OT - Supreme Court on internet pornography

[QuikSand]

I figured a porn-based discussion would be a real turn-on for the kleenex crowd here, but actually I find the arguments in this case very interesting.

Here's a link to the news story:

http://www.cnn.com/2004/LAW/06/29/sc...ncy/index.html

And here is a link to the complete oral argument of the case:

http://www.supremecourtus.gov/oral_a...pts/03-218.pdf



I find the legal arguments involved here very intrigiong -- there are obvious matters of what is "protected speech" and what is "illegal obscenity" but then you have a much deeper argument about what measures are appropriate to be used to protect children while not needlessly infringing on adults' rights to access protected speech. Pretty interesting stuff...


The voting coalition on the Court was perhaps the strangest I've seen, incidentally. I don't have a single adjective to aptly describe the five-member majority...

[QuikSand]

One thing I'm interested in - perhaps from the various legal beagles around these parts.

At one point in the arguments, Ted Olsen makes a point of mentioning things "not in the record" -- as in "I went on the internet last night, and found this..." Later, there seems to be some real discussion (when the ACLU lawyer was presenting) about this material, even though it was clearly not part of the court record from the case on appeal.

I thought that the USSC was bound to decide its cases on matter so frecord only - but here we have a Justice asking probing questions clearly based on the outside material raised by Olsen. Is this basically a matter of "the rules are we make the rules" and that the USSC is essentially free to do as it pleases, as long as they have the votes to do so?

Just curious if there's a principle involved there...

[QuikSand]

By the way, next time you're on your computer killing some kittens... remember that the ACLU is out there working for you.

[albionmoonlight]

Originally Posted by QuikSand

One thing I'm interested in - perhaps from the various legal beagles around these parts.

At one point in the arguments, Ted Olsen makes a point of mentioning things "not in the record" -- as in "I went on the internet last night, and found this..." Later, there seems to be some real discussion (when the ACLU lawyer was presenting) about this material, even though it was clearly not part of the court record from the case on appeal.

I thought that the USSC was bound to decide its cases on matter so frecord only - but here we have a Justice asking probing questions clearly based on the outside material raised by Olsen. Is this basically a matter of "the rules are we make the rules" and that the USSC is essentially free to do as it pleases, as long as they have the votes to do so?

Just curious if there's a principle involved there...

You are right that appellate courts are not fact finding courts and are bound by the facts as found by the trial court and placed in the record.

In this case (which is on my reading list for this weekend, so correct me if the following assumption is wrong), however, the facts are going to be almost (if not totally) undisputed. No one is arguing that there is not porn on the internet, etc. They are discussing the more abstract issue of whether the statute on its face violates the constitution on its face (certainly there needs to be an actual "case or controversy" to give the court power to hear the issue--but everyone knows in a case like this that the real issue is much more abstract). Whatever hypothetical facts the Court uses to facilate its understanding won't do any real damage or change its ultimate legal analysis.

To come up with a counter example--let's say that a Medicaid statute requires a state to provide necessary medical care to certain people "with reasonable promptness." Then, lets say that the trial court--after hearing testimony from both sides--finds that the average wait for a doctor's visit is 15 days. The court in that case is confronted with the issue of whether a 15 day wait is reasonably prompt. If, on appeal, one of the lawyers argued that in his experience the delay was 3 months--the court would be precluded from deciding the case based on the fact 3 months is the average wait and that 3 months is too long of a wait. The appellate court cannot find a fact on its own and then use that fact as the lynchpin of its analysis.

[QuikSand]

Well, I can be a little more specific - just from my recollection (it was prett late last night, though).

One of the arguments at hand is whether there are other alternative ways to accomplish the same "protections" of children, short of the measures prescribed by the legislation. If not, that helps to bolster the case that the legislation is necessary, and that any abridgement of adult's rights to access protected speech is at least more defensible. (I hope that's a fair paraphrasing)

Olsen, in making his arguments, essentially told them about doing some Google searching the night before, and finding lots of ways to disable home-based web filters. His argument, essentially, was that if a kid can easily figure out how to disable a filter - then the filter isn't a viable alternative to a law like the one being defended.

In order to make this argument, he (of course) had to describe the fact that the filters have faults -- and doing so incorporated information not on the record. I don't know if that is over the line... but it sounded intriguing to me. One Justice pursued this issue, with direct reference to Olsen' "findings" with the ACLU attorney later in the discussion, as well -- so it clearly factored into the discussion, if not ultimately the decision itself.



As a side note -- who would have take a bet that a thread with the term "pornography" in its title would have fewer than 5 posts after 12 hours on this board? Good heavens - is the mere mention of the Supreme Court and the specter of actually having to think about something really that bad?

[digamma]

I haven't read the case yet, but I'll note that the decision made for some VERY strange bedfellows.

Scalia, Breyer, O'Conner and Rehnquist dissented.

It marks one of the very, very few times Clarence Thomas has come down opposite Scalia in a case.

[Chubby]

From a snippet I read in today's paper I got out of it that the SC didn't strike down the law but sent it back down to appelate (sic) court for review or something based on the fact that their are measures to protect minors from said content. I believe outlawing the content would infringe on adults rights to it and that the fact blocks are available swung the majority to that side of the argument.

Is Ashecroft's argument now going to be "well they can get around those blocks so it should be outlawed all together"? There's ways of getting around alcohol laws prohibiting the sale to minors so are we going to go back to prohibition also?

EDIT: Also, the fact that I think 60% of the content is based outside the US factored into the decision.

[bbor]

Originally Posted by QuikSand

I figured a porn-based discussion would be a real turn-on for the kleenex crowd ......

Hey!...I resemble that comment

[QuikSand]

Originally Posted by digamma

I haven't read the case yet, but I'll note that the decision made for some VERY strange bedfellows.

Scalia, Breyer, O'Conner and Rehnquist dissented.

It marks one of the very, very few times Clarence Thomas has come down opposite Scalia in a case.

How do you wrap up the five member majority?

Stevens, Souter, Ginsberg ... Kennedy ... and Thomas?

WTF?

[Chubby]

Originally Posted by QuikSand

How do you wrap up the five member majority?

Stevens, Souter, Ginsberg ... Kennedy ... and Thomas?

WTF?

Maybe they all want to keep their hustler.com subscriptions?

[ISiddiqui]

Thomas has always been big on free speech stuff... going against Scalia plenty on it.

[duckman]

I think that the SC is slow to take on something that effects civil liberties when there is better alternatives. I know that most people don't want or like what they see or hear now in our local media, but do they really want the government to regulate what it is we are exposed to?

I have a real problem when the far right extremists (i'm a moderate conservative) in our government wants to censor what we can and cannot watch, read, or say. I would be a bad parent if I can't control what my son watches or listen to. Instead, I have the government do it for me. The real problem is not having filters on our computers or we need to ban violent or pornographic material , but we need to work towards being better parents.

[Chubby]

Originally Posted by duckman

I think that the SC is slow to take on something that effects civil liberties when there is better alternatives. I know that most people don't want or like what they see or hear now in our local media, but do they really want the government to regulate what it is we are exposed to?

I have a real problem when the far right extremists (i'm a moderate conservative) in our government wants to censor what we can and cannot watch, read, or say. I would be a bad parent if I can't control what my son watches or listen to. Instead, I have the government do it for me. The real problem is not having filters on our computers or we need to ban violent or pornographic material , but we need to work towards being better parents.

Or god forbid supervise your children's internet usage (or tv/movie/etc)

[duckman]

Originally Posted by Chubby

Or god forbid supervise your children's internet usage (or tv/movie/etc)

My point exactly.

[BishopMVP]

Originally Posted by digamma

It marks one of the very, very few times Clarence Thomas has come down opposite Scalia in a case.

Actually, the Top 10 pairs for voting together are:

Souter	Ginsburg	85%
Rehnquist	O'Connor	79%
Rehnquist	Kennedy	77%
Stevens	Souter	77%
Ginsburg	Breyer	77%
Stevens	Ginsburg	75%
Scalia	Thomas	73%
O'Connor	Breyer	70%
Souter	Breyer	70%

(Stolen from the Volokh Conspiracy http://volokh.com/ probably the best place for SC analysis on the Internet)