37 thoughts on “Shut Up, She Explained”

  2. Yeah, you better not say she looks like Kevin James in drag, you could get in lots of trouble for saying she looks like Kevin James in drag. Before you know it, more people might repeat that she looks like Kevin James in drag.

  3. A lot of people say, “What’s that?” It’s Pat!
    A lot of people ask, “Who’s he? Or she?”
    A ma’am or a sir, accept him or her
    or whatever it might be.
    It’s time for androgyny.
    Here comes Pat!

  5. Actually, she’s Obama in drag.

    She comes from an academic background but has published very little over her career. It appears her first inclination is to vote “present” instead of taking a stand on anything. She has little or no real-world job experience, very little court experience of any kind, and has only held her current job for a year. No one knows what she believes, if anything. Yet in spite of all this, we’re told how “brilliant” she is with hardly a shred of supporting evidence.

    Yep, she’s Obama in drag.

  7. I’m unclear on what this is about. Kagen seems to be defending the ban on videos depicting cruelty to animals in an overly broad way that threatens 1st amendment.

    But now I have three questions for Rand and the readers of this blog:

    1) Is there any way to ban animal cruelty videos that isn’t overly broad and doesn’t threaten the 1st amendement? (I think there isn’t. Not only is it impossible to tell whether a crime is being committed or simulated, but videos of actual crimes have value for journalism as well other reasons. )

    2) Should Kagen’s argument apply to child pornography?

    3) If Kagen’s argument should not apply to child pornography, should child pornography be banned, and if so, how?

    I don’t think this is easy.

  9. Huh. So she wrote:

    Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.

    You also have to “value” the societal costs of deciding that this speech doesn’t have First Amendment protection. My view is that unless clear harm is obvious such as the classic examples like shouting “fire” in a crowded theater, lying about someone’s character (slander/libel), or national security is obviously threatened (such as telling someone the nuclear launch codes), nobody in power should be making this calculation.

    I think she should be given the chance to utterly repudiate these sorts of statements. If she fails to do so, then I think she shouldn’t be anywhere near the Supreme Court.

  10. Both animal cruelty videos and child pornography depict crimes. In both cases, those who produce the materials should be punished to the fullest, harshest extent of the law (and maybe then some). The question of banning the materials is more difficult under 1st Amendment grounds. The Supreme Court has ruled that the special circumstances of child pornography are so horrific that those materials can be banned to the point that mere possession is a felony. They recently ruled that the animal cruelty videos fall under 1st Amendment protections while the actual cruelty does not.

  11. Clearly the social cost of “liberalism” is too high (growth in statism; decline in liberty; economic losses), so following “Justice Blart’s” logic we should ban “liberal” books, articles, the MSM, etc.

  12. Should Kagan’s argument apply to blogs? Should Rand consider the value of a persons ability to comment to the overall value of the blog?

  13. Rand, lets address the people who want to ban child pornograhy (and animal cruelty) videos because they want to protect children (or animals). In particular, they want to protect children or animals who might otherwise be featured in the videos themselves. They don’t care about the morality of viewer, they care about the safety of the actors. In other words, they aren’t being the thought police — they are being the screen actors guild (using government muscle of course.) Does Kagen’s argument apply? If not, should child porn be banned, and if so, on what grounds?

    Karl, it sounds like you are just fine with the calculation. Kagen’s argument applies to the very examples you cited.

  14. Both animal cruelty videos and child pornography depict crimes. In both cases, those who produce the materials should be punished to the fullest, harshest extent of the law (and maybe then some).

    The question is, how was the video produced? For example, if it’s computer animation, then no children or animals were harmed in the making of this movie. What is the argument for banning it then?

  15. her first inclination is to vote “present”

    Just like Obama and we see how that turned out. Is there any credible chance at all her appointment can be stopped?

    I agree that everyone should stop saying she looks like Kevin James in drag. That’s just uncalled for. Saying she looks like Kevin James in drag is one of those nasty memes that could catch on if done too many times, by too many people, too often. So let’s all stop saying she looks like Kevin James in drag.

    Isn’t that hate speech? They could take away Rand’s blog if his commentors keep repeating that she looks like Kevin James in drag.

    But seriously, Sotomayor was bad enough. Is there any way we can keep Kevin James in drag off the supreme court?

  16. The argument, Rand, which I’m not endorsing – just expressing – is that when we can’t tell the difference, it is safer to ban it, and technology makes it increasingly difficult to tell the difference (look at how Avatar was created, and such technology will get cheaper.)

  17. In particular, they want to protect children or animals who might otherwise be featured in the videos themselves.

    Want to protect children and animals (always interesting how bob compares children to animals, but I disgress)? Make it a law to commit the original harm. Oh wait, it is already law.

  18. Law/crime to commit the original harm.

    And forget Avatar. Dakota Fanning was in a simulated sex seen while under the age of consent. Her nipples were covered and she had a body suit, but from a screen standpoint, you weren’t suppose to tell whether or not penetration occurred.

  19. Also, Larry, as I noted above, videos depicting actual crimes have journalistic value (and thus simultaneous commercial value since news and even documentaries(!) sell.) So your formulation is too broad. Maybe take a new look at Kagen’s argument to solve this conundrum.

    This isn’t easy, and therefore, I find these criticisms of Kagen to be shallow (although not as shallow as the comments about her appearance.)

  20. What Leland said. Conservatives used to use “snuff films” as an argument in favor of censorship. “If you allow pornography, why not allow snuff films?” For those of you who don’t remember, “snuff films” were purportedly films made of someone being murdered. My reaction was: “Someone’s been murdered–and you’re worried that someone else filmed it?” It would seem that if you jailed the makers of snuff films for murder, the snuff film problem would take care of itself.

  21. I’m holding my three month old on my lap as I type this, and yes, I find comparisons between babies and animals to be fascinating. (And looking at my daughter’s beautiful face, I have a very strong emotional reaction to child pornographers — I’m sure I would want to kill anyone who threatened my little baby.)

  22. I’d have a very strong emotional reaction if someone kicked my dog, but if they kicked my daughter, my reaction would be much more physical. I walk my dog on a leash. I give my daughters the keys to my car. Sorry, not seeing the direct comparison.

  24. Bob-1, consider this: if you show child pornography to, say, an 11-year-old, that child is going to have a reaction of some kind to what she is seeing. But if you show an animal cruelty video to a dog…

    Of course, one would reasonably expect that an animal cruelty video would affect a child too, though I imagine in a different way.

  25. The question is, how was the video produced? For example, if it’s computer animation, then no children or animals were harmed in the making of this movie. What is the argument for banning it then?

    IIRC, the courts have ruled that an animation of child pornography isn’t the same as actual child pornography and is permissable. However, since I’m at work and I don’t want to use those search phrases to verify my recollection, I’ll have to rest on my memory instead of trying to find a citation.

    Also, Larry, as I noted above, videos depicting actual crimes have journalistic value (and thus simultaneous commercial value since news and even documentaries(!) sell.) So your formulation is too broad. Maybe take a new look at Kagen’s argument to solve this conundrum.

    These aren’t “my formulations.” They’re just my understanding of SC rulings on the issues. Admittedly, I’m not a lawyer and I’m just going by my recollection of things I’ve read over the years. Personally, I’m in favor of punishing the crime more than the depiction of the crime. However, I think the reasoning on child pornography is that viewing or owning such materials encourages the production of more materials, putting more children at risk of exploitation. At least, that’s my understanding and may be incorrect.

  26. Larry, thanks. I’m not arguing with you – sounds like we agree actually – I’m just arguing that the issue is complex, and I’m not comfortable saying that video depicting actual crimes should be illegal (due to the needs of journalists, etc). The answer probably requires the kind of balancing that Kagen is talking about. I actually can’t figure out what Roberts’ proposed solution is. It is clear that Roberts has the gut-level desire to protect the first amendment, which we all share, I’m willing to bet that Kagen shares it too, and regardless of how I’d bet, I’m not sure that anyone criticizing Kagen actually disagrees with her (including Roberts himself). Certainly no one commenting here actually seems to disagree with her.

  27. Certainly no one commenting here actually seems to disagree with her.

    No one here thinks the right to speech should be based on the value to the community. That’s what the rest of us are discussing. To the extent free speech is curtailed, most of us are focusing on situations in which harm would come to other individuals.

    Trying to pretend that child pornography is a complex issue doesn’t make it complex for the rest of it. Trying to compare animal cruelty to child pornography only has merit if you consider the child and the animal to have equivalent mental capacity and to retain the equivalent mental capacity throughout their lifetime. My education in biology says that’s possible, but most often is rare, as humans have a much more developed brain than most animals.

    I think for many of us, the situation is simple, and it is based on cognitive science. You film a dog getting kicked, and show the video back to the dog, the video itself will not generate a reaction. The dog doesn’t care about the video. The child, when it grows up, will care. It also probably has something to do with the Constitution saying “We the People” rather than “We, the members of the Kingdom Animalia”.

    Finally, Roberts was clearly disagreeing with Kagan. He said her proposal was “startling and dangerous”. If you need a clear explanation, click the link Rand provided, there’s more.

  28. “I agree that everyone should stop saying she looks like Kevin James in drag. That’s just uncalled for. ”

    Let’s just be grateful that nobody ever seriously suggested Janet Reno be a SCOTUS nominee. . . .

    At any rate, not that I’m aware of.

  30. Certainly no one commenting here actually seems to disagree with her.

    Indeed. We’re all big on thoughtcrime ’round here.

  31. Coming soon, direct to video:

    “Paul Blart: Thoughtcrime Buster.”

    Starring Kathy Bates.

  32. I’d like to respond, but I’m going to have to do this in small bursts (I’m on child-care duty again today).

    Here’s part 1:

    The interesting distinction seems to be harm to the individual vs harm to society.

    If Joe stabs Pete with a knife, it isn’t up to Pete to decide whether to press charges. If Joe stabs Pete, the state decides whether it believes that a crime against society has taken place, and decides whether to prosecute.

    Like stabbing, in the USA, child molestation, child rape, ( and other sexual activities involving children) are viewed as a crime against society, and it won’t be up to the legal guardians of the child whether to prosecute — it will be up to society.

    The very idea of protecting the interests of society as opposed to the interests of the individual should be uncontroversial. Difficult questions remain. One of them: should the crucially important first amendment should ever be weakened to prevent crimes. One relatively uncontroversial example that Karl suggested involves publishing military secrets which, if revealed, would threaten national security. Does publishing child pornography constitute a crime against society? Our first instinct is to say “no, only creating child pornography should be a crime, but we should be able to publish whatever we want.” But expressing ideas has consequences, and those consequences can be criminal — that’s why maliciously shouting “fire” in a crowded theatre is illegal (as opposed to just banning the setting the theatre fires in the first place).

    Gotta run. I’ll say more when I can. Parting questions: what do you think Roberts thinks about the legality of publishing child pornography involving actual children, and what do you think about it. Thought crime isn’t the issue — the consquence of publishing is the issue.

  33. I shouldn’t have said “ideas” in the last paragraph — the idea isn’t the problem — the endangered participants are the problem. Sorry, I’d really like to defend my position, but I’m worried I won’t have time today — I’ll lose by default I suppose. But I think figuring out what Roberts really does think about the interests of society and whether he really differs from Kagen would be worthwhile.

  34. If Joe stabs Pete with a knife, it isn’t up to Pete to decide whether to press charges. If Joe stabs Pete, the state decides whether it believes that a crime against society has taken place, and decides whether to prosecute.

    If Joe stabs Pete, and there is no little evidence to prosecute, it doesn’t mean Joe wasn’t murdered. There’s a difference between prosecuting a crime and what is a crime. So your starting premise is wrong. Then there is the problem that your analogy doesn’t fit the discussion, because it’s not the original crime that is the issue, but the secondary. Your latter discussion points are not any better.

  35. I think figuring out what Roberts really does think about the interests of society and whether he really differs from Kagen would be worthwhile.

    How about you actually read the majority opinion. Robert wrote what he really thinks in the opinion. There’s no need to debate hypotheticals based on ignorance. Just go read it.

  37. Privacy is a little different from speech and I think everybody with certain exceptions has a right to privacy. A nominee to one of nine people that effect the lives of hundreds of millions of people has absolutely no right to privacy. None. If they don’t like that they can withdraw.

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