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JDN
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« Reply #500 on: September 15, 2011, 12:40:22 PM »

I do a lot of photography; the following article is a good summary of your rights.

http://www.aclu.org/free-speech/know-your-rights-photographers
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DougMacG
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« Reply #501 on: September 16, 2011, 05:56:08 PM »

'Making Our Democracy Work' or what I might call 'Ending the limits on government', Supreme Court Justice Stephen Breyer wrote a book about his view of the role of the Court and other branches: http://www.amazon.com/Making-Our-Democracy-Work-Vintage/dp/0307390837/ref=sr_1_1?ie=UTF8&qid=1316045637&sr=8-1  Has anyone here read this book?

Radio show host Hugh Hewitt had what I thought was a very civil and informing interview yesterday with Justice Breyer.  I only heard part of it and look forward to going through it more thoroughly to better understand Breyer's view.

Hewitt is an excellent interviewer, a conservative talk show host,  a graduate of Harvard, of Univ. Of Michigan Law School, worked in the Reagan administration and is a professor of constitutional law.  Breyer is perhaps the most important voice on what I see as the expanding-government-powers side of the Court.  Hewitt does not try to explore their differences, just tries to draw out the Justice's view.

Breyer's main point while I was listening (in my words) is that the elected branches are far closer to the people and deserve great leeway.   The 9 Justices (really 5 in close decisions) are unelected.  The founders couldn't have contemplated all we face today and therefore justices should only limit the actions of the other branches in only extreme situations, narrowly and selectively.

I largely disagree.  I mostly don't care what any 50.1% or 60% majority would want for federal powers if they are not specifically authorized to do it in the constitution [except for when those expanded powers favor my own agenda  wink].  For a lot of great ideas like minimum wage, family leave, health care, and a thousand and fifty distinct federal social spending programs, we should amend the constitution if we want instead of disregarding it IMO.  If something new really is a great idea, we can pass a state law in all states or at least the states that what it.  O-RomneyCare is an example of doing large programs state by state.  A constitutional amendment similar to the federal income tax amendment authorizing a federal healthcare mandate would make the current crisis moot.  Otherwise, words have meanings and the U.S. Constitution is the highest law.  How does one argue that those powers were not left to the people and to the states?  (Justices don't discuss pending cases.)
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I started to cut and paste, but it's a two hour interview, better go with just a link. 

http://www.hughhewitt.com/transcripts.aspx?id=d0c4a956-c0ce-47ba-b4cc-6e6544871276
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DougMacG
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« Reply #502 on: October 17, 2011, 09:55:28 AM »

http://www.ocregister.com/opinion/thomas-321865-original-court.html

Ralph A. Rossum: No longer doubting Thomas

In his 446 opinions, Clarence Thomas always looked to preserve the original meaning of the Constitution.

By RALPH A. ROSSUM / Salvatori professor of American Constitutionalism, Claremont McKenna College

On Oct. 23, 1991, Clarence Thomas was sworn in as the 106th Justice of the Supreme Court. During the heated debate over his confirmation, Gary McDowell, a conservative legal scholar and former speechwriter for Edwin Meese, wrote a piece entitled "Doubting Thomas: Is Clarence a Real Conservative?" Now, 20 years later, there is no doubt: the answer is an unequivocal, yes.

In the 446 opinions he has written since his confirmation, Thomas has assiduously pursued an original understanding approach to constitutional interpretation and a jurisprudence of constitutional restoration. He has been unswayed by the claims of precedent – by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions.

As with too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent – focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means – hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood – to the original understanding of the Constitution.

The two Supreme Court justices who unabashedly identify themselves as originalists are Clarence Thomas and Antonin Scalia. Yet, they are different in their approaches. Scalia consistently employs an original public meaning approach to interpretation.

He wants to know what the words of the text being interpreted meant to the society that adopted it. While he often turns to founding documents, he does so because they "display the original meaning of the text."

Thomas, pursuing an original understanding approach, incorporates Scalia's narrower original public meaning approach, but then widens the originalist focus and asks as well why the text was adopted. Concerning the Constitution, Thomas turns readily to founding era sources not only to determine the original meaning of the text being interpreted, but also to ascertain the ends the framers sought to achieve, the evils they sought to avert, and the means they employed to achieve those ends and avert those evils when they adopted and ratified that text.

Thomas invariably rejects past decisions that depart from that original understanding. He invites his colleagues to join him by engaging in the hard jurisprudential work of scraping away the layers of misguided precedent and restoring the contours of the Constitution, as it was originally understood by those who framed and ratified it.

Here are two examples from the scores that could be provided. In his concurrence in the Ten Commandment case, Van Orden v. Perry, Thomas condemned the "incoherence" of the Court's past decisions that rendered "the Establishment Clause impenetrable and incapable of consistent application" and called for a "return to the views of the Framers" and for the adoption of actual physical coercion as "the touchstone for our Establishment Clause inquiry."

And, in his dissent in the takings case, Kelo v. City of New London, he observed that "something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not." He regretted that the Court majority relied not on the constitutional text, but "almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result."

And, he concluded, "[w]hen faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning."

After a long and bruising confirmation hearing and a close Senate vote, Thomas arrived at the Court as damaged goods. And, given the liberal bias of the legal professoriate, law review articles about him during his first decade of service were unrelentingly hostile and derogatory. One in the Harvard Law Review went so far as to declare that Thomas had no underlying legal approach other than to be in "direct opposition" to the views of Justice Thurgood Marshall whom he replaced. But, that is finally changing, as thoughtful articles taking seriously his opinions and commending his original understanding jurisprudence are now much more prevalent than those castigating him. They praise him as the "Next Great Dissenter," "the Lone Principled Federalist," and the emerging "Commercial Speech Protector."

Even his civil rights opinions are now winning the respect of leftist professors such as Mark Tushnet and the self-described "liberal black womanist," Angela Onwuachi-Willig, who confessed that, by defending Thomas, she had committed an act she "once thought was impossible."

As his 20-year effort to restore the original understanding of Constitution makes clear, there was no reason then and there is no reason now to doubt Thomas.
« Last Edit: October 17, 2011, 10:06:28 AM by DougMacG » Logged
Crafty_Dog
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« Reply #503 on: October 17, 2011, 02:59:21 PM »

Anjoyable piece and a nice concise description of the legal theory too.
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Body-by-Guinness
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« Reply #504 on: November 03, 2011, 01:04:02 PM »

On Tyranny and Liberty
Would the Founders approve of the nation we’ve made?

THE GRANGER COLLECTION, NYC

A U.S. Supreme Court justice recounted over cocktails a while ago his travails with his hometown zoning board. He wanted to build an addition onto his house, containing what the plans described as a home office, but he met truculent and lengthy resistance. This is a residential area, a zoning official blustered—no businesses allowed. The judge mildly explained that he would not be running a business from the new room; he would be using it as a study. Well, challenged the suspicious official, what business are you in? I work for the government, the justice replied. Okay, the official finally conceded—grudgingly, as if conferring an immense and special discretionary favor; we’ll let it go by this time. But, he snapped in conclusion, don’t ever expletive-deleted with us again.

Isn’t that sort of petty tyranny? I asked.

Yes, the justice replied; there’s a lot of it going around.

Tyranny isn’t a word you hear often, certainly not in conversations about the First World. But as American voters mull over the election campaign now under way, they’re more than usually inclined to ponder first principles and ask what kind of country the Founding Fathers envisioned. As voters’ frequent invocations of the Boston Tea Party recall, the Founding began with a negation, a statement of what the colonists didn’t want. They didn’t want tyranny: by which they meant, not a blood-dripping, rack-and-gridiron Inquisition, but merely taxation without representation—and they went to war against it. “The Parliament of Great Britain,” George Washington wrote a friend as he moved toward taking up arms several months after the Tea Party, “hath no more Right to put their hands into my Pocket without my consent, than I have to put my hands into your’s, for money.”

With independence won, the Founders struggled to create a “free government,” fully understanding the novelty and difficulty of that oxymoronic task. James Madison laid out the problem in Federalist 51. “Because men are not angels,” he explained, they need government to prevent them, by force when necessary, from invading the lives, property, and liberty of their fellow citizens. But the same non-angelic human nature that makes us need government to protect liberty and property, he observed, can lead the men who wield government’s coercive machinery to use it tyrannically—even in a democracy, where a popularly elected majority can gang up to deprive other citizens of fundamental rights that their Creator gave them. In writing the Constitution, Madison and his fellow Framers sought to build a government strong enough to do its essential tasks well, without degenerating into what Continental Congress president Richard Henry Lee termed an “elective despotism.” It’s to ward off tyranny that the Constitution strictly limits and defines the central government’s powers, and splits up its power into several branches and among many officers, all jealously watching one another to prevent abuse.

When we ask how our current political state of affairs measures up to the Founders’ standard, we usually find ourselves discussing whether a given law or program is constitutional, and soon enough get tangled in precedents and lawyerly rigmarole. But let’s frame the question a little differently: How far does present-day America meet the Founders’ ideal of free government, protecting individual liberty while avoiding what they considered tyranny? A few specific examples will serve as a gauge.

The Supreme Court’s 2005 Kelo v. City of New London decision is notorious enough, but it bears recalling in this connection, for the whole episode is objectionable in so many monitory ways. In the year 2000, the frayed Connecticut city had conceived a grandiose project to redevelop 90 waterfront acres, in conjunction with pharmaceutical giant Pfizer’s plan to build an adjoining $300 million research center. A conference hotel—that inevitable (and almost inevitably uneconomic) nostrum of urban economic-development authorities—would rise, surrounded by upscale housing, shopping, and restaurants, all adorned with a marina and a promenade along the Thames River. Promising to create more than 3,000 new jobs and add $1.2 million in revenues to the city’s declining tax rolls, the redevelopment authority set about buying up the private houses, mostly old and modest, on the site.

Several homeowners refused to sell, however. They loved their houses and their water views. In response, the determined city seized their property under its power of eminent domain. One resident, Susette Kelo, wasn’t giving up her little pink house without a fight, though, and she, along with a few neighbors (including one who’d lived in her house since 1918), sued the city in the state courts, claiming that its action violated the Fifth Amendment’s guarantee that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The trial court agreed with Kelo’s reasonable assertion of the government’s fundamental duty to protect rather than invade private property, but the state appeals court disagreed, and ultimately the U.S. Supreme Court upheld the city’s seizure, 5–4.

The Supreme Court’s opinions, on both sides, lay out a dreary history of how a fundamental liberty shriveled. The justices cite a 1954 precedent that imperiously expanded the rationale for eminent domain from the Fifth Amendment’s public use to public purpose to justify urban-renewal projects that tore down vast swathes of supposedly blighted property in order to turn the land over to private developers of better housing. Even if you grant the constitutionality of the new rationale, argued the petitioner in this case—who owned a prospering, unblighted department store within the redevelopment area—creating a “better balanced, more attractive community” was not a valid public purpose. Wrong, said the Supremes, in Justice William O. Douglas’s trademark fatuously whimsical language: the legislature, invoking values that are “spiritual as well as physical, aesthetic as well as monetary,” has the power “to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” Nor need officials, evidently empowered to define public purposes beyond the Constitution’s limited and enumerated scope, deal with property owners on an individual basis in imposing their aesthetic vision on already existing property, so the department-store owner’s liberty and property rights merit no protection from the redevelopment juggernaut.

The Kelo Court also cited a precedent, appropriately from 1984, that is hard to distinguish from a Latin American Communist-imposed land-reform scheme. Because the government owned 49 percent of Hawaii’s land and 72 private landlords owned another 47 percent of it, the state legislature passed a law forcing the private property owners to sell their land to their lessees, for just compensation. The public purpose of this social-engineering megaproject: “eliminating the ‘social and economic evils of a land oligopoly.’ ” Trying to explain his notion of “the tyranny of the majority,” the great democratic danger that he’d designed the Constitution to prevent, Madison began by observing that “those who hold, and those who are without property, have ever formed distinct interests in society.” As the propertyless will always outnumber the propertied, the essence of democratic tyranny is for the poorer many to expropriate the richer few by such “improper or wicked” schemes as voting “an equal division of property,” the furthest-out extreme of tyranny that the Father of the Constitution could imagine. What would he have said about the Hawaii legislature’s property-redistribution edict and the U.S. Supreme Court that ratified it on such a rationale?

Kelo, as the dissenting justices pointed out, makes almost limitless the government’s eminent-domain power. While the Fifth Amendment envisioned transferring one private owner’s property to another—for reasonable compensation—for a turnpike or a canal to which the entire citizenry had access (or, later, a railroad or electricity-transmission line), the 1954 and 1984 precedents that the Court cites at least claimed that the transfer accomplished the direct public purpose of ending a harmful use of property, if only by association in the case of the unblighted department store surrounded by blight. But no one claims that Susette Kelo’s house—or her neighbors’—is blighted, the dissenters observed. The public purpose of “tak[ing] private property currently put to ordinary private use, and giv[ing] it over for new, ordinary private use” is the indirect, secondary one of raising New London’s tax base, meaning that government could order any property razed for a higher-value one, sweeping away single-family houses (especially humble ones) for apartment buildings, churches for stores, or small businesses for national chains. And, the dissenting justices might have added, it makes government officials interested, rather than neutral, parties, since more tax revenue means better pay, health care, and pensions for them.

In 1812, the nation’s retired first chief justice, John Jay, commented on a proposal to take by eminent domain some fields near his Westchester farm and flood them to make a millpond to turn a factory waterwheel. “When a piece of ground is wanted for a use important to the State, I know that the State has a right to take it from the owner, on paying the full value of it; but certainly the Legislature has no right to compel a freeholder to part with his land to any of his fellow-citizens, nor to deprive him of the use of it, in order to accommodate one or more of his neighbours in the prosecution of their particular trade or business,” he wrote. “Such an act, by violating the rights of property, would be a most dangerous precedent.” As for flooding the fields: “It may be said that the pond, by facilitating manufactures, will be productive of good to the public; but will it not produce more loss than gain, if any of the essential rights of freemen are to be sunk in it?” By 1885, however, many states had passed “mill acts,” permitting just such a use of eminent domain to power gristmills—required, like turnpikes and railroads, to serve all comers.

As it happened, getting rid of Susette Kelo’s house—ultimately, New London moved it from its waterfront site rather than demolish it—produced no gain to anyone. In the wake of a merger, Pfizer moved its research facility elsewhere; the redevelopment agency couldn’t raise the necessary financing for the rest of the project, which Pfizer’s withdrawal rendered problematic; and the land sits vacant, generating not a nickel of tax revenue. The only good the decision produced was a slew of laws in many other states severely limiting the use of eminent domain for economic development. In New York, one of eight states without such limits, the official wresting of unblighted property from one ordinary private owner to another politically powerful one for private use continues unabated.

In framing the Constitution, once the Revolution had stopped the tyranny of taxation without representation, Madison realized that even in a self-governing republic, taxes remained the chief source of potential abuse. “The apportionment of taxes on the various descriptions of property, is an act which seems to require the most exact impartiality,” he wrote, “yet there is perhaps no legislative act in which greater opportunity and temptation are given to a predominant party, to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.” A steeply “progressive” tax system, in which the rich pay not just a higher amount but pay at a higher rate than the less affluent, would have troubled him as much as a system whose loopholes allow some rich citizens to pay proportionally less, and he would have heard with dismay—though not with total astonishment, since it was just this kind of danger he knew the country faced—that 47 percent of tax filers now pay no income tax.

But what he could never have imagined is that judges—rather than the legislature—would impose a new system of taxation without representation, a modern tyranny of which the most outrageous of several examples is the New Jersey Supreme Court’s Abbott v. Burke case, still going on after more than a quarter-century. Based on the state constitution’s boilerplate call for the legislature to “provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years,” the court, in a string of 21 decisions starting in 1985, set out to use the schools to rescue the children of New Jersey’s urban underclass, cost be damned.

The court claimed to know just how Herculean a task it was taking on. Inner-city kids in Newark, Trenton, Camden, and so on had “needs that palpably undercut their capacity to learn,” the judges noted. “Those needs go beyond educational needs[;] they include food, clothing and shelter, and extend to lack of close family and community ties and support and lack of helpful role models.” The children live “in an environment of violence, poverty, and despair, . . . isolated from the mainstream of society. Education forms only a small part of their home life,” and dropping out of school “is almost the norm. . . . The goal is to motivate them, to wipe out their disadvantages as much as a school district can, and to give them an educational opportunity that will enable them to use their innate ability.”

What will accomplish this vast work of cultural and social repair? The judges had read their Jonathan Kozol, they noted, and what they took away from the fanciful, far-left education ideologue’s Savage Inequalities, which compares some of the worst urban high schools—including one in Camden, New Jersey—with some of their very best suburban counterparts, is that the chief difference between successful schools and failed ones is money.

So, flinging aside the concept of separation of powers, the court ordered the legislature to hike its support for specified inner-city districts—and not by the relatively modest amount that the legislature calculated would help these schools meet performance standards it thought reasonable, but rather by the huge amount of money needed to make their per-pupil expenditure equal that of the state’s richest suburban districts. In fact, the court reasoned, the 31 so-called Abbott districts should receive more than the rich districts, because inner-city kids have “specific requirements for supplemental educational and educationally-related programs and services that are unique to those students, not required in wealthier districts, and that represent an educational cost.” Before long, the court had included in these extra programs all-day kindergarten, half-day preschools for three- and four-year-olds (though the state constitution calls for free education to start at age five), and special transition programs to work or to college, plus a ton of money to improve “crumbling and obsolescent schools,” since “we cannot expect disadvantaged children to achieve when they are relegated to buildings that are unsafe”—and that, as Jonathan Kozol would say, contemptuously proclaim that a racist society doesn’t value the kids it dumps there.

Perhaps not averse to shoveling lots more money to unionized teachers and construction workers while claiming to have no other choice, the legislature didn’t resist the court’s encroachment on its constitutional prerogative to set taxes and spending priorities, and it obediently began to fleece the Garden State’s taxpayers with abandon, pushing New Jersey’s state and local tax burden to 12.2 percent of the average taxpayer’s income, the highest in the nation in the Tax Foundation’s latest ranking. As spending on the Abbott districts skyrocketed from 8.9 percent of the state budget in 1985 to 15.5 percent of a much bigger budget last year, suburban taxpayers found themselves paying for two school systems: their own, through property taxes (higher since the suburbs now get much less state aid); and the Abbott schools, through their state income taxes—to the tune of almost $37 billion in the decade from 1998 to 2008, according to a Federalist Society study. Suburbanites with kids in private or parochial school shoulder a third system as well. To fund construction of gleaming new inner-city schools, the legislature authorized $8.6 billion in bonds that pirouetted around constitutionally mandated voter approval—and that covered only half the ultimate cost, given the inefficiency and corruption that riddles the contracting process. And last spring, the court demanded yet another half-billion dollars for the Abbott archipelago, at a time when the sagging national economy makes curbing out-of-control government spending, and separating essential from frivolous efforts, more than usually urgent.

What are New Jersey taxpayers accomplishing with the $22,000 to $27,000 they spend per pupil each year in the big inner-city districts? On test scores and graduation rates in Newark, the needle has scarcely flickered. As the E3 education-reform group’s report Money for Nothing notes, high schools in the state’s biggest city can’t produce substantial numbers of juniors and seniors who can pass tests of eighth-grade knowledge and skills, and the report quotes testimony to the same effect before the state legislature about Camden’s schools.

A remark the Jersey justices made in one of their Abbott decisions suggests why. “Approximately twenty security guards are required to ensure the safety of high school students in Trenton,” the judges say, compared with three or fewer in a suburban school. What kind of school culture does this statement imply? The judges know that “many poor children start school with an approximately two-year disadvantage compared to many suburban youngsters”—because, even with court-mandated preschool, they have vocabularies a fraction the size of middle-class children’s, and they lack a middle-class-level mastery of cognitive concepts like cause and effect, or social skills like sharing, taking turns, sitting still, and paying attention, or a middle-class knowledge base of everything from dinosaurs and donkeys to Rapunzel and Rumpelstiltskin.

And money for a 20-man troop of guards is supposed to help shrink that disadvantage rather than expand it, as the schools do now? To work that rescue, the schools need a vast reformation in their institutional culture so that, as in much less costly parochial schools that succeed with the same youngsters whom the public schools fail, kids behave not because they have a phalanx of guards coldly eyeing them but because they identify internally with the purposes of the school and genuinely want to meet its standards. They need teachers rewarded for merit, not longevity, and a curriculum that stresses skills, knowledge, and striving, not grievance and unearned self-esteem. They need a school culture that expands their sense of opportunity and possibility strongly enough to counteract the culture of militant ignorance and failure that surrounds them in the narrow world they know.

Laudable ends generally don’t justify improper means; but when illegitimate means come nowhere near achieving their indisputably noble goal—when, to paraphrase Chief Justice Jay, government drowns our liberties in a pond that can’t even turn a mill wheel—what justification can there be?

One of the greatest dramas of President Washington’s first term was the showdown between House of Representatives leader James Madison and Treasury secretary Alexander Hamilton over how to interpret the Constitution of which Madison was the moving spirit, and which he and Hamilton had defended and explicated together in The Federalist. Hamilton wanted the government to charter a national bank; Madison argued that doing so would be unconstitutional because chartering a bank was not one of the limited and enumerated powers given to the federal government. It was no good, he said, for Hamilton to claim that the Constitution’s clause empowering Congress to make any law “necessary and proper” for carrying out its enumerated powers would permit it to charter the bank, since a bank wasn’t “necessary” but merely “convenient.” Once you start saying that the Constitution’s “necessary and proper” clause, or commerce clause, or clause to provide for the general welfare gives Congress implied powers, you are setting off on a course that will in the end “pervert the limited government of the Union, into a government of unlimited discretion, contrary to the will and subversive of the authority of the people.”

Nonsense, replied Hamilton: the “criterion of what is constitutional . . . is the end to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, & if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the constitution—it may safely be deemed to come within the compass of the national authority.” Congress and President Washington agreed; the bank, once established, sparked an era of golden prosperity; and even Madison learned when he became president that a central bank was indeed necessary, and that interpreting the Constitution requires “a reasonable medium” between trying to “squeeze it to death” and “stretch it to death.” Men of goodwill can disagree on where the line is that would “convert a limited into an unlimited Govt,” but all agree that one can’t overstep that line.

So it was with a certain astonishment that one heard then–Speaker of the House Nancy Pelosi’s reply, when asked two years ago whether President Obama’s health-care plan, which she and her colleagues had just passed into law, was constitutional. “Are you serious?” she said with incredulous contempt. “Are you serious?” With apparently no idea of where her authority came from, she seemed to assume that Congress had power to do whatever it wanted, though her office later announced that the power to force citizens to buy health insurance was implicit in the Constitution’s commerce clause. Congress has, of course, grotesquely stretched the doctrine of implied powers many times since Madison conceded such a thing existed, but here, almost unthinkingly, it stretched it to the breaking point and left the Constitution in fragments on the legislative floor. A year later, federal judges in Florida and Virginia declared the requirement to buy health insurance unconstitutional, as did a Pennsylvania judge this September: the commerce clause, they held, can’t be stretched to make people buy something. If it could, wrote Florida federal judge Roger Vinson, “Congress could require that everyone above a certain income threshold buy a General Motors automobile—now partially government-owned—because those who do not . . . are adversely impacting commerce and a taxpayer-subsidized business.” Now that one federal appellate court has backed Judge Vinson and two others have upheld the requirement to buy health insurance, it will be for the Supreme Court, which received two appeals in the case in late September, to declare whether this time Madison’s nightmare of “unlimited” government finally becomes real.

Nor is this Obamacare’s sole constitutional outrage. To rein in Medicare spending, Obamacare has authorized an appointed panel of 15 “experts,” the Independent Payment Advisory Board, whose power, said Obama’s ex-OMB director, Peter Orszag, will represent “the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve.” To control costs, the board will set reimbursement rates for doctors—which in effect will ration care for Medicare beneficiaries, though the Orwellian law simultaneously forbids explicit rationing—and Congress can overturn the board’s edicts only if it legislates another way to cut Medicare by the same amount. Under some circumstances, which the murkily ambiguous law sets forth in a confusingly vague and broad way, even that congressional tinkering could require 60 votes in the Senate. Nor can Congress kill the board (which, unlike other such agencies as the FCC or SEC, needn’t be even nominally bipartisan) unless it introduces a resolution in January 2017 and enacts it by mid-August by a three-fifths supermajority of all members in both houses—and even then, the resolution can’t take effect until 2020. The Obamacare law isn’t embarrassed to call the executive-branch board’s edicts “legislation,” and it exempts them from judicial or administrative review. So much for the separation of powers.

There’s indeed a lot of petty tyranny going around. The question is, at what point do many little tyrannies add up to Tyranny? Likely voters suggested a troubling answer in an August Rasmussen poll: 69 percent of them said they didn’t think today’s U.S. government enjoys the consent of the governed. And in September, 49 percent of respondents, an unprecedented high, told Gallup pollsters that “the federal government poses an immediate threat to the rights and freedoms of ordinary citizens.”

Myron Magnet, City Journal’s editor-at-large and its editor from 1994 through 2006, is a recipient of the National Humanities Medal and the author of The Dream and the Nightmare: The Sixties’ Legacy to the Underclass.

http://www.city-journal.org/2011/21_4_tyranny-and-liberty.html
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DougMacG
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« Reply #505 on: November 05, 2011, 08:52:08 PM »

Bigdog posted in 'Politics' 11/1: "And, yet, it is political speech and therefore due higher protection than it has been given:  http://www.cnn.com/2011/10/31/us/tennessee-occupy-protests/index.html?hpt=hp_t1"

Years ago an old friend as a young attorney used to represent strip joints in town and also the strippers.  He made the argument that the exposed dancing was their speech and thus protected.  I don't remember how far he got with that.

Obviously the actual protests constitute political speech.  Holding signs, conducting rallies, inviting speakers and listeners is protected political speech at its best.  But what about sleepovers and just hanging out?  Does  protected mean they don't have to pay the permit fee that the tea partiers had to pay in one case, or that they can live there for nothing if there is no permit law?  Are laws like a public curfew or park hours  unconstitutional?  Is there a right for the others in the neighborhood or from other political groups to have a turn at some unobstructed access to these public areas too?
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bigdog
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« Reply #506 on: November 05, 2011, 09:48:15 PM »

DougMacG: The issue in TN was that the law was not content neutral.  The law was passed with Occupy in mind, not as a general preventative manner. 
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G M
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« Reply #507 on: November 05, 2011, 09:57:18 PM »

I'm sure the rapes and riots are political speech in front of leftist judges as well.   rolleyes
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bigdog
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« Reply #508 on: November 06, 2011, 04:55:23 AM »

Yeah, I am totally sure that this is true. 
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G M
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« Reply #509 on: November 06, 2011, 08:47:34 AM »

Why not? The rule of law is being waived by the sympathetic politicians in various cities, the MSM is doing it's best to not report on the culture of criminality found within OWS and the American Criminal Liberties Union is performing it's Stalinist mission of using the American legal system to harm America.

You don't see this?
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G M
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« Reply #510 on: November 06, 2011, 08:58:39 AM »

Oh, the judge is a Clinton appointee. Shocker!
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G M
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« Reply #511 on: November 06, 2011, 09:13:18 AM »

Oh, the judge is a Clinton appointee. Shocker!


http://orig.jacksonsun.com/fe/coe/aleta_trauger.htm

Trauger met Vice President Al Gore when they attended Vanderbilt Law School in the mid-1970s, and she was a Clinton-Gore Delegate in 1992.
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G M
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« Reply #512 on: November 06, 2011, 09:36:31 AM »

Oh, the judge is a Clinton appointee. Shocker!


http://orig.jacksonsun.com/fe/coe/aleta_trauger.htm

Trauger met Vice President Al Gore when they attended Vanderbilt Law School in the mid-1970s, and she was a Clinton-Gore Delegate in 1992.
http://thehill.com/blogs/e2-wire/677-e2-wire/187297-gore-throws-support-behind-occupy-wall-street-protests

Al Gore backs Occupy Wall Street protests

 By Andrew Restuccia - 10/13/11 09:25 AM ET


Former Vice President Al Gore threw his support behind the Occupy Wall Street protests Wednesday night, arguing that the country’s elected officials have failed the public on everything “from the economy to the climate crisis.”

**What a co-inky-dink!
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bigdog
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« Reply #513 on: November 06, 2011, 01:27:30 PM »

I don't see the rule of law being waived by sympathetic politicians.  Sorry.  There have been several crackdowns.  I have read of the rape in the Philly Occupy on CNN.  And the ACLU continues to protect free speech, GM.  Like they did with well known Stalinists in Skokie.  Speech you don't like it the fing point of the 1st Amendment. 

Why not? The rule of law is being waived by the sympathetic politicians in various cities, the MSM is doing it's best to not report on the culture of criminality found within OWS and the American Criminal Liberties Union is performing it's Stalinist mission of using the American legal system to harm America.

You don't see this?
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G M
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« Reply #514 on: November 06, 2011, 01:43:50 PM »

"I don't see the rule of law being waived by sympathetic politicians."

**How many examples would you like?

http://pjmedia.com/tatler/2011/11/04/video-are-police-giving-ows-protesters-a-free-pass/

Video: Are Police Giving OWS Protesters a Free Pass?



 
Wednesday night, November 2nd, I went to the Occupy Los Angeles Protests in front of City Hall with my flip cam to take footage. At 5:30 PM approximately one thousand of the protesters gathered in the middle of the street and started marching. Mind you, this was at 5:30 PM, rush hour, in Downtown Los Angeles, where the traffic is already atrocious on a regular night. I couldn’t believe my eyes. I wondered how on earth these protesters got a permit to march in the middle of the street during rush hour, blocking traffic and making the drive home for thousands of people even worse. However, as you will see in the video I took, these protesters did not have a permit. They just marched in the street, completely breaking the law. And the most amazing part, the cops did not seem to care. In fact, they were escorting the marchers through the streets of downtown, as thousands of people sat in their cars waiting for these selfish brats to pass by. In fact, to my knowledge, not one single person was arrested. Unbelievable. This got me thinking: Would the city and the police be so accommodating if a tea party rally spontaneously started marching into the streets and obstructing traffic during rush hour? That, of course, is a rhetorical question.
 
- Sammy Levine (Associate Producer PJTV)
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c - Shadow Dog
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« Reply #515 on: November 06, 2011, 02:08:13 PM »

GM,

The cops and bureaucrats  aren't afraid of the tea partiers the tea party is part of the establishment.  They are afraid of these guys because these folks have less to loose so they have more power to act in ways out side the law because they have less to loose.

Terry
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G M
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« Reply #516 on: November 06, 2011, 02:11:28 PM »

GM,

The cops and bureaucrats  aren't afraid of the tea partiers the tea party is part of the establishment.  They are afraid of these guys because these folks have less to loose so they have more power to act in ways out side the law because they have less to loose.

Terry

The LAPD could handle the crowd, no problem. They are obviously under orders not to.
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G M
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« Reply #517 on: November 06, 2011, 02:17:42 PM »

An Open Letter to the Citizens of Oakland from the Oakland Police Officer’s Association

1 November 2011 – Oakland, Ca.

We represent the 645 police officers who work hard every day to protect the citizens of Oakland. We, too, are the 99% fighting for better working conditions, fair treatment and the ability to provide a living for our children and families. We are severely understaffed with many City beats remaining unprotected by police during the day and evening hours.

As your police officers, we are confused.

On Tuesday, October 25th, we were ordered by Mayor Quan to clear out the encampments at Frank Ogawa Plaza and to keep protesters out of the Plaza. We performed the job that the Mayor’s Administration asked us to do, being fully aware that past protests in Oakland have resulted in rioting, violence and destruction of property.

Then, on Wednesday, October 26th, the Mayor allowed protesters back in – to camp out at the very place they were evacuated from the day before.

To add to the confusion, the Administration issued a memo on Friday, October 28th to all City workers in support of the “Stop Work” strike scheduled for Wednesday, giving all employees, except for police officers, permission to take the day off.

That’s hundreds of City workers encouraged to take off work to participate in the protest against “the establishment.”

But aren’t the Mayor and her Administration part of the establishment they are paying City employees to protest? Is it the City’s intention to have City employees on both sides of a skirmish line?

It is all very confusing to us.

Meanwhile, a message has been sent to all police officers: Everyone, including those who have the day off, must show up for work on Wednesday. This is also being paid for by Oakland taxpayers. Last week’s events alone cost Oakland taxpayers over $1 million.

The Mayor and her Administration are beefing up police presence for Wednesday’s work strike they are encouraging and even “staffing,” spending hundreds of thousands of taxpayer dollars for additional police presence – at a time when the Mayor is also asking Oakland residents to vote on an $80 parcel tax to bail out the City’s failing finances.

All of these mixed messages are confusing.

We love Oakland and just want to do our jobs to protect Oakland residents. We respectfully ask the citizens of Oakland to join us in demanding that our City officials, including Mayor Quan, make sound decisions and take responsibility for these decisions. Oakland is struggling – we need real leaders NOW who will step up and lead – not send mixed messages. Thank you for listening.

SOURCE: Oakland Police Officer’s Association
http://www.opoa.org/uncategorized/an-open-letter-to-the-citizens-of-oakland-from-the-oakland-police-officers%E2%80%99-association/
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bigdog
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« Reply #518 on: November 06, 2011, 03:03:01 PM »

http://www.military.com/news/article/vets-heed-occupy-rallying-cry.html (Support Our Troops!!!!)



NEW YORK -- U.S. military veterans are heeding the rallying cry of Occupy Wall Street, saying corporate contractors in Iraq made big money while the troops defending them came home - and can't make a living now.

"For too long, our voices have been silenced, suppressed and ignored in favor of the voices of Wall Street and the banks and the corporations," said Joseph Carter, a 27-year-old Iraq war veteran who marched Wednesday to Zuccotti Park, the epicenter of the movement that has spread worldwide.

The former Army sergeant from Seattle spoke to fellow Occupy protesters and passers-by on Broadway after joining about 100 veterans marching in uniform from the Vietnam Veterans Plaza through Manhattan's financial district.

Their unemployment rate outstrips the national average and is expected to worsen. They worry about preservation of First Amendment rights. And they're angry.

A week before Veterans Day, generations of former U.S. military men and women threw their considerable weight behind the Occupy movement born in mid-September when about 100 protesters also marched in the Wall Street area.

"For 10 years, we have been fighting wars that have enriched the wealthiest 1 percent, decimated our economy and left our nation with a generation of traumatized and wounded veterans that will require care for years to come," said Carter, who leads the national Iraq Veterans Against the War group.

Requiring care now in California is a former Marine whose skull was fractured last week when he was injured by a projectile at an Occupy Oakland rally. Police there are now the subject of a formal investigation by the city's Citizens' Police Review Board.

In New York on Wednesday, police circled the veterans as they stood in formation in front of the New York Stock Exchange, chanting, "We are veterans! We are the 99 percent!" and "Corporate profits on the rise, soldiers have to bleed and die!"

By the stock exchange, Josh Shepherd, a former Navy petty officer 2nd class who was next to Olsen when he was injured, read the oath members of the armed forces
take to defend the U.S. Constitution.

"We are here to support the Occupy Wall Street movement," he then declared.

Police officers on scooters separated the veterans from the entrance to the stock exchange. On the other side of the marchers was a lineup of NYPD horses carrying officers with nightsticks.

"We are marching to express support for our brother, Scott Olsen, who was injured in Oakland," former Army specialist Jerry Bordeleau told The Associated Press earlier.

At the intersection of Wall Street and Broadway, they paused for a moment of silence for the Marine who served two Iraq tours and remains hospitalized.

Olsen was honored Wednesday by veterans and other activists at Occupy protests around the nation, from Boston and Philadelphia to Los Angeles and Chicago.

James McBride, 20, an Army Reserve veteran, said his military oath was the reason he traveled from Vermont to join the Occupy Boston encampment the day after 141 people were arrested on Oct. 11 trying to expand to an adjacent plot of land.

"I swore to defend their freedoms, and they were being taken away. It's very unconstitutional," said McBride, who said he was less than honorably discharged for medical reasons.

McBride said the Occupy Wall Street protest is exactly the kind of civil disobedience protected under U.S. law.

"They wanted to kick us out. This is a peaceful assembly," he said Thursday. "In the Constitution, the people have the right to peacefully assemble. It's plain and simple. That's why I'm here, to defend the Constitution of the United States."

Back in New York, Bordeleau blamed some financial institutions for U.S. involvement in Iraq and Afghanistan.

"Wall Street corporations have played a big role in the wars in Iraq and Afghanistan," said Bordeleau, 24, who served several years in Iraq over two tours ending in 2009 and now attends college in New York.

He said private contractors have reaped big profits in those countries "in pursuit of corporate interests that have had a devastating effect on our economy and our country, benefiting only a small number of people."

"The 99 percent have to take a stand," Bordeleau said, to rectify the biggest income gap between rich and poor since the Great Depression, fueled by what protesters say is Wall Street's overblown clout in Washington politics.

From the stock exchange, the veterans walked down Broadway to the bronze bull that symbolizes the stock market.

"Halliburton and Bechtel think these wars are swell," they chanted, invoking the names of American companies that received federal contracts for work rebuilding Iraq.

They say those who risked their lives fighting for their country have the right to protest economic policies and business practices that give them a slimmer chance of finding jobs than most Americans.

From 2008 to 2011, veterans' unemployment rose 5.1 percentage points, according to the Bureau of Labor Statistics.

And a Department of Labor report shows that unemployment tops 20 percent among 18-to-24-year-old veterans, compared with a national rate of about 9 percent.

Veteran unemployment is projected to worsen after 10,000 servicemen and servicewomen return from Afghanistan and 46,000 come home from Iraq by year's end - many wounded or suffering from mental trauma.

Bordeleau, who served in the military police, said his diagnosis of post-traumatic stress disorder has made it impossible to pursue a career in civilian law enforcement, and that he's had a hard time finding jobs that pay more than $10 an hour. He has worked as a groundskeeper at a New York public park while living on disability benefits.

"I can't really survive on that,"
he said.

Wednesday's protest comes two weeks after another veteran faced off with police in New York.

Shamar Thomas, a decorated
former Marine sergeant from Roosevelt, N.Y., went nose-to-nose with officers policing activists in Times Square.

"This is not a war zone! These are not armed people!" he told police in a passionate, videotaped plea that has gone viral on YouTube.

Mayor Michael Bloomberg said he believes the protest, now in its seventh week, is "really hurting small businesses and families."

He said the city has worked hard to preserve the protesters' First Amendment rights, but is very concerned about the rights of others in the area. Bloomberg said the city will take action if and when it's appropriate.

To ease access to small businesses on Wall Street, hundreds of police barricades were removed Wednesday, said Marc LaVorgna, a mayoral spokesman.


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DougMacG
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« Reply #519 on: November 06, 2011, 05:50:50 PM »

I understand the free speech aspect.  I don't understand why those rights trump others.  When you are done speaking, shouldn't you go home, let others speak?  In terms of free speech, it seems like they are the 1% trying to occupy disproportionately the conversation while the other 99% aren't being heard. JMHO.

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G M
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« Reply #520 on: November 06, 2011, 06:16:47 PM »

"And the ACLU continues to protect free speech, GM."

Really? I only see FIRE winning cases for free speech on campus. I guess the ACLU is too busy trying to crush the Boy Scouts and defending NAMBLA.

 Like they did with well known Stalinists in Skokie. 

Stalinist allies, you mean. Remember, the commies that founded the Criminal Liberties Union were big fans of Hilter and his National SOCIALIST German Worker's Party until Adolph and Stalin got into a tiff.

Speech you don't like it the fing point of the 1st Amendment.

As long as it's speech that damages America, the ACLU is there. Funny how there seems to be a lack of them litigating against leftist speech codes.
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G M
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« Reply #521 on: November 06, 2011, 06:27:01 PM »

http://www.thegatewaypundit.com/2011/11/confirmed-vet-scott-olsens-injuries-were-not-caused-by-sheriffs-deputies/

Confirmed: Scott Olsen’s Injuries Were NOT Caused By Sheriff’s Deputies

Posted by Jim Hoft on Wednesday, November 2, 2011, 10:14 PM

Call off the dogs – The protesters lied.
 The cops are innocent.
 
Memorial for Marine-hater Scott Olsen at Occupy Oakland. (Reuters)
 
Confirmed: Leftist hero, Jew-basher and founder of “I Hate the Marines.com” website Scott Olsen was not injured at the Oakland riots by local deputies. Olsen was hit by a projectile thrown by the protesters.
 
The Occupy Oakland protesters already admitted that they started throwing rocks and bottles at police before the police took action.
 

Today the the San Francisco Sheriff’s Department announced that it was not their deputies who injured Scott Olsen. Spokeswoman Eileen Hirst said 35 of the 37 Sheriff’s Department personnel on site for the raid were not carrying projectiles, and the two who were equipped with them did not fire.
 Sorry libs.
 The San Francisco Examiner reported:
 

Former Marine Scott Olsen suffered a skull fracture in the shutdown of the camp after it turned violent the night of Oct. 25 in downtown Oakland. More than 15 local public safety agencies were called in to assist the Oakland Police Department, including the San Francisco Sheriff’s Department.
 
Occupy activists and supporters claim to have identified at least three San Francisco deputies in video shot before and during the raid…
 
…Protesters identified the three deputies based on preraid video that showed them from a closer and less chaotic standpoint — near enough to make their nametags visible.
 
The head of the union that represents sheriff’s deputies said activists circulated one deputy’s home address online. The union has requested it be removed.
 
The Sheriff’s Department said an internal investigation unit is reviewing the incident, but it’s unlikely the identified deputies caused Olsen’s injury. Spokeswoman Eileen Hirst said 35 of the 37 Sheriff’s Department personnel on site for the raid were not carrying projectiles, and the two who were equipped with them did not fire.
 
Hirst also said the department has a policy against deputies using weapons for which they are not trained, or borrowing weapons from other law enforcement during a raid situation.
 
The Mercury News has more.
 

The only nonlethal weapons San Francisco sheriff deputies brought to Oakland were two Anti-Riot Weapon Enfield rifles that fire 37 mm nonlethal rounds, similar to a roll of quarters. However, no deputies shot those weapons Tuesday night, Hirst said. Asked if someone from another department could have fired a deputy’s weapon, Hirst said, “No, we can’t use equipment we’re not trained in.”
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bigdog
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« Reply #522 on: November 07, 2011, 05:39:57 AM »

"As long as it's speech that damages America, the ACLU is there. Funny how there seems to be a lack of them litigating against leftist speech codes."

On this, we agree.  The ACLU's lack of support in one area should not cloud you to the fact that it is currently working to keep speech free at the Occupy sites.  Speech is not bad for America, or un-American.  Speech is the basis of America.  In the same ways that I support the free speech of the Tea Party, Nazis and Westboro (and I am not trying equate them, so climb down off that horse), I support the free speech of the OWS and other places.  It is the market place of ideas.  And I love it.


 
 
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bigdog
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« Reply #523 on: November 07, 2011, 05:44:03 AM »

I understand the free speech aspect.  I don't understand why those rights trump others.  When you are done speaking, shouldn't you go home, let others speak?  In terms of free speech, it seems like they are the 1% trying to occupy disproportionately the conversation while the other 99% aren't being heard. JMHO.

Woof Doug, I am not exactly sure what you mean here.  You think that other voices aren't being heard?  That others aren't speaking out?  Occupying a park doesn't appear to me to be all that limiting to others' speech rights. 
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G M
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« Reply #524 on: November 07, 2011, 06:41:47 AM »

"As long as it's speech that damages America, the ACLU is there. Funny how there seems to be a lack of them litigating against leftist speech codes."

On this, we agree.  The ACLU's lack of support in one area should not cloud you to the fact that it is currently working to keep speech free at the Occupy sites.  Speech is not bad for America, or un-American.  Speech is the basis of America.  In the same ways that I support the free speech of the Tea Party, Nazis and Westboro (and I am not trying equate them, so climb down off that horse), I support the free speech of the OWS and other places.  It is the market place of ideas.  And I love it.


 
 


There is a difference between speech and illegal protests. I can post a lot of caselaw on the topic if you wish. Frankly, I think OWS is good in that it reminds the public of the true face of the left. Just as Obama and europe are providing lessons on how much of a failure euro-socialism is, OWS is providing graphic lessons on what the deluded beliefs of the left look like when applied to the real world.

Riots are not protected speech, blocking roadways is not protected speech. The double standards demonstrated towards the TEA party vs. that towards OWS could not be more obvious. When you have such disparity, it is corrosive to the rule of law.
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bigdog
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« Reply #525 on: November 07, 2011, 06:56:22 AM »

No, GM, I'm good on the case law, thanks.

And when the speech has turned into blocking roadways, for example, there have been arrests.

But, let us not forget that this train of discussion started with my post on the law in Nashville that was clearly not content neutral.  It was ruled as such by a judge, twho you in turn disparaged... nevermind the case law and historical precedent of that particular issue. 
« Last Edit: November 07, 2011, 07:01:05 AM by bigdog » Logged
G M
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« Reply #526 on: November 07, 2011, 07:10:38 AM »

"And when the speech has turned into blocking roadways, for example, there have been arrests."

If you'll scroll back up to the youtube video I posted, you'll see rush hour traffic being blocked by OWS protesters and the LAPD doing nothing about it. Why do you suppose that is?


"But, let us not forget that this train of discussion started with my post on the law in Nashville that was clearly not content neutral."

Did the law prohibit a certain kind of speech? I doubt it.

"It was ruled as such by a judge, twho you in turn disparaged... nevermind the case law and historical precedent of that particular issue."

I pointed out the political alignment of this dem operative clad in a black robe who did as is commonly done by her ilk, legislated from the bench to further her political agenda.
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bigdog
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« Reply #527 on: November 07, 2011, 07:23:23 AM »

"If you'll scroll back up to the youtube video I posted, you'll see rush hour traffic being blocked by OWS protesters and the LAPD doing nothing about it. Why do you suppose that is?"

Because it is one example, while there have been many examples of the opposite occuring nationwide.  Because you overlook arrested made in NYC, St. Louis, Nashville (the strating point of the discussion), Austin, and elsewhere. 

"Did the law prohibit a certain kind of speech? I doubt it."

This shows your lack of understanding on the totality of related precedent, GM.  If you know your case law, you know that laws can't be passed that target not only one type of speech, but one type of speaker. 

"I pointed out the political alignment of this dem operative clad in a black robe who did as is commonly done by her ilk, legislated from the bench to further her political agenda."

A judge that follows precedent is now legislating from the bench?  Not quite. 
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G M
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« Reply #528 on: November 07, 2011, 08:27:00 AM »

"Because it is one example, while there have been many examples of the opposite occuring nationwide.  Because you overlook arrested made in NYC, St. Louis, Nashville (the strating point of the discussion), Austin, and elsewhere."

**Arrests for the arrest for the rapes, assaults and other felony crimes? I'll refer you back to the letter from the Oakland PD union, where after they were ordered to clear the illegal encampment, the mayor then ordered them to allow the illegal campers to return, oh and then gave city employees the day off to join the illegal protest. Zucotti Park in NYC is private property, but the NYPD won't protect it because mayor Bloomie won't let them. So, the rule of law means nothing, so long as the powers that be agree with your agenda.
"This shows your lack of understanding on the totality of related precedent, GM.  If you know your case law, you know that laws can't be passed that target not only one type of speech, but one type of speaker."

**Really? Since when is trespassing "speech"? This is part of the Stalinist Criminal Union's game. Make everything "speech" then shield the criminal conduct under the 1st amendment. Is the public sh*tting speech? Public masturbation?   
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Crafty_Dog
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« Reply #529 on: November 07, 2011, 09:03:13 AM »

I think all of us are in agreement that free speech applies to everyone. 

I am unfamiliar with the particular judge's ruling and have no opinion on whether personal bias entered into her decisions. That said, FWIW my vote is that in many locations that there has been a substantial content-based disparity of treatment of the Tea Party and OWS by local authorities (and the Pravadast too, but that is a separate point). 



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DougMacG
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« Reply #530 on: November 07, 2011, 11:25:25 AM »

Quote from: DougMacG on November 06, 2011, 03:50:50 PM
I understand the free speech aspect.  I don't understand why those rights trump others.  When you are done speaking, shouldn't you go home, let others speak?  In terms of free speech, it seems like they are the 1% trying to occupy disproportionately the conversation while the other 99% aren't being heard. JMHO.

Woof Doug, I am not exactly sure what you mean here.  You think that other voices aren't being heard?  That others aren't speaking out?  Occupying a park doesn't appear to me to be all that limiting to others' speech rights. 
-------------------------------
Yes, occupying a park or square is aimed at keeping out other people and other voices as I see it (and as they see it), but beyond speech there is also a right of others to enjoy the park, to take a turn standing on the step and sitting on the bench, to walk through unhassled.  The right of the restaurant owner in Oakland to not have his business driven away.

What is the meaning to the protesters of the verb 'occupy'?  It is a military term, is it not?  You occupy a country, you occupy a territory, you occupy the space in front of a private business like Wall Street, for the purpose of putting a restraint on what otherwise would be happening there.  The intention is to dominate, to drown out the other voices and disrupt other activities.  Dominate with numbers if you have to hire them like soldiers, dominate with time, dominate with space taken up.  Literally filibuster by staying without ending even when you are not speaking so others cannot have the space for the next rally and express a different viewpoint. 

What you don't see with an amazing background in constitutional and case law, my daughter saw in Madison without special training.  You can't walk State Street to the Capitol while visiting a major public university and enjoy the lights on a beautiful autumn evening without being forced to encounter the scene described in plenty of other posts, not speech at all but people living in the public square with all their ugliness.  My daughter understood the point of occupy, dominate and intimidate out other views:  As we walked through once in each direction, knowing my political proclivities, she said, "don't say anything, don't say anything. don't say anything".  She felt the intimidation they were intending to exude.  'Uncomfortable' I think was the word that landed Cain's accusers about 40k; we got nothing.

I love the zealotry over a constitutional principle like freedom of speech and I'm intrigued by the attempts to expand 'speech' to include almost anything, like resting up for speech and enjoying a little sexual release, consensual or otherwise.  But the Bill of Rights is larger and longer than that. What I don't understand is the willingness of same people in so many cases to tromp all over other constitutional principles, for example, equal protection.  While the definition of speech gets expanded, the definition of equal protection gets narrowed.  I already gave several examples like the estate tax, we tax estates only over 5 million, in case law we determine that it applies to everyone evenly right while we are saying to the public and on the floor of the legislative bodies that we are targeting one specific group - the people with these large estates.  Same with progressive taxation.  Higher rates don't just happen to fall on certain people, they are targeted, just as much as a law against dominating the public square for any cause does, IMO. 

We have laws up and down this country about how people should live for health and for safety, especially in the cities of the protests.  These laws limit freedom but pass constitutional muster I presume.  In residential housing law, if I have one burner on a gas stove that won't self light, one window blind torn or one latch on an interior door that won't latch just right, I am in violation of city law - meanwhile these people live in the city square without a bathroom, without a dressing room, with known public urination, defecation, masturbation, and publicly spreading lice (http://www.youtube.com/watch?v=C5ypeLuKnLg&feature=related)... and they are extended a higher level of protection.  Good grief. 

Politically and practically, my feeling is to let them be and keep the cameras and coverage on.  This is the 1% (far fewer) and they illustrate and bring to life various aspects of leftism better than any conservative can put to words. The more we pay attention or object to their presence, the longer they will stay and be bothersome.  But in terms of rights, I fail to see how others can fail to see that occupy means hold ground that was formerly public, against the rights of others.
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bigdog
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« Reply #531 on: November 07, 2011, 11:43:06 AM »

Yes, really.  You say you know the case law, GM.  Then you should know that laws passed to prevent particular people from speaking in a particluar place in a particular manner aren't constitutional. 

R.A.V. comes to mind immediately.  And the law in TN, which is the beginning of this thread, was passed AFTER Occupy started and was aimed AT Occupy.  Not the Tea Party.  Not me.  Not Young Republicans or Democrats. 

"Because it is one example, while there have been many examples of the opposite occuring nationwide.  Because you overlook arrested made in NYC, St. Louis, Nashville (the strating point of the discussion), Austin, and elsewhere."

**Arrests for the arrest for the rapes, assaults and other felony crimes? I'll refer you back to the letter from the Oakland PD union, where after they were ordered to clear the illegal encampment, the mayor then ordered them to allow the illegal campers to return, oh and then gave city employees the day off to join the illegal protest. Zucotti Park in NYC is private property, but the NYPD won't protect it because mayor Bloomie won't let them. So, the rule of law means nothing, so long as the powers that be agree with your agenda.
"This shows your lack of understanding on the totality of related precedent, GM.  If you know your case law, you know that laws can't be passed that target not only one type of speech, but one type of speaker."

**Really? Since when is trespassing "speech"? This is part of the Stalinist Criminal Union's game. Make everything "speech" then shield the criminal conduct under the 1st amendment. Is the public sh*tting speech? Public masturbation?   
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bigdog
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« Reply #532 on: November 07, 2011, 11:52:33 AM »

"I love the zealotry over a constitutional principle like freedom of speech and I'm intrigued by the attempts to expand 'speech' to include almost anything, like resting up for speech and enjoying a little sexual release, consensual or otherwise.  But the Bill of Rights is larger and longer than that. What I don't understand is the willingness of same people in so many cases to tromp all over other constitutional principles, for example, equal protection.  While the definition of speech gets expanded, the definition of equal protection gets narrowed.  I already gave several examples like the estate tax, we tax estates only over 5 million, in case law we determine that it applies to everyone evenly right while we are saying to the public and on the floor of the legislative bodies that we are targeting one specific group - the people with these large estates.  Same with progressive taxation.  Higher rates don't just happen to fall on certain people, they are targeted, just as much as a law against dominating the public square for any cause does, IMO."

Good stuff, Doug.  Good stuff.  Thank you for clarifying.  I can only tell you that there is almost always a tension between portions of the Constitution.  Here are some:

1.  Congress has the power to raise an army.  A religious pacifist has the right to exercise religion.  Can Congress raise an army using him?
2.  Congress "shall make no law" limiting press.  A person has the right to a fair trial.  Can the press report on issues that may taint the judge or jury?
3.  There is a right to free speech.  There is a right of privacy.  Where does your speech impede my right to privacy? 
4.  There is a right to an abortion (there is, even if you disagree with the right and the source).  There is a right to speech.  What are the legal limits that can be put on abortion protesters at an abortion clinic?

There are dozens of others, of course.  So, where does speech end and the right to stroll unabated through a park (as an example) begin and end?  I don't know.  But I can tell you that means of enforcement matter... and laws cannot be focused at one particular event/source/type of speech.  And that goes for the Tea Party, too, by the way.  I am NOT asking officials to have different standards for these disparate groups. 
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DougMacG
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« Reply #533 on: November 07, 2011, 01:00:16 PM »

Likewise, Bigdog, thank you, that is helpful.  That is all I am saying too is recognize the contention of these rights:

"where does speech end and the right to stroll unabated through a park (as an example) begin and end?  I don't know."

There is no perfect answer, just recognize the contention and try to work with it.  We all (maybe 99% of us) would like to have some balance of both which means some reasonable limits and that would necessarily mean some enforcement which definitely cannot be based on content.

I so far find the content of this particular movement vacuous, but the best way to clear them out is probably to let them have their say for as long as they want.  Enforce only the other things that all of us would expect a ticket for, public urination etc.

They are abusing IMO a right that we extend to all.  Have your rally, have your say and go home; we shouldn't need a time limit law for people to know they only have a right to share the park or the square, not occupy it.  

Regarding abortion, I agree that case law protects the right to kill your young up to an arbitrary point based on privacy while our right to privacy in so many other ways is non-existent.  Both sides are missing the clause in the constitution IMO that settles the matter in their favor.  Your analogy with abortion protesters at the abortion clinic is excellent.  That political protest should be against the people who decided a barbaric practice to be protected rather than against those who are following current law.  In fact, more people are offended by value based pay than by the slaughtering of our young, so these are the protests of the moment.
« Last Edit: November 07, 2011, 01:06:58 PM by DougMacG » Logged
bigdog
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« Reply #534 on: November 07, 2011, 01:21:06 PM »


I so far find the content of this particular movement either absent or meaningless but the best way to clear them out is probably to let them have their say for as long as they want... 

Your analogy with abortion protesters at the abortion clinic is excellent. 

As do I.  I've been talking about it to students for weeks.  I've had about four or so students go to various Occupy sites, and relate their stories of the vapidity of the protestors.  One student described them as "sad."  But, I think that when we allow for protests to occur, no matter what the reason (lack of reason/logic/ability to describe the ills they feel) we do a service to the country.  We are a nation that has had peaceful transitions of government for a couple centries (more or less).  Compare that to countries that consistently crackdown on speech/assembly/religion.  Coups, assissinations, revolutions, and other types of political instability.

The abortion analogy wasn't random.  Read this: http://www.law.cornell.edu/supct/html/98-1856.ZS.html, and note the Scalia dissent.  The best thing he has ever written, in my opinion.  But, note the struggle with the majority, too.  Unlike many of you, I don't scorn Stevens, and in this case he notes the struggle.  (I should also note that CJ Rehnquist assigned the opinion to Stevens here, and voted with him on it.)

But, you can look at other cases.  Texas v. Johnson (aka "The Flag Burning case"), Kennedy writes what I think is his best work available here: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0491_0397_ZC.html.  To underline the difficulty of these questions, note the odd way that the majorities fall out in these two cases.  In Hill, you have Rehnquist voting with the majority, while other conservatives are in dissent.  In Johnson, Rehnquist and Stevens both dissent.  In other words, the rights to protest, the exetent of protest, the place of protest, etc. etc. really, really are difficult questions. 
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G M
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« Reply #535 on: November 08, 2011, 01:07:28 AM »

"Yes, really.  You say you know the case law, GM.  Then you should know that laws passed to prevent particular people from speaking in a particluar place in a particular manner aren't constitutional."

Try again. You obviously don't know that the SCOTUS has established that speech is subject to reasonable time, place, or manner restrictions. I do. I'm sure the DNC operative clad in a black robe does as well.

You might want to brush up on the article below:


http://www.llrmi.com/articles/legal_update/2011_us_wbc.shtml

The Court also noted that the protest was held on public property adjacent to a public street.  The Court reiterated the often cited conclusion that public streets and property are of heightened importance in terms of free speech and assembly and subject to greater Constitutional protection.

 The case does not stand for the proposition that government has no control over speech in a public place, as time, place and manner of speech restrictions issued by government may still be Constitutional. The Court noted, that while Maryland did not have a funeral protest statute in place at the time of this event, there is such a statute in place today, as there is in 43 states as well as a federal statute.  The Court did not consider the Constitutionality of these statutes but there seems to be an implicit suggestion in the decision that such statutes, relating to time place and manner would be Constitutional if reasonably based on a government interest.

The Court cited a number of cases where laws governing time, place and manner of speech were examined and upheld.


That said, "[e]ven protected speech is not equally permissible in all places and at all times." Id., at 479, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 799, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985)). Westboro's choice of where and when to conduct its picketing is not beyond the Government's regulatory reach -- it is "subject to reasonable time, place, or manner restrictions" that are consistent with the standards announced in this Court's precedents. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984). Maryland now has a law imposing restrictions on funeral picketing, Md. Crim. Law Code Ann. § 10-205 (Lexis Supp. 2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus Curiae 18-19, n. 2 (listing statutes). To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland's law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional. 
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bigdog
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« Reply #536 on: November 08, 2011, 04:44:21 AM »

So, you note that speech in a public place has heightened importance.  The article then notes that "[t]he Court did not consider the Constitutionality of these statutes" but you want this to support your overall point.  Fine.  Let's keep looking... oh, the article then makes the amorphous claim that "there seems to be an implicit suggestion" (man, that is concrete and damn fine example that that might maybe possibly happen) "in the decision that such statutes, relating to time place and manner would be Constitutional if reasonably based on a government interest."

So, you want me to buy that the Court, in dicta, implied that it might answer a question that it specifically didn't answer.  I suspect that we will get our answer from the Court on the funeral protest laws. 

Did you look at RAV?  Did you look at the opinions from Scalia in Hill and Kennedy in Johnson? 

Quick note: You do correctly point out time, place and manner restrictions.  My point, which was unclear, is that the laws can't be passed to target the groups who use TPM.  Think flag burning as a particular law or the hate speech targeted in RAV. 

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Crafty_Dog
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« Reply #537 on: November 08, 2011, 08:11:12 AM »

BD:   I appreciate the citations you bring to the conversation-- which does mean a bit more effort must be put into this thread.  So help me out please.  What is the post number in this thread where the TE law was first mentioned?
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bigdog
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« Reply #538 on: November 08, 2011, 08:49:41 AM »

BD:   I appreciate the citations you bring to the conversation-- which does mean a bit more effort must be put into this thread.  So help me out please.  What is the post number in this thread where the TE law was first mentioned?

Woof Guro: Politics 667.  Doug shifted the conversation to this thread based on the content of his question in 507 of this thread. 
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G M
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« Reply #539 on: November 08, 2011, 08:57:48 AM »

http://legal-dictionary.thefreedictionary.com/Time%2c+Place%2c+and+Manner+Restrictions

Time, Place, and Manner Restrictions      

Limits that government can impose on the occasion, location, and type of individual expression in some circumstances.

The First Amendment to the U.S. Constitution guarantees Freedom of Speech. This guarantee generally safeguards the right of individuals to express themselves without governmental restraint. Nevertheless, the Free Speech Clause of the First Amendment is not absolute. It has never been interpreted to guarantee all forms of speech without any restraint whatsoever. Instead, the U.S. Supreme Court has repeatedly ruled that state and federal governments may place reasonable restrictions on the time, place, and manner of individual expression. Time, place, and manner (TPM) restrictions accommodate public convenience and promote order by regulating traffic flow, preserving property interests, conserving the environment, and protecting the administration of justice.

The Supreme Court has developed a four-part analysis to evaluate the constitutionality of TPM restrictions. To pass muster under the First Amendment, TPM restrictions must be contentneutral, be narrowly drawn, serve a significant government interest, and leave open alternative channels of communication. Application of this analysis varies in accordance with the circumstances of each case.

The rationale supporting a particular TPM restriction may receive less rigorous scrutiny when the government seeks to regulate speech of lower value such as Obscenity and fighting words. Obscene speech includes most hard-core Pornography, while fighting words include offensive speech that would incite a reasonable person to violence. Conversely, the government must offer "compelling" reasons for regulating highly valued forms of expression, such as political speech. Some speech, such as commercial advertisements, is valued less than political speech but more than obscenity or fighting words. The government may impose reasonable TPM restrictions on this intermediate category of speech only if it can advance a "significant" or "important" reason for doing so.

Time restrictions regulate when individuals may express themselves. At certain times of the day, the government may curtail or prohibit speech to address legitimate societal concerns, such as traffic congestion and crowd control. For example, political protesters may seek to demonstrate in densely populated cities to draw maximum attention to their cause. The First Amendment permits protesters to take such action, but not whenever they choose. The Supreme Court has held on more than one occasion that no one may "insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech" (Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 [1965]). In most instances a commuter's interest in getting to and from work outweighs an individual's right to tie up traffic through political expression.

Place restrictions regulate where individuals may express themselves. The Supreme Court has recognized three forums of public expression: traditional public forums, limited public forums, and nonpublic forums. Traditional public forums are those places historically reserved for the dissemination of information and the communication of ideas. Consisting of parks, sidewalks, and streets, traditional public forums are an especially important medium for the least powerful members of society who lack access to other channels of expression, such as radio and television. Under the First Amendment, the government may not close traditional public forums but may place reasonable restrictions on their use.

The reasonableness of any such restriction will be evaluated in light of specific guidelines that have been established by the Supreme Court. First, a restriction must be content-neutral, which means the government may not prohibit entire classes of expression, such as speech concerning poverty, drug abuse, or race relations. Second, a restriction must be viewpoint-neutral, which means that it must apply uniformly to all speech; that is, it may not silence only those speakers whom the government opposes or sanction only those whom the government supports. Third, a restriction must burden speech no more than is necessary to serve an important government interest. Restrictions that are carefully aimed at controlling the harmful consequences of speech, such as litter, unrest, and disorder, will normally satisfy these guidelines.

Limited public forums are those places held out by the government for civic discussion. Capitol grounds, courthouses, state fairs, and public universities have all qualified as limited public forums for First Amendment purposes. Although the government may designate such places as sites for public speech under certain circumstances, the Supreme Court has recognized that individual expression is not the sole objective served by limited public forums. For example, courthouses are primarily designed to administer justice, though important social discourse often takes place on the courthouse steps. Consequently, the First Amendment gives the government greater latitude in regulating limited public forums than traditional public forums.

The government is allowed to regulate non-public forums with even greater latitude. Non-public forums include privately owned property and publicly owned property devoted almost exclusively to purposes other than individual expression. Airports, jailhouses, military bases, and private residential property have all been deemed to be nonpublic forums under the First Amendment. Public sidewalks and streets that abut private property normally retain their status as traditional public forums, however (Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 [1988]).

In nonpublic forums the government may impose speech restrictions that are reasonably related to the forum's function, including restrictions that discriminate against particular viewpoints. For example, in Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983), the Supreme Court ruled that a rival teachers' union could be denied access to public school mailboxes, even though the elected union representative had been given access by the educational association. This restriction was reasonable, the Court said, in light of the elected representative's responsibilities to negotiate labor agreements on behalf of the union.

Manner restrictions regulate the mode of individual expression. Not every form of expression requires use of the written or spoken word. Some of the most visceral impressions are made by Symbolic Speech. Symbolic speech can include something as complicated as an algebraic equation or as simple as the nod of a head. Under the First Amendment, symbolic expression often takes the form of political protest. Flag burning is an example of symbolic speech that the Supreme Court found to be protected by the Free Speech Clause (texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]).

When the government attempts to regulate symbolic expression, courts balance the competing interests asserted by the litigants. Regulations that are targeted at suppressing a symbolic message will be closely scrutinized by the judiciary, while regulations that serve compelling government interests unrelated to the expression of ideas will be subject to less exacting judicial scrutiny. For example, in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984), the Supreme Court upheld a federal regulation that prohibited sleeping in certain national parks, despite the objections of protesters who had camped out in a national park to symbolize the plight of the homeless. The Court said that the regulation was not aimed at suppressing symbolic expression, because it applied to all persons, and not just the protesters involved in the case. The Court also noted that the regulation was reasonably designed to preserve national parks by minimizing the wear and tear that can be caused by campers. Finally, the Court emphasized that the protesters were free to carry out their vigil at other venues across the country.

All TPM restrictions must provide speakers with alternative channels for communicating ideas or disseminating information. Unlike millionaire moguls and corporate giants, the average person on the street does not commonly communicate through the mass media. Most people do not hold press conferences, and if they did, few members of the media would attend. Instead, the great bulk of communication takes place through the circulation of leaflets, hand-bills, and pamphlets, which most people can distribute and read in a cheap and efficient manner. As a result, courts are generally sensitive to protecting these modes of communication, and TPM restrictions limiting their distribution usually founder.

The Internet, however, has fast become an easy alternative for mass distributing information. As such, it is often difficult to apply TPM restrictions. For example, politicians use bulk E-Mail as a quick way to reach thousands, even millions, of their constituents. Called "political spam," this method of campaigning has both advocates and detractors. Opponents claim that unsolicited political e-mails are an invasion of privacy. As precedence, they point to the Eighth Circuit ruling in Van Bergen v. Minnesota, 59 F.3d 1541 (1995), which upheld a Minnesota state law prohibiting candidates from using a device that automatically dialed residential telephone numbers and played a prerecorded political campaign message. According to the court, "the telephone system is a private channel of communication," and the Minnesota law rightfully placed restrictions on time, manner, and place of speech.

Proponents claim that e-mail is not as equally invasive as a telephone call since e-mail gives the receiver an opportunity to ignore content by simply deleting the message. They also point to the benefits of political e-mail. First, given the large price tag of running a campaign, political e-mails provide a very real way to cut costs. In addition, they contend that e-mail provides a more direct way for politicians to connect with voters, since e-mail offers a back-and-forth method of communication. Most important, advocates stress that both political debate and communication over the Internet are protected by the First Amendment (Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 [1997].

Further readings
Blakney, Tasha. 1998. "Constitutional Law—First Amendment Right of Free Speech—Prior Restraint of Speech and Time, Place, and Manner Restrictions." Tennessee Law Review 65 (summer).

Sweet, Mark. 2003. "Political E-mail: Protected Speech or Unwelcome Spam." Duke Law & Technology Review (January 14).

Yannitte, Kate. 2002. "First Amendment—Content-Neutral Time, Place, Manner Restrictions on Free Speech—A Municipality's Park Ordinance That Requires a Permit to Assemble More than Fifty People Is Facially Constitutional." Seton Hall Constitutional Law Journal 12 (spring-summer).
 
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G M
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« Reply #540 on: November 08, 2011, 09:02:08 AM »


http://www.aclunc.org/issues/freedom_of_press_and_speech/rights_of_demonstrators/three_principles_to_remember.shtml

WHEN, WHERE AND HOW

Consider when, where and how you use your free-speech rights. If you organize a rally that causes violence or unnecessary disruption, your event may be disbanded. Every municipality has regulations and it's your responsibility to understand them. You must observe reasonable regulations on time, place, and manner when you exercise your rights to demonstrate and protest.
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bigdog
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« Reply #541 on: November 08, 2011, 10:16:28 AM »

The Tennessee law, that was the origins of the question at hand, was passed after the Occupy folks began their settlement.  It targets them. 

Oh, let us not for get this:

Latin for "from a thing done afterward." Ex post facto is most typically used to refer to a criminal law that applies retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the US Constitution prohibit ex post facto laws: Art 1, § 9 and Art. 1 § 10. see, e.g. Collins v. Youngblood, 497 US 37 (1990) and California Dep't of Corrections v. Morales, 514 US 499 (1995).

For your convenience, Art. I, section 9 reads, in part: "No bill of attainder or ex post facto Law shall be passed."

Art. I, section 10 reads, in part: "No state shall ... pass any ...ex post facto law." 

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G M
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« Reply #542 on: November 08, 2011, 10:32:21 AM »

"The Tennessee law, that was the origins of the question at hand, was passed after the Occupy folks began their settlement.  It targets them."

So? Most states didn't have a law banning the disruption of funerals until Westboro started their B.S. Now most states do, after legislators recognized a problem. The laws don't state "Westboro Baptists may not disrupt funerals", the laws forbid ANYONE from disrupting a funeral, no matter what their agenda might be. Sad that such a law might be needed in the first place.

Ex post facto doesn't apply to this issue. Say you were 18 when the drinking age in your state changed to 21. You couldn't be charged for your possession of alcohol/consumption BEFORE the law went into effect, but if an officer contacts you with a beer in your hand the day AFTER.....
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bigdog
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« Reply #543 on: November 08, 2011, 10:50:31 AM »


So? Most states didn't have a law banning the disruption of funerals until Westboro started their B.S. Now most states do, after legislators recognized a problem. The laws don't state "Westboro Baptists may not disrupt funerals", the laws forbid ANYONE from disrupting a funeral, no matter what their agenda might be. Sad that such a law might be needed in the first place.

Yep, that is the legal question I mentioned above.  The Supreme Court will likely have to hear the case to decide on this point.  At this point, the fact that the states have passed the laws don't make the laws constitutional.

I didn't think conservatives liked to base their arguments on this type of argument.  See Scalia's dissent in Atkins v. Virginia. 
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G M
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« Reply #544 on: November 08, 2011, 11:07:03 AM »

Again, it goes back to time/place/manner. Could Westboro stand on top of a coffin to protest lawfully? Could they lawfully link arms and block the coffin from being placed into the grave?

No.

Could they peacefully protest nearby without physically disrupting the funeral. Yes.

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G M
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« Reply #545 on: November 08, 2011, 11:27:07 AM »

"I didn't think conservatives liked to base their arguments on this type of argument."

Do you think that disrupting funerals would have been socially acceptable at anytime in America's history? Would the founding father's have been cool with Tories disrupting George Washington's funeral? I'm guessing that's a no.

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bigdog
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« Reply #546 on: November 08, 2011, 11:28:28 AM »

Again, it goes back to time/place/manner. Could Westboro stand on top of a coffin to protest lawfully? Could they lawfully link arms and block the coffin from being placed into the grave?

No.

Could they peacefully protest nearby without physically disrupting the funeral. Yes.

Once again, GM, this is an open question.  You don't KNOW the answer to this.  You suspect, based on your readings and understandings. 
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bigdog
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« Reply #547 on: November 08, 2011, 11:29:11 AM »

"I didn't think conservatives liked to base their arguments on this type of argument."

Do you think that disrupting funerals would have been socially acceptable at anytime in America's history? Would the founding father's have been cool with Tories disrupting George Washington's funeral? I'm guessing that's a no.



I wasn't talking about the Framers, I was talking about the point that YOU made. 
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G M
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« Reply #548 on: November 08, 2011, 11:31:25 AM »

Again, it goes back to time/place/manner. Could Westboro stand on top of a coffin to protest lawfully? Could they lawfully link arms and block the coffin from being placed into the grave?

No.

Could they peacefully protest nearby without physically disrupting the funeral. Yes.

Once again, GM, this is an open question.  You don't KNOW the answer to this.  You suspect, based on your readings and understandings. 

Ok, I think it's a more than reasonable assumption based on prior caselaw.
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bigdog
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« Reply #549 on: November 08, 2011, 03:10:15 PM »

OK, and once again we disagree.  But I enjoyed the discussion. 

Again, it goes back to time/place/manner. Could Westboro stand on top of a coffin to protest lawfully? Could they lawfully link arms and block the coffin from being placed into the grave?

No.

Could they peacefully protest nearby without physically disrupting the funeral. Yes.

Once again, GM, this is an open question.  You don't KNOW the answer to this.  You suspect, based on your readings and understandings. 

Ok, I think it's a more than reasonable assumption based on prior caselaw.
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