The board's server will undergo upgrade maintenance tonight, Nov 5, 2014, beginning approximately around 10 PM ET. Prepare for some possible down time during this process.
Much of the Court’s opinion is a paean to Batson v. Kentucky, which requires that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on the jury. That rule was suspect when it was announced, and I am even less confident of it today. Batson has led the Court to disregard Article III’s limitations on standing by giving a windfall to a convicted criminal who, even under Batson’s logic, suffered no injury. It has forced equal protection principles onto a procedure designed to give parties absolute discretion in making individual strikes. And it has blinded the Court to the reality that racial prejudice exists and can affect the fairness of trials.
Hey GH, do you a good link to explain the property takings case today? The initial reads I found were a bit too focused on “OMG precedent”
_________________ "The fatal flaw of all revolutionaries is that they know how to tear things down but don't have a f**king clue about how to build anything."
And I agree, I'm getting tired of all the stare decisis subtexting from every justice that's engaging in this. What no one wants to admit is that everyone likes it when they think the precedent is good, and doesn't like it when they think it's bad.
He's repeatedly calling the bat signal for litigants to raise these issues in the future when the votes might be there to agree with his opinions.
So he acknowledges incorporation sometimes, like in the excessive bail case earlier this year and gun rights in McDonald, but not for the establishment clause. I know that in both of those cases Thomas argued that the right should be incorporated via privileges and immunities not due process, which is the more conventional route. Why is he against incorporation via the due process clause, and is that mechanical difference the basis for his opposition to incorporating the establishment clause?
(And I should add to the first question is he against incorporation via due process? I know his opinions in these two cases off the top of my head, but I don't know if he's written in favor a due process incorporation elsewhere, so I shouldn't just assume he's against that.)
_________________ "I want to see the whole picture--as nearly as I can. I don't want to put on the blinders of 'good and bad,' and limit my vision."-- In Dubious Battle
Joined: Wed December 12, 2012 10:33 pm Posts: 6932
4/5 wrote:
So he acknowledges incorporation sometimes, like in the excessive bail case earlier this year and gun rights in McDonald, but not for the establishment clause. I know that in both of those cases Thomas argued that the right should be incorporated via privileges and immunities not due process, which is the more conventional route. Why is he against incorporation via the due process clause, and is that mechanical difference the basis for his opposition to incorporating the establishment clause?
(And I should add to the first question is he against incorporation via due process? I know his opinions in these two cases off the top of my head, but I don't know if he's written in favor a due process incorporation elsewhere, so I shouldn't just assume he's against that.)
I agree, I really don't understand why he, and other justices, say that certain parts of the Bill of Rights should be incorporated but not other parts. In my opinion, the logic of incorporation would follow that either everything is incorporated (which I agree with), or nothing is. I realize that incorporating the Grand Jury Clause would create a clusterfuck, but that's where the logic takes me.
Found time to read this closer, and the concurring/dissenting opinions are really ridiculous.
Samuel Alito wrote:
Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary. The registration of such marks serves only to further coarsen our popular culture.
I think that Alito needs to listen with an open mind to something like George Carlin's Seven Dirty Words, or something like this.
John Roberts wrote:
I also agree that, regardless of how exactly the trademark registration system is best conceived under our precedents—a question we left open in Tam—refusing registration to obscene, vulgar, or profane marks does not offend the First Amendment. Whether such marks can be registered does not affect the extent to which their owners may use them in commerce to identify goods. No speech is being restricted; no one is being punished. The owners of such marks are merely denied certain additional benefits associated with federal trademark registration. The Government, meanwhile, has an interest in not associating itself with trademarks whose content is obscene, vulgar, or profane. The First Amendment protects the freedom of speech; it does not require the Government to give aid and comfort to those using obscene, vulgar, and profane modes of expression.
Gah! The First Amendment also mandates that government cannot favor or disfavor certain types of speech. That's exactly what carving out an "obscene/vulgar/profane" exception would do!
Which leads us to this:
Stephen Breyer wrote:
[...]it is hard to see how a statute prohibiting the registration of only highly vulgar or obscene words discriminates based on “viewpoint.” Of course, such words often evoke powerful emotions. Standing by themselves, however, these words do not typically convey any particular viewpoint.
Oh for crying out loud, you could say that about any word in the dictionary. It's amazing how myopic Supreme Court justices, who are otherwise excellent with language, could be about this.
Stephen Breyer wrote:
How much harm to First Amendment interests does a bar on registering highly vulgar or obscene trademarks work? Not much. The statute leaves businesses free to use highly vulgar or obscene words on their products, and even to use such words directly next to other registered marks. Indeed, a business owner might even use a vulgar word as a trademark, provided that he or she is willing to forgo the benefits of registration.
If this is the argument to be made, then, again, how much harm is there to the First Amendment to a bar on any trademark?
Stephen Breyer wrote:
[S]cientific evidence suggests that certain highly vulgar words have a physiological and emotional impact that makes them different in kind from most other words. These vulgar words originate in a different part of our brains than most other words. And these types of swear words tend to attract more attention and are harder to forget than other words. Notably, that has remained true even as the list of offensive swear words has changed over time: In the last few centuries, the list has evolved away from words of religious disrespect and toward words that are sexually explicit or that crudely describe bodily functions. And the list of swear words may be evolving yet again, perhaps in the direction of including race-based epithets.
Gee, why has this list evolved several times? Maybe it's because language is a social construct that changes as societal norms change. That's the type of evolution that the First Amendment is intended to protect.
Stephen Breyer wrote:
These attention-grabbing words, though financially valuable to some businesses that seek to attract interest in their products, threaten to distract consumers and disrupt commerce. And they may lead to the creation of public spaces that many will find repellant, perhaps on occasion creating the risk of verbal altercations or even physical confrontations. (Just think about how you might react if you saw someone wearing a t-shirt or using a product emblazoned with an odious racial epithet.)
I'd react differently depending on what the context of that apparel choice is. But regardless of my reaction, I would say in every single instance that that person has a First Amendment right to wear that shirt.
I find it incredible that Breyer actually wrote this when he joined Matal v. Tam in full, which precisely dealt with racial epithets.
Stephen Breyer wrote:
Finally, although some consumers may be attracted to products labeled with highly vulgar or obscene words, others may believe that such words should not be dis-played in public spaces where goods are sold and where children are likely to be present. They may believe that trademark registration of such words could make it more likely that children will be exposed to public displays involving such words. To that end, the Government may have an interest in protecting the sensibilities of children by barring the registration of such words.
Oh noes, the children! We really need a Godwin's Law equivalent when someone trots out the Helen Lovejoy argument.
I'm done with Breyer, but unfortunately we still have one more justice to go:
Sonia Sotomayor wrote:
What would it mean for “scandalous” in §1052(a) to cover only offensive modes of expression? The most obvious ways—indeed, perhaps the only conceivable ways—in which a trademark can be expressed in a shocking or offensive manner are when the speaker employs obscenity, vulgarity, or profanity.
Hm, when I think of some of the greatest scandals in history, any obscene, vulgar, or profane moments are usually the least notable things about why they're scandals.
Sonia Sotomayor wrote:
As for what constitutes “scandalous” vulgarity or profanity, I do not offer a list, but I do interpret the term to allow the PTO to restrict (and potentially promulgate guidance to clarify) the small group of lewd words or “swear” words that cause a visceral reaction, that are not commonly used around children, and that are prohibited in comparable settings.
Et tu, Sotomayor?
Sonia Sotomayor wrote:
Adopting a narrow construction for the word “scandalous”—interpreting it to regulate only obscenity, vulgarity, and profanity—would save it from unconstitutionality. Properly narrowed, “scandalous” is a viewpoint-neutral form of content discrimination that is permissible in the kind of discretionary governmental program or limited forum typified by the trademark-registration system.
This is the crux of her argument, and at least it doesn't have some of the howlers like Alito, Roberts, and Breyer had. But I've long rejected a distinction between viewpoint and content with the Free Speech Clause, as I inherently see variances in content influencing the viewpoint of the speech.
TL;DR: there should be no obscenity/vulgarity/profanity exception to the First Amendment, and it's depressing to see so many justices of varying ideologies still hung up over this despite SCOTUS generally being quite good with the Free Speech Clause in recent decades.
Was that Roberts bit you quoted a reference to an older opinion? Is he repeating himself or biting someone else's writing? Because that felt very, very familiar. Specifically this portion
Quote:
No speech is being restricted; no one is being punished. The owners of such marks are merely denied certain additional benefits associated with federal trademark registration.
_________________ "I want to see the whole picture--as nearly as I can. I don't want to put on the blinders of 'good and bad,' and limit my vision."-- In Dubious Battle
Never mind, I should have just looked it up myself originally. It's similar to the holding from the case you referenced multiple times lol, Matal v. Tam
_________________ "I want to see the whole picture--as nearly as I can. I don't want to put on the blinders of 'good and bad,' and limit my vision."-- In Dubious Battle
Joined: Wed December 12, 2012 10:33 pm Posts: 6932
4/5 wrote:
Was that Roberts bit you quoted a reference to an older opinion? Is he repeating himself or biting someone else's writing? Because that felt very, very familiar. Specifically this portion
Quote:
No speech is being restricted; no one is being punished. The owners of such marks are merely denied certain additional benefits associated with federal trademark registration.
Never mind, I should have just looked it up myself originally. It's similar to the holding from the case you referenced multiple times lol, Matal v. Tam
If one wants to make an argument that trademark protection falls under either government speech or commercial speech, I could see more logic in that argument, even though I wouldn't agree with it. But the hangup on obscenity doesn't even have that logic.
Joined: Tue January 01, 2013 7:41 am Posts: 19719 Location: Cumberland, RI
Green Habit wrote:
bune wrote:
Is he ok?
He's repeatedly calling the bat signal for litigants to raise these issues in the future when the votes might be there to agree with his opinions.
This got me wonderin' and I did some researchin' (locally, at least), to see if my state had an establishment clause of some sort. It really, really seems like Rhode Island doesn't, and that--if Thomas had his way--the state could declare an official religion with the way the state constitution is currently written.
Quote:
Section 3. Freedom of religion.
Whereas Almighty God hath created the mind free; and all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend to beget habits of hypocrisy and meanness; and whereas a principal object of our venerable ancestors, in their migration to this country and their settlement of this state, was, as they expressed it, to hold forth a lively experiment that a flourishing civil state may stand and be best maintained with full liberty in religious concernments; we, therefore, declare that no person shall be compelled to frequent or to support any religious worship, place, or ministry whatever, except in fulfillment of such person’s voluntary contract; nor enforced, restrained, molested, or burdened in body or goods; nor disqualified from holding any office; nor otherwise suffer on account of such person’s religious belief; and that every person shall be free to worship God according to the dictates of such person’s conscience, and to profess and by argument to maintain such person’s opinion in matters of religion; and that the same shall in no wise diminish, enlarge, or affect the civil capacity of any person.
Others may be able to parse this better than I can, but it sure seems like this section guarantees free exercise, prohibits forced worship, and forbids discrimination based on religious belief, but stops short of an establishment clause. Does that sound right? I imagine many states have similar wording in there.
He's repeatedly calling the bat signal for litigants to raise these issues in the future when the votes might be there to agree with his opinions.
This got me wonderin' and I did some researchin' (locally, at least), to see if my state had an establishment clause of some sort. It really, really seems like Rhode Island doesn't, and that--if Thomas had his way--the state could declare an official religion with the way the state constitution is currently written.
Quote:
Section 3. Freedom of religion.
Whereas Almighty God hath created the mind free; and all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend to beget habits of hypocrisy and meanness; and whereas a principal object of our venerable ancestors, in their migration to this country and their settlement of this state, was, as they expressed it, to hold forth a lively experiment that a flourishing civil state may stand and be best maintained with full liberty in religious concernments; we, therefore, declare that no person shall be compelled to frequent or to support any religious worship, place, or ministry whatever, except in fulfillment of such person’s voluntary contract; nor enforced, restrained, molested, or burdened in body or goods; nor disqualified from holding any office; nor otherwise suffer on account of such person’s religious belief; and that every person shall be free to worship God according to the dictates of such person’s conscience, and to profess and by argument to maintain such person’s opinion in matters of religion; and that the same shall in no wise diminish, enlarge, or affect the civil capacity of any person.
Others may be able to parse this better than I can, but it sure seems like this section guarantees free exercise, prohibits forced worship, and forbids discrimination based on religious belief, but stops short of an establishment clause. Does that sound right? I imagine many states have similar wording in there.
I would trust GH and others over myself, but I think a prohibition against being "compelled to frequent or to support any religious worship" does essentially provide an establishment clause.
The 1st Amendment's establishment clause is interpreted to prevent Congress from promoting or inhibiting a religion, or religion/faith more broadly. Rhode Island's government apparently can't force you to attend to attend a service, nor support one. I read "support" as a reference to taxation, so I interpret that as saying that your tax dollars can't be used to fund a religious group. It also says you can't be punished for not frequenting or supporting a religious service, so it would appear the state would lack an enforcement mechanism even if they were to do something like pass a resolution affirming that Rhode Island is governed by Christian principles.
_________________ "I want to see the whole picture--as nearly as I can. I don't want to put on the blinders of 'good and bad,' and limit my vision."-- In Dubious Battle
Joined: Tue January 01, 2013 7:41 am Posts: 19719 Location: Cumberland, RI
I think I read it the same way: no compelled worship, no tax dollars, etc. But I wonder if there's a loophole wherein (not RI specifically, although it is low-key a very religious state) a state could declare a "state religion" the same they declare a state bird, a state sandwich, etc. If the church wouldn't receive any direct material benefit, would that maybe pass muster?
I think I read it the same way: no compelled worship, no tax dollars, etc. But I wonder if there's a loophole wherein (not RI specifically, although it is low-key a very religious state) a state could declare a "state religion" the same they declare a state bird, a state sandwich, etc. If the church wouldn't receive any direct material benefit, would that maybe pass muster?
From a historical standpoint, RI was one of the few states that never had an official religion. They were one of, if not the most, religiously free colonies/states; this would probably make it more difficult for them to justify enacting some sort of policy like that now. Every state that had an official religion at one point in time ended the policy long before the establishment clause was incorporated. It was some time in the early to mid-1800s I believe. This might be where Clarence Thomas might actually kind of have a point: he has defended his establishment clause views by basically saying he believes in the people, IE, just because they technically can establish an official religion doesn't mean that they will.
Ultimately, if the establishment clause wasn't binding on a state, that decision would come down to that state's Supreme Court, and depending on what outcome they preferred they could probably read that section either way.
_________________ "I want to see the whole picture--as nearly as I can. I don't want to put on the blinders of 'good and bad,' and limit my vision."-- In Dubious Battle
Joined: Wed December 12, 2012 10:33 pm Posts: 6932
Simple Torture wrote:
I think I read it the same way: no compelled worship, no tax dollars, etc. But I wonder if there's a loophole wherein (not RI specifically, although it is low-key a very religious state) a state could declare a "state religion" the same they declare a state bird, a state sandwich, etc. If the church wouldn't receive any direct material benefit, would that maybe pass muster?
If I were on SCOTUS and this case came in front of me, I'd vote to strike it down as a Religion Clause violation. But such a declaration by itself is so meaningless that I could see this incarnation of SCOTUS let it be, especially if it's a declaration that's been on the books for a long time. This SCOTUS would likely let it slide easier if such a declaration was to a vague non-denominational mention of God. You see that mention in a lot of state constitutions, not just RI, and then of course there's In God We Trust on the money. I think all of that should be unconstitutional, but I doubt the votes for that are going to come any time soon.
Users browsing this forum: No registered users and 20 guests
You cannot post new topics in this forum You cannot reply to topics in this forum You cannot edit your posts in this forum You cannot delete your posts in this forum
