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Originally Posted by rogue_librarian
Nothing in law is ever really fixed. Courts frequently change their opinion....
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Quite true, but that doesn't mean the court can or will
arbitrarily change its mind. They're usually rather circumspect about overturning existing precedents, and I don't see what "social changes" are present that would validate such a radical interpretation of the text, especially given how recent several rulings are that go in the opposite direction.
(You may also want to keep in mind that while I for one agree that the Constitution ought to have latitude for interpretation, a major school of thought suggests this is
not the case, and that the justices ought to adhere as closely as possible to the original intent of the ratifiers.)
Consider the current limitations on the First Amendment; its protections do not extend to:
• Libel and/or slander
• Imminent death threats
• Directly inciting acts of violence
• Criminal conspiracy
• Hate speech in conjunction with a violent crime
• Speech used to perpetrate fraud or a criminal conspiracy
• False advertising
• Exposing state secrets
All of these restrictions on speech were instituted via laws and most (if not all) upheld by court rulings; none had the additional protection of an explicit and specific clause in the Constitution.
If you're going to claim that First Amendment rights are so absolute that it can override another clause in the Constitution -- without bothering to explicitly reference the allegedly overturned clause -- then how could any of the other limitations possibly stand? After all, the Constitution doesn't explicitly set up the "do not harm" standard for the First Amendment; that's just a legal interpretation.... which, as you so helpfully point out, can be discarded at any time, yes?
Quote:
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Originally Posted by rogue_librarian
They are merely voicing an opinion. There is no "wrong" as long as you're internally consistent in your arguments.
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Things may change, but there is still a certain amount of fact involve in interpretations of the Constitution.
For example, if you claim that human slavery is constitutional in 2010, despite the existence of the 13th Amendment, then that is just plain wrong.
As such, I really do not have many qualms about stating that their interpretation of the First Amendment doesn't match existing case law, it doesn't match the direction the court has moved towards lately, that the First Amendment was quite clearly not intended to eliminate the Copyright Clause, and that if you want to get rid of copyright altogether you're going to need to amend the Constitution
and eliminate all copyright laws.
I.e., at least on a preliminary basis, I'm gonna go out on a limb and say "they're wrong."
