Comments on: Floridians’ Tax Dollars at Work Fighting Smut http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/ Keeping politicians' hands off the Net & everything else related to technology Sun, 27 May 2012 12:10:00 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Tim Lee http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/comment-page-1/#comment-48519 Tim Lee Tue, 24 Jun 2008 22:29:18 +0000 http://techliberation.com/?p=10983#comment-48519 <p>I understand (but don't necessarily agree with) the Fourteenth Amendment point. But I'm not sure I see how the incorporation doctrine makes things confusing. For the First Amendment, it seems to me that replacing "Congress" with "state and local legislatures" produces a pretty clear meaning. And with the exception of the Tenth Amendment, the others don't appear to make any distinction between the federal and state government at all, so I don't see how the incorporation doctrine creates any confusion.</p> I understand (but don’t necessarily agree with) the Fourteenth Amendment point. But I’m not sure I see how the incorporation doctrine makes things confusing. For the First Amendment, it seems to me that replacing “Congress” with “state and local legislatures” produces a pretty clear meaning. And with the exception of the Tenth Amendment, the others don’t appear to make any distinction between the federal and state government at all, so I don’t see how the incorporation doctrine creates any confusion.

]]> By: Berin Szoka http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/comment-page-1/#comment-48518 Berin Szoka Tue, 24 Jun 2008 22:20:33 +0000 http://techliberation.com/?p=10983#comment-48518 <p>Yes, I don't buy the orthodoxy that the Fourteenth Amendment "applied the Bill of Rights to the states" in some wholesale fashion. But my opinions on that subject are crankish and unlikely to matter in any real way.<br><br>My point was simply that incorporation leads to confusion about the meaning of the other Amendments, most of all #1 and #2.</p> Yes, I don’t buy the orthodoxy that the Fourteenth Amendment “applied the Bill of Rights to the states” in some wholesale fashion. But my opinions on that subject are crankish and unlikely to matter in any real way.

My point was simply that incorporation leads to confusion about the meaning of the other Amendments, most of all #1 and #2.

]]> By: Tim Lee http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/comment-page-1/#comment-48517 Tim Lee Tue, 24 Jun 2008 21:42:31 +0000 http://techliberation.com/?p=10983#comment-48517 <p>So Berin, are you rejecting the idea that the 14th Amendment applied the Bill of Rights to the states? I don't see anything incoherent with the notion that the First Amendment prohibits state governments from regulating "obscene" speech.</p> So Berin, are you rejecting the idea that the 14th Amendment applied the Bill of Rights to the states? I don’t see anything incoherent with the notion that the First Amendment prohibits state governments from regulating “obscene” speech.

]]> By: Berin Szoka http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/comment-page-1/#comment-48516 Berin Szoka Tue, 24 Jun 2008 21:37:35 +0000 http://techliberation.com/?p=10983#comment-48516 <p>The simple answer is, of course, that the First Amendment (like the Second Amendment) only makes sense as an absolute prohibition when one understands that it was originally to apply only to the Federal government, and not to the states. The Federal government wasn't meant to regulate guns or speech <b>at all</b>, but the states were meant to be able to chose their own rules.<br><br>Like it or not, that was at least a coherent rule--one that goes right out the window as soon as we start talking about applying either amendment to the states.</p> The simple answer is, of course, that the First Amendment (like the Second Amendment) only makes sense as an absolute prohibition when one understands that it was originally to apply only to the Federal government, and not to the states. The Federal government wasn’t meant to regulate guns or speech at all, but the states were meant to be able to chose their own rules.

Like it or not, that was at least a coherent rule–one that goes right out the window as soon as we start talking about applying either amendment to the states.

]]> By: Tim Lee http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/comment-page-1/#comment-42447 Tim Lee Tue, 24 Jun 2008 21:29:18 +0000 http://techliberation.com/?p=10983#comment-42447 <p>I understand (but don't necessarily agree with) the Fourteenth Amendment point. But I'm not sure I see how the incorporation doctrine makes things confusing. For the First Amendment, it seems to me that replacing "Congress" with "state and local legislatures" produces a pretty clear meaning. And with the exception of the Tenth Amendment, the others don't appear to make any distinction between the federal and state government at all, so I don't see how the incorporation doctrine creates any confusion.</p> I understand (but don’t necessarily agree with) the Fourteenth Amendment point. But I’m not sure I see how the incorporation doctrine makes things confusing. For the First Amendment, it seems to me that replacing “Congress” with “state and local legislatures” produces a pretty clear meaning. And with the exception of the Tenth Amendment, the others don’t appear to make any distinction between the federal and state government at all, so I don’t see how the incorporation doctrine creates any confusion.

]]> By: Berin Szoka http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/comment-page-1/#comment-42444 Berin Szoka Tue, 24 Jun 2008 21:20:33 +0000 http://techliberation.com/?p=10983#comment-42444 <p>Yes, I don't buy the orthodoxy that the Fourteenth Amendment "applied the Bill of Rights to the states" in some wholesale fashion. But my opinions on that subject are crankish and unlikely to matter in any real way.</p> <p>My point was simply that incorporation leads to confusion about the meaning of the other Amendments, most of all #1 and #2.</p> Yes, I don’t buy the orthodoxy that the Fourteenth Amendment “applied the Bill of Rights to the states” in some wholesale fashion. But my opinions on that subject are crankish and unlikely to matter in any real way.

My point was simply that incorporation leads to confusion about the meaning of the other Amendments, most of all #1 and #2.

]]> By: Tim Lee http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/comment-page-1/#comment-42443 Tim Lee Tue, 24 Jun 2008 20:42:31 +0000 http://techliberation.com/?p=10983#comment-42443 <p>So Berin, are you rejecting the idea that the 14th Amendment applied the Bill of Rights to the states? I don't see anything incoherent with the notion that the First Amendment prohibits state governments from regulating "obscene" speech.</p> So Berin, are you rejecting the idea that the 14th Amendment applied the Bill of Rights to the states? I don’t see anything incoherent with the notion that the First Amendment prohibits state governments from regulating “obscene” speech.

]]> By: Berin Szoka http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/comment-page-1/#comment-42442 Berin Szoka Tue, 24 Jun 2008 20:37:35 +0000 http://techliberation.com/?p=10983#comment-42442 <p>The simple answer is, of course, that the First Amendment (like the Second Amendment) only makes sense as an absolute prohibition when one understands that it was originally to apply only to the Federal government, and not to the states. The Federal government wasn't meant to regulate guns or speech <b>at all</b>, but the states were meant to be able to chose their own rules.</p> <p>Like it or not, that was at least a coherent rule--one that goes right out the window as soon as we start talking about applying either amendment to the states.</p> The simple answer is, of course, that the First Amendment (like the Second Amendment) only makes sense as an absolute prohibition when one understands that it was originally to apply only to the Federal government, and not to the states. The Federal government wasn’t meant to regulate guns or speech at all, but the states were meant to be able to chose their own rules.

Like it or not, that was at least a coherent rule–one that goes right out the window as soon as we start talking about applying either amendment to the states.

]]> By: Adam Thierer http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/comment-page-1/#comment-48515 Adam Thierer Tue, 24 Jun 2008 20:23:16 +0000 http://techliberation.com/?p=10983#comment-48515 <p>Tim... Have you ever read Jeff Rosen's essay on "<a href="http://www.thenewatlantis.com/publications/the-end-of-obscenity" rel="nofollow">The End of Obscenity</a>"? I summarized it in <a href="http://techliberation.com/2004/09/16/lessig-vs-rosen-on-net-porn-regulation/" rel="nofollow">this old TLF post</a> where I was contrasting it to Lessig's proposal to comprehensively regulation online speech and expression.</p> Tim… Have you ever read Jeff Rosen’s essay on “The End of Obscenity“? I summarized it in this old TLF post where I was contrasting it to Lessig’s proposal to comprehensively regulation online speech and expression.

]]> By: Adam Thierer http://techliberation.com/2008/06/24/floridians-tax-dollars-at-work-fighting-smut/comment-page-1/#comment-42437 Adam Thierer Tue, 24 Jun 2008 19:23:16 +0000 http://techliberation.com/?p=10983#comment-42437 <p>Tim... Have you ever read Jeff Rosen's essay on "<a href="http://www.thenewatlantis.com/publications/the-end-of-obscenity" rel="nofollow">The End of Obscenity</a>"? I summarized it in <a href="http://techliberation.com/2004/09/16/lessig-vs-rosen-on-net-porn-regulation/" rel="nofollow">this old TLF post</a> where I was contrasting it to Lessig's proposal to comprehensively regulation online speech and expression.</p> Tim… Have you ever read Jeff Rosen’s essay on “The End of Obscenity“? I summarized it in this old TLF post where I was contrasting it to Lessig’s proposal to comprehensively regulation online speech and expression.

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