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The Future of the Supreme Court (Page 22)
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Laminar
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Jul 10, 2023, 09:21 AM
 
Originally Posted by subego View Post
Liars get 1A protections.

Fuckfaces get 1A protections.

Bigots get 1A protections.

People with no life-compelling reasons to express particular speech get 1A protections


Lying, fuckface, bigots with no life-compelling reasons to express particular speech get 1A protections.
This is not universally true. See: "Fire! Fire! Fire!", bomb threats.
     
subego  (op)
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Jul 10, 2023, 10:50 AM
 
I’m not arguing the 1A is without limit.

I’m arguing that whatever protections it does provide, they extend to lying fuckfaces.



Edit: I should note an exception is it does not extend to people lying within a business transaction (e.g., false advertising is not protected speech). Likewise, slander and libel are not protected.
     
subego  (op)
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Jul 10, 2023, 11:25 AM
 
Originally Posted by reader50 View Post
you are the owner/author of the resulting work.
How many times in your life have you heard someone claim they are the author of a work solely by dint of them commissioning it?

For me, the answer is zero.

If someone showed me their Picasso and called themselves the “author”, I would find it difficult not to laugh in their face while pointing at the Picasso signature.
     
subego  (op)
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Jul 10, 2023, 01:09 PM
 
Originally Posted by OreoCookie View Post
Yes, but you are only considering the rights of one party, ignoring rights of others.
I don’t understand this accusation.

I’m taking conflicting rights (class protections and the 1A), weighing them, and providing a resolution to the conflict. The rights granted by class protections are being considered, they just lose in my resolution.

In a resolution where the class protections take precedence, the 1A is considered, but in that resolution the 1A loses.

Someone’s rights are going to lose-out in this conflict. It can’t be avoided. We can only maintain one of these two rights.

Where’s the ignoring part?
     
Laminar
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Jul 10, 2023, 01:15 PM
 
Originally Posted by subego View Post
I’m taking conflicting rights (class protections and the 1A), weighing them, and providing a resolution to the conflict. The rights granted by class protections are being considered, they just lose in my resolution.
And what's the historical precedence of outcomes stemming from people reaching that same resolution?
     
subego  (op)
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Jul 10, 2023, 01:47 PM
 
Help me out. Tell me the conclusion I’m supposed to be coming to.
     
Laminar
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Jul 10, 2023, 02:45 PM
 
If you let business owners discriminate, society is worse off.
     
subego  (op)
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Jul 10, 2023, 05:16 PM
 
Can the same not be said for allowing the government to compel speech?
     
reader50
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Jul 10, 2023, 05:19 PM
 
Originally Posted by subego View Post
If someone showed me their Picasso and called themselves the “author”, I would find it difficult not to laugh in their face while pointing at the Picasso signature.
Ghostwriters. You commission the work, and get the author credit. They help by not signing their name.

However, unless the claimant is an elderly person, I'd laugh too. Picasso died in 1973. And you have to be 18 to enter into a contract. So anyone who commissioned Picasso would have to be at least 68 today, assuming Pablo took the work in his final days.
Originally Posted by subego View Post
I’m taking conflicting rights (class protections and the 1A), weighing them, and providing a resolution to the conflict. The rights granted by class protections are being considered, they just lose in my resolution.

In a resolution where the class protections take precedence, the 1A is considered, but in that resolution the 1A loses.
The 1A should lose. It covers Speech, as well as the Establishment Clause. Which is the basis of religious freedom rights in the US. Equal Protection (14A) was passed later, so it should win all conflicts with 1A.

Unless the plaintiff can site an angle granted in 14A or a later Amendment, she doesn't have a basis to win.

Of course, we do have that corruption problem with SCOTUS today. Where if you advance a conservative issue, you may win anyway, despite the plain wording of the law. Or the order Amendments were passed in. Or citing a fake example in your court filings.
     
subego  (op)
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Jul 11, 2023, 01:45 AM
 
Originally Posted by reader50 View Post
Equal Protection (14A) was passed later, so it should win all conflicts with 1A.
It is generally the case a newer law supersedes an older one, but not in all cases. It can be a judgement call, and as far as I’m aware, this isn’t the first time such a judgement call has been made.
     
subego  (op)
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Jul 11, 2023, 03:25 AM
 
Originally Posted by reader50 View Post
Ghostwriters. You commission the work, and get the author credit.
I’ve never dealt directly with ghostwriting contracts, but I can say with extremely high confidence they exhaustively detail the transfer of authorship.

In a normal commissioned contract with a writer, none of this verbiage exists.

Am I understanding your argument correctly? That for all intents and purposes there’s no difference between the two? With the normal commissioned contract, the commissioner can claim authorship, just like with whoever is commissioning the ghostwriter.

With the normal commissioned contract, the writings aren’t the speech of the writer, but of the commissioner?
     
Laminar
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Jul 11, 2023, 08:24 AM
 
Originally Posted by subego View Post
Can the same not be said for allowing the government to compel speech?
The situation I'm working through in my head is where someone asks for a cake depicting a dead baby being raped. I don't believe anyone should be forced to make that cake, but I'm trying to figure out what objections the cake maker could pose that wouldn't also apply to providing a cake for a same-sex wedding. "It's yucky." "It's morally repugnant." "I don't want to." "I find it offensive." "It's against my firmly- and sincerely-held system of beliefs." "This art depicts an act that is detrimental to society."

Is the issue that the cake maker won't sell an identical cake to a straight and a gay couple? Is the issue that a cake maker won't put two miniature female figurines on top of the same cake should would have put a male and a female figuring onto? Is the issue that the cake maker doesn't want to spell out "Happy Gay Wedding" in rainbow icing on the cake?

I think we're back to defining what speech is. Is it having a gay couple and a straight couple walk into the store at the same time, each pull an identical generic premade cake out of the fridge, but the business owner refusing to sell to the gay couple? Is that speech? If a gay couple picks a generic unmarked cake from the cake maker's catalog and the cake maker refuses to make it for them in an identical manner that she would have made it for a straight couple, is that speech? Is it speech when the cake becomes customized for the couple?

And since I can't believe I let myself get dragged into this, quick reminder that the billionaires and controllers of the media want us arguing over this culture war stuff and ignoring the fact that wages have stagnated, wealth inequality is skyrocketing, and every day that passes it gets harder for average Americans to meet their needs for food, shelter, and safety.
     
reader50
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Jul 11, 2023, 12:11 PM
 
Originally Posted by subego View Post
Am I understanding your argument correctly? That for all intents and purposes there’s no difference between the two? With the normal commissioned contract, the commissioner can claim authorship, just like with whoever is commissioning the ghostwriter.

With the normal commissioned contract, the writings aren’t the speech of the writer, but of the commissioner?
Not sure if I've ever read a ghostwriting contract, or whatever a "normal" commissioned contract is. Ghostwriting seemed the most apt example for your Picasso example - though Picasso should not have signed the painting in such a case.

It's more what I've read about work-for-hire, especially in a corporate context. It is my understanding models have no copyright in their pics. The corporation owns the copyright, along with the clothing they're modeling. The employer is thus the author for legal purposes. So even if you appear in the work-for-hire, you retain no rights, in exchange for the money.

Likewise with corporate products. When Apple releases a new iPhone, do the various designers retain authorship rights in each "artistic" element, with Apple having to pay them licenses so long as iPhones with those elements continue to be made? I know originating individuals are listed on patent applications, but the copyright (authorship) never seems to do that.

That said, I'm very skeptical of the whole "corporate personhood" thing. They shouldn't have the right to vote, nor other political rights. If the owners/directors are citizens, that gives them two votes. If they're non-citizens, that gives them a vote in our elections that would otherwise be illegal for them.
     
subego  (op)
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Jul 12, 2023, 12:41 PM
 
Originally Posted by Laminar View Post
Is it speech when the cake becomes customized for the couple?
Some form of customization is going to be the absolute bare minimum.
     
subego  (op)
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Jul 12, 2023, 02:00 PM
 
Another way to phrase the question is to ask whether the item is interchangeable. If it is, it’s not speech.

This likewise applies to the vendors. If the vendors are interchangeable, then the vending isn’t speech.
     
Laminar
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Jul 12, 2023, 02:19 PM
 
Is a priest reading off the wedding script interchangeable? Is saying someone's name when you get to [INSERT NAME HERE] customization? Frankly I've seen a lot more variety in wedding cakes than I have in wedding services.
     
reader50
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Jul 12, 2023, 03:14 PM
 
Originally Posted by subego View Post
Another way to phrase the question is to ask whether the item is interchangeable.
Fungible. It's even fun to say.
     
andi*pandi
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Jul 12, 2023, 07:40 PM
 
Tell me where hairdresser services are free speech.
     
subego  (op)
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Jul 12, 2023, 08:20 PM
 
While I’m coming up with replies, enjoy this photo of an artistic work I commissioned.

 
     
Laminar
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Jul 13, 2023, 09:30 AM
 
Originally Posted by andi*pandi View Post
Tell me where hairdresser services are free speech.
Can a barber refuse to give someone a Hitler mustache?
     
reader50
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Jul 13, 2023, 11:21 AM
 
Originally Posted by Laminar View Post
Can a barber refuse to give someone a Hitler mustache?
I'm thinking they could refuse, because the shop didn't offer that option to the public. It would be an off-menu request. Probably not speech though, because it's unoriginal.
     
andi*pandi
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Jul 13, 2023, 01:58 PM
 
Originally Posted by subego View Post
While I’m coming up with replies, enjoy this photo of an artistic work I commissioned.

 
Would you have to be a christian baker to refuse to make that? or could anyone refuse?

or just hand the cake over with the icing pen and say, write whatever you want...

also:
https://twitter.com/BriannaWu/status...935297/photo/1
( Last edited by andi*pandi; Jul 13, 2023 at 03:54 PM. )
     
subego  (op)
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Jul 15, 2023, 02:16 PM
 
Assholes are a protected class.
     
subego  (op)
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Jul 15, 2023, 02:26 PM
 
Sorry for the delay!

Originally Posted by reader50 View Post
Not sure if I've ever read a ghostwriting contract, or whatever a "normal" commissioned contract is. Ghostwriting seemed the most apt example for your Picasso example - though Picasso should not have signed the painting in such a case.

It's more what I've read about work-for-hire, especially in a corporate context. It is my understanding models have no copyright in their pics. The corporation owns the copyright, along with the clothing they're modeling. The employer is thus the author for legal purposes. So even if you appear in the work-for-hire, you retain no rights, in exchange for the money.

Likewise with corporate products. When Apple releases a new iPhone, do the various designers retain authorship rights in each "artistic" element, with Apple having to pay them licenses so long as iPhones with those elements continue to be made? I know originating individuals are listed on patent applications, but the copyright (authorship) never seems to do that.

That said, I'm very skeptical of the whole "corporate personhood" thing. They shouldn't have the right to vote, nor other political rights. If the owners/directors are citizens, that gives them two votes. If they're non-citizens, that gives them a vote in our elections that would otherwise be illegal for them.
My general understanding is if there’s going to be a transfer of something like copyright, that needs to be in the contract. It doesn’t happen just because a commercial transaction occurred.

Likewise, an artist can stipulate in their contract they retain whatever rights they want, including authorship.


Edit: this applies to contractors. For a regular employee, the employer holds the copyright to works generated under the normal course of employment.
( Last edited by subego; Jul 15, 2023 at 04:12 PM. )
     
subego  (op)
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Jul 15, 2023, 05:07 PM
 
Originally Posted by subego View Post
Assholes are a protected class.
More seriously, this is from a 100 year old bakery. It’s sadly closed, because when the current (family) owner retired, he couldn’t find a buyer who he felt took baking seriously enough. I’d say that attitude would be a point in the bakery’s favor when deciding whether a baked good can be considered the speech of the baker.

This example really doesn’t pass muster though. The design should be considered fungible (), because it was picked from a book. The text came from the client, and was reproduced verbatim. Inspired icing penmanship was not expected or requested.

Of course, they would have been well within their rights to refuse.


As an aside, for another example of where there’s not a bright line, but instead a collection of context specific details informing a judgement call, is whether someone sleeping off a bender in their car is guilty of a DUI. There isn’t a bright line, just things you can do to show you weren’t intending to drive. The more of these you can stack, the more likely you will be judged innocent.

It’s the same for whether a particular service is the speech of the contractor. Look at how it is and how it isn’t, and make a judgment call.



Oh. For sleeping off the bender, the short form is sleeping in the driver’s seat with keys in the ignition is bad. Sleeping in the backseat with the keys in the trunk is good.
     
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Jul 15, 2023, 05:54 PM
 
Originally Posted by subego View Post
Oh. For sleeping off the bender, the short form is sleeping in the driver’s seat with keys in the ignition is bad. Sleeping in the backseat with the keys in the trunk is good.
I like the example. But a few Qs first. Does this car have a trunk release? If you wake up in the morning and it's not your car, that would be bad too.
     
subego  (op)
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Jul 15, 2023, 06:04 PM
 
The next best option offered was to hide them under the car.
     
Waragainstsleep
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Jul 20, 2023, 04:50 AM
 
Originally Posted by subego View Post
Assholes are a protected class.
This is a hot issue in the UK press just now. Nigel Farage had his bank account closed by Coutts (A bank that requires its account holders to have a minimum of £3m in savings and as far as I can tell is something of a status symbol as far as I can tell).
Initial rumours were that he had fallen below the wealth threshold but now he is claiming that he got hold of documents from Coutts (which they gave him, presumably under EU GDPR rules) from their team who are in charge of reputation management and it turns out the kicked him because he sucks.
Half of the current government are outraged by this. Publicly.
It appears this story is designed to deflect attention from Boris Johnson failing to comply with a court order to hand over his WhatsApp messages to a government enquiry. And maybe to also distract from an utter scumbag member of the British media who has finally been publicly accused of serial rape and extortion.

Fun times.
I have plenty of more important things to do, if only I could bring myself to do them....
     
subego  (op)
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May 29, 2024, 04:38 PM
 
Gorsuch coming off as the lone voice of sanity.

https://www.reuters.com/legal/govern...es-2024-05-28/

I’m curious why none of the other Justices bit. That felony juries should be 12 people seems like a no brainer. I have to assume there’s something specific about the case which makes it poorly suited to flipping the law.
     
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May 29, 2024, 05:45 PM
 
I didn't quite bite either when that story came out. I don't recall anything in the US Constitution requiring exactly 12 people for a jury. It's a traditional number, but unless I've missed something, it's just a common jury size.

States do have rights to set their normal internal laws, so long as those don't conflict with the Feds. So unless someone can show a Federal law requiring 12 on state juries, I'd probably pass on the question too.
     
subego  (op)
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May 29, 2024, 06:11 PM
 
Would two jurors be acceptable? If not, why not?
     
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May 29, 2024, 07:15 PM
 
Several states allow 6 or 8 jurors, which was the issue in question - it was an appeal from a 6-jury state. Personally, I'd be uncomfortable with anything less than 6, but who's to say the minimum shouldn't be 20 or more?
     
subego  (op)
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May 30, 2024, 01:49 AM
 
I posit 12 jurors are better than 6, and 20 are better than 12, though diminishing returns doubtlessly applies.

I define “better” in this context as “more difficult for the state to convict”.
     
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May 31, 2024, 06:58 PM
 
I would vote for consistent juror size across every state.
     
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Jun 1, 2024, 08:14 AM
 
Originally Posted by subego View Post
I posit 12 jurors are better than 6, and 20 are better than 12, though diminishing returns doubtlessly applies.
I’ve sat on two juries, and can assure you getting twenty people to agree on anything other than the the most heinous baby-killing spree would be nigh-on impossible. Twelve is difficult (as it should be) but definitely doable. Six would be tantamount to a miscarriage of justice.
     
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Jun 1, 2024, 03:56 PM
 
Upon further thought, I'd like to see at least 10 people deciding life-penalty cases (death penalty or life or 10+ years). Do the metric thing and stop at 10. The more I think about it, 6-people juries is not enough to determine the remainder of a suspect's life. Maybe 8 would work for shorter felonies (below 5 years). But I'd like to see 10-12 for any kind of hard sentence. Just like an egg six-pack isn't enough in a kitchen.
     
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Jun 3, 2024, 05:16 AM
 
Originally Posted by subego View Post
Gorsuch coming off as the lone voice of sanity.

https://www.reuters.com/legal/govern...es-2024-05-28/

I’m curious why none of the other Justices bit.
I think it is obvious: the other 8 probably thought that the size of the jury is not enshrined in the (federal) Constitution. Hence, this is a matter that states have to decide.
Originally Posted by subego View Post
That felony juries should be 12 people seems like a no brainer. I have to assume there’s something specific about the case which makes it poorly suited to flipping the law.
Yes, but the decision of the other 8 to let the decision of the lower court stand should not be misread as them thinking that 6 jurors is enough.
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subego  (op)
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Jun 3, 2024, 02:38 PM
 
Originally Posted by OreoCookie View Post
I think it is obvious: the other 8 probably thought that the size of the jury is not enshrined in the (federal) Constitution.
By this reasoning two jurors is also acceptable.
     
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Jun 3, 2024, 11:55 PM
 
Yes, this is a definite weakness of the literalist approach that is dominant on SCOTUS. The liberal justices seem to have adopted it in part to better be able to build coalitions. I’m just being descriptive, not saying it is how I view the world. But it is a consistent interpretation of the Constitution.

IMHO the Supreme Court should provide a floor, a set of minimal rights that are implied. But that’d necessitate a seismic shift on the Court. That won’t happen any time soon.
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subego  (op)
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Jun 4, 2024, 07:14 PM
 
At the least, I would question whether a two person jury constitutes due process.
     
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Jun 4, 2024, 08:48 PM
 
In that case, I suggest you reconsider your support for 2-person juries. Near as I can tell, you're the only one asking for them?
     
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Jun 5, 2024, 05:46 AM
 
Originally Posted by subego View Post
At the least, I would question whether a two person jury constitutes due process.
I get that. Like I said, is ≠ ought. Presumably state courts would need to adjudicate that question. I agree that this should be addressed, either by law or by court.

In a different country the highest court would have decided very differently.
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Jun 11, 2024, 06:07 AM
 
The story might be a few weeks old at this point, yet I still think it is relevant for this thread, the Alito flag story. It also isn't the only political flag he (or his wife) raised at one of their residences.

The “My wife did it and I didn't know about it.” has the same credibility as “My dog ate my homework.” If you did raise the flag upside down after January 6th, own up to it. Even if his wife did it (no, really), it isn't mature (some would say manly) to publicly shift blame to your spouse. If in a hypothetical universe my wife did something like that at a time like that, that'd be a huge discussion at home.
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Jun 11, 2024, 07:36 AM
 
     
subego  (op)
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Jun 11, 2024, 01:08 PM
 
Paywall on the second article.

I’ve seen numerous reports on Alito’s statements. IMO there are multiple ways to interpret them. If someone wants to pick one I’ll offer an analysis.
     
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Jun 11, 2024, 03:08 PM
 
My spouse would prefer we have no political yard signs up at all - even for dippy little local elections. I put one up last year (a friend) and there was a conversation. Never mind anything controversial or related to insurrection.

So if Alito didn't approve of his wife's flag, he could and should have said something. "Hon, you now I agree with you, but this flag is a bad look hon, I need to look impartial..." Doing nothing implies approval.
     
subego  (op)
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Jun 11, 2024, 03:34 PM
 
According to Alito he asked her to take it down once he became aware of it. He claims she initially refused, but later relented.
     
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Jun 11, 2024, 04:23 PM
 
Originally Posted by subego View Post
Paywall on the second article.
The popup is dismissible. At least it was for me.
     
subego  (op)
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Jun 11, 2024, 04:50 PM
 
Not for me, but the Safari Reader was able to scrape the text.

I’m not sure we have the same definition of horrible.

Whatever the case, the second article confirms he asked her to put a lid on it, which she did.





Full disclosure: I like Alito.
     
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Jun 12, 2024, 05:17 AM
 
Originally Posted by subego View Post
Whatever the case, the second article confirms he asked her to put a lid on it, which she did.
My understanding is that the comment in the Rolling Stone article was only in reference to the flags they flew on their vacation home, not the inverted American flag. (Mrs. Alito referenced the pride flag, which to my understanding was visible from their vacation home.)
I don't suffer from insanity, I enjoy every minute of it.
     
 
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