I think the most interesting part is the brief discussion of obscenity, in which Scalia apparently denigrates the possibility of distinguishing between a "healthy" interest in sex and a "depraved" interest. I'd be tempted to make a comment about his Catholicism if I didn't think it would be inappropriate.
I have a close friend who's planning on setting up a porn shop in her small town in Vermont.
You have to look at this from the opposite perspective - consider the needs of people who live in small towns in states that have cows instead of skyscrapers.
For an originalist, I don't understand where scalia reads in the constitution that obscenity is not protected by the First Amendment. If Scalia says there is no right to privacy b/c it doesn't appear in the Constitution, then I say there is no First Amendment exception for obscenity because that's not in there, either.
And yes, congress should not be funding art. NOT a legitimate government function in my minarchist opinion.
A reader of my blog sent me a very interesting account of the Juilliard event, including a more detailed summary of Justice Scalia's remarks (and a funny exchange he had with Stephen Sondheim); I posted it here.
At the time it was ratified, the first amendment didn't protect anywhere near what it protects today. It was mainly understood (from what I've heard... ask a historian for more specifics) to prevent the government from stifling political debate and dissent. If you had asked any person in 18th century Pennsylvania whether "Freedom of Speech" encompassed the right to put a crucifix in a vat of urine, call it art, and demand government subsidies, what do you think the response would have been?
In other words, no one is reading in an extra-textual "exception" for obscenity... it's just the fact that the Amendment has NEVER been understood to protect obscenity. (This continues today, but we can't agree on a definition for "obscenity") This is completely consistent with an understanding that the First, Second, Third, Fourth, Sixth, and Ninth Amendments (or their penumbras) have never (until very recently) been understood to protect a right to get an abortion.
If you had asked any person in 18th century Pennsylvania whether "Freedom of Speech" encompassed the right to put a crucifix in a vat of urine, call it art, and demand government subsidies, what do you think the response would have been?
Shouldn’t the question actually be “does the federal government have the power under the Constitution to prohibit an individual from putting a crucifix in a vat of urine, calling it art, or petitioning (as opposed to receiving) the federal government for subsidies?”
While I could see an argument about whether the federal government has the authority to provide these subsidies, even if the First amendment didn’t exist, I don’t see anything that gives it the power to prohibit an individual from engaging in that conduct regardless of whether it is called “speech.”
"At the time it was ratified, the first amendment didn't protect anywhere near what it protects today."
Unfortunately by 18th century standards owning negros was legal. I'm glad today's amendment protects more rather than less.
"This continues today, but we can't agree on a definition for "obscenity.""
We cannot even agree on the definition of murder, or any number of other things. The law and human behavior are not cut and dry. It's all a shade of grey. We can infact determine any number of criteria for 'unlawful obscene material', but that would require WORK out of a Congress that shys away from it or is so inept that whatever they did come up with would be unreasonably repressive by growing standards of liberal republic/democracies.
"At the time it was ratified, the first amendment didn't protect anywhere near what it protects today. It was mainly understood (from what I've heard... ask a historian for more specifics) to prevent the government from stifling political debate and dissent."
Ironically, the author of the comment actually makes the case for protecting the Mapplethorpe exhibit.That is to say that Mapplethorpe was making a political statement through his art.
At the time, the nation was in the early stages of the AIDS crisis, and part of the policy debate focused on the interplay of sexuality, traditional morality as represented by the church, and the government's response....or lack thereof, to the health crisis in communities thought of as "deviant".
Since the work was a response to what the artist saw as political inaction, it is hard to say that the exhibit was not in fact, political in nature. That the artist chose to express himself using shock value in direct correlation to what he saw as repression, does not negate that it was political speech protected even under the so-called "original understanding" of the 1st Amendment.
Clearly we were talking about this in the context of the fedral government WITHHOLDING FUNDING for the "art" in question rather than prohibiting it altogether. I suppose I took it for granted that people understood that, but never underestimate people who are looking for rhetorical point. Guess you scored it.
For those who are keeping score:
No, I don't think "Piss Christ" is obscenity
No, the question is not whether congress has the power to prohibit such art
Yes, I think it's within the spending power to refuse to fund it
Yes, I tend to think the NEA is a waste of money
No, I don't think the first amendment is restricted to political speech
No, I did not say anything of the kind in my last post
And for the record, Yes... "slavery was bad" for the record before someone assumes that because I didn't type it, I must not believe it.
Just because someone wants to say something doesn't mean the people are obliged to pay for it. The Gubmint should not be funding 'the arts'.
I always agreed that the K.K.K. had the right to burn crosses. Call it political speech if you like. But they never had the right to do so on public property without the proper permits. Nor did they have the right to do so on some poor victim's yard, either. That's, at the least, trespassing. The rights in that case would be the victim's.
Drop a crucifix in urine. Doesn't bother me a bit. Don't demand I pay you to do so. Your right to be a jerk ends at my back pocket.
If the government gets completely out of funding art, as Scalia advocates, then the government should have no say in defining art. It should only be able to restrict activities that pose a clear danger of harm to unconsenting subjects (like child pornography or snuff films). I see no reason to grant the government any compelling interest in anything it doesn't fund, or any control in any such endeavors.
Once upon a time there was a difference in what the federal government could regulate and what the state governments could regulate. The constitution places very few limits on the power of state governments. If the courts were as hostile to regulation of the right to keep and bear arms as they are to the right of free "expression", I could own my own M-1 Abrams tank. But I'm sure the license plate fees would be a bitch and who can get that much fuel around here anyway.
Is he saying this is a good constitutional thing, or possibly a bad unconstitutional(no protection for) thing?
I think he was just describing the law and views expressed in his prior written opinions.
You have to look at this from the opposite perspective - consider the needs of people who live in small towns in states that have cows instead of skyscrapers.
They need sex toys too, you know.
Since all sex is equally depraved, they might as well just go straight for the cows.
And yes, congress should not be funding art. NOT a legitimate government function in my minarchist opinion.
At the time it was ratified, the first amendment didn't protect anywhere near what it protects today. It was mainly understood (from what I've heard... ask a historian for more specifics) to prevent the government from stifling political debate and dissent. If you had asked any person in 18th century Pennsylvania whether "Freedom of Speech" encompassed the right to put a crucifix in a vat of urine, call it art, and demand government subsidies, what do you think the response would have been?
In other words, no one is reading in an extra-textual "exception" for obscenity... it's just the fact that the Amendment has NEVER been understood to protect obscenity. (This continues today, but we can't agree on a definition for "obscenity") This is completely consistent with an understanding that the First, Second, Third, Fourth, Sixth, and Ninth Amendments (or their penumbras) have never (until very recently) been understood to protect a right to get an abortion.
Shouldn’t the question actually be “does the federal government have the power under the Constitution to prohibit an individual from putting a crucifix in a vat of urine, calling it art, or petitioning (as opposed to receiving) the federal government for subsidies?”
While I could see an argument about whether the federal government has the authority to provide these subsidies, even if the First amendment didn’t exist, I don’t see anything that gives it the power to prohibit an individual from engaging in that conduct regardless of whether it is called “speech.”
Unfortunately by 18th century standards owning negros was legal. I'm glad today's amendment protects more rather than less.
"This continues today, but we can't agree on a definition for "obscenity.""
We cannot even agree on the definition of murder, or any number of other things. The law and human behavior are not cut and dry. It's all a shade of grey. We can infact determine any number of criteria for 'unlawful obscene material', but that would require WORK out of a Congress that shys away from it or is so inept that whatever they did come up with would be unreasonably repressive by growing standards of liberal republic/democracies.
Ironically, the author of the comment actually makes the case for protecting the Mapplethorpe exhibit.That is to say that Mapplethorpe was making a political statement through his art.
At the time, the nation was in the early stages of the AIDS crisis, and part of the policy debate focused on the interplay of sexuality, traditional morality as represented by the church, and the government's response....or lack thereof, to the health crisis in communities thought of as "deviant".
Since the work was a response to what the artist saw as political inaction, it is hard to say that the exhibit was not in fact, political in nature. That the artist chose to express himself using shock value in direct correlation to what he saw as repression, does not negate that it was political speech protected even under the so-called "original understanding" of the 1st Amendment.
Why isn't placing a crucifix in a vat of urine political commentary on the church?
If all the framers wished to protect was political commentary, why didn't they write the 1st Amendment to reflect such?
For those who are keeping score:
No, I don't think "Piss Christ" is obscenity
No, the question is not whether congress has the power to prohibit such art
Yes, I think it's within the spending power to refuse to fund it
Yes, I tend to think the NEA is a waste of money
No, I don't think the first amendment is restricted to political speech
No, I did not say anything of the kind in my last post
And for the record, Yes... "slavery was bad" for the record before someone assumes that because I didn't type it, I must not believe it.
I always agreed that the K.K.K. had the right to burn crosses. Call it political speech if you like. But they never had the right to do so on public property without the proper permits. Nor did they have the right to do so on some poor victim's yard, either. That's, at the least, trespassing. The rights in that case would be the victim's.
Drop a crucifix in urine. Doesn't bother me a bit. Don't demand I pay you to do so. Your right to be a jerk ends at my back pocket.
There are limits to rights. Not limitless rights.
Did that make any sense at all? *sigh*