they were often better than the conservatives on the court.

I won't argue that they are occasionally better on certain civil liberties issues. My general perception, though is that the Court as a whole sucks on applying the Constitution to limit the power of the state, and that the liberal wing on the whole sucks slightly harder. For example, Heller, I believe, shows the liberal wing (Stevens, Souter, Ginsburg, Breyer) tying itself into knots to deny the plain meaning of the Second Amendment in order to conclude that it permits outright bans of handgun ownership.

The Angry Optimist|4.28.09 @ 6:20PM|#

Waiting on you to take that bet, MNG. What do you think the breakdown is going to be if the actual constitutional issue is litigated?

If you think I'm right-leaning, you haven't been paying attention. And I'm leaps-and-bounds far away from "traditionalist conservative".

Gonzales v. Raich, MNG?

Care to tell me who the dissent was in Heller (or who it's going to be when the Circuit split on the 2nd Amendment gets decided?

Who made up the 5-4 in the decision to uphold BCRA?

Which side dissented in United States v. Morrison? (you know, the one time even YOU didn't want to apply the ICC?)

you really can take your cherrypicking and pound it.

|4.28.09 @ 6:30PM|#

However, Justice Stevens indicated in his dissent that he would certainly vote to uphold Pacifica when the larger issue was decided. See footnote 5 (I believe that the right one.)

Is it so "pro-liberty" to insist that, yes, the FCC can certainly regulate the seven dirty words, it just can only do so on pre-scripted programs but not live awards shows that are supposedly not scripted?

|4.28.09 @ 6:37PM|#

Or to argue that George Carlin's broadcast was inherently indecent, but that music awards shows are not?

Footnote 5 of Stevens' dissent:

While Justice Thomas and I disagree about the continued wisdom of Pacifica,...

So apparently at least two justices will flip when it comes back on First Amendment grounds. That's somewhat to be expected-- Justice Thomas is the most bright-line, the least balancing, the least stare decisis respecting justice. He's the idealist who is least likely to split hairs between two similar cases.

|4.28.09 @ 6:48PM|#

So apparently at least two justices will flip when it comes back on First Amendment grounds

If Stevens flips back on a 1st amendment, then I don't see the Pacifica or the FCCs power being overturned regardless of what Thomas or Kennedy do. It's gonna be 6-3 or 5-4 in favor of the upholding Pacifica, unless Breyer votes for the 1st amendment (i am not holding my breath).

|4.28.09 @ 7:06PM|#

Understanding how fucked civil liberties are regardless of which party dominates is the first step on the road to enlightenment. . .and permanent frustration.

|4.28.09 @ 7:45PM|#

Guess who was in the pro-liberty dissent AGAIN? That's right, those pesky liberals Stevens, Souter, Ginsburg, and Breyer, that's who.

you can beat that partisan drum, MNG (and others!), but it's a far cry from the truth. If this had been the EPA enforcing an environmental statute in the same way, I bet I wouldn't hear peep-fucking-one out of you when the four liberals want to defer to the EPA.

Sorry TAO, but its my duty to point out that over and over the Cons are on the anti-Liberty side and the Libs on the pro-liberty side. That way you might get a rare glimpse into this world I live in, "reality.".

I'm not getting into which justices (red or blue, liberal or conservative, frick or frack) are more supportive on liberty. The line-up is different than the asshat Kelo decision, the fuckwad Medical MJ decision (can't recall the case name, TLTG), etc. None of them are libertarian and all of them use the most tortuous semantics to justify the decisions made that often totally disregard the constitution.

MNG|4.28.09 @ 8:14PM|#

"If you think I'm right-leaning, you haven't been paying attention."

Dude, c'mon, you don't have to scratch very deep on ya to find a traditionalist conservative. I can't think of any position you take here that wouldn't be acceptable to a traditionalist conservative.

Gonzalez v. Raich is a bizarre case for you to invoke seeing as Scalia was with the majority. But I can just as easily match it with the Oregon Euthanasia case. And since neither you nor I or going to be writing any checks that would trigger campaign finance reform any time soon I'm just not much concerned about that issue. If I were I could match it with just about every major criminal case in the past 20 years (just recently Hudson v. Michigan, Georgia v. Randolph, Arizona v. Grant, Herring v. U.S., sheesh my fingers are getting tired typing just these cases in the past year or two!)

MNG|4.28.09 @ 8:16PM|#

"I believe, shows the liberal wing (Stevens, Souter, Ginsburg, Breyer) tying itself into knots to deny the plain meaning of the Second Amendment"

You can say a lot of things about the 2nd, and you'd be surprised how much I might agree with you, but one thing it does not have is an obviously plain meaning. It's pretty garbled.

|4.28.09 @ 9:57PM|#

I think it's garbled because of a comma too many. And they say punctuation isn't important. The NRA owes its existence to that comma.

MNG|4.28.09 @ 10:08PM|#

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

That's pretty garbled. Basically it says "Because a well regulated militia is very important the right of people to have weapons should not be infringed." That first part makes it at least tenable to say the right is all about people having weapons as part of their militia.

I think a better reading finds an individual right in the people though, but I tend to think rights should be read broadly.

|4.28.09 @ 10:13PM|#

Make that two commas too many. The amendment ratified by the states is actually coherent:

"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

What's left open to interpretation are "the people" and "keep and bear arms" and though I'm no Scalia on originalism I think the historical context of both the language and the intent doesn't force an individual rights interpretation.

TJ|4.28.09 @ 10:47PM|#

"What's left open to interpretation are "the people" and "keep and bear arms" and though I'm no Scalia on originalism I think the historical context of both the language and the intent doesn't force an individual rights interpretation"

among other things, i love how people try to argue its not a individual right based on "language and context." Considering every other right enshrined in the bill or rights is an individual right, doesnt it seem odd that it wouldnt be considered as one? Add to that the the concept of a militia at the time was a citizens defense force - the same as the people, not a separate militia like the national guard, and third read madison and mason, the ones who pushed to get it into the constitution... both of them were very clear about it being the right and the duty of every able bodied man to have a firearm. The whole point of the bill of rights was to protect the people from the government. How can the second amendment do that if it is not an individual right?

|4.28.09 @ 10:56PM|#

the concept of a militia at the time was a citizens defense force - the same as the people, not a separate militia like the national guard

That's exactly right. But militias composed of every able-bodied male citizen aren't realities anymore. If it's strictly an individual right then why mention militias at all, well regulated at that?

|4.28.09 @ 11:06PM|#

I would be ignoring history if I argued that it's not ambiguous, though.

|4.29.09 @ 3:54AM|#

"Even if this Court's disfavored treatment of broadcasters under the First Amendment could have been justified" at the time of the decisions upholding the "fairness doctrine" and the ban on broadcast indecency, Thomas wrote, "dramatic technological advances have eviscerated the factual assumptions underlying those decisions."

I've been making that same point for many years. Thank you for putting it on the record, Justice Thomas.

|4.29.09 @ 3:56AM|#

So let me get this straight: The Supremes upholding censorship because the FCC followed reasonable procedure in imposing it is like upholding asset forfeiture because it, too, adheres to a "due process." The question of whether either practice is right or even moral is irrelevant. Is that right?

MJ|4.29.09 @ 7:22AM|#

"I imagine the reason is that the petitioners (Fox et. al.) believed it was settled law and that challenging the constitutionality of the FCC and broadcast regulations wouldn't get them anywhere -- stare decis and all that."

Another explanation is that the petitioners have no issue with the concept of the FCC but don't like how it exercised its statutory authority in this instance.

The Angry Optimist|4.29.09 @ 9:53AM|#

Dude, c'mon, you don't have to scratch very deep on ya to find a traditionalist conservative. I can't think of any position you take here that wouldn't be acceptable to a traditionalist conservative.

Anti-Interventionism.
Anti-Drug-War.
Anti-Deficits.
Pro-Choice.
Pro-Free-Trade (including imperfect trade agreements)
Pro-Immigrant and Immigration.

Does this sound like any traditional conservative you can name?

|4.29.09 @ 12:41PM|#

What's left open to interpretation are "the people" and "keep and bear arms"

At no other point in the Constitution is "the people" read to mean "the state" rather than, you know, the people. Why should it be different here?

"Keep and bear arms": well, "keep" seems pretty straighforward (I can own it and keep it in my house), as does "bear" (I can carry it around). What's the controversy there?

What counts as protected "arms" could probably stand some interpretation, although I would say that as a starting point every citizen who doesn't happen to be a cop should have exactly the same right to keep and bear arms as a member of law enforcement.

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