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Liberal Democracy: Does Not Require Libertarianism


Ogged, riffing on Adam Liptak’s article about the United States as a (recent) outlier on free speech:

It’s dogma in the US that if you give up a strong commitment to the right of free speech, you’re well on the way to tyranny, but we have now several countries with a softer commitment to it and, frankly, we’ve come a lot closer to tyranny lately than they have. So what are the prudential or slippery slope arguments in favor of the American conception of free speech that take into account the experience of these other countries?

I am also inclined to prefer post-Brandenburg libertarian American doctrines on free speech. (At least in most areas; on campaign finance, I think other democracies have struck a balance more consistent with democratic values.) But the answer here, I think, is that marginal differences in free speech laws in democratic states really aren’t a road to tyranny. I think this is a subset of a larger fallacy: the conflation of rights, or even constitutional rights, with the strong judicial enforcement of rights against other political actors. Again, I’m inclined to prefer some form of judicial review on balance, but it’s hard to argue that the United States has a better human rights record than the U.K., New Zealand, Canada pre-1982, etc. The reductionist way of stating the problem is that in a county with strong democratic norms judicial review isn’t necessary to protect tyranny, and in a country without such norms judicial review won’t stop tyranny. (Mark Tushnet’s latest book is good on this.)

So while I think a strong argument can be made on behalf of American norms with respect to free speech, the idea that slightly more restrictive laws are a slippery slope to authoritarianism is not one of them.

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  • Uh, james robertson, you brought up fascism–I simply gave a list of the legal changes that bushco has been pushing. There’s no debate about any of the things I listed. They will certainly produce a different america from the one I grew up in, or wanted for my children, or read described in the consitution. Whether that is fascism or just bushism I don’t bother about. Its just a fact.
    Again, no one argued that anyone white or important or on tv was dragged off to a secret prison–why bother? lots of poor, brown, muslim people were but all for the good of the state so that’s okeydokey by me! Its the natural progression of giving an autocratic government tyrannical powers that concerns me–what’s next? lettres de cachet? we already have the star chamber. These are just the historical origins of what bush is/was pushing as the new normal.
    You may not be ashamed of it, and you certainly aren’t frightened of it. But that is just because you don’t imagine your ox will be gored. That’s a failure of imagination, not some kind of courage, since all of this has been done in the name of bedwettingly childish fears that we need to throw our own liberties overboard before the muslim hordes overrun us and put us all in burkas and ravish the male virgins of the basement keyboard set. Scalia and Gingerich’s pathetic assertion that the country will go up in a puff of smoke and “americans will die” because we don’t give up habeas corpus is just one of many exmples of the kind of childish, slavish, authortiarianism that has come to characterize conservativism today. You may be proud of it. The rest of us are disgusted.

  • James Robertson

    aimai – I’m not terribly pleased with some of the changes, but then again, I’m not terribly worried, either. Why? I take the historical view, and realize that restrictions were far greater in 1798, 1861, 1917, 1945, and the entire 50’s for civil rights activists (into the 60’s).
    The things this administration have done aren’t in the same league with any of those eras, and I expect that the same thing will happen to today’s excesses that happened with all of those: they’ll disappear.
    Things are a lot less dim when you take the time to look at the long view.
    And if you want to worry about rights, forget the war on terror – the real action is in the savaging of the 4th amendment by the war on drugs. That started in the 1920’s (concurrent with prohibition), and has not eased up yet.

  • cornbread

    A “warning” “essentially” is of the form, “If you do X, Y will happen to you.” Since this wasn’t anything like that, it wasn’t “essentially” a “warning” at all.
    no, that is what a warning is “explicitly.” the adjective “essentially” refers to the statement’s fundamental meaning. the nature of a warning involves a consequence which need not be stated explicitly– that is its essence. from freedictionary.com, “warning: counsel to desist from a specified undesirable course of action.” a consequence here of not watching what was said or done was known to the press—speak out, go against the bushies, and their access was shut off, preznit not give them turkee. thus, ari’s statement was “essentially” a “warning.”
    you never had a parent or teacher warn you not to do something without providing an explicit consequence? how about a storm warning or flood warning? does the weather person say, “if you ignore this warning, you could die!!!” no, of course not.
    and please, ari made that comment in the context of the question about maher, and he rolled in the jackass remarks about sikhs by the congressman. regardless, saying that people in congress shouldn’t say racist things, and saying that people need to “watch what they say, watch what they do”, are completely different things.
    The press secretary is a government employee, certainly. But since he has no authority to do anything at all, he’s no more a government “official” than the mailman is.
    ari, sweaty mcclellan, and snowjob were spokesmen for shrub. ari said, and i quote, “my job is to speak for the president.” sweaty said, and i quote, “I can speak for the President of the United States.” snowjob said, “I am here to speak for the president.” that’s one of their roles. they also act as a gatekeeper in the white house press office. i’d say they’re slightly more influential than the guy who delivers my mail.
    fleischer also took part in outing valerie plame—i don’t think most postal workers could do that, either.
    what are we discussing again? oh yeah, the last seven and a half years have completely sucked, and they will not be looked back upon any more favorably in the coming years.

  • so and so

    America doesn’t have the kind of free speech that you think it does.
    In many states it is illegal to own or distribute literature that promotes “communism”. Communism is broadly defined. In Alabama, the laws against promoting communism state that promoting “equality of the races and sexes” is “communism”.
    Local authorities can still run you out of town over these laws.
    Also, we have censorship. Did you miss the FCC fining television stations outrageous sums for airing “indecent material” that was rather mundane. Did you not notice that Howard Stern was fined millions of dollars after he came out against Bush.
    Travel across America and promote safe sex (condom use) in small towns with high teenage pregnancy & std rates. You may wind up in prison.
    I’m sick of this delusion that America has “more free speech” than Canada and Western Europe. It’s just not true. We simply regulate speech in a different fashion.

  • In many states it is illegal to own or distribute literature that promotes “communism”.
    There may be some old laws on the books that say that, but of course in every state it is legal to do so.
    Did you not notice that Howard Stern was fined millions of dollars after he came out against Bush.
    No. Infinity and Clear Channel, not Stern, were fined, and it was long before he “came out against Bush.” Not defending the existence of the FCC, but please stop with bizarre conspiracy theories.
    Travel across America and promote safe sex (condom use) in small towns with high teenage pregnancy & std rates. You may wind up in prison.
    You may be beamed up by space aliens, too. You have as much evidence for either actually happening.

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