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Shakrai's Journal: We Ought Not Submit Our Civil Liberties to a Cost Benefit Analysis 10

Journal by Shakrai

So, I read this interesting piece on Reason today. It started talking about US v. Stevens and had a frightening quote from Solicitor General Elena Kagan: "Whether a given category of speech enjoys First Amendment protection, depends upon a categorical balancing of the value of the speech against its societal costs." In Ms. Kagan's world it's apparently appropriate for Legislators to determine the "value" of speech. Never mind the plain text of the 1st amendment (Congress shall make no law...) or the obvious dangers in applying such a test to free speech. This is scary stuff indeed. Thankfully SCOTUS shot down this argument in an 8 to 1 vote.

I've heard a similar vein from leftists in discussions regarding the 2nd amendment. They point to the "societal cost" of weapons accessibility and use that as an argument for tightening restrictions on firearms ownership. It seems obvious to me that "societal cost" is a vaguely defined term that could be used to restrict all manner of civil rights but they refuse to accept this and continue to argue in favor of further restrictions on liberty. Why restrict such a standard to the 1st and 2nd amendments? What about the societal cost of criminals getting away with their crimes? Wouldn't it better for society to restrict the right to remain silent and right against unreasonable search and seizure? Maybe we should look at double jeopardy too. Doesn't it impose a cost on society to let someone get away with a crime when new evidence later materializes that could have convicted him? Might want to consider the right to a jury trial too. Juries are too easily fooled by slick lawyers and it would probably be better for society if all civil and criminal cases were decided by Judges.

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We Ought Not Submit Our Civil Liberties to a Cost Benefit Analysis

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  • by FroMan (111520)

    The Constitution lays out the rules with which our government is bound. In the area of free speech and self defense they want to do an end run around the Constitution. Instead of following the rules laid out in the Constitution for amending the Constitution they want that power to lay in the hands of congress, in short ignoring the Constitution outright. The plain language found in the Constitution is ignored.

    Even in the event the Constitution were to be amended, I would have issues with their goals. Th

  • by Bakkster (1529253) <(moc.liamg) (ta) (nam.retskkaB)> on Tuesday June 08, 2010 @01:21PM (#32498498)

    I agree, but thought it would be worth pointing out that at SOME point (not in this case), we do need to apply the societal costs.

    However, this point should only come when the exercise of one freedom (religion, speech, bearing arms, fair and speedy trial) would directly infringe upon another's rights. For example, a court-ordered gag limits a person's freedom of speech because it has been determined that protecting the accused's right to a fair trial is more important. In other words, is the protected freedom more worthy of protection than the abridged freedom? That is the only time we should consider the 'value' of our freedoms.

    Clearly in this case there is no abridged freedom, though. The US only grants these freedoms to humans, and only starting at the time of birth, so there is no freedom for the animals to be abridged.

  • by Bill Dog (726542)

    Why restrict such a standard to the 1st and 2nd amendments? What about the societal cost of...

    Liberals don't assign any virtue to consistency like you and I do. Winning (power and control) is ultimately their only goal, so anything and everything they can do towards that is what is virtuous to them. So feigning belief in certain principles for some things and completely abandoning and opposing them for others, if it's towards their ultimate goal, is defined as good and just and proper. I.e. to fail to be in

  • by rthille (8526) <web-slashdot.rangat@org> on Wednesday June 09, 2010 @01:55PM (#32513528) Homepage Journal

    Re: Shouting "Fire" in a crowded theater...

    I've always heard/read that that's not protected. So, given the 1st Amendment, how is that not free speech? Isn't it because we balance the value of the speech (zero/nil, given it's a lie that there's a fire), vs the societal costs (high, given the panic and possible deaths in the mayhem)?

  • Hrm.

    I've got little use for anyone who just picks a "side" or "party" (liberal, conservative, Democrat, Republican, Teabagger, what have you) rather than thinking for themself on any given issue. So, to a degree, I don't mind the use of "liberal" as an epithet, if it's applied to those who take that position unthinkingly. Then again, why isn't "conservative"?

    I'm probably more toward the "liberal" views in some areas, more toward the "conservative" in others. Depends on the issue. On civil liberties, though,

    • by Shakrai (717556) *

      I won't disagree with you on NSLs, but why is Gitmo a violation of our civil liberties, assuming it's limited to foreign nationals captured on a foreign battlefield? It's absurd to think that POWs and enemy combatants captured on the battle field have Constitutional Rights. Could the German POWs we captured during WW2 have filed habeas corpus petitions? The British ones captured during the War of 1812?

      • They can be classified as POWs, too, and I've no problem with that. That, however, brings the Geneva Conventions into play.

        What we're trying to do, though, is have it both ways-not declare them POWs -and- not declare them non-POW arrestees. They're one or the other. If we arrest anyone (including a foreign national), they are entitled to basic protections under US and international law (and incidentally, many Guantanamo detainees were captured far from any battlefield and were not engaged in combat at the t

        • by Shakrai (717556) *

          What we can't do is just declare them "non-people" ("enemy combatants", whatever have you) entitled to no protections whatsoever.

          Sure we can. The Geneva Conventions were never intended to apply to enemies that refuse to follow them. Read up on the Battle of the Bugle sometime. The Germans had special-ops forces that fought behind the lines in captured Allied uniforms. When caught these troops were subject to summary execution. They violated the laws of war by fighting under a false flag and were not entitled to the protections included therein.

          Much the same happened in the Pacific. The Japanese were known to commit perfidy --

          • by Bakkster (1529253)

            But when they are captured on foreign battlefields? No, in that case the only protections that they should get are those accorded to them in international law. And that law requires that they follow certain rules in order to receive the benefits contained therein. As long as they refuse to follow those rules we don't owe them anything.

            Obviously the Geneva Convention doesn't apply here, but that's not the issue.

            The question really is if you feel the rights granted in the Constitution and Bill of Rights are inalienable and God-given, or if they are purely American constructs. In the first instance, citizenship and location of arrest are of no matter. In the second case, the rights would only apply to Americans on American soil. Perhaps the Declaration of Independence can shed some light:

            We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

            Note the "all men", and "unalienable rights". I

  • ... Never to play at all. Arguing the value of God given rights gives credence to the discussion. As a society, we need to step back and start treating our rights as sacred... the same way Liberals treat race. Talking bad about the constitution should make companies fire you. Make an anti-constitution comment should make public officials unelectable by the masses. If a politician goes on stage and screams the N word, no one would associate with them. The same stigma should be given to these mental disease r

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