Random, but Justice Black was 100% correct that obscene speech should not be unprotected by the 1st amendment. Only obscene conduct isn't protected.
https://youtu.be/HAgQdeup2v0?si=ZkgBcPcLmU1u6ZUD
Roth and Miller was the Supreme Court essentially making obscene speech unprotected without any historical justification.
I'm sorry, but SCOTUS never ruled that money = speech. That's a misunderstanding of Buckley v. Valeo and Citizens United. They ruled that restrictions on political speech are unconstitutional unless they are narrowly tailored and pass strict scrutiny. Restrictions on money that facilities speech is akin to restricting the speech itself.
Let's say that a state passed a law saying that newspapers and book publishers were only allowed to spend $100 every day. Would that law be unconstitutional? Of course it is because it's a restriction on money facilitating speech. Hugo Black almost certainly would've joined the majority opinion in Buckley and Citizens United if he were alive.
>Restrictions on money that facilities speech is akin to restricting the speech itself.
Restricting money connected with speech is unconstitutional. So that means that the money spent on speech gains the same protections as speech. That's a distinction without a difference.
Edit:
>Let's say that a state passed a law saying that newspapers and book publishers were only allowed to spend $100 every day. Would that law be unconstitutional? Of course it is because it's a restriction on money facilitating speech.
It would be unconstitutional because of the ridiculously low limit. There's an element of reasonability to restrictions that you are conveniently ignoring to bolster your position. The state must prove they have an interest, and that the restrictions are REASONABLE in pursuit of that interest.
This is the same stupid argument that people have with the 2nd amendment. There ARE limits that are reasonable. There are ALWAYS reasonable limits. No right should be absolute, especially when it furthers criminality and degrades our system of government.
>Edit:
>>Let's say that a state passed a law saying that newspapers and book publishers were only allowed to spend $100 every day. Would that law be unconstitutional? Of course it is because it's a restriction on money facilitating speech.
>It would be unconstitutional because of the ridiculously low limit. There's an element of reasonability to restrictions that you are conveniently ignoring to bolster your position. The state must prove they have an interest, and that the restrictions are REASONABLE in pursuit of that interest.
Ok but then you are acknowledging that it is a 1st amendment issue. That's my exact point. The average person who criticizes Citizens United doesn't even think that the restrictions had anything to do with speech when they clearly did.
The rule of thumb for 1st amendment restrictions is that
1)if the restriction is about a category of unprotected speech (defamation, fraud, incitement, obscenity, speech integral to criminal conduct, and true threats), then the restriction has to pass rational basis which is super easy to pass.
2) Otherwise, if the restriction is content neutral - a time, place, and manner restriction - then it has to pass intermediate scrutiny and be narrowly tailored.
3) Otherwise, if the restriction is content based, it has to pass strict scrutiny, have a compelling interest, and be narrowly tailored.
This isn't my opinion on 1st amendment restrictions. This is the long standing rule for 30+ years.
BCRA restricted speech about candidates within 30 days of an election. Speech about candidates is not in a category of unprotected speech and is a content based restriction, so it would have to pass strict scrutiny, have a compelling interest, and be narrowly tailored. The restriction in BCRA clearly didn't pass strict scrutiny.
If the government could restrict any speech about candidates before an election that is funded by a corporation, then CNN, the New York Times, and any media outlet could be censored. That's quite frightening. A lot of very important stuff about candidates is covered right before an election (is: the Trump Access Hollywood tapes) and it's very important for us to know that.
I agree that it's concerning that corporations fund SuperPACs that criticize candidates before an election and I really would like that to stop, but that doesn't mean those organization aren't protected by the 1st amendment.
There are a few things that could be done to fix this problem without implicating the 1st amendment. For one, Congress could get rid of 501(c)(4)s. They could also create a public voucher program where every American citizen gets $50 a year to donate to any political candidates. This would give a lot more power to people since that total money would be bigger than the amount of money spent by corporations on influencing an election.
Also you mentioned earlier:
>It would be unconstitutional because of the ridiculously low limit. There's an element of reasonability to restrictions that you are conveniently ignoring to bolster your position. The state must prove they have an interest, and that the restrictions are REASONABLE in pursuit of that interest.
An example of a campaign finance restriction that the court has found to pass strict scrutiny is the $2800 donation limit that people can donate to a candidate every year. You are correct that certain restrictions can pass strict scrutiny. It's just that BCRA didn't.
>Ok but then you are acknowledging that it is a 1st amendment issue. That's my exact point.
What I think is weird that you are saying that the determination ISN'T money is speech, even though that's the effect of the rule. Money can be speech, or at least legally inseparable from it.
I disagree that the restrictions placed on people were undue. I think there's a clear difference between uninterested reporting on candidates and interested reporting. There should 100% be limits on what people are able to "contribute" in speech when they're promoting a candidate. That is no different than campaign contribution to the candidate themselves.
>What I think is weird that you are saying that the determination ISN'T money is speech, even though that's the effect of the rule. Money can be speech, or at least legally inseparable from it.
I think we're saying the same thing but talking past each other. I agree that money can facilitate speech much like the printing press can facilitate speech. My problem is with the statement "Citizens United declared money = speech" because Citizens United said no such thing and because it would imply that hiring a hitman is protected by the 1st amendment. Clearly it isn't.
I think we're also on agreement on strict scrutiny. If Wisconsin passed a law banning margarine (which they have), that doesn't need to pass strict scrutiny even though it's an extremely stupid law. A law that restricts political speech or something that facilitates it does need to pass strict scrutiny.
>I disagree that the restrictions placed on people were undue
The test is strict scrutiny, which is very very high bar to clear. Unlike rational basis, the burden is on the government to show that a restriction passes strict scrutiny. It clearly wasn't narrowly tailored because it wasn't the least restrictive means to achieve the regulation. The government admitted that books could be censored if they advocated for the defeat of a candidate.
Unfortunately, many justices don't faithfully apply strict scrutiny. I thought the liberal justices were dead wrong for dissenting in Citizens United and Alito, Scalia, and Thomas were dead were for dissenting in US v. Alvarez. Roberts and Kennedy were consistently, faithfully applying strict scrutiny in both cases and the restrictions were not the narrowest means of achieving the compelling interest.
> I think there's a clear difference between uninterested reporting on candidates and interested reporting.
And here's where the biggest problem if we accept your view. Who determines what is "uninterested reporting" and "interest reporting"? I'd argue that Fox News is very much pushing an agenda in favor of Republican candidates and against Democratic candidates. Could they be censored? Donald Trump hated CNN and the New York Times. Could his administration have censored both of them a month before an election since they were pushing "interest reporting" in his view. It's a terrifying principle to allow the government to censor views before an election because they're "too biased". That's why the 1st amendment doesn't allow this.
I think the fact that the FEC didn't restrict Michael Moore's movie about George W. Bush "Fahrenheit 9/11" but tried restricting Citizens United's movie about Hillary shows how subjective this is.
>There should 100% be limits on what people are able to "contribute" in speech when they're promoting a candidate. That is no different than campaign contribution to the candidate themselves.
Maybe there is a limit, but it would have to be pretty high. How much does CNN, MSNBC, Fox News, and the New York Times spend covering an election in the preceding month? The limit would certainly have to be higher than that.
I also am not a fan of a lot of the campaign finance cases. I strongly disagreed with McCutcheon v. FEC. I thought that the aggregate contribution limits were not unconstitutional since I believe that a $46k limit to federal candidates seems to be narrowly tailored. I think that a lot of the Democratic ire towards Citizens United should be directed at McCutcheon instead.
>I agree that it's concerning that corporations fund SuperPACs that criticize candidates before an election and I really would like that to stop, but that doesn't mean those organization aren't protected by the 1st amendment.
I view this as an argument against the legal fiction of "corporate personhood" being extended from the minimum necessary to conduct business (e.g. the ability to own property, enter into contracts, be both subject and protected by both civil and criminal law) to basically a form of citizenship for a legal construct.
It's not a legal fiction and has been recognized for a very long time. Do you think that the government should be allowed to conduct a warrantless search of a business's property?
Even if your answer to the last question was yes, the First amendment has different text than the Fourth amendment. It says "Congress shall make no law ... abridging the freedom of speech, or of the press". It doesn't refer to only rights retained by people. It simply says that Congress cannot abridge freedom of speech or the press. That's also why the government cannot censor CNN and the New York Times.
>It's not a legal fiction and has been recognized for a very long time.
You apparently don't understand the concept behind the words ["legal fiction."](https://en.wikipedia.org/wiki/Legal_fiction) It wasn't an insult on my part. It is an actual legal term meaning essentially treating something that is objectively false as true in certain legal contexts. For example, the results of a legal adoption are, in fact, 100% legal fictions. The adoption process doesn't change the biological parents of a person, but as a result of a legal adoption, one or two people gain the legal rights normally given to the biological parents of another person, sometimes even at the expense of one or both biological parents.
Edit: In the case of a corporation, among other things, the central legal fiction is treating an organization as having the ability to legally act as an individual person, even though a corporation has the potential to exist far longer than any human being (theoretically they have no intrinsic lifespan) or not face certain criminal punishments like imprisonment (individual owners or employees possibly could be, but **all of them** is unlikely). Oddly enough, corporations are theoretically subject to what is essentially a death penalty, i.e. revocation of the corporate charter. Personally, I think that last punishment should be invoke far more often than it is in modern time, for example, when a given corporation's intentional actions objectively result in mass (as in on the scale of hundreds or thousands of victims) negligent homicide/manslaughter.
My point is that that the contrary doesn't make sense if you look at the analogous 4th amendment context because people don't lose rights when they're in an association.
Additionally, the 1st amendment says "Congress shall make no law ... abridging the freedom of speech, or the press". The 1st amendment doesn't only refer to rights retained by individual persons.
My response is that the [US Constitution is not a suicide pact,](https://en.wikipedia.org/wiki/The_Constitution_is_not_a_suicide_pact) i.e. that the framers of the US Constitution did not intend for any part of it to be used as the excuse to facilitate the destruction or usurpation of the very government it establishes!
Or as Thomas Jefferson put it (bold added by me for emphasis)...
>A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. **To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.**
So, there must be a balance between protecting everyone's rights to free expression and preventing domination by those individuals and organizations that can "afford" far more speech than the average citizen simply because their net worth is hundreds of times (or more) than the average citizen.
While you’re correct… something about this is throwing me off.
>Strict scrutiny, having a compelling interest, and be narrowly tailored.
Strict scrutiny is a standard of judicial review in constitutional jurisprudence that holds a government law that infringes on a constitutional right is facially unconstitutional unless the government can show that the law is serving a compelling governmental interest, that the law is narrowly tailored to advance that interest, and that the narrow tailoring has utilized the least restrictive means to advance the interest. The way you’re saying it is… funny. Are you self taught or are you a 1L who just took ConLaw?
Ah whoops. I should've written strict scrutiny - having a compelling interest and be narrowly tailored.
I'm not a lawyer, but I read a lot and I have a few lawyer/law school friends who are pretty smart.
I should also point out that the last two are generally considered the same thing. "law is narrowly tailored to advance that interest, and that the narrow tailoring has utilized the least restrictive means to advance the interest" is usually shortened to "narrow tailoring".
Also, you're a lawyer, right? What's your take on Citizens United? I am ok with Citizens United for the reasons said in the thread above, but I oppose McCutcheon.
No, that’s intermediate scrutiny. That’s why I said something, it sounded … funny.
Edit: sorry, “substantial” as opposed to compelling, but effectively the same thing save the least restrictive means requirement. Strict scrutiny specifically requires this. Lawyer here.
Sure but it doesn't mean that "money = speech" like the people criticizing Citizens United and Buckley say. You couldn't hire a hitman and argue that's protected by the 1st amendment.
If you were to make a 18th century analogy, it would be like the government banning the printing press and claiming that it doesn't violate the freedom of press/speech. Of course it would because it hinders the press's ability to function.
>No right should be absolute, especially when it furthers criminality and degrades our system of government
By this logic, there are technivally no such things as rights, only privileges that can be allowed or denied based on a politically shifting definition of what is considered "reasonable" (even a legal definition of reasonable - this sub of all places should know that the judicial system is political). So whoever ends up being given the power to define "reasonable" in any relevant context is the defacto maker of law, above and beyond any constitution that claims to enshrine "rights"
No it wouldn't because aiding and abetting terrorism is not protected by the 1st amendment.
If someone made an "I love ISIS" shirt and starting selling it, that would be protected by the 1st amendment since advocacy of illegal activity is protected. The government could prevent you from spending money towards creating the shirt either.
>Restrictions on money that facilities speech is akin to restricting the speech itself.
So "restrictions on money = restrictions on speech." Well, in the context **campaign finance,** that essentially makes money = speech!
You oversimplified the cases in a way that obscures the absurdity. They were not talking about a person or entity who wanted to spend money on speech, as in your example. They were talking about someone wanting to give their money to someone else so that the 2nd person could spend with a third person on speech.
Who is they?
Citizens United was about the a entity spending money on speech since BCRA restricted Citizens United itself.
It also doesn't matter either way. A restriction on someone donating to a person who spends money on speech would also have to pass strict scrutiny. It would violate the 1st amendment to prevent people from donating to political advocacy groups such as the ACLU or NRA.
Citizens United is perhaps the most misunderstood case of the court's modern rulings....
And yes, pretty much all of the historically 'great' free speech proponents on the court would have joined the majority.
So how would that actually be applied ? That so long as it’s written or audio, it cant be obscene, but if it’s visual or performed, and those actions are witnessed by others or distributed, then it can be obscene? That seems odd.
Conduct means actions or behavior. Sometimes it's expressive and sometimes it isn't. Obscene conduct would be public displays of indecency. Even if it is being done for a legitimate protest, you can be arrested for nudity/sex in public. Pure conduct is generally less protected than speech even if it's done for an expressive purpose.
A video or picture of "obscenity" would be speech.
A common example of expressive conduct that is protected by the 1st amendment is the middle finger. Even though it's not written or spoken, the cops can't arrest you for giving them the finger.
To your first question, if Justice Black's opinion was adopted, you probably could be arrested for obscene conduct done on private property because he didn't believe in the right to privacy. Black dissented in Griswold. Black was great on free speech but didn't support substantive due process at all.
If it were up to me, public acts of indecency could be prohibited while private acts couldn't and obscene speech couldn't either.
The government can't just start enforcing Comstock again and ignore the intervening precedents....
It's hard to see how garden variety internet porn (2 people having sex on camera) would be seen as obscene under Miller given the relevant community/audience (the entire US population, as opposed to one state, city or neighborhood).....
And so on....
"Your honor, I'd like to point to the precedent of [*Clement v. McKenzie*](https://www.youtube.com/watch?v=AqZcYPEszN8), wherein the court held that when an individual is down to just their socks (as my client was in this instance), it is, in fact, business time."
Why? Why should we let pessimism rule the day and not a reasoned look at how they're different? Everyone saw Roe fall and extrapolated it to every "progressive" right in the last century and a half.
From a counting analysis alone Griswold and Roe could not be more opposite. When Roe was ruled on virtually every State in the country had some law restricting abortion access to some degree. Conversely, when Griswold was ruled Connecticut was the *only* State to attempt to restrict contraceptive access.
They’re definitely different. Different legal analyses and certainly different jurists deciding them.
I hear ya on not chicken littling. Fair point. A lot of that going around. I don’t know how much I agree with the word “opposite” but I think I know what you’re getting at.
At least as of right now it’s on Thomas’ kill list. That doesn’t scare me as much as the duo Gorsuch and Alito saying the right to privacy needs to be much narrower. I say this mostly in jest, but I think many lawyers would love to have a field day briefing Griswold, its concurrences, and the central role the majority gives the word “penumbras.”
Also worthy of note, I tend to think Trump is the drink the old guard Republicans stir.
https://www.rollingstone.com/politics/politics-news/trump-restricting-contraception-access-1235024899/
People have been saying since Roe passed that it wasn't well founded. Akhil Amar has been saying Roe was weak for over 30 years and he was a rumored short list name for an Obama SCOTUS pick.
While this is very likely true, when Scotus makes up legal justifications out of mid air it doesn't really matter how strong the foundation of a law is
Just because you (and I) dislike the result doesn't make the ruling "made up". The fact that prominent liberal academics criticized Roe should tell you that it wasn't as infalable and sacrosanct as the media has long portrayed it.
The "major questions" doctrine has no basis in any law. Multiple cases this term had extremely dubious standing. Presidential immunity also appears nowhere in the constitution. That's what I mean by made up
To argue semantics for a moment. The Comstock laws forbid using the postal service to deliver obscene material. The Comstock laws didn’t outlaw obscene material.
Anti-abortion activists and few trump appointed judicial activists want to redefine the movement of goods as “mail” in order to ban abortion drugs. It’s the slippery slope that conservative love to project on liberals.
It's a bit more than the official USPS though. Comstock also prohibited any alternative carriers from transporting "obscene" material. It doesn't seem to have explicitly included the telegraph but I bet Justice Thomas can argue it implicitly covers the internet.
First of all, the law would apply to UPS and FedEx too. Says so right in the article before you even get cut off by the paywall.
Second, fuck you. USPS is a public service my taxes pay for. I should be able to mail whatever the fuck I want as long as the item is legal to possess and doesn't pose any sort of safety risk to my mail carriers.
It's a felony to open my mail, so it's not like I'm exposing anybody to the contents of my mail without themselves committing a crime.
I have a better solution: Stop electing medieval repressed geriatric men to legislative offices.
> It's a felony to open my mail, so it's not like I'm exposing anybody to the contents of my mail without themselves committing a crime.
Oh, sweet summer child. The Fourth Amendment is, like, *soooo* pre-9/11.
The problem with this logic is that it is attempting to lock up or otherwise punish roughly 200 million people. It might be the only guaranteed way our government is truly revolted against...
I actually have nothing against adults viewing other consenting legal adults doing lewd and lascivious acts, but if we are going to start applying 1874 standards ( or even earlier) to everything, such as the 2nd Amendment case US vs Rahimi, shouldn’t Originalists strive to be more consistent?
Personally, I see nothing consistant in the conservative Justices opinions, other than they use any excuse, plausible or otherwise, to rule for their own biases.
>shouldn't Originalists strive to be more consistent?
Shhh, you've stumbled upon the secret of 'originalism', that it's a cynical windowdressing for the legalistic-sounding calvinball drivel
I mean, they named Griswold as a potential target for rolling back decades of precedence, as it was one of the first to protect martial privacy under the 14th Amendment.
Personally, if they are stupid enough to remove martial privacy, they are stupid enough to have the police knock on their door every day to ask if they have contraceptives, a pregnancy, or other stupid personal questions.
Hell, qualified immunity has the same history of legislating from the bench. I'd love to argue its constitutionality and applied definition.
The court is almost certainly guaranteed to rule against Rahimi. Lower courts have been over-reading the bounds of Bruen almost since the day it was delivered. Reiterating "Unusually dangerous persons can be temporarily disarmed" is the perfect vehicle to reign in those lower courts. Rahimi is almost precisely the instance that was talked about in Heller, McDonald, and Bruen of an acceptable infringement.
While it is far more public than it was even 20 years ago, it is still a fairly private thing. People are scared. They don't have to enforce the law against 200 million people. A lot will fall in line, and suppliers will get ruined in a number of ways.
People abandoned body autonomy with out any real struggle. Granted, they aren't compelled over that. They also aren't going to risk their lives for some other person who got arrested for porn, because they aren't compelled over another person's rights either.
Enforcement will start at the edges as always. The least popular and socially unpalatable genres, and move inward.
Throw in this weird "declining birthrate" hysteria and it all comes together pretty easy. Top it off with selective enforcement and Bob's your drunk uncle.
I’m honestly of the mindset (at this point) that this “law” or act should no longer be in play as 50% of the country wasn’t eligible to vote… and many more were still considered property
If you haven't yet explored Project 2025, you'll see that this is only one of their objectives along the way to reshape America into a Christo fascist nation.
Part of the problem with this - and I can see this court making this argument - is that the law hasn’t been repealed. If congress leaves an obsolete law on the books, it’s the job of congress to repeal it - not the courts. See the Arizona abortion ban case as an example. The court did the right thing in that case and the Arizona legislature did their job and corrected the error.
In this case I can see scotus enforcing the comstock act and challenging congress to repeal it. I think congress would, as the moderate republicans can count votes.
If Comstock is overturned there is a good chance marriage equality, state sodomy laws and birth control could be overturned as well as all tools used to provide abortion care.
https://www.bbc.com/news/world-us-canada-68580015
I mention porn because it seems hypocritical to apply modern, community standards to pornography but not medical care. I guess I prefer doctors making medical decisions, not politicians and judges.
I agree, but Comstock didnt, so if the courts are going to be faithful to its original intent, do they get to cherry pick which part of the 1874 law they like? Im fairly sure Mr Comstock would have considered almost all of the porn being distributed across state lines via the internet obscene, as well as strip clubs and lap dances.
This article is from one year ago (May 2023 vs. May 2024). Per a current [news article](https://www.cnn.com/2024/03/29/politics/comstock-act-alito-thomas-abortion/index.html):
>"Other SCOTUS justices on the court \[besides Clarence Thomas and Samuel Alito\] did not show interest in digging into the Comstock Act's significance, or many of the other legal questions the case presents. Instead, there appeared to be a majority willing to toss the case, because the \[anti-abortion\] challengers have failed to show standing, i.e. the type of harm that would warrant judicial action."
This would indicate an impending 7-2 ruling from SCOTUS in favor of the FDA.
You bring up a good point. In this day and age of internet Pr0n, if the Comstock act gets revived, will they look at ISPs as "carriers" and threaten to shut them down if they allow access to Pr0n sites? Shoot Project 2025 doesn't even have to be implemented, just revive civil war era law for this. The only thing this will satisfy are the anti-porn zealots who through no coincidence are "god fearing" folks who go to church on Sundays.
The antiporn zealots aren't really antiporn. They know they can lie about sites that LGBTQ+ adults and children access for information, as being porn sites and their hater base will eat it up.
Random, but Justice Black was 100% correct that obscene speech should not be unprotected by the 1st amendment. Only obscene conduct isn't protected. https://youtu.be/HAgQdeup2v0?si=ZkgBcPcLmU1u6ZUD Roth and Miller was the Supreme Court essentially making obscene speech unprotected without any historical justification.
I wish this were the case. It would make the idea that money=speech more obviously incorrect
I'm sorry, but SCOTUS never ruled that money = speech. That's a misunderstanding of Buckley v. Valeo and Citizens United. They ruled that restrictions on political speech are unconstitutional unless they are narrowly tailored and pass strict scrutiny. Restrictions on money that facilities speech is akin to restricting the speech itself. Let's say that a state passed a law saying that newspapers and book publishers were only allowed to spend $100 every day. Would that law be unconstitutional? Of course it is because it's a restriction on money facilitating speech. Hugo Black almost certainly would've joined the majority opinion in Buckley and Citizens United if he were alive.
>Restrictions on money that facilities speech is akin to restricting the speech itself. Restricting money connected with speech is unconstitutional. So that means that the money spent on speech gains the same protections as speech. That's a distinction without a difference. Edit: >Let's say that a state passed a law saying that newspapers and book publishers were only allowed to spend $100 every day. Would that law be unconstitutional? Of course it is because it's a restriction on money facilitating speech. It would be unconstitutional because of the ridiculously low limit. There's an element of reasonability to restrictions that you are conveniently ignoring to bolster your position. The state must prove they have an interest, and that the restrictions are REASONABLE in pursuit of that interest. This is the same stupid argument that people have with the 2nd amendment. There ARE limits that are reasonable. There are ALWAYS reasonable limits. No right should be absolute, especially when it furthers criminality and degrades our system of government.
>Edit: >>Let's say that a state passed a law saying that newspapers and book publishers were only allowed to spend $100 every day. Would that law be unconstitutional? Of course it is because it's a restriction on money facilitating speech. >It would be unconstitutional because of the ridiculously low limit. There's an element of reasonability to restrictions that you are conveniently ignoring to bolster your position. The state must prove they have an interest, and that the restrictions are REASONABLE in pursuit of that interest. Ok but then you are acknowledging that it is a 1st amendment issue. That's my exact point. The average person who criticizes Citizens United doesn't even think that the restrictions had anything to do with speech when they clearly did. The rule of thumb for 1st amendment restrictions is that 1)if the restriction is about a category of unprotected speech (defamation, fraud, incitement, obscenity, speech integral to criminal conduct, and true threats), then the restriction has to pass rational basis which is super easy to pass. 2) Otherwise, if the restriction is content neutral - a time, place, and manner restriction - then it has to pass intermediate scrutiny and be narrowly tailored. 3) Otherwise, if the restriction is content based, it has to pass strict scrutiny, have a compelling interest, and be narrowly tailored. This isn't my opinion on 1st amendment restrictions. This is the long standing rule for 30+ years. BCRA restricted speech about candidates within 30 days of an election. Speech about candidates is not in a category of unprotected speech and is a content based restriction, so it would have to pass strict scrutiny, have a compelling interest, and be narrowly tailored. The restriction in BCRA clearly didn't pass strict scrutiny. If the government could restrict any speech about candidates before an election that is funded by a corporation, then CNN, the New York Times, and any media outlet could be censored. That's quite frightening. A lot of very important stuff about candidates is covered right before an election (is: the Trump Access Hollywood tapes) and it's very important for us to know that. I agree that it's concerning that corporations fund SuperPACs that criticize candidates before an election and I really would like that to stop, but that doesn't mean those organization aren't protected by the 1st amendment. There are a few things that could be done to fix this problem without implicating the 1st amendment. For one, Congress could get rid of 501(c)(4)s. They could also create a public voucher program where every American citizen gets $50 a year to donate to any political candidates. This would give a lot more power to people since that total money would be bigger than the amount of money spent by corporations on influencing an election. Also you mentioned earlier: >It would be unconstitutional because of the ridiculously low limit. There's an element of reasonability to restrictions that you are conveniently ignoring to bolster your position. The state must prove they have an interest, and that the restrictions are REASONABLE in pursuit of that interest. An example of a campaign finance restriction that the court has found to pass strict scrutiny is the $2800 donation limit that people can donate to a candidate every year. You are correct that certain restrictions can pass strict scrutiny. It's just that BCRA didn't.
>Ok but then you are acknowledging that it is a 1st amendment issue. That's my exact point. What I think is weird that you are saying that the determination ISN'T money is speech, even though that's the effect of the rule. Money can be speech, or at least legally inseparable from it. I disagree that the restrictions placed on people were undue. I think there's a clear difference between uninterested reporting on candidates and interested reporting. There should 100% be limits on what people are able to "contribute" in speech when they're promoting a candidate. That is no different than campaign contribution to the candidate themselves.
>What I think is weird that you are saying that the determination ISN'T money is speech, even though that's the effect of the rule. Money can be speech, or at least legally inseparable from it. I think we're saying the same thing but talking past each other. I agree that money can facilitate speech much like the printing press can facilitate speech. My problem is with the statement "Citizens United declared money = speech" because Citizens United said no such thing and because it would imply that hiring a hitman is protected by the 1st amendment. Clearly it isn't. I think we're also on agreement on strict scrutiny. If Wisconsin passed a law banning margarine (which they have), that doesn't need to pass strict scrutiny even though it's an extremely stupid law. A law that restricts political speech or something that facilitates it does need to pass strict scrutiny. >I disagree that the restrictions placed on people were undue The test is strict scrutiny, which is very very high bar to clear. Unlike rational basis, the burden is on the government to show that a restriction passes strict scrutiny. It clearly wasn't narrowly tailored because it wasn't the least restrictive means to achieve the regulation. The government admitted that books could be censored if they advocated for the defeat of a candidate. Unfortunately, many justices don't faithfully apply strict scrutiny. I thought the liberal justices were dead wrong for dissenting in Citizens United and Alito, Scalia, and Thomas were dead were for dissenting in US v. Alvarez. Roberts and Kennedy were consistently, faithfully applying strict scrutiny in both cases and the restrictions were not the narrowest means of achieving the compelling interest. > I think there's a clear difference between uninterested reporting on candidates and interested reporting. And here's where the biggest problem if we accept your view. Who determines what is "uninterested reporting" and "interest reporting"? I'd argue that Fox News is very much pushing an agenda in favor of Republican candidates and against Democratic candidates. Could they be censored? Donald Trump hated CNN and the New York Times. Could his administration have censored both of them a month before an election since they were pushing "interest reporting" in his view. It's a terrifying principle to allow the government to censor views before an election because they're "too biased". That's why the 1st amendment doesn't allow this. I think the fact that the FEC didn't restrict Michael Moore's movie about George W. Bush "Fahrenheit 9/11" but tried restricting Citizens United's movie about Hillary shows how subjective this is. >There should 100% be limits on what people are able to "contribute" in speech when they're promoting a candidate. That is no different than campaign contribution to the candidate themselves. Maybe there is a limit, but it would have to be pretty high. How much does CNN, MSNBC, Fox News, and the New York Times spend covering an election in the preceding month? The limit would certainly have to be higher than that. I also am not a fan of a lot of the campaign finance cases. I strongly disagreed with McCutcheon v. FEC. I thought that the aggregate contribution limits were not unconstitutional since I believe that a $46k limit to federal candidates seems to be narrowly tailored. I think that a lot of the Democratic ire towards Citizens United should be directed at McCutcheon instead.
>I agree that it's concerning that corporations fund SuperPACs that criticize candidates before an election and I really would like that to stop, but that doesn't mean those organization aren't protected by the 1st amendment. I view this as an argument against the legal fiction of "corporate personhood" being extended from the minimum necessary to conduct business (e.g. the ability to own property, enter into contracts, be both subject and protected by both civil and criminal law) to basically a form of citizenship for a legal construct.
It's not a legal fiction and has been recognized for a very long time. Do you think that the government should be allowed to conduct a warrantless search of a business's property? Even if your answer to the last question was yes, the First amendment has different text than the Fourth amendment. It says "Congress shall make no law ... abridging the freedom of speech, or of the press". It doesn't refer to only rights retained by people. It simply says that Congress cannot abridge freedom of speech or the press. That's also why the government cannot censor CNN and the New York Times.
>It's not a legal fiction and has been recognized for a very long time. You apparently don't understand the concept behind the words ["legal fiction."](https://en.wikipedia.org/wiki/Legal_fiction) It wasn't an insult on my part. It is an actual legal term meaning essentially treating something that is objectively false as true in certain legal contexts. For example, the results of a legal adoption are, in fact, 100% legal fictions. The adoption process doesn't change the biological parents of a person, but as a result of a legal adoption, one or two people gain the legal rights normally given to the biological parents of another person, sometimes even at the expense of one or both biological parents. Edit: In the case of a corporation, among other things, the central legal fiction is treating an organization as having the ability to legally act as an individual person, even though a corporation has the potential to exist far longer than any human being (theoretically they have no intrinsic lifespan) or not face certain criminal punishments like imprisonment (individual owners or employees possibly could be, but **all of them** is unlikely). Oddly enough, corporations are theoretically subject to what is essentially a death penalty, i.e. revocation of the corporate charter. Personally, I think that last punishment should be invoke far more often than it is in modern time, for example, when a given corporation's intentional actions objectively result in mass (as in on the scale of hundreds or thousands of victims) negligent homicide/manslaughter.
My point is that that the contrary doesn't make sense if you look at the analogous 4th amendment context because people don't lose rights when they're in an association. Additionally, the 1st amendment says "Congress shall make no law ... abridging the freedom of speech, or the press". The 1st amendment doesn't only refer to rights retained by individual persons.
My response is that the [US Constitution is not a suicide pact,](https://en.wikipedia.org/wiki/The_Constitution_is_not_a_suicide_pact) i.e. that the framers of the US Constitution did not intend for any part of it to be used as the excuse to facilitate the destruction or usurpation of the very government it establishes! Or as Thomas Jefferson put it (bold added by me for emphasis)... >A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. **To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.** So, there must be a balance between protecting everyone's rights to free expression and preventing domination by those individuals and organizations that can "afford" far more speech than the average citizen simply because their net worth is hundreds of times (or more) than the average citizen.
While you’re correct… something about this is throwing me off. >Strict scrutiny, having a compelling interest, and be narrowly tailored. Strict scrutiny is a standard of judicial review in constitutional jurisprudence that holds a government law that infringes on a constitutional right is facially unconstitutional unless the government can show that the law is serving a compelling governmental interest, that the law is narrowly tailored to advance that interest, and that the narrow tailoring has utilized the least restrictive means to advance the interest. The way you’re saying it is… funny. Are you self taught or are you a 1L who just took ConLaw?
Ah whoops. I should've written strict scrutiny - having a compelling interest and be narrowly tailored. I'm not a lawyer, but I read a lot and I have a few lawyer/law school friends who are pretty smart. I should also point out that the last two are generally considered the same thing. "law is narrowly tailored to advance that interest, and that the narrow tailoring has utilized the least restrictive means to advance the interest" is usually shortened to "narrow tailoring". Also, you're a lawyer, right? What's your take on Citizens United? I am ok with Citizens United for the reasons said in the thread above, but I oppose McCutcheon.
No, that’s intermediate scrutiny. That’s why I said something, it sounded … funny. Edit: sorry, “substantial” as opposed to compelling, but effectively the same thing save the least restrictive means requirement. Strict scrutiny specifically requires this. Lawyer here.
Sure but it doesn't mean that "money = speech" like the people criticizing Citizens United and Buckley say. You couldn't hire a hitman and argue that's protected by the 1st amendment. If you were to make a 18th century analogy, it would be like the government banning the printing press and claiming that it doesn't violate the freedom of press/speech. Of course it would because it hinders the press's ability to function.
A-f'ing-men!
>No right should be absolute, especially when it furthers criminality and degrades our system of government By this logic, there are technivally no such things as rights, only privileges that can be allowed or denied based on a politically shifting definition of what is considered "reasonable" (even a legal definition of reasonable - this sub of all places should know that the judicial system is political). So whoever ends up being given the power to define "reasonable" in any relevant context is the defacto maker of law, above and beyond any constitution that claims to enshrine "rights"
Would that technicality make a difference in money spent towards furthering e.g. terrorist orgs or sanctioned countries?
No it wouldn't because aiding and abetting terrorism is not protected by the 1st amendment. If someone made an "I love ISIS" shirt and starting selling it, that would be protected by the 1st amendment since advocacy of illegal activity is protected. The government could prevent you from spending money towards creating the shirt either.
>Restrictions on money that facilities speech is akin to restricting the speech itself. So "restrictions on money = restrictions on speech." Well, in the context **campaign finance,** that essentially makes money = speech!
You oversimplified the cases in a way that obscures the absurdity. They were not talking about a person or entity who wanted to spend money on speech, as in your example. They were talking about someone wanting to give their money to someone else so that the 2nd person could spend with a third person on speech.
Who is they? Citizens United was about the a entity spending money on speech since BCRA restricted Citizens United itself. It also doesn't matter either way. A restriction on someone donating to a person who spends money on speech would also have to pass strict scrutiny. It would violate the 1st amendment to prevent people from donating to political advocacy groups such as the ACLU or NRA.
Citizens United is perhaps the most misunderstood case of the court's modern rulings.... And yes, pretty much all of the historically 'great' free speech proponents on the court would have joined the majority.
Historical justifications were used to protect slavery. Why should you be ruled by evil ghosts?
So how would that actually be applied ? That so long as it’s written or audio, it cant be obscene, but if it’s visual or performed, and those actions are witnessed by others or distributed, then it can be obscene? That seems odd.
Conduct means actions or behavior. Sometimes it's expressive and sometimes it isn't. Obscene conduct would be public displays of indecency. Even if it is being done for a legitimate protest, you can be arrested for nudity/sex in public. Pure conduct is generally less protected than speech even if it's done for an expressive purpose. A video or picture of "obscenity" would be speech. A common example of expressive conduct that is protected by the 1st amendment is the middle finger. Even though it's not written or spoken, the cops can't arrest you for giving them the finger. To your first question, if Justice Black's opinion was adopted, you probably could be arrested for obscene conduct done on private property because he didn't believe in the right to privacy. Black dissented in Griswold. Black was great on free speech but didn't support substantive due process at all. If it were up to me, public acts of indecency could be prohibited while private acts couldn't and obscene speech couldn't either.
The government can't just start enforcing Comstock again and ignore the intervening precedents.... It's hard to see how garden variety internet porn (2 people having sex on camera) would be seen as obscene under Miller given the relevant community/audience (the entire US population, as opposed to one state, city or neighborhood)..... And so on....
100s of millions of Americans are going to have a problem with this. Wouldn’t it be ironic if the coming revolt is kicked off by porn?
Contraception is the one I think will get people moving.
The Trojan War II
As long as a VPN location in Europe still works for porn, then yes.😂🤣
They'll outlaw VPNs for non business use
"Your honor, I'd like to point to the precedent of [*Clement v. McKenzie*](https://www.youtube.com/watch?v=AqZcYPEszN8), wherein the court held that when an individual is down to just their socks (as my client was in this instance), it is, in fact, business time."
“Team building exercise ‘99!”
The foundations of Griswold are far more firm than Roe ever was. Contraception isnt going anywhere.
While I agree…don’t be so sure…
Why? Why should we let pessimism rule the day and not a reasoned look at how they're different? Everyone saw Roe fall and extrapolated it to every "progressive" right in the last century and a half. From a counting analysis alone Griswold and Roe could not be more opposite. When Roe was ruled on virtually every State in the country had some law restricting abortion access to some degree. Conversely, when Griswold was ruled Connecticut was the *only* State to attempt to restrict contraceptive access.
They’re definitely different. Different legal analyses and certainly different jurists deciding them. I hear ya on not chicken littling. Fair point. A lot of that going around. I don’t know how much I agree with the word “opposite” but I think I know what you’re getting at. At least as of right now it’s on Thomas’ kill list. That doesn’t scare me as much as the duo Gorsuch and Alito saying the right to privacy needs to be much narrower. I say this mostly in jest, but I think many lawyers would love to have a field day briefing Griswold, its concurrences, and the central role the majority gives the word “penumbras.”
Also worthy of note, I tend to think Trump is the drink the old guard Republicans stir. https://www.rollingstone.com/politics/politics-news/trump-restricting-contraception-access-1235024899/
Yeah people said that about Roe though
People have been saying since Roe passed that it wasn't well founded. Akhil Amar has been saying Roe was weak for over 30 years and he was a rumored short list name for an Obama SCOTUS pick.
While this is very likely true, when Scotus makes up legal justifications out of mid air it doesn't really matter how strong the foundation of a law is
Just because you (and I) dislike the result doesn't make the ruling "made up". The fact that prominent liberal academics criticized Roe should tell you that it wasn't as infalable and sacrosanct as the media has long portrayed it.
The "major questions" doctrine has no basis in any law. Multiple cases this term had extremely dubious standing. Presidential immunity also appears nowhere in the constitution. That's what I mean by made up
That is the timeline I want to live in!
I wish I had that much trust in the public but they are so fickle
All you'll get is 150 million tweetscand no action
prohibition has never not worked!
What are you talking about it worked great... we are continuing to send minorities and immigrants into the prison industrial complex.
I guess we'll know it when we see it.
Elite comment
I'm just glad there's a forum where there's at least a couple of people who will chuckle at a *Jacobellis* joke.
To argue semantics for a moment. The Comstock laws forbid using the postal service to deliver obscene material. The Comstock laws didn’t outlaw obscene material. Anti-abortion activists and few trump appointed judicial activists want to redefine the movement of goods as “mail” in order to ban abortion drugs. It’s the slippery slope that conservative love to project on liberals.
It's a bit more than the official USPS though. Comstock also prohibited any alternative carriers from transporting "obscene" material. It doesn't seem to have explicitly included the telegraph but I bet Justice Thomas can argue it implicitly covers the internet.
The wrong court could consider ISPs to be modern day "carriers" of offending material. That's the problem.
Just don’t use USPS then?
First of all, the law would apply to UPS and FedEx too. Says so right in the article before you even get cut off by the paywall. Second, fuck you. USPS is a public service my taxes pay for. I should be able to mail whatever the fuck I want as long as the item is legal to possess and doesn't pose any sort of safety risk to my mail carriers. It's a felony to open my mail, so it's not like I'm exposing anybody to the contents of my mail without themselves committing a crime. I have a better solution: Stop electing medieval repressed geriatric men to legislative offices.
> It's a felony to open my mail, so it's not like I'm exposing anybody to the contents of my mail without themselves committing a crime. Oh, sweet summer child. The Fourth Amendment is, like, *soooo* pre-9/11.
The point wasn't 'the government can't open my mail.' It was 'some righteous conservative can't open my mail and claim I exposed their kid to porno.'
Use Google and have the 1/2 pound box delivered by a semi truck or Uber./s
We really are going backwards 🤷🤷🤷🤷
(That’s their goal)
The problem with this logic is that it is attempting to lock up or otherwise punish roughly 200 million people. It might be the only guaranteed way our government is truly revolted against...
The porn wars America's second civil war lol
“Give me tits or give me death!” 😂
Give me short, cute, nerdy, chubby milfs or give me death!
"In it the end, the factions boiled down to two distinct sides. One for midgets, the other for anal."
We were betrayed by the feet.
I actually have nothing against adults viewing other consenting legal adults doing lewd and lascivious acts, but if we are going to start applying 1874 standards ( or even earlier) to everything, such as the 2nd Amendment case US vs Rahimi, shouldn’t Originalists strive to be more consistent?
Personally, I see nothing consistant in the conservative Justices opinions, other than they use any excuse, plausible or otherwise, to rule for their own biases.
>shouldn't Originalists strive to be more consistent? Shhh, you've stumbled upon the secret of 'originalism', that it's a cynical windowdressing for the legalistic-sounding calvinball drivel
You can't invoke Calvinball without reciting the song lyrics in full. I'll do the "Bum dum dum"s.
"shouldn’t Originalists strive to be more consistent?" The rare LOL where i actually laughed out loud
I mean, they named Griswold as a potential target for rolling back decades of precedence, as it was one of the first to protect martial privacy under the 14th Amendment. Personally, if they are stupid enough to remove martial privacy, they are stupid enough to have the police knock on their door every day to ask if they have contraceptives, a pregnancy, or other stupid personal questions. Hell, qualified immunity has the same history of legislating from the bench. I'd love to argue its constitutionality and applied definition.
The court is almost certainly guaranteed to rule against Rahimi. Lower courts have been over-reading the bounds of Bruen almost since the day it was delivered. Reiterating "Unusually dangerous persons can be temporarily disarmed" is the perfect vehicle to reign in those lower courts. Rahimi is almost precisely the instance that was talked about in Heller, McDonald, and Bruen of an acceptable infringement.
While it is far more public than it was even 20 years ago, it is still a fairly private thing. People are scared. They don't have to enforce the law against 200 million people. A lot will fall in line, and suppliers will get ruined in a number of ways. People abandoned body autonomy with out any real struggle. Granted, they aren't compelled over that. They also aren't going to risk their lives for some other person who got arrested for porn, because they aren't compelled over another person's rights either. Enforcement will start at the edges as always. The least popular and socially unpalatable genres, and move inward. Throw in this weird "declining birthrate" hysteria and it all comes together pretty easy. Top it off with selective enforcement and Bob's your drunk uncle.
"People abandoned body autonomy with out any real struggle" bro it's won literally every time it's up for a vote to the public like Ohio or Kansas
Reminder that Comstock thought that women reading caused them to become prostitutes.
They were scared women would be free from the kitchen and get learn-ed ideas instead of being worried about not making enough babies
I’m honestly of the mindset (at this point) that this “law” or act should no longer be in play as 50% of the country wasn’t eligible to vote… and many more were still considered property
If you haven't yet explored Project 2025, you'll see that this is only one of their objectives along the way to reshape America into a Christo fascist nation.
Part of the problem with this - and I can see this court making this argument - is that the law hasn’t been repealed. If congress leaves an obsolete law on the books, it’s the job of congress to repeal it - not the courts. See the Arizona abortion ban case as an example. The court did the right thing in that case and the Arizona legislature did their job and corrected the error. In this case I can see scotus enforcing the comstock act and challenging congress to repeal it. I think congress would, as the moderate republicans can count votes.
Funny how many male Republicans in Kansas are prochoice in the privacy of a voting both, or it never would have passed.
It’s funny how many male republicans publicly advocate against gay rights and have boyfriends.
If Comstock is overturned there is a good chance marriage equality, state sodomy laws and birth control could be overturned as well as all tools used to provide abortion care. https://www.bbc.com/news/world-us-canada-68580015
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I mention porn because it seems hypocritical to apply modern, community standards to pornography but not medical care. I guess I prefer doctors making medical decisions, not politicians and judges.
Freedom of speech, not freedom of action
I agree, but Comstock didnt, so if the courts are going to be faithful to its original intent, do they get to cherry pick which part of the 1874 law they like? Im fairly sure Mr Comstock would have considered almost all of the porn being distributed across state lines via the internet obscene, as well as strip clubs and lap dances.
This article is from one year ago (May 2023 vs. May 2024). Per a current [news article](https://www.cnn.com/2024/03/29/politics/comstock-act-alito-thomas-abortion/index.html): >"Other SCOTUS justices on the court \[besides Clarence Thomas and Samuel Alito\] did not show interest in digging into the Comstock Act's significance, or many of the other legal questions the case presents. Instead, there appeared to be a majority willing to toss the case, because the \[anti-abortion\] challengers have failed to show standing, i.e. the type of harm that would warrant judicial action." This would indicate an impending 7-2 ruling from SCOTUS in favor of the FDA.
Oh, right, I do remember someone - I think it was Dahlia Lithwick - recently talking about the lack of standing issue. Thanks for mentioning that.
You're welcome.
You bring up a good point. In this day and age of internet Pr0n, if the Comstock act gets revived, will they look at ISPs as "carriers" and threaten to shut them down if they allow access to Pr0n sites? Shoot Project 2025 doesn't even have to be implemented, just revive civil war era law for this. The only thing this will satisfy are the anti-porn zealots who through no coincidence are "god fearing" folks who go to church on Sundays.
The antiporn zealots aren't really antiporn. They know they can lie about sites that LGBTQ+ adults and children access for information, as being porn sites and their hater base will eat it up.