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Opening Arguments

Who's on First?

Today's quiz. Which one of these Supreme Court justices would your rather trust the First Amendment to? First, there's Stephen Breyer, one of the "living Constitution," change-the-meaning-to-suit-the-times guys:

Why isn't it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women and do this for an hour or so, and there is no social or redeeming value, it's not artistic, it's not literary, et cetera, why isn't it common sense to say a state has the right to say, parent, if you want that for your 13-year-old, you go buy it yourself, which I think is what they are saying?

And there's Antonin Scalia, one of those scary originalist guys:

Some of the Grimms' fairy tales are quite grim...Are they OK? Are you going to ban them, too?...

That same argument could have been made when movies first came out. They could have said, oh, we've had violence in Grimm's fairy tales, but we've never had it live on the screen. I mean, every time there's a new technology, you can make that argument....

I am concerned with the vagueness, but I am [also] concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.

You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment....What's next after violence? Drinking? Smoking?


Thu, 11/18/2010 - 2:20pm

Scalia's "originalism" can be awfully situational. And the Founders seemed to intend what Scalia wants an awful lot of the time.

Thu, 11/18/2010 - 8:35pm

If Scalia wants to pursue his "originalism" to its logical conclusion, then we must reinstate slavery and disenfranchise women. Actually, he's probably in favor of both of those things. Never mind.

William Larsen
Mon, 11/22/2010 - 11:13pm

I believe the constitution means exactly the same thing it did when it was passed in 1787. No if we as a society want it to mean something more or to be more specific, the means was built into the U.S. Constitution for this to happen. It is called an amendment and it has been used many times to change the meaning of the Original Constitution.

As for women being disenfranchised, this was taken care of by an amendment as was slavery.