Re: OT - Judicial Activism
- From: Johnny <apterix@xxxxxxx>
- Date: Mon, 25 Jun 2007 19:29:11 -0700
David Goldberg wrote:
"theBZA" <dewey3kNOSPAM@xxxxxxxxx> wrote in message news:Xns995A75F0615A8dewey3kNOSPAMgmailco@xxxxxxxxxxxxxx
If this isn't Judicial Activism in its most naked form, I don't know
what is. The Radical Right on the SCOTUS has literally invented new
exclusions to the First Amendment out of thin air. Righties are probably
ecstatic. Why they think it's so damn great when the SCOTUS limits civil
rights and so damn evil when the SCOTUS expands civil rights is beyond
me. If they hate the Bill Of Rights so much they should move to Russia
where Vlady Putin is busy dismantling Russia's short-lived era of civil
You don't have the right to yell "Fire" in a crowded theater, and you don't have the right to promote illegal activities to children.
Goldberg, your statement that "You don't have the right to yell 'Fire' in a crowded theater" is a common misquote (and misunderstanding) of Justice Holmes' statement in Schenck v. United States, 249 U.S. 47 (1919) that "The most stringent protection of free speech would not protect a man in FALSELY shouting fire in a theater and causing a panic." (Emphasis added.)
The holding in Schenck established a "clear and present danger" standard in the opinion's most famous passage: "The question in every case is whether the words used are used in such circumstances and are of of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to protect."
The "clear and present danger" test was weakened to a less restrictive "bad tendency" test in Whitney v. California, 274 U.S. 357 (1927). But both the Schenck and Whitney tests were overruled in Brandenburg v. Ohio, 395 U.S. 444 (1969), holding that the government cannot constitutionally punish ABSTRACT advocacy of force or law violation (emphasis added) and that inflammatory speech cannot be punished unless it is directed to inciting and likely to incite imminent lawless action. The three distinct elements of the test established in Brandenburg (intent, imminence, and likelihood) is now controlling and has not been seriously challenged since it was laid down.
Moreover, the case in question in this thread, Morse v. Frederick (2007), was not decided under Brandenburg, but under various rulings dealing specifically and narrowly with school activities while ignoring Brandenburg:
And see, especially, the dissent in Morse which follows the spirit of Brandenburg even in school cases.
You got this part of your post right, Weaselberg: When it comes to Law, and Constitutional Law in particular, you have consistently demonstrated that you are the sorriest son of a bitch in this group. When are you going to learn not to dabble in the Law while I am monitoring this group to point out your ignorance?
The bottom line general issue here is really the eagerness of the reactionary majority of the current Supreme Court to avoid, ignore, and dissemble well-settled precedent in order to promote a political agenda. Conservatives like to decry the "social engineering" of "liberal" interpretations of the Constitution by "judicial activists" while advocating a conservative "strict construction" approach. But in fact the self-styled strict constructionists are judicial activists interpreting the Constitution for the purposes of social engineering no less than the liberal constructionists, they are just doing it in a manner that enhances state suppression of basic political liberties and empowers government to restrict fundamental personal freedoms rather than in a manner that expands those liberties and freedoms in the best interests of a self-governing People.
The most serious and longest lasting harm the Bush administration and it's servile Republican minions and gutless Democrat fellow travelers in the Congress have done to the Constitution and People is the appointment of reactionary federal judges, especially Justices of the Supreme Court, who enable and encourage the despotism that is the hallmark of the Bush years and of tyrannical plutocratic oligarchies in general.
It is now up to a new generation of Americans to re-fight the Civil Rights battles of the Social Revolution of the '60's whose gains in civil liberty, personal freedom, and legal equality are being squandered, betrayed, and surrendered by the tyrants who have taken over the Republican Party and by the morally bankrupt political cowards of the Democratic Party.
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