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2 hours ago, Gramarye said:

Thomas' position is the opposite, though.  As he explained in the concurrence he just authored, he specifically wants to de-constitutionalize defamation standards, returning that authority to states and to the preexisting common law of defamation.  It was the Sullivan Court that began the process of constitutionalizing those standards, reading them into the First Amendment and therefore beyond the reach of the states.

 

https://www.bloomberg.com/opinion/articles/2019-02-19/justice-thomas-contradicts-himself-in-attack-on-press-libel-law

 

Clarence Thomas Attacks the Press, Contradicting ... Clarence Thomas

 

Quote

Thomas’s foray won’t become the law in the immediate future. He wrote the solo opinion as the U.S. Supreme Court declined to review the case of one of Bill Cosby’s accusers, who sought to bring a defamation claim against the comedian and convicted sex offender. But it’s important as a sign of the times because it reflects distrust of the news media.

 

It is also a powerful reminder that the Supreme Court doesn’t and shouldn’t use originalism to address the freedom of speech — a reality that Thomas has reflected in his own non-originalist free-speech opinions.

 

Nothing in the original meaning of the First Amendment has changed in the 27 years since Thomas joined the court. The timing of his opinion reflects the current anti-journalistic, anti-media mood in conservative circles.

 

The thinking goes: If, in President Donald Trump’s terms, the media is “the enemy of the people,” why should the media get special constitutional protection when it libels public figures?

 

What’s most weird and worrisome about the jurisprudence in Thomas’s opinion is his insistence that “we should carefully examine the original meaning” of the First Amendment.

 

And Thomas himself has taken non-originalist First Amendment positions. The example I used last week to make the point in my class was Thomas’s 2015 radical pro-free speech decision in Reed v. Town of Gilbert. That decision, about sign ordinances, holds that any time a law regulates content, it must be subjected to the highest degree of judicial scrutiny and almost inevitably be struck down.

 

Thomas made no effort to reconcile his opinion Tuesday with the rest of his free-speech positions. But we need to keep in mind that an originalist First Amendment might be pretty similar to no First Amendment at all. Even Thomas has in the past acted as though the First Amendment was part of a living Constitution. The other justices shouldn’t let him kill it.

 


Very Stable Genius

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21 hours ago, 327 said:

"If the Constitution does not require public figures to satisfy an actual malice standard..." 

 

Of course it doesn't, not in so many words.  By framing it this way, he's putting a lot of burden on the First Amendment to spell itself out or be ignored.

 

Agreed.  And in other arenas, most notably Citizens United among recent cases (but that case was just the latest in a fairly robust line of free election-speech cases), constitutional conservatives have been strident in defending an expansive scope of the First Amendment even against popular opposition.  Notwithstanding Thomas channeling understandable conservative disdain for mainstream media outlets, a robust First Amendment protects more those who do not have powerful, institutionalized platforms in the media, entertainment, academia, and other public-facing institutions dominated by the left.  It's not as if there are not wealthy and litigious liberals who would make life a living hell for conservative media outlets (both traditional institutional media as well as activist media) in a more liability-prone defamation structure ... people who would attempt to make any politically incorrect observation actionable.

 

 

20 hours ago, X said:

It doesn't surprise me that conservatives would look upon this favorably.  With loose libel laws someone with enough money and aggressive enough lawyers could essentially "sue away" the 1st Amendment rights of anyone who dared to be critical of them.

 

For the reasons I set forth above, it does surprise me greatly that conservatives would look upon this favorably.  It's not like there's any shortage of liberal lawyers out there.

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https://www.washingtonpost.com/powerpost/trumps-court-nominee-overcomes-gop-concerns-secures-panels-backing/2019/02/28/fa33bc86-3adc-11e9-aaae-69364b2ed137_story.html?noredirect=on&utm_term=.81e3c90e8acf

 

Quote

Supreme Court Justice Clarence Thomas is working behind the scenes to boost the prospects of Neomi Rao, one of his former law clerks, to serve on a powerful federal appeals court in Washington — speaking privately with at least two Republican senators as she faces a contentious confirmation fight. 

 

Sen. Josh Hawley (Mo.) who publicly questioned how Rao would rule on issues such as abortion before supporting her in a key vote Thursday, disclosed this week that he had called Thomas. The justice has also phoned Sen. Tim Scott (S.C.), a sometimes deciding voice on controversial nominees.

 

Trying to imagine how many heads would explode if RBG or Sotomayor were working the phones to boost Merrick Garland.

 

Quote

“I must say, I’m a little bit confused about what I’m reading, to be frank,” Sen. Susan Collins (R-Maine) said Thursday of Rao’s nomination. “There are so many circuit court judges pending right now, but hers has been very confusing — on Roe v. Wade, where she is and she seems to be attacked by both sides.”

 

Collins, who supports abortion rights, added: “So maybe that means she will just follow precedent.” 

 

******************!!!!!!!!!!!!!!!!!!!!!!!  My god, Susan Collins is an absolute hack.


Very Stable Genius

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A Slate author offers a thread on the citizenship census question.  He notes that John Roberts appears to be using the VRA to justify a census citizenship question (which...what?).  Kavanaugh and Gorsuch cited "the UN and international practices" to justify the question (which LOL we're just adopting international practices when it's convenient now?  what about the death penalty, guys?).

 

The conservative wing of the court - John Roberts seemingly included, though nothing is yet definite - seem to be arguing that the courts should mindlessly defer to the unelected bureaucrats' dubious interpretation of a federal statute.


Very Stable Genius

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7 minutes ago, DarkandStormy said:

 

A Slate author offers a thread on the citizenship census question.  He notes that John Roberts appears to be using the VRA to justify a census citizenship question (which...what?).  Kavanaugh and Gorsuch cited "the UN and international practices" to justify the question (which LOL we're just adopting international practices when it's convenient now?  what about the death penalty, guys?).

 

The conservative wing of the court - John Roberts seemingly included, though nothing is yet definite - seem to be arguing that the courts should mindlessly defer to the unelected bureaucrats' dubious interpretation of a federal statute.

 

Honestly wouldn't be surprised if this goes 6-3, with Kagan joining. Though, I think it will more than likely be a plurality opinion. 

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Very interested to see how the conservative majority twists themselves into a pretzel with their reasoning for keeping the citizen question.

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I plan on not answering any citizenship question on the census form.  Obviously my boycott or even a mass boycott does nothing to address the problem with the question in the first place (it will lead to an inaccurate count due to people refusing to participate in the census all together) but it sure will make me feel better.

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Besides being another assault on democracy from the Right, this would hurt states like Texas just as much as California.  Do Republicans really believe all undocumented immigrants live in blue states?  Undocumented people from Latin America are largely concentrated along the border and in the South and Plains, which are mostly red states.

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On 4/24/2019 at 9:40 AM, Htsguy said:

I plan on not answering any citizenship question on the census form.  Obviously my boycott or even a mass boycott does nothing to address the problem with the question in the first place (it will lead to an inaccurate count due to people refusing to participate in the census all together) but it sure will make me feel better.

 

That will probably result in a lot of phone calls and follow-up door knockers. During the 2010 census, I lived in Ohio and filled out my information here, right before moving to New York. My door was knocked on 15+ times from folks insisting I fill out the census, despite the fact I had already filled it out. They're relentless.

 

I'm not sure of the legalities of it, but perhaps Trump can send ICE employees around to follow up on questionnaires that specifically omit responses to the citizenship question? Just to be safe.

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11 minutes ago, Ram23 said:

 

That will probably result in a lot of phone calls and follow-up door knockers. During the 2010 census, I lived in Ohio and filled out my information here, right before moving to New York. My door was knocked on 15+ times from folks insisting I fill out the census, despite the fact I had already filled it out. They're relentless.

 

I'm not sure of the legalities of it, but perhaps Trump can send ICE employees around to follow up on questionnaires that specifically omit responses to the citizenship question? Just to be safe.

 

Yeah, maybe we can round up whole families of brown people by having ICE pose as Census workers like Nazis rounding up the Jews.  The glorious wet dream of Trumpers.

Edited by jonoh81

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12 minutes ago, Ram23 said:

I'm not sure of the legalities of it, but perhaps Trump can send ICE employees around to follow up on questionnaires that specifically omit responses to the citizenship question? Just to be safe.

 

When you endorse a literal modern day Gestapo but somehow we're not supposed to use certain phrases to offend you....


Very Stable Genius

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Circuit Split on Whether Autoerotic Asphyxiation = "Intentionally Self-Inflicted Injury"

 

https://reason.com/2019/04/29/circuit-split-on-whether-autoerotic-asphyxiation-intentionally-self-inflicted-injury/

 

The question is whether a life insurance "policy exclusion for deaths resulting from 'intentionally self-inflicted injury'" applied to autoerotic asphyxiation:

  • The majority said yes, because the person intentionally inflicted partial strangulation on himself, and "partial strangulation … is still an 'injury' as the term is commonly understood" even when it's not intended to lead to death: "For example, if [the person] had partially strangled another person, there would be no debate he had inflicted an injury."
  • The dissent, joining the Second and Ninth Circuits, said no, because the "conduct was undoubtedly risky but was not inherently injurious," since "when done correctly it can and does have a recreational purpose with no lasting health consequences."

=================================

 

I want SCOTUS to take this just so I can hear the crosstalk among the justices about asphyxiation play.  And I'd also want to see what kind of groups request leave to file amicii briefs. 😂

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I fully expect them to rubberstamp the Census question.  Remember, Republicans only care about protecting their advantages.  That's why they were so upset yesterday about the ruling that their gerrymandering in Ohio was unconstitutional.  It's also why they want the issue to go to SCOTUS too- they've put in a lot of effort to cheat their way into a conservative majority, and they intend to use it to screw us all.

Edited by jonoh81

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You know things are probably interesting when Kavanaugh writes the majority in a 5-4 decision and Gorsuch writes the dissent, and that just happened with a potentially significant antitrust law decision that just came out:

 

https://reason.com/2019/05/14/antitrust-standing-and-kavanaugh-versus-gorsuch-textualism/

 

The ultimate holding, 5-4 with Kavanaugh joining the left wing of the Court in the majority, is that those who purchase from an alleged antitrust violator have standing to sue, even if it was or may have been other parties in the chain of commerce that actually paid more than they should have to that violator.  (In this case, that would be the app developers who pay Apple allegedly monopoly-inflated prices for access to the market of Apple's users.)

 

That does raise some major questions (and I haven't read the opinions yet to see if they were at all addressed there) of (1) what happens if the app developers who actually paid the inflated prices to Apple also wanted to sue for antitrust violations, and (2) if the affected customers sue and win and recover, doesn't that mean they get a windfall if it was really the developers overpaying for access to the Apple ecosystem?  Would the developers actually have a claim to part of the monetary recovery, even if the case is brought by the consumers?  The developers might be 100% on board with any proposed injunctive relief if Apple really were found liable for monopolistic practices, but in general, damages awards should go to those who were actually damaged (statement of the obvious, I'd hope).

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