Schumer as Torquemada I

Charles Schumer released a list of 70+ questions (including subparts) that he intends to ask John Roberts in the confirmation hearings. Roberts cannot answer most of these because of his ethical obligations, but that's fine with Schumer because the NY Senator can just turn around and complain that Roberts is hiding his views.

I'm going to take a crack at a bunch of these questions in a number of groups because (1) it's a good intellectual exercise; (2) Judge Roberts cannot; (3) some of the questions are ridiculous; (4) I'll be able to show some of the fallacies underlying Schumer's thinking.

Start at the top (my answers in bold)

What, if any, are the limitations on the freedoms guaranteed by the First Amendment to the Constitution? This is so broad that treatises and books have been written about it. If I were Roberts, I'd take a long article I agree with and read it into the record to kill all Schumer's time.

-- When can Government regulate public speech by individuals? Also too broad to determine but the basics are: false speech, conspiracy, obscenity, immediate threats of bodily harm, state secrets and reasonable time-place-manner restrictions (i.e., no protesting me on my property -- that's trespass, not a speech issue, so go bugger off 40 feet down the road) can be "regulated".

-- When does speech cross the line between Constitutionally protected free expression and slander? This is a stupid question because slander is well-defined as (at minimum) a false statement of fact published to a third-party (other than the speaker and the target) that injures or tends to injure one's reputation.

-- In what ways does the First Amendment protect the spending and raising of money by individuals in politics? This is core political speech, which is absolutely protected (Brandenberg v. Ohio); and it can fit within the freedom to petition the government for redress of grievances guaranteed by the First Amendment.

-- Can Government regulate hate speech? What about sexually explicit materials? (1) Not as hate speech b/c one person's political expostuation is another's hate speech. (2) Yes, within certain parameters.

Specifically:

-- Do you agree with the landmark decision in NY Times v. Sullivan (1964), which held that public criticism of public figures is acceptable unless motivated by actual malice? Who do you believe constitutes a public figure under this standard? Heck yeah, if you can't handle it, don't run for Senator. What Roberts believes is irrelevant, public figure is fairly well-defined for publicly elected officials if criticized on their jobs or matters related thereto, and not that nebulous for those who are not public officials but are publicly known.

-- Do you believe the Supreme Court was correct to strike down the Communications Decency Act in Reno v. ACLU (1997) on the grounds that pornography on the Internet is protected by the First Amendment? Yes, next time define pornography better to comport with the Court's previous obscenity cases.

-- What is your view on the distinction the Supreme Court drew in Buckley v. Valeo (1976) and McConnell v. FEC (2003) between contributions and expenditures in the course of political campaigns? Do you believe that it is legitimate to construe campaign expenditures as protected speech but not donations by individuals? Rubbish. If there's a distinction to be drawn, the Supreme Court got it exactly backward; then again, the distinction itself is farcical -- this is all core political speech.

Not a good start for Schumer.

More to come.