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Supreme Court: Video Games are Free Speech

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Posts

  • MechMantisMechMantis Registered User regular
    edited June 2011
    ATIRage wrote: »
    Legally the stakes were pretty high. The ultimate issue was if video games could classify as obscene material, something that would be a dramatic expansion of that category of unprotected speech. Thankfully, the court said no. But only with five votes.

    That wasn't the argument California made though. The argument was that they should be able to restrict what speech minors could obtain legally, by nature of the minors being, well, minor.

    MechMantis on
  • ATIRageATIRage Registered User regular
    edited June 2011
    The only justification for that argument though is if the material is obscene, which is why Scalia spent so much time discussing it his opinion. California's argument is just a modification of the obscenity theory and was an attempt to modify that theory to include violent materials to minors.

    Edit: i guess another argument would be to expand what is traditionally considered unprotected speech, but that Also was shot down, in large part because expansion in this case would require expanding obscenity law. (pg. Top of page six of the opinion)

    ATIRage on
  • themightypuckthemightypuck MontanaRegistered User regular
    edited June 2011
    Why? Thomas is the most intellectually dishonest partisan hack to be on the Court for the past fifty years.

    William Rehnquist.

    themightypuck on
    “Reject your sense of injury and the injury itself disappears.”
    ― Marcus Aurelius

    Path of Exile: themightypuck
  • themightypuckthemightypuck MontanaRegistered User regular
    edited June 2011
    ATIRage wrote: »
    The only justification for that argument though is if the material is obscene, which is why Scalia spent so much time discussing it his opinion. California's argument is just a modification of the obscenity theory and was an attempt to modify that theory to include violent materials to minors.

    Edit: i guess another argument would be to expand what is traditionally considered unprotected speech, but that Also was shot down, in large part because expansion in this case would require expanding obscenity law. (pg. Top of page six of the opinion)

    Exactly. The case is very simple. Videogames are speech. There is no special carve out for children. The court declines to make one. Thus strict scrutiny, which, shocker, the statue fails to pass. Not really surprising. Thomas had the most cogent dissent. One thing everyone should remember with this case is that the Circuit Court enjoined it, the 9th circuit affirmed and the SCOTUS affirmed. Straight up slam down. I think they granted cert to let it be known to the rest of the union to back the fuck down.

    themightypuck on
    “Reject your sense of injury and the injury itself disappears.”
    ― Marcus Aurelius

    Path of Exile: themightypuck
  • BagginsesBagginses __BANNED USERS regular
    edited June 2011
    ATIRage wrote: »
    The only justification for that argument though is if the material is obscene, which is why Scalia spent so much time discussing it his opinion. California's argument is just a modification of the obscenity theory and was an attempt to modify that theory to include violent materials to minors.

    Edit: i guess another argument would be to expand what is traditionally considered unprotected speech, but that Also was shot down, in large part because expansion in this case would require expanding obscenity law. (pg. Top of page six of the opinion)

    Exactly. The case is very simple. Videogames are speech. There is no special carve out for children. The court declines to make one. Thus strict scrutiny, which, shocker, the statue fails to pass. Not really surprising. Thomas had the most cogent dissent. One thing everyone should remember with this case is that the Circuit Court enjoined it, the 9th circuit affirmed and the SCOTUS affirmed. Straight up slam down. I think they granted cert to let it be known to the rest of the union to back the fuck down.

    What was the deal with Breyer's dissent?

    Bagginses on
  • Captain CarrotCaptain Carrot Alexandria, VARegistered User regular
    edited June 2011
    Why? Thomas is the most intellectually dishonest partisan hack to be on the Court for the past fifty years.

    William Rehnquist.

    I was under the impression that Rehnquist was a Buckley conservative.

    Captain Carrot on
  • AngelHedgieAngelHedgie Registered User regular
    edited June 2011
    Why? Thomas is the most intellectually dishonest partisan hack to be on the Court for the past fifty years.

    William Rehnquist.

    I was under the impression that Rehnquist was a Buckley conservative.

    The man made his bones preventing blacks from voting.

    AngelHedgie on
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  • mcdermottmcdermott Registered User regular
    edited June 2011
    Bagginses wrote: »
    ATIRage wrote: »
    The only justification for that argument though is if the material is obscene, which is why Scalia spent so much time discussing it his opinion. California's argument is just a modification of the obscenity theory and was an attempt to modify that theory to include violent materials to minors.

    Edit: i guess another argument would be to expand what is traditionally considered unprotected speech, but that Also was shot down, in large part because expansion in this case would require expanding obscenity law. (pg. Top of page six of the opinion)

    Exactly. The case is very simple. Videogames are speech. There is no special carve out for children. The court declines to make one. Thus strict scrutiny, which, shocker, the statue fails to pass. Not really surprising. Thomas had the most cogent dissent. One thing everyone should remember with this case is that the Circuit Court enjoined it, the 9th circuit affirmed and the SCOTUS affirmed. Straight up slam down. I think they granted cert to let it be known to the rest of the union to back the fuck down.

    What was the deal with Breyer's dissent?

    Haven't read it, but from the notes I've read he largely objects to the idea that nudity/sex is somehow obscene yet violence is not (a reasonable point), then basically hand-waves at some studies showing harm from videogames combined with some studies that show kids occasionally manage to buy the M-rated ones (despite the fact that ESRB compliance is higher than in any other medium).

    He then proceeds to ignore potential chilling effects that might come from major retailers dropping M-rated games (due to legal exposure), as well as the idea that under strict scrutiny any law banning only the sale of videogames (and not movies, or music) is almost by definition underinclusive.

    Because even if you buy his bullshit "violence should be obscenity/pornography too" argument (which, despite my just calling it bullshit, I agree with), that should apply in other media. If Grand Theft Auto is not okay, then neither is Reservoir Dogs. Or Saw.

    mcdermott on
  • mcdermottmcdermott Registered User regular
    edited June 2011
    Also, I'll go ahead and throw in my $.02 and agree with (to my understanding) the concurring opinion; I think nothing is unconstitutional about restricting the sale of such media to minors in and of itself, but once you single out one format (videogames) you fail to address the entire issue in an evenhanded manner.

    I'd still say it's a pointless and foolish law. But (IMO, obviously not now according to the SCOTUS) constitutional.

    mcdermott on
  • Captain CarrotCaptain Carrot Alexandria, VARegistered User regular
    edited June 2011
    I think you'd have to present compelling evidence that such a restriction would lessen the existing rate of sales to minors sufficiently to justify state involvement.

    Captain Carrot on
  • enlightenedbumenlightenedbum Registered User regular
    edited June 2011
    Why? Thomas is the most intellectually dishonest partisan hack to be on the Court for the past fifty years.

    William Rehnquist.

    I was under the impression that Rehnquist was a Buckley conservative.

    The man made his bones preventing blacks from voting.

    So he's a Buckley conservative?

    And Roger Taney was worse than Thomas.

    enlightenedbum on
    Self-righteousness is incompatible with coalition building.
  • Captain CarrotCaptain Carrot Alexandria, VARegistered User regular
    edited June 2011
    He also died a hundred and fifty years ago, so he's safely outside even the largest window proposed.

    Captain Carrot on
  • mcdermottmcdermott Registered User regular
    edited June 2011
    I think you'd have to present compelling evidence that such a restriction would lessen the existing rate of sales to minors sufficiently to justify state involvement.

    Obviously. But I suspect that's a pretty easy bar to clear, depending how you define "sufficiently." If it would cut the rate of sales in half (which, based on the rate of sales of alcohol to minors, is not an entirely absurd outcome) then yeah, I'd say that's probably going to be sufficient for many.

    Again, to argue constitutionality. I'd still say it's largely unnecessary.

    EDIT: But, regarding that last, I won't pretend that my own position is the yardstick by which "compelling state interest" must necessarily be measured.

    mcdermott on
  • ATIRageATIRage Registered User regular
    edited June 2011
    Breyer runs the analysis through the Sroct scrutiny standard and finds that the law has compelling interests ( building off of my previous case law citations about the role of parental protections and due process rights). But also argues from commercial speech law that bans advertising and certain kinds of content in the interest of protecting children.

    The problem with this analysis is that although the laws in both realms have revolved around strict scrutiny, for the most part of commercial speech, they are generally considered different ares of first amendment law. Breyers conglomeration of the two principles are the legal conclusion of Thomas argument, rather than an argument from original understanding. Essentially Breyer provides legal proof that there have been criminal sanctions related to speech restrictions particularly regarding children or other areas of speech ( sable, and holder).

    It completely makes sense to me but I don't agree as to his application and find scalias argument as a correct assertion of the first amendment. But I wouldn't be so quick to just say thomas is being a hack, quite a bit of law rests on his fundamental premise that the right of parents to control the upbringing of their children.

    ATIRage on
  • emnmnmeemnmnme Registered User regular
    edited June 2011
    The talking heads of conservative AM radio are bringing up their points. Laura Ingraham says kids are restricted from getting tattoos or pierced ears or flying airplanes unsupervised so, with all these restrictions already in place, why not add one more? Violent videogames corrupt children. A little later and I'll see what Rush Limbaugh says about it but they all seem disappointed the bill failed.

    emnmnme on
  • TomantaTomanta Registered User regular
    edited June 2011
    emnmnme wrote: »
    The talking heads of conservative AM radio are bringing up their points. Laura Ingraham says kids are restricted from getting tattoos or pierced ears or flying airplanes unsupervised so, with all these restrictions already in place, why not add one more? Violent videogames corrupt children. A little later and I'll see what Rush Limbaugh says about it but they all seem disappointed the bill failed.

    My response is: why not add more? Let's make sure kids require parental supervision to eat fast food, ride a bus, and cross the street.

    Tomanta on
  • Void SlayerVoid Slayer Very Suspicious Registered User regular
    edited June 2011
    The government stop adults from drinking and driving, so it should be able to ban any books they want too.

    Void Slayer on
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  • emnmnmeemnmnme Registered User regular
    edited June 2011
    Tomanta wrote: »
    emnmnme wrote: »
    The talking heads of conservative AM radio are bringing up their points. Laura Ingraham says kids are restricted from getting tattoos or pierced ears or flying airplanes unsupervised so, with all these restrictions already in place, why not add one more? Violent videogames corrupt children. A little later and I'll see what Rush Limbaugh says about it but they all seem disappointed the bill failed.

    My response is: why not add more? Let's make sure kids require parental supervision to eat fast food, ride a bus, and cross the street.

    Well, these are the same talking heads who squealed bloody murder when one spot in California removed the toys from Happy Meals. "Government intrusion!," they said.

    emnmnme on
  • joshofalltradesjoshofalltrades Class Traitor Smoke-filled roomRegistered User regular
    edited June 2011
    Well, government intrusion is fine with the far right as long as it's something they agree with.

    We can't just sit down and have a reasonable conversation based on an understanding that the government does things. "Too much government" is a talking point!

    Fixing health care = HUEG GUBMENT OMG

    Moral guardian legislation = Core American values

    joshofalltrades on
  • TomantaTomanta Registered User regular
    edited June 2011
    emnmnme wrote: »
    Tomanta wrote: »
    emnmnme wrote: »
    The talking heads of conservative AM radio are bringing up their points. Laura Ingraham says kids are restricted from getting tattoos or pierced ears or flying airplanes unsupervised so, with all these restrictions already in place, why not add one more? Violent videogames corrupt children. A little later and I'll see what Rush Limbaugh says about it but they all seem disappointed the bill failed.

    My response is: why not add more? Let's make sure kids require parental supervision to eat fast food, ride a bus, and cross the street.

    Well, these are the same talking heads who squealed bloody murder when one spot in California removed the toys from Happy Meals. "Government intrusion!," they said.

    There's a reason I included fast food :).

    Tomanta on
  • Orochi_RockmanOrochi_Rockman __BANNED USERS regular
    edited June 2011
    So, when we hassle video game developers and publishers on the content of their games, even though the ESRB ratings on the case clearly spell out what is to be expected when the game is played. That's doing the right thing.

    But trying to get better food in school cafeterias and inform parents on matters of health and nutrition to combat the growing childhood obesity problem in America, that's being a 'nanny state'. Which is apparently bad.

    Oh yes, this all makes perfect sense.

    Orochi_Rockman on
  • OptimusZedOptimusZed Registered User regular
    edited June 2011
    Anything that makes kids more free is bad. Because if they're free, who's to say whether they'll choose to be good Capitalist Christians when they have all those other options? Removing any restriction from their ability to self-determine, however small or inconsequential, reduces the odds that they'll grow up exactly like their parents, who are obviously god-fearing Christian Capitalists because everyone else is gay or vegan or otherwise incapable of reproducing.

    OptimusZed on
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  • JustinSane07JustinSane07 Really, stupid? Brockton__BANNED USERS regular
    edited June 2011
    I only wish vegans were incapable of reproducing. Bunch of inhuman mutants...

    I really hate how this ruling is being presented by all outlets. It's not letting kids buy violent video games, as a few places have reported, it's just stopping the state governments from imposing their regulations. The law basically says "Self regulation is working, so no government regulation allowed." My 10 year old cousins still can't walk into a store and buy Killzone 3 or Modern Warfare 2 without presenting their ID. Nothing changes as a result of this.

    JustinSane07 on
  • themightypuckthemightypuck MontanaRegistered User regular
    edited June 2011
    The government stop adults from drinking and driving, so it should be able to ban any books they want too.

    1st amendment. Perhaps an analogy could be made with guns although I suspect with guns, the court could apply strict scrutiny and still uphold restrictions.

    themightypuck on
    “Reject your sense of injury and the injury itself disappears.”
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  • joshofalltradesjoshofalltrades Class Traitor Smoke-filled roomRegistered User regular
    edited June 2011
    The government stop adults from drinking and driving, so it should be able to ban any books they want too.

    1st amendment. Perhaps an analogy could be made with guns although I suspect with guns, the court could apply strict scrutiny and still uphold restrictions.

    Not to mention that there is a compelling state interest in stopping adults from drinking and driving, and I can't really see one for banning books.

    joshofalltrades on
  • FeralFeral MEMETICHARIZARD interior crocodile alligator ⇔ ǝɹʇɐǝɥʇ ǝᴉʌoɯ ʇǝloɹʌǝɥɔ ɐ ǝʌᴉɹp ᴉRegistered User regular
    edited June 2011
    ATIRage wrote: »
    The only justification for that argument though is if the material is obscene, which is why Scalia spent so much time discussing it his opinion. California's argument is just a modification of the obscenity theory and was an attempt to modify that theory to include violent materials to minors.

    Edit: i guess another argument would be to expand what is traditionally considered unprotected speech, but that Also was shot down, in large part because expansion in this case would require expanding obscenity law. (pg. Top of page six of the opinion)

    Exactly. The case is very simple. Videogames are speech. There is no special carve out for children.

    There is a special carve-out for children, in Ginsberg v. New York.

    The carve-out is that what is obscene to a minor is different than what is obscene to an adult. We can discuss whether this carve-out makes sense, but there it is. It's precedent.

    However, the Ginsberg v. New York carve-out specifically references sexual content (because obscenity laws specifically reference sexuality). What California argued, and Scalia shot down, was extending that standard to violence.

    To do that, California needed to show compelling evidence that violent video games caused direct harm to children in a way exceptional from violent literature, cartoons, etc. In the court's eyes, California failed to do that.

    Feral on
    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.

    the "no true scotch man" fallacy.
  • LolkenLolken Registered User, __BANNED USERS regular
    edited June 2011
    Eh, I hate both Scalia and Thomas. But Scalia is a gifted, talented judge (with all the wrong political views), while Thomas is nothing more than a hack. Literally any undergraduate student of law would make a better Justice than him.

    Lolken on
  • ATIRageATIRage Registered User regular
    edited June 2011
    Feral you've got it wrong

    Obscenity is a category of speech that is not protected by the first amendment. The Ginsberg analysis also didn't create a new kind of obscenity law, rather, justice Brennan specifically said that obscenity variates depending on the viewing community, and in this case obscenity changes depending on if you are a child or an adult (This makes sense because, in miller, the first of the three part test is a subjective test). This is not a new kind of obscenity, it isn't a carve out of obscenity, it simply is a recognition that obscenity changes from community to community and it also applies to viewing audiences (thus adults and children see obscenity differently)

    You are right to say that Scalia declined to extend obscenity to violence. However, your final assertion confuses a fundamental point of first amendment law.

    Protected speech may only be regulated if there it passes strict scrutiny (compelling interest, narrowly tailored solution, least restrictive means).

    Obscenity, since it is NOT a traditionally protected category of speech, requires NO government justification to regulate. The miller test, that Scalia cites, is not a test to determine if california's actions passed strict scrutiny, nor is it a test of government interest. The miller test is designed to identify what constitutes obscene material. If it fits in that definition, then that is the end, and the regulation is valid.

    Scalia's application of strict scrutiny, as a logical consequence, is a result of his conclusion that California's law didn't concern obscenity. Thus if strict scrutiny is being applied, there is no concern about obscenity (unless you are Justice Breyer who sorta mangled these two spheres of first amendment law)

    ATIRage on
  • FeralFeral MEMETICHARIZARD interior crocodile alligator ⇔ ǝɹʇɐǝɥʇ ǝᴉʌoɯ ʇǝloɹʌǝɥɔ ɐ ǝʌᴉɹp ᴉRegistered User regular
    edited June 2011
    ATIRage wrote: »
    Feral you've got it wrong

    Obscenity is a category of speech that is not protected by the first amendment. The Ginsberg analysis also didn't create a new kind of obscenity law, rather, justice Brennan specifically said that obscenity variates depending on the viewing community, and in this case obscenity changes depending on if you are a child or an adult (This makes sense because, in miller, the first of the three part test is a subjective test). This is not a new kind of obscenity, it isn't a carve out of obscenity, it simply is a recognition that obscenity changes from community to community and it also applies to viewing audiences (thus adults and children see obscenity differently)

    That's what I said.

    Did you misunderstand my post?

    Feral on
    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.

    the "no true scotch man" fallacy.
  • ATIRageATIRage Registered User regular
    edited June 2011
    Wait, I said there is no new carve out, your post starts with "There is a carve out for children". I'm not trying to be a goose here but there are differences between a legal extension of the law (a carve out) and a different application of the rule (What I am arguing happened in Ginsberg) That difference being what Alito is trying to do with first amendment law by extending obscenity to things like violent depictions. Whereas what happened in ginsberg wasn't an extension of obscenity law just an application of obscenity law to a different community, as required by the Miller test. (if this sounds like supreme court pendantic crap, well, it kinda is)

    I'm also trying to make it clear that obscenity gets no protection under the first amendment, and thus NO strict scrutiny required to regulate obscene material (this is your last statement)

    ATIRage on
  • FeralFeral MEMETICHARIZARD interior crocodile alligator ⇔ ǝɹʇɐǝɥʇ ǝᴉʌoɯ ʇǝloɹʌǝɥɔ ɐ ǝʌᴉɹp ᴉRegistered User regular
    edited June 2011
    ATIRage wrote: »
    Wait, I said there is no new carve out, your post starts with "There is a carve out for children". I'm not trying to be a goose here but there are differences between a legal extension of the law (a carve out) and a different application of the rule (What I am arguing happened in Ginsberg

    Oh, is 'carve out' a legal term? I wasn't aware. I borrowed it from Puck's post. I thought it was just a colloquialism.

    Feral on
    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.

    the "no true scotch man" fallacy.
  • ATIRageATIRage Registered User regular
    edited June 2011
    nah, i'm reading over my post and I feel like a jerk. :( Sorry man, I get what you're saying and the overall point is right, im just OCDing about distinctions that I feel are important, but in reality aren't terribly important.

    ATIRage on
  • FeralFeral MEMETICHARIZARD interior crocodile alligator ⇔ ǝɹʇɐǝɥʇ ǝᴉʌoɯ ʇǝloɹʌǝɥɔ ɐ ǝʌᴉɹp ᴉRegistered User regular
    edited June 2011
    ATIRage wrote: »
    nah, i'm reading over my post and I feel like a jerk. :( Sorry man, I get what you're saying and the overall point is right, im just OCDing about distinctions that I feel are important, but in reality aren't terribly important.

    You're not a jerk. It's a discussion, you misunderstood my post, I wasn't using proper legal terminology (mostly because I don't know it) so obviously I could have been clearer. It's all good. here, have a lolcat.

    129086608228770415.jpg

    Feral on
    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.

    the "no true scotch man" fallacy.
  • ATIRageATIRage Registered User regular
    edited June 2011
    I think that cat disagrees with Thomas' Dissent :D

    I tried getting at what Breyer was saying but i ended up a little confused. Anyone else have a read on what Breyer is talking about?

    ATIRage on
  • smeejsmeej Registered User regular
    edited June 2011
    oldsak wrote: »
    emnmnme wrote: »
    Hoz wrote: »
    In 20-30 years, the people being nominated to the Supreme Court will be from our generation and therefore will probably be gamers. So it doesn't worry me that this is a 7-2 decision and not 9-0.

    The trend is mainstream games are getting much more violent over time. Envelope is being pushed. In 20-30 years, gamers will be throwing virtual babies into woodchippers for bonus points.

    I would play that game.
    I'm sure that's basically what Dante's Inferno 2 will be if it ever happens.

    Gotta bridge the cultural gap.

    smeej on
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  • FeralFeral MEMETICHARIZARD interior crocodile alligator ⇔ ǝɹʇɐǝɥʇ ǝᴉʌoɯ ʇǝloɹʌǝɥɔ ɐ ǝʌᴉɹp ᴉRegistered User regular
    edited June 2011
    ATIRage wrote: »
    I think that cat disagrees with Thomas' Dissent :D

    I tried getting at what Breyer was saying but i ended up a little confused. Anyone else have a read on what Breyer is talking about?

    He's arguing that the California law satisfies the strict scrutiny test.

    I think he fails, though, because as Scalia says...

    JUSTICE BREYER would hold that California has satisfied strict scrutiny based upon his own research into the issue of the harmfulness of violent video games. See post, at 20–35 (Appendixes to dissentingopinion) (listing competing academic articles discussing the harmful-ness vel non of violent video games). The vast preponderance of thisresearch is outside the record—and in any event we do not see how itcould lead to JUSTICE BREYER’s conclusion, since he admits he cannot say whether the studies on his side are right or wrong. Post, at 15. Similarly, JUSTICE ALITO says he is not “sure” whether there are any constitutionally dispositive differences between video games and othermedia. Post, at 2. If that is so, then strict scrutiny plainly has not been satisfied.

    Feral on
    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.

    the "no true scotch man" fallacy.
  • themightypuckthemightypuck MontanaRegistered User regular
    edited June 2011
    Feral wrote: »
    ATIRage wrote: »
    Feral you've got it wrong

    Obscenity is a category of speech that is not protected by the first amendment. The Ginsberg analysis also didn't create a new kind of obscenity law, rather, justice Brennan specifically said that obscenity variates depending on the viewing community, and in this case obscenity changes depending on if you are a child or an adult (This makes sense because, in miller, the first of the three part test is a subjective test). This is not a new kind of obscenity, it isn't a carve out of obscenity, it simply is a recognition that obscenity changes from community to community and it also applies to viewing audiences (thus adults and children see obscenity differently)

    That's what I said.

    Did you misunderstand my post?

    I sort of misunderstood it as well but luckily held my powder until ATIRage and you cleared it up. I still don't know what you mean by the last sentence though. You start with "to do that" which suggests that extending the standard to violence had something to do with passing the strict scrutiny test. For the particular bill to pass muster after the standard was not extended to violence it would have to pass strict scrutiny. Passing strict scrutiny wouldn't change the standard. It would just obviate it.

    Also, In my post I should have been clearer and said there is no carve out for children vis violence.

    themightypuck on
    “Reject your sense of injury and the injury itself disappears.”
    ― Marcus Aurelius

    Path of Exile: themightypuck
  • FeralFeral MEMETICHARIZARD interior crocodile alligator ⇔ ǝɹʇɐǝɥʇ ǝᴉʌoɯ ʇǝloɹʌǝɥɔ ɐ ǝʌᴉɹp ᴉRegistered User regular
    edited June 2011
    For the particular bill to pass muster after the standard was not extended to violence it would have to pass strict scrutiny. Passing strict scrutiny wouldn't change the standard. It would just obviate it.

    Ah, yeah. Point taken.

    Feral on
    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.

    the "no true scotch man" fallacy.
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