Strengthening Constitutional Self-Government

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The Rap against Kagan

The SCOTUS nominee's pro bono work, in her short stint as a lawyer, included a brief on behalf of Two Live Crew, recounted by Luther Campbell:  Kagan "wrote a brief that argued [their] album 'does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response.'"  Campbell then quotes an offending passage, which I won't even attempt to cite with bleeps. H/T James Taranto via Richard Reeb.This is a woman who claims to re-read Pride and Prejudice every year

"Shameful" and "morbid" are liberalism's contributions to the coarsening of everyday life.  That's the liberals' First Amendment, an understanding which makes it all the easier to fail to recognize when it is truly threatened, as in "fairness doctrines" and campaign finance restrictions. 

Categories > Courts

Discussions - 4 Comments

I disagree strongly.

I am of the opinion that Kagan is a typical establishment type, no doubt liberal and with views on the role and scope of administration law that should give pause to anyone who believes that talking about the founding is relevant to how our government actually does or should work.

I also realize that when making arguments you can throw the kitchen sink, and see what all sticks. Still this is bad because attention spans are limited and you risk diluting your main points(a chief weakness of mine).

But I think if Kagan argued on behalf of Campbell against Acuff Rose she was on the right side of the argument. Campbell v. Accuff Rose 510 US 569 is a landmark "fair use" case. It is also a case that demonstrates why Kennedy is the best justice on the Supreme Court.

My Fornoff was on the topic so I happen to have a special interest and knowledge of the case law and the underlying statute(codified common law) 17 USC 107.

I would love to find the Kagan brief but it was not an option under my current Lexis Nexis subscription, most ironically I am willing to bet that because Luther Campbell is not a lawyer and the case is several years removed, he may even be wrong on the facts.

That is, if Kagan was really argueing that "'does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response" she may in fact have been argueing not for Campbell but for Acuff Rose.

This is because as Kennedy makes clear the main issue is analysing how transformative the new work is, one must look to see how much it actually changes the original. If the blurb of Kagan is correct then it would go to showing that 2-live crew did not change "pretty woman."

The arguement of Campbell was that it did transform the original (3rd factor), and that therefore it did not violate the (4th factor) because 2-live crew had an entirely different market than the original.

So if you argue on behalf of Campbell you stress the obscenity, burlesque and parody aspects of the mashup/remix. While the original song was quasi-respectfull and appreciative of a good looking woman, the song lyrics of the parody stressed more vulgar aspects of male sexuality. Thus you argue that it wasn't a derivative, it wasn't a substitute for the original.

If Ken Thomas has Pretty woman in his Ipod there is no corrolation, and possibly even a negative chance that he will also have the 2 live crew version. It does not corrupt or encroach upon the potential market for the original.

In other words if Kagan reads Jane Austen she also does not read Pride and Prejudice with zombies. If you read Strauss on Plato, you aren't really an audience for the newer conspiracy theories/hidden messages on Plato.(although this line or reasoning gets complex and interesting, given that Carl Scott is aware of both while most americans are aware of neither.)

My general sense then is if Kagan really emphasized what Luther Campbell on his blog article claims, that she was not writting on his behalf but against him. That said If she did write on his behalf(which seems likely) then the portion quoted was refering to the original work. That is Kagan was saying that Pretty Woman by Roy Orbinson "'does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response.'" (but that the version by 2-live crew does)

In this most likely of cases the way you put your blog post together is misleading and in bad faith.

My faith in Luther Campbell's account of his own case may have been misplaced!

Question: Does government-sanctioned torture - and the mainstreaming of it as something supposedly manly and heroic, with the full backing of the "liberal" media - create a "shameful" and "morbid" response in a culture and its values?

(and nobody - except those desperate to smear Kagan - really gives a moment's thought to 2 Live Crew (!!??) these days)

1) Just got started on Harvey's "The Condition of Postmodernity" I like it so far.

2) Glenn is no cheerleader for the establishment. He might be the fiercest critic of Kagan from the left.

I fail to see how Government sanctioned torture is worse than government sanctioned war. You go to war, you bomb buildings, people get shot, civilians die in the cross fire. I don't know if we have the stories of those who did get waterboarded, but it seems to me that it all depends on if you believe this group was even close to the average casualty of war. The more you believe that innocents were being tortured the worse it is. If on the other hand you more or less accept that these were the worst of the worst, folks whose non-existance would have precluded the necessity for war in the first place, then you have a different story.

To simplify you assume that being waterboarded is preferable to being killed. Killing is a greater evil. Then you assume that in war it is forseeable that a certain portion of those killed will be innocents. The ratio of bad guy to innocent or acceptable collateral dammage for war or a target to be permissible is established. Basically you assume that the targets that get waterboarded belong to the bad guy grouping, people whom it is okay to kill even if civilians and innocents are also killed. Once you establish this, it follows that waterboarding or torture is acceptable, because it is a lesser evil than killing and this was justifiable even when it was known that innocents would be killed. No innocents killed, No bad guys killed (only tortured).

Torture is morally justifiable if War is. If torture can a la 24 hours reduce collateral dammage and death then you have an added bonus.

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