Thursday, June 30, 2011
Mike Dorf has an excellent post at Dorf on Law on the video games case, but I want to modify his terminology (and I am sure he would agree with most of what I say here). Mike describes the position of Justice Breyer favoring the constitutionality of violent video game regulation as "breaking conservative" and Justice Scalia and Kennedy's position arguing that such regulation was unconstitutional as "breaking liberal." This terminology is quite common and has been for more than half a century, but I do not think it is useful. The underlying assumption is that favoring the First Amendment position is liberal and opposing it is conservative.
But, on this view, Cass Sunstein and I are conservatives. I could accept the view that we are not "liberals." But I think of us as progressives, not conservatives. Sunstein and I and many others do not believe the First Amendment is a barrier (with exceptions) to campaign finance regulation, commercial speech regulation, pornography regulation, attempts to protect privacy and human dignity and the like. We do believe in strong protections for political speech (Sunstein's emphasis) and dissent (my emphasis). As my colleague, Aziz Rana observes, it has long been part of the progressive tradition to nurture a particular kind of culture.
At the same time, I do not believe Scalia and Kennedy "broke liberal." There is a well-known split on the right between Libertarianism and Burkean Conservativism. I would say that Scalia and Kennedy broke libertarian. In results, Kennedy is far more libertarian than Scalia (consider the latter's views on the state's regulation of sexuality and sexual speech).
From my perspective, the free speech approach of the Court is bleak, but it is nice that the liberals sometimes "break progressive" in some of the campaign finance cases, and Alito's Burkean conservatism overlaps the progressive view in cases involving depiction of animal cruelty and demonstrations at military funerals calculated to inflict emotional distress.
cross-posted at religiousleftlaw
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