Thursday, April 3, 2014

Welcome to the Collective - WSJ.com

Welcome to the Collective - WSJ.com: "In his plurality opinion in yesterday's free-speech case, McCutcheon v. Federal Election Commission, Chief Justice John Roberts notes an anomaly in contemporary "liberal" First Amendment jurisprudence: "If the First Amendment protects flag burning, funeral protests, and Nazi parades--despite the profound offense such spectacles cause--it surely protects political campaign speech despite popular opposition."

We'd take the point a step further. The examples Roberts cites all involve fringe political expression. But the First Amendment also protects outré speech outside the political realm--most notably pornography, the subject of a great deal of Supreme Court jurisprudence over the past few decades, in which judicial liberals took the lead in expanding free-speech rights.

In recent years something of a consensus has emerged. When the court extended First Amendment protection to "depictions of animal cruelty" (U.S. v. Stevens, 2010) and violent video games (Brown v. Entertainment Merchants Association, 2011), the decisions were written by Roberts and Justice Antonin Scalia, respectively, for 8-1 and 7-2 majorities."



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