2016.005: Conservatism in Court


My argument in the Supreme Court of Georgia had me reflecting on three categories of conservatism: the social, the political, and the judicial.

In Georgia, we were dealing with a law that forbade an adult communicating certain content (including descriptions of nudity) to a child online with the intent to arouse or satisfy the sexual desire of the adult or the child.

While socially conservative libertarians can lay claim to the “political conservative” tag with just as much good faith as socially conservative authoritarian, I view political conservatism as lying closer to the authoritarian end of that axis. It may be that “politically conservative” has been used by so many disparate philosophies that it is devoid of meaning, but the political conservative would, in my view, view the suppression of perversion as a valid governmental goal.

The social conservative might hear about the law and first think, “that’s outrageous; nobody needs to be doing that,” then think, “where are the parents in this?” That the speech is repugnant might mean to the social conservative that the government should publish it, but not necessarily: she might see this law as both a damning indictment of modern society’s weakening of the family unit. She might also think that by criminalizing repugnant speech the government reduces parents’ motivation to parent. My argument in Texas was a socially conservative argument: it is parents’ job to protect their own children.

The judicial conservative would try to set aside his own political and social preferences and follow precedent. Precedent in this case is U.S. v. Stevens, with its stark rejection of a harm-vs.-good balancing test and its categorial ((Yes, I went there.)) imperative. The Stevens question is whether the forbidden speech falls into a recognized category of historically unprotected speech. Stevens leaves open the possibility that courts might recognize a hitherto unrecognized category of historically unprotected speech, but not the possibility that the state might simply decree such a category based on a cost-benefit analysis.

My argument in Georgia was a judicially conservative argument. The speech forbidden by 16-12-100.2(e) falls into no recognized category of historically unprotected speech. The State admitted at oral argument that it falls into no hitherto unrecognized category either. ((In fact, in 1791 the age of consent was 12, so what we now consider children could not only be sexually aroused but also be married)) So the only judicially conservative action to be taken is to strike 16-12-100.2(e).

By taking the judicially conservative course, the Georgia Supreme Court will also be taking a socially conservative course, preserving parents’ right and responsibility to see to the education and training of their own children.

What it will not be doing is taking the politically conservative course, if “political conservatives” are right-wing authoritarians, but those guys are assholes anyway.


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