Kagan ?

[Danzig]

Originally Posted by Rupert Pupkin

You are right that since the school board disagreed with the principal, this case is probably over. But what if they hadn't disagreed? Is that such a far fetch? I'm sure there are plenty of liberals that would have agreed with the principal.

I'm sure the principal would have said that his intent was to keep the peace, not to discriminate against the American students because he didn't like their message. The truth of the matter is, we don't really know what his intent was. It is certainly possible that the principal feared that the shirts would cause a fight and that he would have acted in the same way had the roles been reversed (Latino students wearing Mexican flags).

To answer your question as to whether this would be the only case that would be an example of why using "intent" would be a slippery-slope, I would say not at all. Any type of free speech case would apply. My fear would be that local governments and Courts would censor speech that they don't like and would claim that their intent was noble. Since it would be difficult if not impossible to ascertain their true intent, I think it's a very slippery slope.

their intent can be noble as hell, doesn't mean they'll be able to get away with censorship. it's why i mentioned the kkk, can anyone think of a group less tilted towards hatred? maybe nazi's...at any rate, the intent to suppress them would be considered noble, still hasn't happened, and won't. the law itself might sound reasonable (no hate speech), but the intent is to stifle any speech that is uncomfortable, or that you disagree with. not so noble after all.

and no doubt the principal had a good intent-it just wasn't good enough.

[Rupert Pupkin]

Originally Posted by Danzig

their intent can be noble as hell, doesn't mean they'll be able to get away with censorship. it's why i mentioned the kkk, can anyone think of a group less tilted towards hatred? maybe nazi's...at any rate, the intent to suppress them would be considered noble, still hasn't happened, and won't. the law itself might sound reasonable (no hate speech), but the intent is to stifle any speech that is uncomfortable, or that you disagree with. not so noble after all.

and no doubt the principal had a good intent-it just wasn't good enough.

You are right. As of right now, free-speech cannot be suppressed by the government, even if the government's intent is noble. As of right now, intent is not important. The Constitution doesn't say anything about intent.

That is why people are concerned with Kagan's opinion. She said that when deciding whether or not it's ok for the government to suppress free-speech, the most important factor is the government's motive or intent.

That is a controversial stance. Most people that read the article are very concerned. Here is the link. Read the messages that the readers have left. People are very concerned with a new standard that would give the government more leeway to suppress speech as long as the government's motives are good in the Court's opinion. That is troublesome to most people. Read people's responses to this article:

http://cnsnews.com/news/article/65720

[Danzig]

I'm sorry, but I don't see why it would make it easier to suppress speech.

[Rupert Pupkin]

Originally Posted by Danzig

I'm sorry, but I don't see why it would make it easier to suppress speech.

Right now if a 1st Ammendment case makes it to the Supreme Court, the Court's focus is on the impact of the law they are reviewing. If the Court feels that a new law has the effect of restricting free speech, that law will probably be overturned by the Court.

Kagan is saying that the government's reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech. That is a real departure. That would make it easier for the government to restrict speech.

Right now, it's very hard for the government to restrict free speech because if they pass a law that restricts free speech, the law will probably be overturned because the Court is focused on the effects of the law. Any law that has the effect of limiting free speech will probably be overturned. If the Court starts changing the way they look at these cases and decides that it's not that important whether a new law restricts free speech as long as the "intent" of the law is good, then that would be a weakening of our 1st Ammendment protections.

[Danzig]

'In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.

In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.

She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.

The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.'


---that's from the article you linked. she's not saying only intent should be considered. she says it's the first, but not only, consideration in her opinion.

[Rupert Pupkin]

Originally Posted by Danzig

'In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.

In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.

She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.

The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.'


---that's from the article you linked. she's not saying only intent should be considered. she says it's the first, but not only, consideration in her opinion.

Yes, that is exactly correct.

[Rupert Pupkin]

I strongly disagree with Kagan's position that it is ok for the government to ban certain campaign related books and pamphlets depending on who paid for their publication.

http://thehill.com/blogs/blog-briefi...ould-ban-books