June 12, 2009

Does it make you puke?

According to Justice Louis Brandeis, "Does it make you puke?" was roughly the question that Justice Oliver Wendell Holmes applied to determine whether or not to strike down a statute for violating the Constitution.

The point being, judges shouldn't interfere with the democratic, law-making process unless a result issuing therefrom is particularly egregious. Otherwise: "If my fellow citizens want to go to Hell," remarked Holmes, "I will help them. It's my job."

Similarly, in cases involving attempts to ban so-called obscenity, Justice Potter Stewart famously wrote that he couldn't come up with a workable definition of pornography, but, "I know it when I see it."

Japanese animators seem to have come a long way since Speed Racer, as my thoughtful friend Thomas Joseph has discovered.

While the United States Supreme Court has determined that "virtual child pornography" is protected by the First Amendment based on the (arguable) premise that no actual children are harmed by its production, the "game" Thomas discusses appears to meet both Justice Stewart's and especially Justice Holmes's vomit test.

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