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PaperclipPerfector  1yr ago (text post)   30730 thread views

Culture War Roundup for the week of July 3, 2023

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I always assume that anyone unironically quoting Schenck agrees with its conclusion that distributing anti-draft pamphlets is akin to shouting fire in a crowded theater. Which seems like a downright fascist perspective, but what do I know?

I have yet to encounter a person who seriously quotes the "fire in the crowded theater" thing and also can answer what was the actual case about. Because if you know that, you'd likely to shy away a bit from quoting from that case, where the court basically decided anti-government speech is a crime. That's usually not what many people want to sign under (give it time, I guess?)

Inside of Facebook we had a group for free speech advocates. Zuck, defending the company's censorship, had no idea about the origins of "fire in a crowded theater" and so used it as part of his defense. It took employees to point out that that example comes from a controversial and overruled SCOTUS decision.

Most of them probably have no idea about the case beyond "fire in a crowded theater" and "clear and present danger". But someone did mention the case by name, and as far as I can tell given the limitations of the Post's execrable (technically) comment section, nobody pointed out it's no longer good law since Brandenburg v. Ohio.

And I'm sure they'd agree that distributing anti-draft pamphlets about the Vietnam War or the Gulf Wars (yeah, I know, there wasn't a draft) would be fine but it's absolute treason and not protected to do so about WWII or the Ukranian War (again, I know there isn't a draft in the US).

nobody pointed out it's no longer good law since Brandenburg v. Ohio.

I mean, with the current Supreme Court, who’s to say Brandenburg v. Ohio isn’t next on the chopping block? Brandenburg is just one of a laundry list of cases from that time period which changed longstanding precedent. Those cases are being rolled back one by one as we speak.

The most prominent rollback of precedent was overturning a case which several justices were put on the Supreme Court specifically to overturn. The other semi-prominent overturning of precedent, NY rifle and pistol, is much more arguable as an example of overturning precedent.

Aside from Roe, can you name another? I believe there are two members of the Supreme Court (Thomas and Barrett) who might seriously consider overturning Brandenburg, but that's it.

Lemon v. Kurtzman overturned by Kennedy v. Bremerton School District.

Abood v. Detroit Board of Education overturned by Janus v. AFSCME.

Regents of the University of California v. Bakke overturned by Students for Fair Admissions v. Harvard

Not necessarily from the same era, but NYSRPA v. Bruen basically overturned every 2nd amendment case in history besides Heller

Lemon v. Kurtzman overturned by Kennedy v. Bremerton School District.

Wikipedia claims that; the opinion of the court claims Lemon had already been effectively set aside.

Regents of the University of California v. Bakke overturned by Students for Fair Admissions v. Harvard

SFFA overturned neither Bakke (which was a mess of a set of opinions, and in fact the ruling was in favor of Bakke) nor even the later Grutter which endorsed Powell's opinion in Bakke. The ruling was that Harvard and UNCs programs were impermissible under Grutter.

Not necessarily from the same era, but NYSRPA v. Bruen basically overturned every 2nd amendment case in history besides Heller

I only wish it overturned US v. Miller.

Wikipedia claims that; the opinion of the court claims Lemon had already been effectively set aside.

Yeah, by previous Roberts court opinions like American Legion v. American Humanist Association

SFFA overturned neither Bakke (which was a mess of a set of opinions, and in fact the ruling was in favor of Bakke) nor even the later Grutter which endorsed Powell's opinion in Bakke. The ruling was that Harvard and UNCs programs were impermissible under Grutter.

If your take is, "actually affirmative action has been illegal the whole time," I guess you might be right, but that's kind of missing the point.

I only wish it overturned US v. Miller.

It did. The two opinions are fundamentally irreconcilable. Nobody knows how much of the NFA is constitutional at the moment.

American Humanist also claims Lemon had already been set aside.

If your take is, "actually affirmative action has been illegal the whole time," I guess you might be right, but that's kind of missing the point.

My point is that the lower courts had effectively overruled the Supreme Court by turning a blind eye to blatant violations of the restrictions on affirmative action programs set out by Grutter, and SFFA was therefore not changing precedent by re-affirming those restrictions.

It did. The two opinions are fundamentally irreconcilable. Nobody knows how much of the NFA is constitutional at the moment.

Enough of Bruen will be carved out to allow all of the NFA to stand. Except on abortion, that's how the Roberts court works; make apparently major decisions which change nothing.

Enough of Bruen will be carved out to allow all of the NFA to stand. Except on abortion, that's how the Roberts court works; make apparently major decisions which change nothing.

Granting cert in US v Rahimi looks all downside on that front especially given the facts of the case and the plaintiff. And that's not even getting close to the NFA section of 18 USC 922.

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You just had 6 SCOTUS justices put forth a very strong view of first amendment protections (including ACB and Thomas). I don’t know if they specifically cite Brandenburg but what makes anyone think they want to revisit first amendment caselaw? If anything, they seem keen to extend it.

Now if they actually were to reinstate Lochner my joy would be complete.

It's pretty obvious that Brandenburg isn't on the chopping block, and it doesn't make sense to imply that it is just because "the Court is changing precedent", when most of the precedents that are being changed are of the opposite political valence as Brandenburg, and often of the opposite legal conclusions given that this Court is clearly committed to an expansive view of speech rights.

Frankly everyone whines about the sanctity of precedent when, and only when, it suits them to do so, so I'm never swayed by appeals to stare decisis. The precedents overturned in Lawrence and Obergefell were a hell of a lot older than the ones overturned in Dobbs and SFFA.

And in SFFA, it’s hard to say there was a large overturning of prior case law. Bakke was a mess; Grutter was very uncomfortable with the idea and clearly positioned the holding as currently permissible but not permissible in perpetuity. It was if anything a natural outgrowth of Grutter taking into account reality post Grutter.

The idea is that a left-wing court has carte blanche to overturn precedent because that is their philosophy. A subsequent right-wing court is then bound to that precedent because that is THEIR philosophy. Works until Thomas gets cranky, I guess.

To respectfully break the rules on recruiting for a cause: anyone want to join me in distributing pamphlets advocating for disbanding the Selective Service in Washington some time soon? We can call it a performance art piece.

(sarcasm, if unclear, but only mostly)

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