(no subject)
Mar. 3rd, 2004 02:23 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
stakebaitThanks to everyone who took my poll and gave me DC suggestions!
I am home. Tired, I think, would cover it if spread thin.
I took the Chinatown bus (not, sadly, Feng Shui line), to DC. Which meant that I had to take the 11 p.m. bus. In theory this got in at 4 a.m., which made it Not Worth It to get a hotel room. In practice, it got in at 2:30, but I didn't have a hotel room, so I ended up hanging out in Union Station all night, which is exactly as much fun as you'd think. I did meet a nice homeless man who told me where to sit so they wouldn't kick me out, though.
Changed in the bathroom into a suit (which took me easily more than 10 minutes - I don't know how Superman does it) and wandered up to the Supreme Court building, where fortunately I got to go in around the side instead of up the front steps being sent death glares by the long line of people hoping to get in.
Watching the Court was a vastly reassuring experience. Our country? Is in pretty good hands, on the judicial side anyway. You couldn't help but feel bad for counsel, though. It was a little like watching nine Judge Judys in action. They interrupt. They ask pithy questions. They poke holes in your argument. They don't let you get away with eliding the issue. They make you cite case law. It's glorious. If I had no job and lived in DC I could easily become a Court junkie. I suppose it's not consistant with the dignity of the Court to have the proceedings televised, but if they did? I'd have to get cable and a Tivo.
I also see now where Bujold must've gotten her idea for the Imperial Auditors. Much as I approve of democracy, there's something in the idea that lifetime appointments for the already-accomplished enable them to speak their minds.
The first case was, um, Haley versus Texas? I don't think that's the exact name, but that's the basic idea. I was really only sitting through that to see the second case, but it was unexpectedly fascinating. The defendant got a longer sentence for being a repeat offender, which he technically wasn't, because the conviction for the first offense didn't become final until after he committed the second offense. But this didn't get brought up at the right time.
The argument hinges on whether there's an actual innocence exemption for non-capital cases, and whether the Court should even address that or remand it to the lower court to examine the issue of incompetant counsel because that should be dealt with before you even get to the innocence issue. With a sidebar of whether "actual innocence" is a subset of "manifest injustice" or a separate thing, whether you can be innocent of a sentencing factor when you're not innocent of the base crime, and whether allowing it would allow every state case to be retried in Federal Habeus Corpus proceedings. Yes, I am just that much of a dork that I find this fascinating. Especially watching some of the justices demanding whether being in jail 15 years instead of two was unjust enough.
It's also fun to second-guess the lawyers. there were a couple of times when I wanted to pass them a note -- Justice Breyer was clearly much concerned with manifest injustice, and Justice Scalia was asking why counsel for the defense's proposed rule (only if it exceeds that statuatory maximum sentence) should not be applied to the federal sentencing guidelines since they could also be unjust. I really think what counsel needed to be saying was "because being outside the bounds is what makes it manifest" thus killing two birds with one stone. But overall the counsel for both sides was very good, even if the guy from the solicitor general's office drove me nuts by saying "uh" all the time.
I was more impressed with Scalia than I expected, BTW. He's still a right wing nutcase, but seeing him ask relevant questions -- including pushing for clarification of a point raised by a much more liberal justice -- was nice. Plus he's got a sense of humor. As right wing nutcases go, I could probably even spend an hour with him without screaming. (Justice Thomas, as far as I can tell, was asleep. He didn't speak, nod, or otherwise react during either case.)
The second case was, of course, what I'd come to see. This is the challenge to the Child Online Protection Act, currently struck down by the third circuit. (This is the second time the case has come to the Court -- last time it was struck down on the grounds of community standards, and the Court vacated and remanded so they would consider the whole thing.)
Ted Olsen, the solicitor general, argued it himself. And for being another right wing nutcase, he did a good job. When he said that pornography did physical and psychological harm to children, my eyes just about rolled out of my head. (The actual child seated next to me asked me afterwards if he'd said anything about *how* it harmed children. He didn't, but perhaps that was already in the record from the lower courts.)
And I don't see what business he had introducing facts about his own Internet searches, when Court cases have to be decided on the facts already in the record. Plus, as![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
lucifrix points out, searching for "Free Porn" is not the same as what he's supposedly trying to prevent, which is kids finding porn by accident.
He pulled the usual bait-and-switch about children and pornography -- start out arguing that we're protecting children from accidentally seeing it, and then move to children who are deliberately seeking it out, and treat those as the same thing, which drives me up a tree. But he argued well -- his basic point being that COPA was drafted using standards the Court had already articulated -- considering the work as a whole, and extending the obscenity test about lack of redeeming value. He also claimed that the government has no interest in Susie Bright -- that is, that much of the work introduced by the ACLU-led coalition as being affected by COPA wouldn't be, because it had redeeeming value.
Justice Breyer articulated the -- to me, specious -- idea that material which is talking *about* sex is "night and day" different from material which is trying to elicit "an emotional response" -- which evidently his test for prurient interest. I just don't think that's true. Material which is designed to arouse *contains* messages about sex just as material which is designed to scare or anger or comfort also contains messages. Emotional communication is communication too.
His overall point seemed to be that he would prefer a "zoning" approach, which keeps porn away from kids, so that the government wouldn't have to prosecute obscenity -- let all adults see whatever they want, "even the worst stuff", as long as they're not hurting anyone. Which I heartily applaud as a philosophy. However unless he's proposing getting rid of the idea that obscenity is a legal category which is not protected -- which I'd be all for, but he'd never get a Court majority behind -- what's actually on the table is that there would be all the chilling effects of COPA, and adults still wouldn't be able to see whatever they wanted. That's not better.
Justice O'Connor, in contrast, wanted to know why the gov't wasn't using the existing obscenity law to go after these people. Essentially she's questioning the need for COPA, which I applaud, but I can't say I'd prefer a much stricter standard of obscenity in its place.
The ACLU lawyer's basic points were:
1) there was too much of a chilling effect, because COPA is a criminal law and therefore people who believed their work might concievably qualify would self-censor
This is where the government claimed that they have no interest in anything that doesn't meet the redeeming value test. Her point was basically 1) that people wouldn't necessarily believe that, which is true but not likely to cut much ice with the Court, which not unnaturally pointed out that the law means what they say it means, not what someone mistakenly believes -- and of course she couldn't come out and say that the gov't is full of it.
The ACLU lawyer tried to demonstrate that for COPA to have any meaning when we already have the obscenity test, there *must* be material which has redeeming value for adults but not for minors, and it's that material which would be at risk, but I don't think she sold it as convincingly as she might have.
2) because having to give your credit card to be verified as an adult has been proven to prevent perfectly legal adults from viewing the material, because of concerns about the stigma of being associated with it or because they don't have a credit card
This is true, though Olsen and some of the justices raised the point that the law holds that info confidential so the stigma doesn't apply. (the ACLU also argued that there was a big loophole in the privacy provision, the gov't said there wasn't.) I think that's disingenuous -- not enough was made of the point that the information is still being given to the credit card company, as well as to whoever else sees the bill, or that in this age of identity theft people don't want to give out their credit card numbers to untrusted businesses or make them available online where they might be hacked. And while the point was made that people without a credit card can sign up for adultcheck with a check, no one mentioned that that effectively discriminates against the poor -- they can't see free, advertising-supported web sites full of material which is completely legal for adults to view because they have to pay $20 every couple of months to do so.
One of the justices characterized that as a nominal fee, but it's sure not nominal to me, considering that's as much as I pay for all of my Internet access, and as much as you'd have to pay just once for filtering software.
Olsen essentially said that in the real world too some people might choose to avoid adult material because of the stigma, and that's okay. Much as I don't like Olsen's prorities, that's a fair point.
There was much discussion of the difference, or lack thereof, between flashing an ID and being seen buying something from a blinder rack and having to hand over your personal info to a stranger. Justice Ginsburg of all of them seemed most keyed into this point -- I have the feeling she doesn't like to give her credit card out online for anything.
3) That Congress had narrower and less restrictive means at its disposal. In this she was hampered by the fact that the ACLU is also opposing some of those narrower means, such as filters. But that doesn't really change the logic of the argument, so far as I can see. If I believe that is too broad, I can still believe it is narrower than this. I wish she'd just said that, but then she'd be open to the rebuttal of "well then, what isn't too broad?" and since I suspect she thinks "gov't butt out and let parents handle it" is the right answer, it's probably just as well.
I was unthrilled by the idea, raised by one of the justices, that it's the government's business and not the parents because parents aren't always home. That, after all, is a parent's choice, and you can not have a computer, or lock the door, or put it on a timer if you can't a) trust your kids or b) get a babysitter.
Olsen said people shouldn't have to buy software for parental controls, and the ALCU lawyer pointed out that the internet service providers ofter them at no charge.
Olsen also continued the bait and switch by saying that the problem with filters is that kids can learn to disable them. Which may be true, but which changes the situation from preventing accidental viewing to deliberate evasion -- and I think the state has a much less compelling interest in keeping kids from, in effect, stealing their father's Playboy than it does in keeping the 8 year old who searches for "Silly Putty" from finding the "her anus stretched like Silly Putty" story.
There was no discussion of something I'm curious about, which is whether this law would go after ISPs. It's all very well to say it doesn't apply to not-for-profit material, but not-for-profit users have for-profit hosts, so if you can go after *them* for making money from porn, then the exemption has no practical value.
All in all I think the mood of the Court was more skeptical towards the ACLU's case than I'd have liked to see it. But there are strong precedents on our side set by this very Court, so we shall see.
Then I discovered that my 5 p.m. bus did not exist, and I had to take a 2 a.m. bus instead. Not cool. Fortunately I was able to get in touch withgeraty, and he and burningriver took me out for a lovely Irish dinner. I got a house tour, and met four wonderful cats, and then crashed for a couple of hours. Finally got home at 6:30 a.m., took a personal day, and crashed. Next time I go to DC, screw it, I'll spring for the train.
I am home. Tired, I think, would cover it if spread thin.
I took the Chinatown bus (not, sadly, Feng Shui line), to DC. Which meant that I had to take the 11 p.m. bus. In theory this got in at 4 a.m., which made it Not Worth It to get a hotel room. In practice, it got in at 2:30, but I didn't have a hotel room, so I ended up hanging out in Union Station all night, which is exactly as much fun as you'd think. I did meet a nice homeless man who told me where to sit so they wouldn't kick me out, though.
Changed in the bathroom into a suit (which took me easily more than 10 minutes - I don't know how Superman does it) and wandered up to the Supreme Court building, where fortunately I got to go in around the side instead of up the front steps being sent death glares by the long line of people hoping to get in.
Watching the Court was a vastly reassuring experience. Our country? Is in pretty good hands, on the judicial side anyway. You couldn't help but feel bad for counsel, though. It was a little like watching nine Judge Judys in action. They interrupt. They ask pithy questions. They poke holes in your argument. They don't let you get away with eliding the issue. They make you cite case law. It's glorious. If I had no job and lived in DC I could easily become a Court junkie. I suppose it's not consistant with the dignity of the Court to have the proceedings televised, but if they did? I'd have to get cable and a Tivo.
I also see now where Bujold must've gotten her idea for the Imperial Auditors. Much as I approve of democracy, there's something in the idea that lifetime appointments for the already-accomplished enable them to speak their minds.
The first case was, um, Haley versus Texas? I don't think that's the exact name, but that's the basic idea. I was really only sitting through that to see the second case, but it was unexpectedly fascinating. The defendant got a longer sentence for being a repeat offender, which he technically wasn't, because the conviction for the first offense didn't become final until after he committed the second offense. But this didn't get brought up at the right time.
The argument hinges on whether there's an actual innocence exemption for non-capital cases, and whether the Court should even address that or remand it to the lower court to examine the issue of incompetant counsel because that should be dealt with before you even get to the innocence issue. With a sidebar of whether "actual innocence" is a subset of "manifest injustice" or a separate thing, whether you can be innocent of a sentencing factor when you're not innocent of the base crime, and whether allowing it would allow every state case to be retried in Federal Habeus Corpus proceedings. Yes, I am just that much of a dork that I find this fascinating. Especially watching some of the justices demanding whether being in jail 15 years instead of two was unjust enough.
It's also fun to second-guess the lawyers. there were a couple of times when I wanted to pass them a note -- Justice Breyer was clearly much concerned with manifest injustice, and Justice Scalia was asking why counsel for the defense's proposed rule (only if it exceeds that statuatory maximum sentence) should not be applied to the federal sentencing guidelines since they could also be unjust. I really think what counsel needed to be saying was "because being outside the bounds is what makes it manifest" thus killing two birds with one stone. But overall the counsel for both sides was very good, even if the guy from the solicitor general's office drove me nuts by saying "uh" all the time.
I was more impressed with Scalia than I expected, BTW. He's still a right wing nutcase, but seeing him ask relevant questions -- including pushing for clarification of a point raised by a much more liberal justice -- was nice. Plus he's got a sense of humor. As right wing nutcases go, I could probably even spend an hour with him without screaming. (Justice Thomas, as far as I can tell, was asleep. He didn't speak, nod, or otherwise react during either case.)
The second case was, of course, what I'd come to see. This is the challenge to the Child Online Protection Act, currently struck down by the third circuit. (This is the second time the case has come to the Court -- last time it was struck down on the grounds of community standards, and the Court vacated and remanded so they would consider the whole thing.)
Ted Olsen, the solicitor general, argued it himself. And for being another right wing nutcase, he did a good job. When he said that pornography did physical and psychological harm to children, my eyes just about rolled out of my head. (The actual child seated next to me asked me afterwards if he'd said anything about *how* it harmed children. He didn't, but perhaps that was already in the record from the lower courts.)
And I don't see what business he had introducing facts about his own Internet searches, when Court cases have to be decided on the facts already in the record. Plus, as
lucifrix points out, searching for "Free Porn" is not the same as what he's supposedly trying to prevent, which is kids finding porn by accident. He pulled the usual bait-and-switch about children and pornography -- start out arguing that we're protecting children from accidentally seeing it, and then move to children who are deliberately seeking it out, and treat those as the same thing, which drives me up a tree. But he argued well -- his basic point being that COPA was drafted using standards the Court had already articulated -- considering the work as a whole, and extending the obscenity test about lack of redeeming value. He also claimed that the government has no interest in Susie Bright -- that is, that much of the work introduced by the ACLU-led coalition as being affected by COPA wouldn't be, because it had redeeeming value.
Justice Breyer articulated the -- to me, specious -- idea that material which is talking *about* sex is "night and day" different from material which is trying to elicit "an emotional response" -- which evidently his test for prurient interest. I just don't think that's true. Material which is designed to arouse *contains* messages about sex just as material which is designed to scare or anger or comfort also contains messages. Emotional communication is communication too.
His overall point seemed to be that he would prefer a "zoning" approach, which keeps porn away from kids, so that the government wouldn't have to prosecute obscenity -- let all adults see whatever they want, "even the worst stuff", as long as they're not hurting anyone. Which I heartily applaud as a philosophy. However unless he's proposing getting rid of the idea that obscenity is a legal category which is not protected -- which I'd be all for, but he'd never get a Court majority behind -- what's actually on the table is that there would be all the chilling effects of COPA, and adults still wouldn't be able to see whatever they wanted. That's not better.
Justice O'Connor, in contrast, wanted to know why the gov't wasn't using the existing obscenity law to go after these people. Essentially she's questioning the need for COPA, which I applaud, but I can't say I'd prefer a much stricter standard of obscenity in its place.
The ACLU lawyer's basic points were:
1) there was too much of a chilling effect, because COPA is a criminal law and therefore people who believed their work might concievably qualify would self-censor
This is where the government claimed that they have no interest in anything that doesn't meet the redeeming value test. Her point was basically 1) that people wouldn't necessarily believe that, which is true but not likely to cut much ice with the Court, which not unnaturally pointed out that the law means what they say it means, not what someone mistakenly believes -- and of course she couldn't come out and say that the gov't is full of it.
The ACLU lawyer tried to demonstrate that for COPA to have any meaning when we already have the obscenity test, there *must* be material which has redeeming value for adults but not for minors, and it's that material which would be at risk, but I don't think she sold it as convincingly as she might have.
2) because having to give your credit card to be verified as an adult has been proven to prevent perfectly legal adults from viewing the material, because of concerns about the stigma of being associated with it or because they don't have a credit card
This is true, though Olsen and some of the justices raised the point that the law holds that info confidential so the stigma doesn't apply. (the ACLU also argued that there was a big loophole in the privacy provision, the gov't said there wasn't.) I think that's disingenuous -- not enough was made of the point that the information is still being given to the credit card company, as well as to whoever else sees the bill, or that in this age of identity theft people don't want to give out their credit card numbers to untrusted businesses or make them available online where they might be hacked. And while the point was made that people without a credit card can sign up for adultcheck with a check, no one mentioned that that effectively discriminates against the poor -- they can't see free, advertising-supported web sites full of material which is completely legal for adults to view because they have to pay $20 every couple of months to do so.
One of the justices characterized that as a nominal fee, but it's sure not nominal to me, considering that's as much as I pay for all of my Internet access, and as much as you'd have to pay just once for filtering software.
Olsen essentially said that in the real world too some people might choose to avoid adult material because of the stigma, and that's okay. Much as I don't like Olsen's prorities, that's a fair point.
There was much discussion of the difference, or lack thereof, between flashing an ID and being seen buying something from a blinder rack and having to hand over your personal info to a stranger. Justice Ginsburg of all of them seemed most keyed into this point -- I have the feeling she doesn't like to give her credit card out online for anything.
3) That Congress had narrower and less restrictive means at its disposal. In this she was hampered by the fact that the ACLU is also opposing some of those narrower means, such as filters. But that doesn't really change the logic of the argument, so far as I can see. If I believe that is too broad, I can still believe it is narrower than this. I wish she'd just said that, but then she'd be open to the rebuttal of "well then, what isn't too broad?" and since I suspect she thinks "gov't butt out and let parents handle it" is the right answer, it's probably just as well.
I was unthrilled by the idea, raised by one of the justices, that it's the government's business and not the parents because parents aren't always home. That, after all, is a parent's choice, and you can not have a computer, or lock the door, or put it on a timer if you can't a) trust your kids or b) get a babysitter.
Olsen said people shouldn't have to buy software for parental controls, and the ALCU lawyer pointed out that the internet service providers ofter them at no charge.
Olsen also continued the bait and switch by saying that the problem with filters is that kids can learn to disable them. Which may be true, but which changes the situation from preventing accidental viewing to deliberate evasion -- and I think the state has a much less compelling interest in keeping kids from, in effect, stealing their father's Playboy than it does in keeping the 8 year old who searches for "Silly Putty" from finding the "her anus stretched like Silly Putty" story.
There was no discussion of something I'm curious about, which is whether this law would go after ISPs. It's all very well to say it doesn't apply to not-for-profit material, but not-for-profit users have for-profit hosts, so if you can go after *them* for making money from porn, then the exemption has no practical value.
All in all I think the mood of the Court was more skeptical towards the ACLU's case than I'd have liked to see it. But there are strong precedents on our side set by this very Court, so we shall see.
Then I discovered that my 5 p.m. bus did not exist, and I had to take a 2 a.m. bus instead. Not cool. Fortunately I was able to get in touch with
geraty, and he and burningriver took me out for a lovely Irish dinner. I got a house tour, and met four wonderful cats, and then crashed for a couple of hours. Finally got home at 6:30 a.m., took a personal day, and crashed. Next time I go to DC, screw it, I'll spring for the train.
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
no subject
Date: 2004-03-03 01:18 pm (UTC)no subject
Date: 2004-03-03 01:27 pm (UTC)no subject
Date: 2004-03-04 07:29 am (UTC)no subject
Date: 2004-03-03 01:57 pm (UTC)no subject
Date: 2004-03-03 02:09 pm (UTC)no subject
Date: 2004-03-04 08:58 pm (UTC)no subject
Date: 2004-03-03 02:09 pm (UTC)no subject
Date: 2004-03-03 04:26 pm (UTC)Great descriptions and insights. Do you mind if I love your for your mind?
no subject
Date: 2004-03-04 07:30 am (UTC)no subject
Date: 2004-03-04 07:31 am (UTC)no subject
Date: 2004-03-03 07:48 pm (UTC)no subject
Date: 2004-03-04 07:36 am (UTC)no subject
Date: 2004-03-04 08:03 am (UTC)Nice comment on the bait-and-switch; not one that most of the other articles mention.
Yeah, even though I disagree with him strongly, Scalia does have both intelligence and a sense of humor: He actually quoted West Side Story in one decision, and I've heard of other literary allusions in his writings...
no subject
Date: 2004-03-04 11:52 am (UTC)I honestly think most people don't see the bait-and-switch. It's so widespread on this topic that it's almost like a record scratch -- people slide from one groove to the other without noticing.
Mer
no subject
Date: 2004-03-05 11:21 am (UTC)[Also available here thru
no subject
Date: 2004-03-05 12:08 pm (UTC)Hey, you don't know if SCOTUSblog is LJ syndicated, do you?
Mer
no subject
Date: 2004-03-05 12:35 pm (UTC)no subject
Date: 2004-03-05 12:43 pm (UTC)no subject
Date: 2004-03-04 09:04 pm (UTC)no subject
Date: 2004-03-05 06:52 am (UTC)