Posted on 10/23/2005 7:47:38 PM PDT by dukeman
Are you a literalist? Care to read the Congressional debates on the 1st amendment and see what they meant by speech?
Is that your argument?
No, that is not my argument. My argument is that: Notwithstanding whether the prohibition on the abridgment of speech is incorporated to the States, it applies to the Congress.
These charges were brought under federal law. If they want to challenge the principle of incorporation, they should scrap the charges and refile them under Pennsylvania state law (this case was brought in Pittsburgh).
It doesn't matter what they meant; it matters what they ratified.
Same place where we have the right to sell a conservative newspaper, whether or not some community finds that to be an “obscenity”.
People read all kinds of things into the Constitution that aren’t there.
So you consider a weapon of mass destruction to be an armament that would be included in a citizens' right to keep and bear arms? I think one is clearly for offense and the other defense.
And no I'm not misrepresenting your argument.
You brought up the 14th Amendment. You said the 1A had been incorporated to the states. You said that freedom of speech is absolute. You said that obscenity is speech. And you said that states can make laws proscribing obscenity in public.
So antiguv you leave me totally confused because you have taken diametrically opposed positions.
Let's clarify.
Freedom of speech is absolute?
Obscenity is included in that absolute?
And states can make laws proscribing that absolute freedom of speech ( obscenity)?
Do I have that right now?:+}
:-} I'm a big RTKABA guy but I draw the line somewhere on the rational side of suitcase nukes in the bomb shelter.
A community could just as easily say Free Republic is a “public danger”. That’s why such a danger has to be much more specific and imminent in order to regulate speech rather than the public danger of pornography among adults in a private setting.
I think you should revise and extend here. There should be a hierarchy of interpretation and they should start at the text but it certainly doesn't end there.
Umm, you specified a public municipal sidewalk in front of a grammar school.
And no I'm not misrepresenting your argument.
You aren't just misrepresenting mine; now you're misrepresenting yours as well. ^ LOL
You brought up the 14th Amendment. You said the 1A had been incorporated to the states.
No, I didn't. What is said is that whether or not it applies to the states, it definitely applies to the Congress. I brought up the 14th Amendment in reference to why people seem so confused about this.
You said that freedom of speech is absolute.
In the U.S. Constitution, it is.
You said that obscenity is speech.
It obviously is. There's no dispute about this under the law.
And you said that states can make laws proscribing obscenity in public.
Yes, that is correct. This should clue you in that I have not endorsed the full incorporation of the First Amendment.
Let's clarify.
Freedom of speech is absolute?
Obscenity is included in that absolute?
And states can make laws proscribing that absolute freedom of speech (obscenity)?
Do I have that right now?
Yup. The Constitution says that Congress shall make no law abridging the freedom of speech. It is silent with regard to the States.
"Ok, now be honest. Do you think that the Founding Fathers would have agreed with the notion that an image of a man shoving a whip up his cornhole was protected by the First Amendment?"
The Constitution is not about what the Founders envisioned for the future. They did not claim to see into the future. Of course they didn't envision semi-auto pistols, either, but I cannot imagine that we should not have the right to have that particular defense mechanism.
It was written with the framework to amend it as necessary and as societal norms change and as new issues arise. If you have a problem with porn, then lobby to get a Constitutional amendment giving the government the power to limit such types of speech.
1957 Roth v. US
3. Obscenity is not within the area of constitutionally protected freedom of speech or press - either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. Pp. 481-485.
(a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 482-483.
(b) The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. P. 484.
(c) All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Pp. 484-485. [354 U.S. 476, 477]
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=354&invol=476
No they could not because the original intent of the speech clause was, at a minimum, to protect political speech. So your argument really isn't very good.
I'm a big RtKaBA supporter too. But even I recognize that arguing that the 2A allows for the private possession of suitcase nukes, weaponized anthrax, VX gas delivery systems, etc. only does harm to our side of the debate.
I think we all have a right to your property. I know the constitution is silent on that but what the hell, the "takings clause" is living, breathing and evolving as we speak.
Thus, if you don't like that right I have dreamed up I suggest you get an amendment to the constitituion passed proscribing it.
Kind of silly, no?
A lot of things were debated at the Constitutional Convention but failed to be ratified or were modified by the actual text. Notwithstanding what they debated with regard to freedom of speech, the text that they ratified: (a) enumerates no power to regulate speech; (b) prohibits any abridgment of speech.
Absolutely. The Founders would've said that it was the responsibility of the State government to deal with such an image, not of the Federal government. That's how it was back in 1791 I might add. It's not as if they didn't have a concept of obscenity. They sure did. They explicitly intended that such speech be regulated by the States as they deemed fit, not by the Federal government.
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