DISQUS

Technology Liberation Front: Floridians’ Tax Dollars at Work Fighting Smut

  • Adam Thierer · 1 year ago
    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.
  • Berin Szoka · 1 year ago
    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.
  • Tim Lee · 1 year ago
    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.
  • Berin Szoka · 1 year ago
    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.
  • Tim Lee · 1 year ago
    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.