Guns

John Paul Stevens Praises Clarence Thomas and Samuel Alito

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Retired Supreme Court Justice John Paul Stevens gave a remarkable pair of speeches earlier this week in New York, where he weighed in on several of the Court's recent high-profile decisions. Among them was the gun rights case McDonald v. Chicago (2010), which Stevens criticized while also offering an approving nod to "Justice Thomas's scholarly concurrence." Remember that Thomas, unlike the other eight justices in McDonald, held that it was the 14th Amendment's Privileges or Immunities Clause—not its Due Process Clause—that should be used to apply the Second Amendment against the states. This praise for Thomas' concurrence is well-founded.

But the biggest news centers on Stevens' criticism of the Supreme Court's sweeping free speech decision in Snyder v. Phelps (2011), which ruled 8-1 in favor of the noxious Westboro Baptist Church's right to protest outside of military funerals. This isn't the first time Stevens has taken a narrow view of the First Amendment, of course. In Texas v. Johnson (1989), for instance, he voted in favor of a state law forbidding the "desecration" of the American flag. And in 2010's Citizens United v. F.E.C., Stevens voted in favor of the federal law that would have prevented the release of a political documentary shortly before an election. Still, it's notable to find him in agreement with Justice Samuel Alito's lone dissent in support of silencing the Westboro Baptist protests:

It might interest you to know that if I were still an active justice, I would have joined [Alito's] powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech.  The case…involved a verbal assault on the private citizens attending the funeral of their son — a Marine corporal killed in Iraq.  To borrow Sam's phrase, the First Amendment does not transform solemn occasions like funerals into "free-fire zones."

For more on Justice Stevens' legal views, go here.

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  1. …the First Amendment does not transform solemn occasions like funerals into “free-fire zones.”

    It simply prevents the state from stopping it.

    1. It’s like healthcare and education–if the state doesn’t do it, nobody will.

  2. the First Amendment does not transform solemn occasions like funerals into “free-fire zones.”

    And what other “solemn occasions” may we expect to receive protection from free speech?

    1. It is not that simple or that obvious. We certainly can and do restrict speech. We restrict criminal speech. We restrict the hell out of commercial speech. I agree with the decision. But I see the other side of it. Liberty would not have died if you couldn’t protest at funerals.

      1. Actually protesting at funerals is a BIG form of pro-liberty political activism, though usually the protests are sympathetic to the dead. (See for example the funerals of the Tunisian self-immolating vendor and see the fears of bin-Laden’s body being buried publicly (not that his people are the good guys but it is evidence that funeral-related political activism is POWERFUL and to be feared by states, not to be lightly dismissed.))

      2. We restrict the hell out of commercial speech.

        Of course, that is also a violation of the First Amendment. One of those de facto amendments of the Constitution by the Supreme Court.

        We restrict criminal speech.

        In principle, I think this is permissible, if what you are really doing is outlawing the consequences of speech. Fraud, for example, is illegal, but generally speaking only if you actually cheat somebody out of something.

        It gets a little tougher when you take the next step, and throw people in jail for just talking about committing a crime, when they haven’t actually committed it yet. Which is why conspiracy generally requires some concrete steps beyond just talking.

        1. Inchoate crimes RULE! I still remember from law school: “There must be an affirmative step towards completing the crime, i.e. looking up a bank to rob in the phonebook.”

      3. Nor would liberty die if you banned protest at Presidential speeches, or fund raising events.

        Liberty doesn’t “die” when these types of decisions are made. It just becomes more sickly until one day, we realize it’s dead.

      4. Just want to point out that this was not a matter of protesting “AT” the funeral. The inbred WBC whackos were far enough away that Mr. Snyder later said that he never even knew they were there – he had not heard them or seen them at the time of the funeral. He found out after the fact – a few days later – that they had been within a 1000 feet or something like that, when he read about it on the internet and then went to their website and read what they said about him and his son.

        1. Just want to point out that this was not a matter of protesting “AT” the funeral. The inbred WBC whackos were far enough away that Mr. Snyder later said that he never even knew they were there – he had not heard them or seen them at the time of the funeral. He found out after the fact – a few days later – that they had been within a 1000 feet or something like that, when he read about it on the internet and then went to their website and read what they said about him and his son.

          Indeed.

          Snyder was pretty limited to its facts. It did not strike down IIED as unconstitutional, nor state that protesting funerals was completely beyond the reach of the state to regulate, but that the interpretation of IIED in this specific case violated the First Amendment.

    2. And what other “solemn occasions” may we expect to receive protection from free speech?

      Hey, when I’m on the shitter in a restroom in a government building, I don’t want to hear what some dude has to say about anything. So I think they should enact rules about what you can say in a government rest room. Because, after all, taking a shit is a solemn occasion.

  3. the First Amendment does not transform solemn occasions like funerals into “free-fire zones.”

    No, it prevents the government from transforming solemn occasions (or anything else) into “no free speech zones.”

    Messy? Yes. Necessary? Yes.

  4. As much as I like Thomas on some things, I just can’t get over his approval of a school nurse strip searching a little girl for an Advil. If the state can search a child’s underwear for a legal drug, the state has no real limits.

    1. Well he does love him some porn.

      1. School Principal: Come into my office, Suzie, I need you to help me find something.
        Suzie: Okay, Principal Thomas. What are you looking for?

        bear-chica-mou-mou…

        1. “bear-chica-mou-mou…”

          i lol’ed

        2. “I need to check your underwear for pubic hair to put in my Coke.”

        3. I thought it was “brown-chicken-brown-cow”

          1. You are watching the wrong kind of porn, lady.

            1. That is for damn sure.

    2. As much as I like Thomas on some things, I just can’t get over his approval of a school nurse strip searching a little girl for an Advil. If the state can search a child’s underwear for a legal drug, the state has no real limits.

      Never fall in love with a judge. Any judge. Because as soon as you do, he or she will disappoint you.

      1. And they never kiss on the mouth. No, wait. That’s hookers.

        1. And Jayne

    3. As much as I like Thomas on some things, I just can’t get over his approval of a school nurse strip searching a little girl for an Advil.

      Yup. I agree.

  5. We have to destroy freedom in order to preserve it, you dupe.

  6. But Joe Biden said Thomas was less intelliget than the other justices. Thomas is not perfect. But God, Biden should have been run out of public life for that statement.

    1. He plays for Team Blue. That gets you a pass on any of the -ism improprieties.

      1. u mean like the jiz-ism u just spewed?

    2. But God, Biden should have been run out of public life for that statement.

      He has been. We made him Vice President.

      1. Do they still make him wear a bib when he eats?

    3. Joe Biden is the smartest guy he knows.

  7. SugarFree,

    I think Thomas’s view was that schools have broad discretion based on the in loco parentis principle. Suppose if what took place happened at a private school, will your view change?

    1. No. Unless a parent or guardian specifically consents to it, no one should strip search a child. A warrant would be sufficient, but the threshold for getting them has been so watered down, that part of the 4th is a joke.

      And any parent that sends their child to a private school with the full understanding that they can be strip searched over a rumor is a lunatic. Fully within their rights to do so, but still a lunatic.

      1. But can’t one argue that the parents, serving as the guardians of the child, have, in effect, already granted consent to such searches when they enrolled her in the school? Can’t one also argue that it was the parents’ responsibility to carefully assess the school’s search policy before enrolling their child? After all, if they felt so strongly against it, they should’ve enrolled her at a different school.

        1. No. Public school is compulsory. Which public school you go to is extremely delimited.

          The school had no explicit or stated policy of strip searches, just a vague zero tolerance policy on “drugs”.

          And in loco is not all-powerful. It used to (and currently still should) confer far more responsibilities than it does rights. A school can’t consent to your child getting a whole host of medical procedures, or give them permission to marry, or seize and withhold earned monies, and dozens of other things parents can do.

          And anyway, implicit consent is not consent. Children have the right to bodily integrity as much as anyone else.

          Thomas dropped the ball here. He chose so-con drug panic over liberty.

          1. Schooling is compulsory, but not public schooling. Her parents could have sent her to a private school. Even if public schooling is compulsory, her school was not the only one in the state. If her parents cared so much about this issue, they could’ve moved so that she would attend a different school.

            Second, the school may not have printed out its policy on drugs on a piece of paper, but if the parents really cared so much about this issue, they could’ve asked. A simple: “Under what circumstances will you strip search my child?” is enough.

            Third, why is body integrity so important? Parents have to sign off on field trip consent forms. One can easily argue that abridges a child’s freedom to travel. Why is body integrity more important than the freedom to travel?

            1. You really don’t see a difference between going on a field trip and getting strip searched? A field trip is known ahead of time, applies to a group of students, and is explicitly consented to by a legal guardian. The equivalent to this case is if the principal ordered the school nurse to put the kid in her car and drive her off for a few hours. Educational or not, that’s kidnapping.

              You cannot consent to something that you don’t know about. And you cannot ask someone about everything they might possibly think they are able to get away with. Do you really think it’s a reasonable standerd to have to ask a school “Are you going to have my young daughter take her clothes off while the school nurse watches?”

              What it boils down to is that Thomas thinks it is reasonable for a school to order a child strip searched because there was a rumor she might have an Advil. Thomas can tie himself into whatever knot he likes, it still comes out as nonsense.

              1. What it boils down to is that Thomas thinks that parents could strip search their own children, and in loco parentis applies when you choose to send your kids to public schools. Something can be bad policy rather than being illegal.

            2. “Third, why is body integrity so important?”

              It certainly seemed important when the deviant guards at Abu Ghrabe forced Iraqi prisoners to get nekkid. Shouldn’t school children be accorded the same respect as Iraqi prisoners?

            3. but if the parents really cared so much about this issue, they could’ve asked. A simple: “Under what circumstances will you strip search my child?” is enough.

              The parents shouldn’t have to ask, because a strip search is illegal. Do I have to ask the school if it’s their policy to ass-fuck my nine-year-old before I send her there?

            4. I have to wonder why you’re trying so hard to justify what the school did and yield so much individual liberty to the judgment of middle-school administrators, of all people.

              Are you just playing devil’s advocate, or do you honestly believe the shit you’re spewing?

              They “could have sent her to private school?” Oh yeah, like everyone can simply do that. Have you checked into how much that costs? And if you send your kid to private school, guess what – you still pay your property taxes, which are paying for the public school you’re not using.

              And they could have asked “under what circumstances will you strip search my child?” Who in their right mind would even have had reason to suspect there were ANY circumstances under which a fucking middle school bureaucrat would even think it was ok to strip search my 13 year-old daughter? It’s like saying they could have asked “under what circumstances will you inject my child with heroin?”

              1. Who in their right mind would even have had reason to suspect there were ANY circumstances under which a fucking middle school bureaucrat would even think it was ok to strip search my 13 year-old daughter? It’s like saying they could have asked “under what circumstances will you inject my child with heroin?”

                Not the best analogy at current, because it’s illegal to inject your child with heroin.

                An analogy from the other side would be something like parents moving to a school that has paddling, and being shocked and appalled because they would never corporally punish their own child, much less expect that the school would do so.

        2. But can’t one argue that the parents, serving as the guardians of the child, have, in effect, already granted consent to such searches when they enrolled her in the school?

          No. I don’t recall signing anything where I consented to automatic searches of my child when I enrolled her in public school.

          A zero tolerance policy on drugs doesn’t = strip searches.

          Or, what Sugarfree said.

          1. students do not check their constitutional rights at the door of the scool building. Advil is not a controlled substance , it is not illegal to have it any way

        3. can’t one argue that the parents, serving as the guardians of the child, have, in effect, already granted consent to such searches when they enrolled her in the school?

          Well, you could, but you’d be (a) wrong and (b) an idiot.

          Can’t one also argue that it was the parents’ responsibility to carefully assess the school’s search policy before enrolling their child?

          You’re assuming that the school had a published policy, available to parents prior to enrolling their children in the school, that said, “If one student says that he or she saw your child give an ibuprofen pill to another student, we have the unilateral power to, and will, take your child into an office and require him or her to strip down to his or her underwear and then open his or her underwear so that we may get a real good look at their junk.”

          Try as you might, there is no legitimate way, in my book, to justify the school administration’s actions in that case.

          The fact is, there was no prior notice of any kind that this could have happened to their daughter. Who would suspect a school would strip search your 13 year-old daughter for ANY reason, without at the very least notifying you – let alone doing it because ONE other kid claimed she saw your daughter give another girl a FUCKING ADVIL?

        4. students do not check their constitutional rights at the door of the scool building.

      2. But the girl might have had ibuprofen! Had she taken a massive overdose, she could have wrecked her kidneys!

        1. Or a moderate dose, if she’d been drinking.

          1. You’re thinking of acetometaphine. Ibuprofen is far less likely to negatively interact with sulfates in alcohol.

            1. Acetaminophen is toxic to the liver, even in fairly small doses. Ibuprofen can be toxic to the kidneys, although you need much larger doses, and it usually occurs over time.

            2. Oh fuck, you’re right. If only the squirrels saw fit to include a Delete button

        2. That’s different. See, there is a market for kidneys (albeit a bizarre one, in which the donor can’t get paid, but trust me, its a market). Thus, kidneys are in interstate commerce, and the State has the authority to do anything necessary to maintain a supply of said kidneys.

          Especially the young ones. They’re the most useful.

          1. Forcing her to donate a kidney is analogous to a tax! So it’s constitutional!!11!11

          2. …the State has the authority to do anything necessary to maintain a supply of said kidneys.

            Here we go.

  8. I might be dense, but aren’t funerals usually on private property? Where are these Fred Phelps protest things held? At the funeral? Or on the street by the procession? I don’t think there is a First Amendment right to trespass on private property during a private event. Or are all these people holding their funerals in the town square?

    1. The protesters were in a public park several hundred yards away.

  9. Justice Stevens also indicated in the first FCC vs. Fox decision that, while he disliked the administrative method that the FCC used to reach the decision, he stood by the idea that the First Amendment didn’t prevent the FCC from regulating obscenity. That’s the complete opposite of Justice Thomas, who took pains to indicate that he would rule the other way on the First Amendment question.

    The First Amendment question will likely come up before the SCOTUS, since the relevant Circuit Court of Appeals took up Justice Thomas’s invitation to rule on First Amendment grounds, largely throwing out the FCC’s power.

    Justice Stevens being gone from the bench may result in diminishing the FCC’s powers.

    1. Justice Stevens being gone from the bench may result in diminishing the FCC’s powers.

      All your packets are belong to us.

  10. Where are these Fred Phelps protest things held?

    The Phelpsers are very adept and doing their thang on public property.

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