First Monday, And Free Speech Heresy

Today is the First Monday in October, when law profs and lawyers obsess over what nine old guys and gals have to say about the law, even though little of it ever filters down to the trial courtrooms where real people’s lives are laid to waste.  And in honor of the day, First Amendment scholar Ronald K.L. Collins has given up his soapbox at Concurring Opinions to another prawf, Joel Gora of Brooklyn Law School.

Notably, there aren’t a lot of law professors willing to stand up for the very unpopular view these days that free speech is a sufficiently worthy concept that it should not be reinvented whenever hurt feelings are at risk.  I’ve been told by more than a few professors that they would really like to speak out about some of their colleagues, and their flagrant distortion of the law in support of their advocacy, but fear that the climate in the Academy would result in their being ostracized.

I’m not sympathetic to their concerns, as remaining silent in the face of faux scholars spewing phony analysis is how people become stupider.  On the other had, when a prawf shows the fortitude to show intellectual honesty, even when it’s contrary to their political leanings, it should be noted and appreciated. This is particularly important at a time when law schools and gaggles of prawfs happily don hot pants to sell their wares to an unsuspecting public.

Gora has the guts to call bullshit. That makes his words worthy of note, as he is an unabashed supporter of the First Amendment.

This liberty-affirming concept, which celebrates the autonomy of each person and group and condemns censorship of thought and speech by government, has application well beyond the political realm and guarantees the strongest protection to free speech in a number of settings, including protection for artistic, corporate and commercial speech as well. In all of these areas the Roberts Court has insisted that the First Amendment presumption against government censorship is but another recognition of individual and group freedom.

This is a radical statement these days, when the progressive orthodoxy is that all speech is relative, and the loudest whiners get to decide which speech is worthier than other speech.

Applying these principles, the Court has steadfastly refused to declare speech that many deemed socially worthless to be beyond the pale of the First Amendment’s protection. In rejecting government efforts to criminalize depictions of animal cruelty, regulate the sale of violent video games to young people, punish those who lie about receiving military honors, unduly regulate those who protest near abortion clinics, and permit damages to the targets of even hateful and hurtful homophobic slurs and insults, the Court has reaffirmed that it is the individual, not the government, who must judge the worth of such speech.

There are two very distinct ways to view speech.  Some believe that there is an amorphous divide between speech they deem worthy, and indeed, they will murder thousands of words explaining why no reasonable person could possibly disagree with their sensibilities, because they’re so very right, and so the speech they deem “socially worthless,” offensive, hateful, must be silenced.

But that’s not the law.

In those cases the Court emphatically refused to expand the very short list of “non-speech” exceptions from First Amendment protection, such as, obscenity and fighting words.

No doubt most people can come up with a far longer list of speech that we believe to be unworthy of protection.  And indeed, much of it reflects some really sick and disgusting expressions that, in a sane world, no one would think, or at least express publicly.  Just because you have the right to express yourself doesn’t mean you assholes should do so, or that other people don’t think you’re batshit crazy or horrible human beings.  It’s not that we like what you’re saying. We don’t.  But.

Dissenting Justices and prominent legal scholars have suggested that the Roberts Court has gone too far in overprotecting freedom of speech and not properly taking account of, and balancing the needs of, government which have been advanced to justify the particular restrictions on speech at issue.

Ironically, liberals who usually led the fight for free speech a generation ago are more likely to be leading the charge to restrict free speech today. The current Court, however, has strongly maintained that the First Amendment must be available to every person or group who would seek to exercise its rights and has refused to means-test free speech protection. 

Gora is being a bit too kind here. It’s not just that “prominent legal scholars” are arguing for a change in free speech jurisprudence, but are promoting the lie that their free speech relativity is the law.  Whereas Gora is treading lightly, those who believe in balancing their political goals with what they deem “worthless speech” are pounding away, publishing philippics designed to deceive the public into believing the First Amendment is already in their pocketbook.

And those of you who write all the nasty idiocy serve only to feed their argument, while doing nothing to aid your cause of disagreeing with them. It’s not that you don’t have a right to your psycho catharsis, but that just because you have a right doesn’t mean you have to do so.

And, that is all to the good for one final, troubling, albeit ironic reason.  In a time when the Supreme Court seems to be affording more free speech in its rulings than any predecessor Court has done, in everyday life, these are trying times for free speech. Censorship seems to reign, both at home and abroad, in what sometimes seems to be a war on free speech. Whether it be the instantaneous condemnation and punishment of fraternity members for singing racially offensive lyrics at a social event, the brazen murder of journalists for producing anti-Muslim cartoons and commentary, or the cancelling of celebrity contracts for making offensive remarks or expressing unpopular views, free speech in everyday life seems often under attack and in jeopardy.

If the line is left in the hands of those who find everything offensive, everything outrageous, everything hateful and mean, and believe that we would have a better world if only things they agreed with were spoken, we would be up to our keisters in laws prohibiting, if not criminalizing, every sound that harms their delicate ears.

And there are too few scholars willing to come out publicly and call bullshit. It’s not just that Joel Gora has shown the fortitude to call out the nonsense of the free speech relativists, but that he openly acknowledges that we are in a time when censorship seems to be the stepchild of many political causes, all of which are working to silence their flavor of “socially worthless” speech.

And once the government gets its fingers into silencing people, it will be impossible to recapture our right to free speech again.  No matter how passionately, how strongly, how certainly, some want to silence those with whom that disagree, take offense, find outrage, the Roberts Court has held firm for the First Amendment.  Happy First Monday in October.

8 thoughts on “First Monday, And Free Speech Heresy

    1. SHG Post author

      I assume you’re talking about Gora’s, because of you said that about mine, you know I would ridicule you unmercifully for being unilluminating. Right? RIGHT?!?

  1. Fubar

    And there are too few scholars willing to come out publicly and call bullshit. It’s not just that Joel Gora has shown the fortitude to call out the nonsense of the free speech relativists, but that he openly acknowledges that we are in a time when censorship seems to be the stepchild of many political causes, all of which are working to silence their flavor of “socially worthless” speech.

    Optimist! When relativity fails, the gravity of public health will pull them through:

    Relativity’s too esoteric,
    too arcane and obscure, not generic.
    Worthless speech that’s just nuts
    can get into our guts,
    and inflame our membranes mesenteric!

    Worthless speech should just not be protected.
    Hurting feelz must be soundly rejected.
    Noone should repeat it,
    or blog it or tweet it.
    Otherwise, we could all be infected!

  2. John Barleycorn

    Pink and black is an outstanding color combination. Very tasteful of you, if I do say so myself esteemed one.

    P.S. Back in the bay area again Fubar. Gonna be playing some long sessionss the week after next. We should do lunch in between fucking with wanna be baby v.p. techs working out the kinks in their game theory while confusing second generation aisians trying to make a living on the flop.

    1. SHG Post author

      You think? I wasn’t sure if the pink and black was over the top. I appreciate your astute fashion sense.

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