As Ken White notes, Chicago lawprof Eric Posner has never lost any sleep worrying about the impairment of free speech. While some of us think it matters, Posner shrugs.  It’s not so much that he’s worried about silencing disagreeable ideas, but that he’s a pretty smart guy, kind of elitist, and just doesn’t think a lot of the dumb crap that, in his view, masquerades as free speech on the interwebs is worth protecting.

He’s not alone in flipping off words and ideas that he deems low value.  There is a pretty large swathe of legal academia that has had enough of OPS (other people’s speech), though they don’t always agree on what constitutes speech of such insignificant value that it’s not worthy of protection.  As for who decides what speech isn’t worthy, each prawf is auditioning for the position of Speech Czar, offering their services to the cause.

Posner’s latest audition isn’t grounded in the usual “your speech is nasty and brutish,” or “hurts my feelings,” but rather an old school approach, “protects us from death at the hand of the heathens.”  To this end, he proposed his rule.

Never before in our history have enemies outside the United States been able to propagate genuinely dangerous ideas on American territory in such an effective way—and by this I mean ideas that lead directly to terrorist attacks that kill people. The novelty of this threat calls for new thinking about limits on freedom of speech.

Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions.

Posner tied his pitch together with an anecdote, which is always a dead giveaway for intellectual emptiness and an appeal to the ignorant.  And he was swiftly taken to task for hitting sour notes during the talent portion of the audition.

Eric Posner is well-cast as the First Amendment’s nemesis: he represents everything it stands against. He represents obeisance to passing tastes about what is couth, clenched fists of power disguised as helping hands, suppression dressed up as order. He is the Foe.

But Posner sits in a distinguished chair purchased by Kirkland & Ellis, and needs not acknowledge the Jar Jar Binks of the First Amendment, allowing him to go passive-aggressive against his detractors, and reduce the criticism to straw men of his own making.  Lawprofs are smart this way, and because their ideas are never low value and their scholarly cred is strong enough to elevate them above the fray, they get to play the game without shame.

The question, which no one seems to want to address, is whether social media and other forms of Internet-based communication create opportunities for radicalization that pose a threat to public safety. People have finally gotten around to admitting that the Internet poses a threat to privacy. I think in a few years the radicalization risks posed by the Internet will be too obvious to ignore. (Incidentally, law enforcement does not ignore the risks, nor do people who think about security for a living.)

It’s hardly that “no one seems to want to address” Posner’s rather obvious point, but that it’s neither in dispute nor much of a point. Of course tech provides new channels of communication.  That creates opportunities for radicalization, as well as opportunities for everything else under the sun.  He now characterizes his law as being “anti-propaganda,” by which he really means propaganda he likes is preferred over propaganda he doesn’t.  He’s way too smart to admit this, of course, because then people would just make fun of him.

But then, what he did say left him exposed anyway.

The third generic argument is that once one makes an exception to broad protections for freedom of speech, the camel’s nose is under the tent, we have stepped onto a slippery slope, etc. These clichés are as dry as dust and not even true. Courts have constructed countless exceptions to the First Amendment’s apparent unconditional protection for speech, including exceptions for defamation, child pornography, copying, fraud, and more—and yet none of these exceptions have expanded to swallow up the rule.

Countless?  Oh, Eric, you didn’t.  But you did.

I recognize that “countless” is a figure of speech, and difficult to prove or disprove. But offered to the end of censorship by a law professor, I am comfortable calling it a lie. At a minimum it is dishonest and misleading, part of pro-censorship movement’s attempt to make Americans more ignorant about their civil rights.

Posner’s argument — that there are “countless” exceptions to the First Amendment and it’s perfectly natural to make more — is exactly the government’s we-should-have-power-to-censor argument that the Supreme Court flatly rejected in United States v. Stevens in 2010. 

With speech and expression under assault from various quarters, from the cyber civil rights folks (your boy speech hurts our female feelings and makes us afraid to assert our girl speech) to hate speech to revenge porn, with few scholars willing to uphold intellectual honesty in the face of political goals, Posner no doubt expected he would get away clean with this cheap “countless” contention.

And there is a good chance he will, despite the Stevens decision where the Supreme Court made patently clear that it would not entertain the distinction of valued speech and speech the Czar contends is worthless.

Now I’m no Eric Posner hater. When he grounds his arguments in sound law, he can be very persuasive.  But when he plays on the heartstrings of transient public sentiment, “passing tastes” as Ken calls them, he rolls in the mud with the rest of the advocates who try to pass off their feelz as legal argument.

So Posner believes that safety matters more than free speech, when it comes to speech that he finds unworthy?  Then have the gumption to say so rather than wrap it up in argle bargle crafted to convince the foolish that the First Amendment is some loosey-goosey right that can be ignored whenever someone puts together a tear-jerker of an anecdote that must be stopped!!!

What Posner’s efforts reveal is the ease with which the public’s limited knowledge of the law is manipulated by those with a modicum of official credibility, combined with a sad story and current fashion trends. To grasp why his argument of “countless exceptions” is vapid, one would have to know some actual law.

That raises another complaint about the opportunities presented by the internet, which can either make us smarter or stupider depending on what one chooses to see. It doesn’t help when lawprofs play the game of making people stupider to get what they want.  And it doesn’t help when people assume that lawprofs would never write incredibly stupid stuff, because it’s happening with alarming frequency these days.