Breyer: Old Farts Like Me Have No Business Deciding Cases Involving New Technology

Confessing that he could not figure out what the hell was going on in the Facebook docudrama The Social Network, 72-year-old Supreme Court Justice Stephen Breyer said in a speech at Vanderbilt Law School yesterday that old farts like him have no business passing judgment in cases that involve modern technology. Or something like that. Actually, Breyer's point was that figuring out, say, what the Fourth Amendment has to do with text messaging requires applying the Constitution to circumstances the Framers did not envision. According to Breyer, this necessity shows the error of originalism, which tries to read the Constitution as it was understood by the people who ratified it.

There is an important difference, I think, between saying that the First Amendment protects freedom of speech on TV, which is a reasonable extension of the principle it embodies, and saying the First Amendment guarantees a right to a government-supplied TV set, which is not. In any case, one should not make the mistake of thinking that Breyer's more contemporary approach to constitutional interpretation yields results that are friendlier to liberty, even in cases that require an understanding of new technology. Earlier this month, when the Supreme Court heard arguments for and against California's ban on selling "offensively violent" video games to minors, Breyer was one of the justices who most clearly sympathized with the government:

Why isn't it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women and do this for an hour or so, and there is no social or redeeming value, it's not artistic, it's not literary, et cetera, why isn't it common sense to say a state has the right to say, parent, if you want that for your 13-year-old, you go buy it yourself, which I think is what they are saying?

By contrast, Antonin Scalia, the nemesis Breyer usually has in mind when he criticizes originalism, was the justice most clearly hostile to the idea that the Court should carve out a First Amendment exception for violence in video games:

Some of the Grimms' fairy tales are quite grim...Are they OK? Are you going to ban them, too?...

That same argument could have been made when movies first came out. They could have said, oh, we've had violence in Grimm's fairy tales, but we've never had it live on the screen. I mean, every time there's a new technology, you can make that argument....

I am concerned with the vagueness, but I am [also] concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.

You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment....What's next after violence? Drinking? Smoking?

Samuel Alito mocked Scalia's position, saying, "I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?" To which Scalia replied:

No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there was an exception to it for speech regarding violence?

In this case, Scalia's stodgy, historically informed approach to new technology yields results that are less reflexively pro-government than Breyer's allegedy with-it, adaptable method.

More on Breyer here.

[Thanks to Bruce Waltzer for the tip.]

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  • joe mama||

    "Confessing that he could figure out what the hell was going on in the Facebook documdrama The Social Network...."

    Confessing that he could *NOT* figure out what the hell was going on...

    Fixed It.

  • Bingo||

    I don't keep up with the individuals Supremes, but, reading that quote, Breyer doesn't seem like the brightest bulb in the box. It's as if he looks for ways to rationalize his prejudice for state intervention instead of taking arguments on their context and merit.

  • ||

    How many arguments for state intervention have merit?

  • JSinAZ||

    When the state is your pal, every single one.

  • ||

    What's even more amazing is that he freely admits it, yet...continues to pass judgment on cases he himself admits he shouldn't be passing judgment on.

  • ||

    Even more amazing: he passes judgment in cases he himself admits he shouldn't be passing judgment on, and he freely admits it.

  • ||

    My phrasing is the more amazing!

  • ||

    No, actually, jb's phrasing was better.

    But you can always stick an obscure Adult Swim quote here or something.

  • ||

    I'm afraid I don't listen to anonymous passive aggressive pussies when it comes to taste in phrasing. But you keep on trying, little buddy!

  • Bingo||

    It seems like there's two or three smug, pedantic trolls(?) that post here regularly. I wonder if Dondero picked up a middle school grammar book and has started to enact his revenge...

  • ||

    They're far too passive aggressive to be DONDERRROOOO. It's like being bitched at by your sister in law or mother in law. That's it! From now on, it's not anonypussy; it's MotherInLaw.

  • JSinAZ||

    Calm down. How far is it from Episarchland to Anonymousville, anyway?

  • Captain Kirk||

    Set your phrasers to kill!

  • ||

    Considering both Epi's and jb's phrasings contain gaping redundancies... I'd say they both lose.

  • ||

    Don't trust the quote. I don't necessarily agree with everything Bryer says, but I was in the audience at this particular speach and I can assure you that he is certainly a bright fellow. As a matter of fact, he was one of the most intelligent speakers I've ever seen.

    If you're going to argue that he should take arguments on their context and merit, you should at least extend the same benefit to him before using an out-of-context quote to criticize him.

  • Steve||

    I ain't buying it. The types of press may change (with technology), but the basic idea of freedom does not. It does not matter how the technology changes, as long as the rights remains the same.

  • PIRS||

    "Actually, Breyer's point was that figuring out, say, what the Fourth Amendment has to do with text messaging requires applying the Constitution to circumstances the Framers did not envision."

    Technology may change but principles remain constant. They may not have had automobiles in 1787 but they sure as hell did have hose-and-buggies. They may not have had text messages but they DID have envelopes and letters.

  • ||

    Yeah, Justice Scalia wins this one pretty clearly.

    Justice Breyer's "but this modern technology is all different" argument always ends up arguing that maybe that old technology was okay, but this new technology does unanticipated things, so those old freedoms don't apply.

  • Young Fart||

    this new technology does unanticipated things, so those old freedoms don't apply even more

    FTFY

  • ||

    Agreed. "New" technology is rarely truly new. Why, the fax machine is nothing but a waffle iron with a phone attached.

  • silent v||

    What the hell is "hose-and-buggies". If you are talking about that thing Max is into, it is spelled "hose and buggery"

  • Elena Kagan||

    What's next after violence? Drinking? Smoking?

    Duh, yes.

  • Barbarian #3||

    If he wanted a Four Loco, banned by imperial decree, I'd say Scalia's way late to this party.

  • ||

    I agree with Scalia here, though I anticipate his line of questioning would be much different if the objectionable content in the video games involved drug use instead of violence.

  • BakedPenguin||

    That would be "obscene".

  • ||

    Wasn't Breyer one of the ones who said that private property could be stolen to built shopping malls because shopping malls were new technology that wasn't around in the 1700s?

  • ||

    Wasn't Breyer one of the ones who said that private property could be stolen to built shopping malls because shopping malls were new technology that wasn't around in the 1700s?

  • Barely Suppressed Rage||

    Yes, but he said it only once.

  • ||

    Sadly, not much left to say about
    the poverty of Breyer's position.

    Its always fun, though, to show how result-oriented these Living Document types are.

    Breyer seems to be saying here that New Thing X (video game violence/gay marriage) was not on the Framer's minds, and therefore New Thing X (video game violence/gay marriage) is outside of Constitutional protections and can be banned by the feds.

  • cynical||

    You know what would be a real living document? If someone tattooed "I am a hubristic prig and a statist" into Breyer's belly.

  • MNG||

    I think it is bogus to put up Scalia and Breyer's questions during oral arguments as necessarily indicative of their legal philosophy. If you listen to a fair amount of orals and read the subsequent opinions you will note that it is not unheard of for justices to play "devils advocates" for positions they rarely if never take in their opinions. Breyer especially likes to do that, acting all "law professor" all the time.

  • Geotpf||

    This. Wait for the ruling before you get out the Jump to Conclusions playset.

  • ||

    In general, yes.

    However, in this specific case, their comments (and Alito's) were of a piece with their expressed judicial philosophies both in outside speeches and in previous rulings.

    In a vacuum, I'd agree. But we have prior evidence.

  • Barely Suppressed Rage||

    Yes; however, if you've listened to them in various other cases and read the exchange in context, you can tell when they're doing devil's advocate versus when they're actually questioning and challenging the offered position. Plus, as has been noted here, we have plenty of their history to go by. It's pretty well known where Breyer and Scalia come from, with regard to interpreting the Constitution.

    Their questions during oral arguments do, in fact, quite well reflect their legal philosophy - particularly when they are playing devil's advocate. It is at those times when you can detect the position they don't really agree with.

  • MNG||

    Why would anybody give a shit what James Madison THOUGHT about violence? What matters is what he, and the other ratifiers WROTE. Scalia himself as been quite persuasive imo on why legislative intent is a fools game. Stick with the text and its plain meaning.

    This is why I think gay marriage bans can be found unconstitutional. Sure the ratifiers of the 14th never thought about gay people getting married, but what they wrote is that all citizens should have equal protection of the law. You apply the principle of equal protection or whatever to the current, newfangled technology or institution.

  • Steve||

    A gay guy can marry any women he chooses (same for women) -- equal protect is thus achieved.

  • ||

    A black guy can marry any black woman he choses... just like a white guy can marry any white woman he chooses.

    I used to find the "gay people have the same rights straights do" argument persuasive until I realized it could be applied just as well to interracial marriage.

  • Steve||

    Virginia v Loving overturned a law against white people marrying someone of another race (justly) based upon 14th amendment grounds. Two guys shacking up ain't marriage; the cases ARE different.

    Never did understand why two gay guys could demand that I endorse and recognize their setup and call it freedom. Why do they need my approval? Jump a broom and call yourselves married: problem solved. It is not like I am running around demanding that they be jailed.

  • ||

    How are they demanding that you endorse jack shit? They are asking for the same ability to get visitation rights, inheritance, tax breaks, all the stupid shit that marriage legally confers.

    Your argument is the same tired, disingenuous bullshit that we've heard a thousand times before.

  • Steve||

    Visitation rights, inheritance, tax breaks cost me nothing and I have no objection to anyone getting (benefitting) from them. Then we have the government telling my kids in school that this is really a marriage and they have no choice to respect it (or else) and nice men coming into my business and telling me I have to pay for Rod and Todd's health care and oh yea, you have to hire the guy in the dress.

    What people choose to do with their lives is there decision, leave me out of it and we'll have no problems.

  • ||

    Your homophobic spoutings just reinforce my point, douchebag.

  • Tony||

    Then we have the government telling my kids in school that this is really a marriage

    Shouldn't schools teach children facts? If marriage is legally recognized for gays, then it is in fact marriage. Though I'm not sure how often this subject needs to come up in school. I don't remember the class where we spent a semester on noting that married straight couples were, in fact, married.

  • Steve||

    Episiarch: I except your surrender.

    Tony: Truth is truth (we may not agree whether "Example A" is the truth or not, but the truth is the truth) As for the rest, agreed. If teachers spent more time telling kids how to think rather than what to think, we'd all be a lot better off. Still, much government propaganda is passed in schools, even K-12.

  • ||

    I accept your inability to spell, and couldn't care less whether you think you've "won"*. Arguing with your kind is like arguing with a brick wall. Your arguments make no sense, but your hate of the homos makes you cling to these flimsy arguments like Natalie Wood to a life preserver thrown by Chris Walken.

    * Claiming victory on the internet is in the top 5 stupidest things people do on the internet. Congratulations! You did win something!

  • Steve||

    And when did you gain this great ability to look into my soul and divine hatred?

    Declaring someone you disagree with as a bigot is #1 on the list of top 5 stupidest things people anywhere, congats yourself.

  • ||

    You want to discriminate based on sexual orientation, which makes you a bigot. See how easy it is to look into your soul and divine hatred?

  • Steve||

    bigot: a person who is utterly intolerant of any differing creed, belief, or opinion

    My tolerance is inconsequential; my intolerance would in no way change the rights of others.

    "gay marriage" is a non sequitur, there is no such thing (6000 plus years of human history is a pretty good indication that we know what marriage is and that ain't it.)

    Call it something else and stop trying to point a gun at me and make me get involved in something in which I object.

  • ||

    Your allusions to force, and the implication that you are made to get involved in someone else's marriage are laughable.

    What you are saying is that offending your sensibilities is akin to assaulting you. Which is even more laughable.

  • Steve||

    All law is enforced from the barrel of a gun, which is why I am a libertarian and advocate its use sparringly. What people do with their lives is their own business; using the force of law to include me in it is force (government telling my kids in school that this is really a marriage and they have no choice to respect it (or else) and nice men coming into my business and telling me I have to pay for Rod and Todd's health care and oh yea, you have to hire the guy in the dress, etc...)

    I have a right to my sensibilities and you have the right to criticize them. Can we both agree that neither of us has the right (or the authority) to use force on each other? Is that asking too much?

  • ||

    I am fully cognizant of the presence of force, but your examples of it are a joke. I hate government schools...which is why I would never send any child of mine to one. Yet you do. And the government already tells you you have to pay for employees' health care, and their spouses, so that wouldn't be any different.

    Once again, you have utterly failed to explain how offending your sensibilities is forcing you to do things, which means that your argument boils down to "I don't like fags, and I don't want them to be allowed to get married because it offends me".

    That's not an argument, it's bigotry. Which I've already pointed out.

  • Steve||

    I have already explained my reasoning for not calling it "marriage" and have already expressed my (legal) support for civil unions (though I am morally opposed to them.)

    You are OK with using government to force your will on me while I am trying my best to protect my freedom while not trying to use that same force on gay people. I believe the morality of our two positions speak for themselves.

  • ||

    You can keep calling letting gay people share some of the privileges that straight people enjoy "force" all day, yet that doesn't make it so.

    The true weakness of your argument lies in your absolute need to cast it in terms of supposed "force", for without that, you have no defense against the charge of being a bigot.

    I recognize taxation as force; drug laws as force; and many other things. Allowing two homos to get the tax breaks you already enjoy, or allowing them to visit one another in the hospital, is not force.

    The more you beat this ludicrous dead horse, the more obvious you are.

  • Steve||

    Who cares who visits who in the hospital? Not I. Leave your stuff to whomever you want, live with whomever you want, I don't care.

    When you start telling me what I have to do then yea, we got a problem.

    I get it; You want to use the government to make me feel different about homosexuality than I do -- too bad. I hate no one (or at least I try real hard not to). It seems we have much common ground on this issue yet you STILL are not satisfied. Sorry, but I ain't the one calling for state action (other than on the issues above that neither break my arm or take from my pocket)

  • ||

    You want to use the government to make me feel different about homosexuality than I do -- too bad.

    What the fuck? Epi said no such thing, jackass.

  • Reality||

    The facts are against you, Episs&fart;. Your beloved pederasts and faggots demanding government imposition of their Satanic marital fictions on our children are the real bigots, bullies, oppressors, totalitarians, and traitors. You and every other fagtard who spews that "homophobia" and "sexual orientation" bullshit are in the same league as the damned racist oppressors and "scientific" quacks who coined "drapetomania" as a word to condemn the slaves' natural desire for freedom as a psychological disease, imposed their pro-slavery agenda on other states (including those where slavery was supposed to be illegal) and taught their kids that "niggers" are mentally inferior to the white man and their slavery is absolutely essential to upholding the Constitutional rights of the white man.

    Had those damned traitors had the evils of government-run schools and compulsory schooling laws available to them back then (mercifully, they did not), they would surely have imposed their agenda the very same way you propose to impose yours. As it is, they did very much the same as you are doing now. You and all your buttfucking faggot buddies are just as much damned traitors as they ever were, and we must be sure to send you to join your racist predecessors in Hell when at last we throw off your illegal and treasonous impositions and start hanging you totalitarian faggots by your entrails.

    Fuck you and every other child-molesting shit-bag that agrees with you.

  • Steve||

    This piece of parody (please let it be parody) is what bigotry and hatred look like. See the difference?

  • ||

    Your derangement is hilarious. More, please.

  • Cecil||

    That was fucking hilarious.

  • Rock Action ||

    I'm pretty sure that the concerns you voice are what civil union legislation attempts to achieve - to extend those tangible rights conferred on married couples to gay couples, only without the recognition of marriage. It's marriage itself that is the sticking point, at least intrastate, so I'm not sure that Steve is completely wrong. I've only skimmed the first five pages or so of the decision, but when the CT Supreme Court ruled for gay marriage after legal recognition of civil unions were granted by the legislature, it was based on the logic that denying someone the recognition of the "status" of marriage was the actual harm, and that this harm violated the state constitution's equal protection clause.

    I'm pretty sure it wasn't about tangible benefits like health care and visitation. It was a discrimination-as-harm/suspect class constitutional case.

    Full disclosure: I'm against gay marriage until I don't care anymore because other things are way, way more important to me. Like being forced to ingest things, or buy things from private entities, or bailouts, or stimulus packages, or constant surveillance by administrative agencies, or the drug war, or banning food items from shelves, or para-military police raids with no oversight, or...ad naseum. Actually, I've never really been in favor of any marriage recognition by the state, nor have I ever been convinced what the normative benefits of recognition are, nor whether it is even appropriate to do so.

  • Steve||

    While I personally object to civil unions, as longs as my rights as stated are respected, I have no legal objection (consenting adults have the legal right to enter into contracts).

  • Reality||

    The totalitarian fucksticks like Episs&fart; on this board have made clear they'd rejoice if the government ever passed laws requiring you to drink faggot jizz the way they've been doing. They apparently think everyone likes the taste of faggot semen as much as they do.

  • Rock Action ||

    The vituperative troll named Reality has an irony problem.

  • ||

    Is Reason drawing in the FreeRepublic crowd now?

  • MNG||

    Hmm, how about:

    "Never did understand why two different race persons could demand that I endorse and recognize their setup and call it freedom."

    "Two guys shacking up ain't marriage; the cases ARE different."

    Yeah, the discrimination is based on gender, not race!

  • Steve||

    A gay guy can marry any women he chooses (same for women) -- equal protect is thus achieved.

    Yea, I did quote myself, so sue me!

  • DRM||

    Um, no, it couldn't. You're messing up the logic.

    If "A can marry any X he chooses, just like B can marry any X he chooses", then there is no discrimination between A & B; substituting one for the other doesn't change X. On the other hand, "A can marry any X he chooses, just like B can marry any Y he chooses" is discrimination; substituting B for A forces a substitution of Y for X.

    The actual parallel to the race one is "A man can marry any woman he chooses... just like a woman can marry any man she chooses." In that case, when the subject changes, so does the object.

    Which is to say, there is discrimination in marriage between subjects on the basis of sex, not orientation. Gay mean genuinely do have the exact same marriage rights as straight men, and vice versa. It's men (regardless of orientation) who don't have the same marriage rights as women (regardless of orientation), and vice versa.

  • Steve||

    My saying "A gay guy can marry any women he chooses (same for women)" was just a short way of saying "A man can marry any woman he chooses... just like a woman can marry any man she chooses.

    This disproves any denial of equal protection claims. I think that we are saying the same thing; I may have been unclear (lazy).

  • MNG||

    Pre-Loving any person could marry any other person of the same race and no person, white or black, could marry a person of a different race. So I guess there was no discrimination there either huh?

    Discrimination based on gender or race, same difference imo.

  • Fatty Bolger||

    Gay people are newfangled?

  • ||

    Leave my fangle alone!

  • oldfangle||

    I get no love anymore

  • cynical||

    I'm still waiting for the MNG to roundly denounce Jonathan Swift for his cannibalistic aspirations; after all, the meaning of any work should be supplied solely by a mechanistic application of modern language and cultural values, not by considering contexts such as author's sympathies, historical social standards, and so on.

  • MNG||

    Because satires and constitutions should be read the same way, after all their purposes and functions are so similar!

  • ||

    How exactly is the the meaning behind the words less important than the specific words themselves? Last time I checked, interpreting a text means determining the meaning.

  • ||

    Why is there a picture of the crypt keeper on this post?

  • Pope Jimbo||

    I thought it was Nucky Thompson.

  • ||

    I'd rather have Nucky than Breyer.

  • Alan Vanneman||

    "And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence."

    Spoken like a true Catholic, Nino! Sex bad, torture good!

    (But Nino often does get it right. Fifty percent of the time, I guess.)

  • Barely Suppressed Rage||

    Do you refute the factual correctness of his statement?

    The proposition stated is demonstrably true, historical fact. The courts traditionally have not extended First Amendment protection to works considered to be "obscene" (yes, defining what is "obscene" turns out to be the big problem there, of course). But I don't know of any decisions regarding works depicting violence. I think of some of the writings of Edgar Allen Poe, Nathaniel Hawthorne, Herman Melville, Mary Wollstonecraft Shelley, Bram Stoker, Robert Louis Stevenson, etc. Classic gothic horror was rife with acts of violence, but I don't recall any cases ruling that this excluded them from First Amendment protection.

  • MNG||

    Hey wait a minute. I really have been paying only scant attention to this law and its debate. I assumed it was an actual ban on video games. The law actually bans the sale of violent games to kids and requires labeling. Now, I don't see WTF is wrong with that. Can't we bar a kid from buying a ticket to an R rated movie? WTF is the difference?

  • Steve||

    I "banned" my children from buying/watching lots of things -- and not a single dime of taxpayer money (or intervention) was required.

  • ||

    Sex.

  • Fatty Bolger||

    Good question. I mean, the law seems useless, but is it really unconstitutional?

  • Geotpf||

    Actually, you it is unconstitutional to enforce movie ratings by rule of law. Now, porn is somehow magically different, but whatever.

  • cynical||

    Can we? Should we be able to? The "R" rating is a private industry label, so that would essentially be giving an unelected board of industry insiders government power. And it would be censorship -- it would be interfering with the ability to transmit a message based not only on the fact that it is targeted at minors, which might fly, but on the content of the message.

    Now, if kids were banned from purchasing or being exposed to any sort of media without the consent of their guardian, that might pass constitutional muster, but only if "nonconsensual expression" is something the feds can regulate.

  • Steve||

    The rating system was created to eleviate censorship pressure from the government back in the day.

    Is it a good marketing tool for private companies to cater to parents who might object to their children watching something that they do not approve -- yes. Still, the government pressuring them to do so is troubling.

  • ||

    Can't we bar a kid from buying a ticket to an R rated movie?

    Not legally, no. The MPAA ratings carry no force of law, not at the federal, state, or local level. The courts have been consistent on this.

    "Obscene" movies can be restricted, and even some "not obscene but harmful to children" material can be restricted from marketing/selling to children (Ginsberg v. New York by the Warren Court), but the MPAA ratings aren't allowed to define that for the government.

    Exactly what defines obscene or "not obscene for adults, but dangerous for kids" is highly unclear.

  • ||

    Scalia thought he knew what James Madison's view of the birth control pill was.

    That is - no one has a right to take it.

    Face it, Scalia represents Big Vatican.

  • Jeffersonian||

    A misrepresentation of Scalia's view.

    I'm shocked, shocked that you would do that.

  • ||

    Not a bit.

    Scalia has roundly criticized 'Griswold' saying that an individual has no right to privacy and the state may conduct home raids to prevent the use of contraception.

  • Barely Suppressed Rage||

    I'd be interested in seeing the quote where Scalia said those words.

  • ||

    I don't think that Breyer, old or young, should ever have decided anything at all. His dissent in Heller was so intellectually dishonest and, well, just plain STUPID, that it should warrant impeachment.

  • mad libertarian guy||

    This.

    It is easily the worst thing I've ever read from SCOTUS short of Buck v Bell.

    If his dissent were written for my freshman composition class, I would have failed him. No question.

  • Barely Suppressed Rage||

    No shit. His dissents in both Heller and McDonald were the most blatant display of disingenuous "reasoning" clearly crafted to support the desired foregone conclusion I've seen since Plessey v. Ferguson or Dred Scott.

  • ||

    No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there was an exception to it for speech regarding violence?

    Considering that there were public floggings and executions in 1787, along with bull-baiting, cock-fights and dog-fights, that people would actually go to battlefields to be spectators and dueling was tacitly, if not legally accepted, I doubt that the Founders considered that violence was something to be censored.

  • ||

    Yes, that's entirely Justice Scalia's point.

  • Tony||

    There is an important difference, I think, between saying that the First Amendment protects freedom of speech on TV, which is a reasonable extension of the principle it embodies, and saying the First Amendment guarantees a right to a government-supplied TV set, which is not.

    A distinction made only because people happen to be born with mouths but not TVs.

    Oh, and Scalia loses me at "obscenity." It's perverse that sex is less acceptable than extreme violence--though it's probably true that it is an American cultural artifact that dates prior to the founding. But it's still an exception not spelled out in the text.

  • mad libertarian guy||

    I just red that there was a chilly breeze in hell as Tony spoke these words.

  • RyanXXX||

    Tony, are you actually making the case for government-supplied TVs in every home?

  • Amakudari||

    No, I believe he's saying we should all have TVs grafted into our wrists.

  • ||

    though it's probably true that it is an American cultural artifact that dates prior to the founding. But it's still an exception not spelled out in the text.

    Which is a difference between the legal philosophies Justice Scalia, who has never claimed that he sticks strictly to the text, but also to what the text's original meaning was and to some amount of stare decisis, and Justice Thomas.

    Scalia's point is that something that was considered okay to ban before, during, and for hundreds of years after adopting the First Amendment probably doesn't have the First Amendment applied to it. Even if it should, it's not clear that it's the role of judges to decide that it suddenly does.

  • ||

    As I understand it California is arguing for the same approach taken to video games that involve the player in lethal violence against the unarmed and innocent as has been approved by the Supreme Court with respect to sexual material that is not obscene for adults, and thus completely available to them, but is "harmful to minors." This double standard allows, for example, requiring merchants to keep girlie magazines away from children, although parents or other adults are free to share the magazines with any children they choose. "Harmful to minors" is a term of art. It reflects no more or less than a social convention; there's never been any evidence that girlie magazine exposure in childhood leads to anything harmful in adulthood. Nor has there ever been evidence that girlie magazines were proscribed in the Framers' day. For those arguing to the Supreme Court in the Ginzburg case that the state had authority to restrict sale of such materials to minors, and for the justices who accepted that argument, they didn't need any stinkin' clinical research. They posited a tradition of disapproval based on their reading of contemporary convention. But note how different is the analysis in the video game case. Now the absence of research showing clinical harm is taken as proof of the illegitimacy of restriction of access to adults. The fact that most people do not want their own children taking steps to chop up other children in such a realistic manner, for example, or that they believe that something in any child is prematurely coarsened by such an experience—this argument from tradition is not given anything like the same weight as in the sexual exposure context. In short, innocence from even sexual awareness or observation is something the state can protect with a double standard, but innocence from virtual involvement in butchery is not. We are regaled with a parade of easy red herrings from literature—the Iliad, the Bible, etc.—as if reading about a beheading left the same imprint as enacting a beheading in a realistically vivid simulation. What we're talking about is not a "portrayal" of violence. It is a direct and personal involvement in the commitment of homicidal violence; torture and murder as a role-playing exercise to be enjoyed with virtual tools that, unlike literature or the arts, leave as little as technology permits to the imagination.

  • AlmightyJB||

    I think that where we are at today in terms of the First Amendment can in no way be connect to original intent. The First Amendment has evolved from a right to question authority and the church, and to freely express your own political views and opinions to a much more liberal interpretation that protects profanity and pornography and lewd and rude behavior. I'm not saying that is wrong, in fact I agree with that approach. What I am saying though that if you were to go back in time and use the language, or wear some of the T-Shirts, etc etc in a public place where the framers were hanging out. They probably would have kicked your ass and maybe fined you. If anyone has examples that would prove that wrong I would like to hear them, but I think original intent would make stupid laws like McCain-Feingold unconstitutional which finally happened, but as far as this other stuff, I'm not sure you can bring original intent into the argument if you're really being honest about it. Yeah, I'm starting to ramble. Sorry.

  • Jeffersonian||

    Personally, I wouldn't let Breyer decide what wine to order at Ruby Tuesday, much less what video games my kids can buy.

  • AlmightyJB||

    Agreed. He's a total idiot.

  • Anonymous Coward||

    *Adds a new bullet point to his agenda*

    If elected President, I would direct my allies in Congress to impeach one Supreme Court justice every six months, just to keep them on their toes.

  • ||

    He makes a decent ice cream, at least for mass-produced stuff.

  • ||

    Homogenized ice cream?

  • ||

    Yes, well, we can't have raw milk being consumed, now can we?

  • RyanXXX||

    It's interesting to notice the hidden similarities in the originalist and "living document" arguments.

    Argument A: The founders were NOT talking about blank when they wrote blank amendment. Blank didn't exist back then.

    Argument B: The founders could never have foreseen that blank amendment would apply to blank. They didn't even have blanks back then.

    Which is originalist, and which is "living document"?

  • ||

    Since neither of those are the originalist argument, I don't see your point.

    Justice Scalia explicitly disagrees with both of those.

    Surely you're not calling (ugh) Alito an originalist?

  • sr7||

    Steve reminds me of a Steve I know. Given the details he lays out, rhetoric and writing style, I am close to certain it is the same guy.

    Here is the poop on Steve. His wife almost married him for another guy. They dated for four years; he was safe, secure, had a decent job and prospects for advancement. A fairly typical MBA. She lived on her rich daddy's credit cards, a grad student. However, she wasn't passionate about Steve. He was a lamo in the sack and had the personality of a church wafer. She stopped dating Steve when he popped the question, and she soon met someone else. She couldn't imagine a life time limited to a guy she pretty much grew to detest. The new guy was exiting and fun. They fucked a lot. I mean A LOT. He took her to places she had never been, down and out dives, body shops, he had friends in very low places and they would do dirty things like fuck in public areas, highway stops, public parks, gay discos. Anywhere. Whatever else could be said about this guy, he kept things interesting. Steve was purely bed and breakfast and nature hikes.

    How did Steve get back in the picture? The gal's rich father found e-mails she accidentally sent from a joint account describing the joys of the new guy fucking her in the ass. Popa was enraged. He demanded that she cut off all ties to the new guy, and marry Steve, or she would be completely cut off from the family. Well, she did what she had to do, married Steve, while getting it slipped to her on the side.

    The shitty part about it, Steve knows all of this, right Steve?

  • sr7||

    His wife almost married him for another guy.

    Try reading that sentence after consuming several shots of Royal Crown like I did before writing it, and it will make perfect sense.

  • ||

    Even if it's not the same Steve, I enjoyed the story. Was this other Steve also a homophobe?

  • sr7||

    Gays are like everything else in life to him, something to be feared. I hate reducing politics to psychology but in Steve's case, his conservatism was born from about a thousand different phobias, and it is obvious to all that know him, even his GOP pals. I'm not one, I'm just a boozer on the local diner party circuit who has conversed with him dozens of times, and a cousin of his who is a good friend of mine told me this story. It fits everything I know about him, so I'm inclined to believe it.

  • ||

    Well, Mr. Breyer I ain't no fancy big city attorney, so maybe you could help me with something. I am just having the darndest time trying to find where it says in the constitution that speech must have, oh what did you say, social and redeeming value. That's it, you said "social and redeeming value".

    So, could you please show me where the constitution says that?

  • Barely Suppressed Rage||

    And yet so many lefty progs paint Scalia as a knuckle-dragging, anti-liberty, cro-magnon originalist - because they fail to understant what the original understanding method of constitutional interpretation means. This is not the first time Scalia has erred on the side of individual liberty. Not saying the man is the best defender of liberty the court has, but he's not the troglodyte so many liberals make him out to be.

    And Breyer?

    According to Breyer, this necessity shows the error of originalism, which tries to read the Constitution as it was understood by the people who ratified it.

    Breyer continues to push his completely disingenuous and fallacious arguments against originalism, which so many leftys do. The argument that the framers "could not have foreseen [X]" is so easily refuted. They could not have foreseen radio, television, telephones, space travel, heavier-than-air flight, high-speed rail, etc., etc., ad infinitum. That does not mean you can't apply the fundamental PRINCIPLES that they understood at the time to modern circumstances.

    The question, as Scalia observes, is not whether they would have understood the First Amendment as protecting video games (and here I've got to say fuck you Alito, if that's where you're going, you're a statist asshole, too); rather, the question is whether they would have understood it as protecting works of fiction, even if they depicted violence.

    Just as they could not have foreseen high-speed, full-color desk top laser printers, they certainly understood the First Amendment as protecting the private citizen's right to own a printing press and to print and distribute flyers expressing his point of view. Just as they understood the First and Fourth Amendments to protect the privacy and content of a hand-written letter sent by horse-rider, they would have understood that same protection to apply to an e-mail, which essentially is the modern equivalent - i.e., a private communication from the sender to the recipient.

    Breyer is an extremely disingenuous "reasoner" in making his arguments. All you have to do is read the dissents in Heller and McDonald to see that.

  • sr7||

    All progressives are troglodytes who wear thin veils and slippery masks, and reek of barbarism in their breath.

  • ||

    What the Living Constitution types do, almost without exception, is actually a type of originalism. Breyer and his buddies essentially argue that Constitutional protections only apply to the exact circumstances at hand when it was ratified.

    Anything new since, say, 1800 obtains Constitutional protections only at the discretion of the Court.

    That's originalism, of a sort, but applied not to the intent and principles of the Constitution to extend those principles to (superficially) new circumstances, but to its historical context, to limit Constitutional principles and expand judicial power.

    Its always about the expansion of power with these people.

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