I don’t think either of you should shut up… I love reading your arguments to each other.
Neither of you are “arguing.” You’re debating… there’s a HUGE difference.
I guess you could call it respectful arguing, but I think it’s fun and very knowledgeable.

Although, I’ve been recently “semi-debating” the whole Duke porn star controversy and it’s so refreshing to read intelligent comments at this point that I never realized just how much I could miss them… hahaha.

@Lurk –
It’s not necessarily the taste, but the texture.
It’s like trying to decide whether you want to swallow soap or snot.
That was too descriptive, wasn’t it?

There is an art form to swallowing cum when it’s not just shot on your face, but a whole load directly in the mouth… especially when considering gag reflexes.

ok, that was too descriptive… I’ll stop now. 🙂

@BT

Anyone who is sick of your posts doesn’t have to read them. I’m sure there are people sick of me…oh well.

By the time I was 17 I learned…NEVER assume or guess how an appellate court will rule. Also learned that amicus briefs are filed by polar opposites who see a case as a way to open the door to where they want to go. Got told friend of the court doesn’t make them your friend..just means they got some skin in this game.

This UC v FEC is one of those cases. It started out as a group trying to exercise their right to assemble and financially support their candidate. It also involved two corporations whose employees violated FEC.

Politicians are in a fine pickle with this one…this case started because of stuff that happened for the 2008 election as a direct result of people still pissed over the 2000 election. Whether covert or overt lots of politicians that initially supported this case are sorry now…yeah it made a way to grab and hide more money but they didn’t consider it would open the doors to legal discrimination by entities.

We haven’t seen the last of the Cake debate either…look for sole proprietors and small businesses to use UC v FEC with all the labor exclusions to prove their right to do business with who and how they please….as the same groups who supported UC v FEC say no no no.

Even stuff like signs that say…no shoes, shirt no service can become a big deal….now we know shoes are a public health issue in restaurants but shirts are an aesthetic issue that doesn’t pose the liability issues created with broken glassware or contaminated food debris. How about no phones in restaurants?

Now how are politicians gonna fix it…even the smallest business is required to follow anti discrimination in hiring as part of labor laws, it is common sense that they shouldn’t be allowed to discriminate against customers but…how are they gonna keep one without the other? Using the cake shop as an example, not allowed to say no to paying customer because his door is open for commerce makes sense but why can’t a business that relies on artistic or creative processes of individuals decide what their limitations are to deliver a quality product, is he gonna be forced to hire someone whose personal beliefs won’t interfere with that creative process? What about graphic arts, web design etc.

Bottom line…no easy answers. Can’t have laws guaranteeing freedom without restricting somebody in some way shape or form.

A bunch of things can happen as a result of an appeal decision – some lead to another round of appeals hearings known as an en banc hearing where the full 9 judges hear the arguments. Another is they uphold the judge and Vivid either accepts the decision or appeals it to the Supreme Court. Another is that the judges strike down the decision and send it back to the trial judge for another hearing. That could happen because of the way the trial judge accepted some parts of the original measure but threw out others – the way he rewrote the law, so to speak.

If that happens, the process starts all over again at the trial court level. Vivid could now make a much stronger First Amendment argument rather than an economic harm argument. They way they argued it the first time around, the trial judge simply dismissed it out of hand in a sentence – Vivid was unlikely to win a First Amendment argument. Let’s move on.

In a new round, porn could deemphasize the economic harm and make this a balls to the walls First Amendment argument that is potentially appealable all the way to the Supreme Court. I suspect their original lawyers – the Cambria firm – were reluctant to do that. Remember, Paul Cambria created the Cambria list of things porn should not film so that it does not bring attention to itself – things regulators and law enforcement had pretty much made peace with. My gut tells me he does not want to give a Supreme Court that tilts conservative a chance to revisit Miller. This is the same court that has so far preserved Roe V Wade, which gave women a constitutional right to an abortion, but has also given states wide latitude in finding other ways to regulate abortion. It can give porn a First Amendment protection, but give states wide latitude to regulate its production.

Citizens United has completely upended the political world, and was a major factor in the 2012 elections. Not at the presidential level – Romney was able to raise a huge amount of corporate money because of Citizens United but not win. On the other hand, whether you love them or hate them, the Koch Brothers have had a huge impact on non-presidential elections because of Citizens United.

The ruling also made possible the creation of so many of the organizations that were targeted by the IRS for allegedly not living up to the purpose behind their formation.

But in those instances, it is political speech they have impacted.

We’re seeing one of the outcomes of Citizens United referenced by your lawyer buddies – the notion that corporations or businesses enjoy some of the same rights as individuals – playing out in two other ways related to the First Amendment right to religious freedom.

The first is the Hobby Lobby suit that will be argued in front of the Supreme Court later this month. In it. Hobby Lobby is arguing that a privately-held business has the right to deny its employees certain health benefits if those benefits violate the business owner’s religious beliefs. In this case, the health benefit is birth control. If Hobby Lobby is successful, that will be the first time a business, rather than the business owner, has been given a right to religious beliefs.

That ruling is important because a number of states are proposing laws that would allow businesses to discriminate against individuals based on sexual preference because homosexuality violates their religious beliefs. Make no mistake: This is about homosexuality even when Conservatives say the bill would protect a Jewish caterer from being forced to serve a pork dish at a wedding. There is no Constitutional right to eat pork.

So, if there is a ruling in favor of Hobby Lobby, this will be the first time the right to religious freedom will be granted to a business as opposed to a business owner. As your SCOTUS buddies suggest, it will represent CU V FEC influencing decisions in ways people probably never realized at the time.

All of that said ….. media businesses have had First Amendment protections related to content going back to the writing of the Constitution, which guarantees a free press and the freedom of expression. That is not new.

There have been arguments over the years – including the Miller decision – over what constitutes a media organization, who is a reporter, what is art – but those decisions have all been applied to businesses as well as individuals.

With regard to Vivid’s oral arguments in front of the Ninth Circuit, the only thing we have to go by so far is the report of the proceedings in AVN. So, buyer beware. Based on that account – and again, we don’t have a transcript – the First Amendment was entered into the discussion by Vivid’s appellate lawyer and not by the judges.

What I mean is, the reporter didn’t report that the judges asked First Amendment related questions. The reporter reported Vivid’s attorney saying things like you can’t equate the health department’s regulations of a restaurant with the health department regulating a porn set because there are no First Amendment issues associated with a restaurant. However, the question – as reported – wasn’t a First Amendment question. It was a public health question.

Why is all of this important – this is what you want to ask your lawyer friends.

In an appeal, you can’t appeal a trial judge’s ruling just because you disagree with the outcome or the outcome is bad for your client. You have to show that the trial judge was plainly wrong under the law. That’s the standard. That is one of the reasons lawyers make objections during a trial. Yes, they try to keep adverse material out of the record. But, more importantly, by objecting – and often, by citing other cases and rulings when making an objection – they are preserving an issue of law they can argue on an appeal. They can say, that ruling by the judge was plainly wrong, we said it was wrong at the time and the verdict should be over-turned or a new trial should be held or the whole case should just be thrown out.

Second, you can’t introduce issues in oral arguments that you did not argue in your appeal briefs. You can’t argue one thing in your appeals and then on the day of oral arguments say: Oops, what we really wanted to argue was this. That goes beyond the scope of the appeal.

One reason the appeals court panel does not appear to ask questions about the First Amendment, if the reporting is accurate, is that it was not argued by Vivid in the appeal. That is not where they hung their hat. They sort of nodded at it, but their primary argument in court all along has been about economic damage. If you didn’t argue it in your briefs, you can’t march into the oral arguments and pound the table about the First Amendment. That’s the way the game is played.

So why mention it at all? The Ninth Circuit is known as the most liberal federal appeals court in the country. It is the one court where porn has the best chance of winning a First Amendment argument. By the way, it is also the most over-turned appeals court when its cases wind their way to the Supreme Court. Regardless, Vivid’s lawyer did the smart thing, which is to pepper some of his responses with First Amendment references – he’s throwing it in the mix without going beyond the scope. Perhaps it will be on the judges’ minds when they write their decision.

Again, we might find out there was more of a First Amendment argument going on there when we see the transcript or get a ruling in a few months. But the AVN reporter did not reference First Amendment questions from the judges.

That’s what you want to know when it comes to oral arguments: What questions did the judge’s ask?

@BT

Rather than seeing our difference of opinion as a pissing contest I welcome and look forward to more info like you shared above. As a policy queen it’s more than a little refreshing to see your astute opinions on these cases.

In November when we had this discussion this case had already been argued and was waiting for the appellate calendar. They opined that I’d be seeing UC v FEC used in ways that would blow me away, specifically mentioning IRS…that has come true. They also said it would be used in other cases.

So in the end I stand by my opinion that we haven’t seen the last of measure B, Ab332 that is now modified into AB1576 or 2257 challenges because both sides have too much at stake to walk away. Without a crystal ball I can’t guarantee UC v FEC will one of the tricks the lawyers pull out of their magic bag nor will I rule it out as things move forward.

Totally understand your concerns if my comments seemed to say UC v FEC would be used in Vivid appellate process, and for what’s its worth I laughed my ass off when I read that the cost of doing business is a problem…welcome to the real world 😉

From the scuttlebutt it looks like they may have raised FA issues but like you said there’s no way to know what or how that happened until there is an official transcript or the decision is posted.

You’re absolutely right that the First Amendment involves more than just content. In fact, Citizens United is a great example – it was not a case about content, but about political speech.

Nor is Citizens United is the first time a First Amendment right was granted to a corporation. The media is made up of corporations – book publishers, newspapers, academic institutions (and not just professors), radio and television broadcasters, and production companies have all been involved in First Amendment cases and have all been granted First Amendment protections. Heck, the famous Miller case in porn involved a porn company, not an individual. It was Hal Freeman Productions.

Content is what porn is what Rob Black and Max Hardcore argued in their criminal cases – and, by the way, they lost. So, we have two recent instances where pornographers lost a First Amendment argument, their product was found to be obscene and pornographers went to jail. In those instances, the government found that the content did not deserve First Amendment protections.

Citizens United involved protections related to political speech. That’s what was unique. Among other things it removed the amounts of money corporations can contribute to political action committees and whether there could be limits placed on political speech during campaign periods. The porn nexus to Citizens United was its right to advocate in the political arena, not whether it can produce content with or without condoms.

The right to film without a condom is a content-related issue – does porn’s right to express itself trump the government’s right to mandate the use of a condom as a public health issue?

More importantly, despite what porn says to the media, Vivid has not made this a First Amendment case – Citizens United or otherwise. Read the Vivid lawsuit; read the trial judge’s decision; and finally read the reporting on the oral arguments that just took place in the Court of Appeals – we don’t yet have a transcript. The First Amendment so far has been a head fake. Porn has shouted about its First Amendment rights from the rafters to anyone with a notebook, but its lawyers have only nodded to the First Amendment in its arguments. Vivid said that testing works and it will suffer economic harm if it has to compete with production companies that don’t use condoms. Kayden Kross said that she is an independent producer and uses her home in Los Angeles County as her production studio; she cannot afford to travel outside of Los Angeles County and pay studio rental to make condomless porn – the requirement will put her out of business; the actor said that if condoms are enforced, fewer scenes will be produced, which means he’ll get less work in his chosen profession and will suffer economic harm. None of them said they had a First Amendment right – well, Vivid, but barely.

The First Amendment played no role in the trial judge’s ruling – the ruling that was appealed – and porn did not argue in its appeal pleadings that the trial judge was plainly wrong on the law when he ignored the First Amendment in his decision. That is the standard for an appeal – ask your SCOTUS buddies. To overturn a trial judge’s ruling on appeal, the appellant has to demonstrate that the original judge was “plainly wrong” on the law. Porn has not argued this.

Been a long time since Nana washed my mouth out with soap…not sure how cetaphil tastes but I’m sure octagon dish soap makes the idea of eating shit seem more attractive 😉 thinking the real stunt would be convincing producers that there’s a value in buying a replacement for what comes naturally for free from performers.

@jilted

Was being sarcastic 🙂 wasn’t trying to imply needle exchanges stop drug use…they REDUCE the spread of disease among injected drug users. Two drug users can use fresh exchange needles (& cooking tools) to continue their drug use without infecting each other when they split a bag of dope…two performers can’t split a scene without exposing each other.

@BT

Was waiting for you to bring up the content issue…the first amendment relates to lots more than porn content…this case granted First Amendment rights to ENTITIES make no mistake about that.

Until UC v FEC it has only been INDIVIDUALS who are protected by the FA. Freeman was an individual who was criminally charged…not sure if NH named an individual or entity but I’m pretty sure the five lawyers sitting at my table explaining this to me..nodding and shaking as the others expounded or simplified weren’t leading me astray.

The question of who has the greater RIGHT isn’t gonna be decided until a case gets filed and works it way through to SCOTUS. That was direct from the five guys at my table and three of them have not only been to SCOTUS but won.

Seriously ask a constitutional lawyer.