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Court Properly Upholds First Amendment Rights of Hateful Speakers

[ 130 ] March 2, 2011 |

To its substantial credit, in an 8-1 ruling today the Court held that the civil suit against Fred Phelps violated the First Amendment. It’s hard to celebrate any victory for Phelps and his band of bigots, but that’s the point — you don’t need the First Amendment to defend popular speakers.

Appropriately enough — given her recent hypotheticals resting on the assumption that atheists expressing views in ways that aren’t sufficiently “solemn” for a public place is such an self-evidently intolerable outcome that preemptive attacks on other speech she finds ideologically objectionable are required — Althouse’s beloved statist reactionary Sam Alito was the only dissenter.   You’d think that this case would kill of his wholly unearned reputation for moderation, but it seems as durable as Newt Gingrich’s wholly unearned reputation as an intellectual.

…more from Liptak, ACSblog, and Jill.


Comments (130)

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  1. Joe says:

    It should be noted that the “public” nature of the protest and its “peaceful” nature was noted.

    Blockades of homes and clinics or wanted posters are not suddenly fair game. Nor singling out people on purely private grounds, like picketing your neighbor’s home because s/he was mean to you.

  2. Steve H says:

    It’s funny. I had written a comment to the effect that while I hate to be aligned with Alito, I think it’s perfectly fine for people who protest at a funeral to be held liable for the natural and foreseeable consequences of their actions, including damages for the intentional infliction of emotional distress.

    But then I read the majority opinion. As long as the protesters were neither visible nor audible to the people at the funeral, and apparently they were not, I think the Court got it exactly right.

    • nolo says:

      I think it was a close call, but ultimately I think the majority got it right. Much as I disagree with the Phelpses’ take on these issues, homosexuality and U.S. military engagements are issues of political import, and there was nothing truly “personal” about the Phillips’ family being subjected to the Phelpses’ perverse antics.

      • Scott Lemieux says:

        Moreover, the statements were clearly political; as far as I can tell, they weren’t even directed at the soldier per se. Speaking of assholes who merit First Amendment protection, I think the Flynt precedent is relevant here. If political discourse that causes offense can produce emotional distress torts, the chilling effect on speech would be pretty severe.

  3. Glenn says:

    In some ways, though, this was an easy call (except, obviously, for Alito). That Phelps’ odious “protest” was neither visible nor audible to the mourners was not, I don’t think, due to any restraint on Westboro’s part. I expect them to keep pushing the boundaries here, and it will be interesting to see what the courts will do with this sort of thing when in fact it is right in the mourners’ faces (but doesn’t actually interfere, at least physically, with the funeral itself).

  4. soullite says:

    These people aren’t ‘speakers’. They don’t have a message they are trying to get across, no matter how hatefully.

    What they are is con-men and grifters. Phelps isn’t out there being an asshole because he has something to say, he’s deliberately antagonizing angry, hurt people in the hopes of provoking a violent reaction in order to SUE.

    This isn’t a church, it’s a business.

    • Scott Lemieux says:

      As I say in the linked post, this is just nonsense. “The U.S. is being punished by God because it’s too tolerant” is a message. A stupid, hateful message, but a political message.

      • mpowell says:

        Sure, there’s a message, but is Phelps’ goal actually pushing that message or making money? I’m pretty sure he doesn’t care about the message. Now, I’m not sure what you can do about a situation like this because the government can’t make distinctions like this. But Phelps is playing the system to make money and it’s working. Is this an unavoidable loophole or not?

        • Scott Lemieux says:

          If 1st Amendment rights only apply to people who have completely pure motives, we might as well just be done with it. By your logic, any book or movie being offered for commercial sale could be censored.

    • Malaclypse says:

      This isn’t a church, it’s a business.

      The two are hardly mutually exclusive.

    • Tom Allen says:

      I hate Fred Phelps. I also hate Illinois Nazis. Nonetheless, they both have free speech rights, however odiously they use them.

  5. Superking says:

    I haven’t had time to read the opinion, but I don’t understand the state actor aspect of it. Doesn’t there need to be a government official trying to deny them their rights in order for this to work? Anyone care to explain?

    • Scott Lemieux says:

      A civil suit is a state action. Civil judgments are bound by the 1st Amendment.

      • Superking says:

        I can get that, and I understand the New York Times standard, but the wikipedia link doesn’t really provide any explanation. I did just scan Roberts’ opinion, and he sort of skims over the issue–just asserting it as a fact and citing Hustler v. Falwell. Obviously, I’ll have to read up on this before it makes sense to me.


        • Glenn says:

          From Sulivan:

          We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court — that “The Fourteenth Amendment is directed against State action, and not private action.” That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. See, e.g., Alabama Code, Tit. 7, §§ 908-917. The test is not the form in which state power has been applied but, whatever the form, whether such power has, in fact, been exercised. See Ex parte Virginia, 100 U.S. 339, 346-347; American Federation of Labor v. Swing. 312 U.S. 321.

  6. CapnMidnight says:

    I think the interesting legal question is if there is any jury in the land that would convict (or award damages against) the first soldier’s dad who beats the crap out of Fred Phelps.

    • Kate says:

      Or the first soldier’s mom, for that matter.

    • Malaclypse says:

      There are times I really agree with the concept of Jury Nullification, and that would definitely be one of them.

      • hv says:

        There are times you don’t?!

        • Malaclypse says:

          Yes. I can easily picture a jury refusing to convict someone for killing an abortion provider. It is that example that makes me strongly question the concept.

          • hv says:

            Allow me to suggest an analogy to disagreeing with what someone says but fighting for their right to say it.

            Yeah, anti-abortion people will be douche-y about it, but they are douche-y about every right in the book, so that is not the most salient test. If we were going to restrict civil rights to things anti-abortionists would not abuse, Con Law would be a very short class.

            • Malaclypse says:

              As I said, I struggle. I know that I would not convict your hypothetical puncher. But I struggle with the idea that my nullification is right when that of others is wrong. Beyond the anti-choicers, think of all the whites not convicted by Southern juries for killing/raping blacks.

              I take the easy way out. On my jury form, I write that I am a Quaker socialist and will not convict on any non-violent offense. Amazingly, I got empaneled once anyway.

              • CapnMidnight says:

                Mal, you just need to embrace being result-oriented. Jury nullification is like federalism, pre-emption, or any other precedural commitment: we can have an opinion about structure in the abstract, and we might think that a given structural set-up will, over the run of cases, lead to better results, BUT in the end, we are going to take the position that supports our substantive commitments. I’m a centralizer at heart, but if California does better environmental protection than the feds, you’ll find me, with no shame, arguing for the state’s sovereign authority over tis own natural resources.

                As with jury nullification– if justice is served by refusing to convict a guilty-by-the-letter-of-the-law Phlps-puncher, then let let justice be done. And if justice is served by denying the authority of a jury to set free a baby-killer-killer, then we’ll arguing for the rule of law, &c &c.

                I’m not unprincipled, I just put my principles in order.

              • hv says:

                Fair enough. It may amuse you to note that an open dedication to jury nullification is the fastest way out of jury duty. (Works for me.)

                I am quite reluctant to engage on the topic of southern juries, for fear of high-jacking this thread. I do feel there are legitimate arguments to be made about the lack of drift(/awareness) on the jury nullification norm over the last several decades compared to the massive progress on the civil rights front. It’s not like defense attorneys were quoting US v. Moylan. Further back, many Fugitive Slave Act prosecutions foundered on jury nullification.

              • Brad P. says:


                Your philosophy breaks everything down into might makes right. I understand that we have legal obligations and moral obligations that don’t always mesh, but the practical effect of the rule of law is equal treatment.

                In times like these, that equality within our legal system is a very important check against those who otherwise could impose their will on whoever they wanted.

                But then again, that’s kind of a fetish of a centralizer.

              • CapnMidnight says:

                The practical effect of the rule of law is whatever the person enforcing the law at a given moment says it is.

                Listen, I’m not saying these are easy decisions, nor that one should ignore the substantive consequences of such decisions. I even think the ‘rule of law’ is an important value– mainly because in the end it promotes real equality and justice. But it’s not a trump– it doesn’t automativcally, without further consideration, determine the most just course of action.

  7. Benjamin says:

    Anyone else notice that footnote 1 of Monday’s opinion in Staub v. Proctor Hospital referred to Judge Posner as simply “Posner”? That was a little odd, although perhaps befitting a judge of his celebrity.

  8. Manju says:

    Re: “reputation for moderation”

    I would think Alito’s position is best explained by moderation. Its commonsensical and probably would win in the political sphere.

    I don’t agree with it but I’m libertarian RW. Clinging to abstract principles in the face of actual hate is many things, but moderate? Doesn’t seem to fit. We don’t criticize Rand Paul for being moderate so why go after Alito for being not?

    Its nice to see the old free-speech consensus come back together here for an 8-1 wuppping, and I gues that makes Alito look radical, but thats only because us Libertarian and liberals radical won.

    After all, not too lonf ago, in the flag burning case, 3 justices (one RW: Rehnquist, one centrist: O’Connor, and one liberal: White) thought burning the American Flag was not constitutional.

    • Hogan says:

      The attack isn’t on Alito’s extremism; it’s on the reputation he has (promoted by, e.g., Ann Althouse) for being a moderate.

      • Manju says:

        Yeah, I know. I’m saying Althouse is right. He’s moderate.

        I don’t agree with him, but being pragmatic and unprincipled is generally associated with moderation.

        I mean we got a bunch of absolute assholes imposing themselves on war veteran’s funerals with signs saying “god hates fags”. Its like some comic combination of the kkk and communists, the worst of the left and right.

        Surely we can carve out an exception to the first without putting the foundation of our republic at risk. Again, I don’t want to do a carve out, i prefer philosophical consistency whenever possible, but a carve-out does indeed strike me as moderate.

        • Scott Lemieux says:

          Relatedly, White was not a “liberal” on constitutional issues on any issue buts but civil rights and federal power.

        • repsac3 says:

          Surely we can carve out an exception to the first without putting the foundation of our republic at risk.

          First amendment rights… unless you’re really, REALLY, REALLY offensive. (And, offensive by whose standards? And how quickly could that become an argument about potential viewpoint discrimination, for reals and true*, in this case.)

          *as real and true as a hypothetical for potential harm can be, anyway…

    • Scott Lemieux says:

      In context, “moderation” implies a judge who is likely to cast a meaningful vote with the court’s liberal faction. Althouse’s argument was that liberals had better support Alito because otherwise they might get a Scalia. But, of course, if you’re a left-liberal you’d much, much prefer Scalia, as the last two days make clear.

      • Manju says:

        OK. I can see it that way. I would add though if you’re a tad further left that you, you might be hopeful that Alito would be open to hate-speech legislation, while scalia would not be and Thomas seems to only have one exception (cross burning).

        • Hogan says:

          Who are the leftists who support hate-speech legislation?

          • Scott Lemieux says:

            Right. There would be a certain kind of comunitarian leftist who might prefer Alito to Scalia, but that’s a very marginal position on the American left. Very few American liberals support hate-crimes legislation, and most American liberals are civil libertarian on constitutional issues.

            • chris says:

              Very few American liberals support hate-crimes legislation

              …while the right loves to run against it. So if nobody supports it, why is it an issue at all? Trumped up for fundraising purposes?

            • Joe says:

              I think there might be a confusion on terms. “Hate crimes legislation” is broad. A federal hate crime law regarding anti-gay conduct was passed and supported by many liberals and whatever the people around here want to call people like Obama. You might mean something like speech codes.

              • Scott Lemieux says:

                Whoops–I mistyped. Many liberals favor hate crimes legislation, but they aren’t abridgments on speech per se. They don’t favor hate speech laws.

              • chris says:

                Well, I don’t favor hate crimes legislation either. Any additional penalty on top of the normal penalty for the underlying crime would rely on a viewpoint-based mens rea, which I find a disturbing concept. People shouldn’t be punished (or punished more) for holding the wrong opinions on political controversies. (Although some hate crimes could be prosecuted as terrorism, with an intent to intimidate people other than the immediate victim, in cases where such an intent could be proved.)

                Furthermore, there’s also the possibility that the enhancement might not be applied as a separate crime that must be charged and proved, but with this slippery posttrial “enhancement” system with weak standards of proof and even worse standards of evidence that in practice seems to amount to “whatever the PSR says”. On *that* subject I agree completely with Scalia — throw it all out and create separate crimes with clearly defined elements *that must be proved* in order to apply separate penalties.

          • Manju says:

            catherine mckinnon, andrea dworkin, ACLU (boy socuts vs dale), derick bell, Cass Sunstein…

            • Scott Lemieux says:

              Um, Boy Scouts v. Dale was about civil rights legislation; there was no restriction on speech in the case.

              • Manju says:

                Its not mutually exclusive. Anti-discrimination laws would trump the first amendment if the 4 (I think) dissenters got their way.

                The majority held that freedom of association was implicit under the free speech clause, so the Scouts were protected from the state forcing them to get rid of their bigoted, hurtful, and stupid discriminatory rules.

                The rules were also expressive speech. The 4 dissenter would’ve suppressed them.

              • DocAmazing says:

                Stre-e-e-etch. The Boy Scouts could have pulled the plug on the thing at any time by refusing federal money and assistance.

              • David M. Nieporent says:

                Stre-e-e-etch. The Boy Scouts could have pulled the plug on the thing at any time by refusing federal money and assistance.

                That’s incorrect. The Dale case involved the NJ LAD, a state anti-discrimination statute; it had nothing to do with federal funding.

            • Holden Pattern says:

              Also, trotting out the hackneyed examples of Dworkin and MacKinnon as “liberals” is endlessly amusing. It also makes it clear that you’re hopelessly mired in the Phil Donahue Show from the 1980’s.

              • Manju says:

                well, Hogan asked for leftists, not liberals. So I gave him what he wanted.

              • Holden Pattern says:

                So you trot out one dead woman and one academic that has pretty much zero influence on public discourse, both of whom were interested in regulating porn? Really?


              • Malaclypse says:

                well, Hogan asked for leftists, not liberals. So I gave him what he wanted.

                And you managed to not use Bill Ayers or Ward Churchill as your straw-leftists, so I suppose you are at least doing better than “some guy with a Kos diary.”

              • hv says:

                Ok, time out. Manju seems to not be trolling and making a legitimate effort to respond to inquiries. Dude, if Dworkin and MacKinnon aren’t the “rep” liberals, who should s/he have used? I find none of this kind of tribalism to be clear-cut, and if you have better candidates for Manju to joust against, throw them right out there. Just say the names.

                But let’s not act like Dworkin is not “liberal”… does Holden Pattern (whom I greatly respect) believe she is a conservative?

              • Holden Pattern says:

                hv, I would say that Dworkin is distinctly illiberal in her response to the world, more a sort of a communalist radical than anything else.

                Certainly w/r/t to issues of speech, she was far closer to Ed Meese than anyone I would call a liberal. And yes, I picked Meese on purpose — since we’re apparently refighting the vulgarized porn wars of 25 years ago as part of Manju’s “many property questions can be reframed as speech questions, therefore suck it, liberals” approach.

          • I was going to raise my hand here, but then I saw that Scott had already named my (tiny) tribe in the next comment.

  9. Manju says:

    Holden Pattern,

    Well they’re famous, hugely influential in the feminist movement, and were included with other major scholars and a major civil libertarian gorup.

    Also, their argument against porn was that is was hate speech. among other arguments.

    I concede that he zeitgeist of American liberal opinon is still along classical liberal lines. I’m trying to keep it that way.

    • Hogan says:

      For a moment there I was worried that concern troll might not be concerned. I’m happy to learn I was mistaken.

      • Malaclypse says:

        I, for one, am grateful for his heroic efforts to maintain the zeitgeist. I mean, Dworkin and MacKinnon are famous. Why, they are almost as well-known and influential as Pauley Shore!

        • Hogan says:

          And have just as many followers and imitators.

        • Manju says:

          You know, you are minimizing the influence the person most responsible for sexual harassment being considered discrimination. Her theories on hostile work environment are basically the framework under which our anti-discrimination laws work in regards to sexual harassment in the workplace. That is pretty damn influential.

          Getting schooled on feminism by a RWinger should be a badge of shame in lefty-land. Should I also explain to you how Malcom X is influential within civil rights circles?

          • timb says:

            Could you add the context where he’s modern left-wing icon with thousands of imitators and followers and is close to the beating heart of our liberal hearts?

          • Malaclypse says:

            Getting schooled on feminism by a RWinger should be a badge of shame in lefty-land.

            You are not schooling us – you might know that we all knew who Dworkin and MacKinnon were. We just don’t think they have anywhere near the “influence” of, say, Glenn Beck.

            But, in all seriousness, thank you for maintaining the classical liberal zeitgeist. I sleep sounder tonight knowing of your vigilance.

            • Malaclypse says:

              “know” should be “note.” I blame auto-correct and, as always, expansive readings of the Commerce Clause for the error.

            • Manju says:

              Beck has populist influence. We worry about his effect on the savages.

              McKinnon’s influence is top-down. She would influence the intellectual class.

              Since we are talking of scotus, I don’t know why becks influence should be privileged over McKinnon’s.

              either way, you didn’t appear to know about her unparalleled imprint on sexual harassment law, which btw, was imposed from above by the Equal Employment Opportunity Commission, who used her framework to interpret the 64cra.

              Indeed, you compared her to as Pauley Shore.

              • Malaclypse says:

                Indeed, you compared her to as Pauley Shore.

                Yes I did. You said she was famous. I said she was less famous than Pauley Shore. I cannot prove it, but I still stand by my assertion. And I’m still enjoying mocking your concern-trolling. And, again, thank you for your vigilance over the zeitgeist.

  10. strategichamlet says:

    I recall a while ago people around here didn’t think Phelps and co.’s 1st amendment rights were much of a big deal. Glad you’ve all come around.

    • timb says:

      weird. Who knew condemning assholes as assholes on a private blog means the government should restrict the asshole’s free speech. I think strategichamlet just committed a palin.

    • Scott Lemieux says:

      You seem to have learned your First Amendment theory from Sarah Palin.

    • hv says:

      The link you provided did not in any way risk his rights, so I am confused.

      • strategichamlet says:

        Um, what? Palin’s view of the first amendment is she gets to do whatever she wants and everyone else needs to STFU. By defending ANOTHER person’s rights I did the exact opposite of everything she stands for.

        I should probably have said “commenters” rather than “people” (I guess I thought the plural would imply something beyond the OP), but the point still stands. I think it’s clear in the comments of that post that both aimai (who generally was a great commenter, but got this one very wrong) and zuzu both did not see the precursor to this case to be of any significance when it comes to 1st amendment rights while only Mike was particularly interested in arguing the point.

        • Brad P. says:

          Damn, somebody can hold a grudge

        • Scott Lemieux says:

          Except for the part where you implied that by criticizing Phelps Noon was somehow indifferent to his First Amendment rights, which is pure Palin.

          • strategichamlet says:

            Must have missed the part where I implied anything about Noon since he doesn’t address the legal case at all. By “people around here” I was referring to the commenters on that post who were in favor of, or were at least indifferent to, million dollar tort judgements based on speech content.

            • elm says:

              You do realize you’re bringing up a 2-and-half-year-old argument you had with two commenters who don’t comment here anymore and haven’t since Scott compared Zuzu to John Yoo and Paul told aimai her grandfather would be embarrassed by her.

              I’d tell you that you need a life, except for the fact that my possessing the above knowledge clearly means I need one, too.

              • strategichamlet says:

                Ha! I had not realized that. Low blow by Paul there. I guess I don’t keep up with LGM like I used to.

                Well, nice to know I got the last word on this one I guess. Too bad many of the old comment threads are lost otherwise I would have to try and top myself by re-opening a discussion from 2005.

            • hv says:

              I should probably have said “commenters” rather than “people”.

              Glad you’ve all come around.

              Can we have a quick sidebar about what the word “all” means?

  11. Kevin Garofalo says:

    I think where the court got it wrong is that one of the more prominet signs that the picketers held was a sign that simpy said: “You’re going to hell”. That surely isn’t political speech and would seem to convey at least a veiled threat to not only mourners but to any passerby.

    • hv says:

      I find this particular stance over-privileges the religious notion of hell.

      It’s no big deal, dude. Only religious types freak out over that. I am not sure we can have it both ways.

      • Scott Lemieux says:

        Also, “you’re going to hell” isn’t really a threat; it presumably doesn’t mean that Phelps is sending you there.

        • djw says:

          Yeah, I don’t see how ‘you’re going to hell’ can lose its status as protected speech in a society that purports to protect the free exercise of religion.

          • Kevin Garofalo says:

            Thank you all for your feedback, much appreciated. I know it is a moot point to argue a decision already made, especially one where the decision yielded an 8-1 vote.

            I will grasp at one last straw. If the court’s decision in the “Espionage Act of 1918” and more specifically “Schenck V. United States” can make the ruling that: “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” without defining what “evil” is doesn’t it leave it wide open for interpretation?

            I know this leads to a slippery slope that if the court starts interpreting what is “evil” that what might seem benign to one person may seem pervasive and evil to someone else… it just seems to fit like a square peg in a square hole in this particular case.

  12. Manju says:


    yes Malcolm X is hugely influential in civil rights circles. So a reference to him would not be obscure or be strawmannish. Our own President has written about being influenced by him. There’s street in NYC named after him.

    The first paragraph in his wiki profile makes reference to his, well, influence and sites the sources: “He has been called one of the greatest and most influential African Americans in history,[12][13][14] and in 1998, Time named The Autobiography of Malcolm X one of the ten most influential nonfiction books of the 20th century.”

    I would think a good lefty would know this, and even defend this. But you fail on both counts. Are you so afraid of conservatives that you throw a civil rights icon under the bus? You should be ashamed of yourself.

    You’re worse than the 2 bozos I schooled on feminism. 2 demerits for you!

    • Jeff says:

      As you mention your “schooling” of those “bozos” I imagine you are puffing your chest out and simultaneously “notching” your latest schooling, a la Community.

    • Malaclypse says:


      yes Malcolm X is hugely influential in civil rights circles.

      I don’t believe timb denied that. He just pointed out that, among your list of influential leftists, nobody has been both 1) alive and 2) influential, at the same time, in 30 years. Hell, why not cite Lenin, or better still Krupskaya, if you want to invoke long-ago leftist boogie(wo)men?


      • Manju says:

        except for Dworkin and Malcolm x (who was used in a separate context), they are all alive now and are influential. Influencing the academy is extremely important people.

        Indeed, I would think this is less strwmannish than me using a lefty talk-radio hot head who may have urged restrictions on speech.

        The RW equivalent would be say Richard Epstein. He is by in large out of the mainstream and does not have the following of say Daily Kos, but his gravitas gives him influence on the culture that Kos will never have. He effects the opinions of judges and the legal community in general, even tho the gen public may not have heard of him.

    • timb says:

      What Mal said below. As a good lefty, I do not now, or ever, in my 40 years on this planet support violence or racism. Malcolm X’s biography (which I didn’t even read on Wikipedia) was one of the more disappointing reads of my undergrad career, as I realized I didn’t like racists of any color, even as I understood Malcolm’s rage against his oppressors. Much is made of his late conversion toward a more universal philosophy, but I always preferred King.

      Malcolm is known, but he is no more influential than Stokley Carmichael is. You may not know this from right wing blogs, but the only “good lefties” who care about the Nation of Islam exist in Sean Hannity’s imagination. It and Malcolm have as much to do with the thought process of your average white, educated lib/commie/socialist on this page as Robert Welch and the John Birhc folks do on you.

      Imagine you lecturing someone who apparently knows more about Malcolm as a 19 year old than you do now after consuming Wikipedia?

      Besides , how did we get to Malcolm X in a post denouncing the moronic tendencies of Althouse and the Catholic jihadist who is Alito.

      Seriously, Alito on the Court is no different than having the love child of the Pope and Michelle Malkin. He is giving Thomas a run for his money for sheer partisanship….I never imagined a world would exist where Roberts, corporate hegemonist and authoritarian goon, would be able to see 2 justices to his Right. (I exclude Scalia from this characterization, because I do think he’s a prick, but at least he respects some precedent and his rulings are consistent. My mind still reels over the Bong hits for Jesus and the Rovian “Brown v Board means you can’t make schools integrated” decisions)

      • Manju says:

        You are entitled to your own opinion on Malcolm X, but claiming he is “is no more influential than Stokley Carmichal” or implying his influence is s a product of RW exaggeration (“You may not know this from right wing blogs, but the only “good lefties” who care about the Nation of Islam exist in Sean Hannity’s imagination”) is not historically accurate.

        While he may not influence the dems white working class base he’s hugely influential within the AfAm community and within the intelligentsia.

        If you’re embarrassed by him as you appear to be about McKinnon thats your issue but don’t universalize your own attitude. These individuals do indeed possess influence and are therefore legitimate signifyers of the zeitgeist.

        • Holden Pattern says:

          “Signifiers of the zeitgeist”? Wait, it’s a pretentious propertarian semiotics class now, dedicated to explaining the profound influence of the overblown bêtes noires of the pseudointellectual conservative college sophomore?

        • timb says:

          Why are you talking about history? Are you missing that that is what people are complaining about? We are talking about current influences and you are talking feminists from early 90’s and Malcolm X. Worse, rather than just concede the point, you just keep repeating the same argument.

          Although I think it’s cool that looked up Malcolm X on Wikipedia and learned something, it did not help your contention. Still, if you want to prepare for next week’s discussion on Afghanistan, you might want to keep Wikipedia handy. The way your brain is working, you might consider the Battle of Lepanto and Siege of Malta as important to current US/Pakistani relations.

  13. Manju says:

    And I’m still enjoying mocking your concern-trolling. And, again, thank you for your vigilance over the zeitgeist.

    Considering the context here is an 8-1 decision with 4 liberal judges joining 3 conservatives and 1 moderate, I fail to see why I shouldn’t be concerned about the zeitgeist on the left.

    You have both sides coming together here, why would I not want to preserve that? How does it help me if you guys start going all UN, Critical Race Studies, Canada, France, Herbert Marcuse, or Women Against Pornography on me?

    Concern trolling is when you say your concerned about someone else’s well being. But I’m concerned about my own purist free-speech model maintaining its dominant position. I need help from the left to do that.

    • Holden Pattern says:

      And you know, the tongue-clucking condescension based on your classical liberal ivory tower schmibertarian Galt’s Gulch straw man assumptions and vague hand-waving ideas about what people on the left might sort of somehow think based on your deep and abiding understanding of notable “leftist” Wikipedia subjects (Malcom X? Liberal? Wha?) is a GREAT way to secure that assistance.

      Concern troll is righteously concerned!

      • Manju says:

        Lets rewind. When asked to name leftists I gave you a woman who almost single handily defined modern sexual harassment law. I gave you a radical feminist icon. that was followed by the major civil libertarian group in the nation, a harvard law professor and a U of Chic one who is a member of the Obama admin.

        Thats some pretty hefty influence.

        You reply by zeroing in on the 2 feminists while whining they are not liberals, when no one said they were. You single out Mckinnon as having “zero influence on public discourse” which is odd considering you can’t talk about harassment law, not unrelated to hate speech, without her name coming up.

        Malaclypse pops in to inform us McKinnon is not as influential as Glenn Beck so I guess the “pubic discourse” you are concerned about, in the context of a scotus decision, is cable talkshows, not academic legal theory.

        One wonders if you all think thurgood marshall is influential, since surely Michael Savage reaches more people. I guess in a discussion about relativity you don’t want to hear about Einstein, since Paris Hilton gets more clicks on Holden’s sticky keyboard.

        Well, I guess Carlie Sheen is opposed to hate speech laws since he practically sounds like Robert Byrd out there. He’s gotta be a liberal and unlike harvard law professors who redefine legal theory, he is influential in your world.

        So nothing to worry about. People of real influence are on John Galt’s side.

        • hv says:

          Manju, I am happy to excoriate my fellow progressives for not suggestive replacement names for Dworkin if her name offends them as the official representative. However, I think it is possible to come up with something beyond Dworkin and MacKinnon if you are trying to engage the entire intellectual heritage of liberals. If all you have in your back pocket is Malcolm X, you have to accept the risk that folks will not take you seriously.

          • Manju says:

            I’m not trying to “engage the entire intellectual heritage of liberals”, I’m was identifying those to the left of Scott who support hate speech legislation.

            I’m not quite sure why you are informing me that “I think it is possible to come up with something beyond Dworkin and MacKinnon” when thats precisely what I came up with (Bell, Cass S, etc).

        • Holden Pattern says:

          The problem is that you are saying “not unrelated” as if it meant “directly related to”. One can think that sexual harassment laws in the workplace are a good thing without thinking that hate speech laws are a good thing. Context matters. This is classic schmibertarian black and white thinking — look, sexual harassment is sometimes “speech” and speech is speech, so therefore, HATE SPEECH REGULATION! MacKinnon may have been influential in ONE WAY, but she hasn’t been influential in ALL OTHER WAYS FOR EVERY POSITION SHE MIGHT HAVE TAKEN.

          She’s also not a signifier of the goddamn zeitgeist. That’s crap — the zeitgeist in the United States right now is anti-woman at best. Really? You’re trying to tag MacKinnon and Dworkin with the “spirit of the times”? Of THESE times? Only in the fever dreams of the oppressed white male schmibertarian nostalgic for the soft target of the campus “political correctness” wars of the 1980’s. I’m not even going to go into Dworkin, because the notion that radical feminism has any meaningful influence in the current social discourse is flatly insane. Egalitarian feminism? Some, maybe, in bastardized form.

          Similarly, w/r/t the boy scouts case, it turns out that it’s possible, if you have a Republican majority on the court, to reframe the question of discrimination against homosexuals almost entirely as a freedom of association and therefore freedom of speech question (and if you’re looking for some kind of principle — other than IOKIYAR — from the Rehnquist & Roberts courts on first amendment claims, you’re pretty much SOL). But it’s flatly insane to then leap to: “AND THEREFORE THE ACLU SUPPORTS HATE SPEECH LEGISLATION! HAH! GOTCHA!”

          What you’re doing here is reconfiguring right-libertarian claims about property rights and regulation of various kinds of activity (privileging the incumbent default power structure) as primarily free speech claims in order to cloak your actual agenda. It’s crap, and I’m giving it all the respect it deserves — probably far more.

          • Manju says:

            This is classic schmibertarian black and white thinking — look, sexual harassment is sometimes “speech” and speech is speech, so therefore, HATE SPEECH REGULATION!

            Its Catharine mackinnon’s argument. She says pornography, racial and sexual harassment, and hate speech should be treated as acts of discrimination. Its all interrelated, in her view. In the US her framework was adapted by the federal govt for sexual harassment. Canada adapted it for hate speech and one province did for porn. She also filed a brief in support of hate speech legislation in R. A. V. v. City of St. Paul, where finally this argument was shot down.

            So the RW didn’t make it up, we were responding to a highly influential thinker who ha affected governments around the world. Yet you scold me for mentioning her name.

            She’s also not a signifier of the goddamn zeitgeist. That’s crap — the zeitgeist in the United States right now is anti-woman at best.

            You appear to be referring to the populace. I’m referring to the intelligentsia, of which McKnnon and others are a significant faction. I would think the majority of americans would want to censor these funeral asshats. But 8 elites got their way. So I’m concerned about the elites. After all, you claim the zeitgeist is anti-woman yet 2 women were just put on scotus. So your zeitgeist is a different context than mine.

        • Hogan says:

          As an argument for Alito’s alleged moderation, you invoked his ability to make common cause with two radical feminists on an issue where most liberals and feminists disagree with the two radicals. That doesn’t make Alito a moderate; it makes him a different but related variety of radical.

    • Hogan says:

      Put it another way: in support of Alito’s moderateness, you adduced the possibility of his making common cause with two radical feminists (who would both vigorously disown the label “lberal”) on an issue on which most feminists and liberals disagree with those radicals. That doesn’t make Alito a moderate; it makes him a different but related variety of radical.

  14. Kevin Garofalo says:

    off topic and apologize in advance for the trollish nature of this post:

    I thought I was reasonably smart until I started reading this blog. This is where I am coming everytime I am formulating an opinion on important events. So much more refreshing than mindless yelling and name calling.

    Thank you.

    (quiet in the corner)

    • hv says:

      …apologize in advance for the trollish nature of this post:

      Kevin Garofalo, you are highly inaccurate. Or self-deprecating. Your troll quotient was .16, which is lower than almost everything Mal posts.

      (Please do not ask about my troll quotient.)

  15. Anonymous says:

    So what’s the status of Chaplinsky? Is it good law? Why is it mentioned in the concurrence and the dissent and not the majority opinion?

    I think these are fighting words. I’m unconvinced by the Court’s reasoning that this wasn’t directed at Snyder. I’m unconvinced that the lack of direct exposure in today’s media-saturated world should protect the Phelps. If there is a First Amendment exception for speech designed to provoke, this is speech designed to provoke.

    But if Chaplinsky is overturned and the fighting words doctrine is no more, I’m fine with that.

    And I wish I never had to read a Roberts’ “narrow holding” again.

    • timb says:

      I’ve seen any Court, ever, find fighting words were ever used. Then, again, I work in Admin Law and my First Amendment class was going on 4 years ago, so maybe something has changed since then, but our professor couldn’t name one then.

  16. Manju says:

    Similarly, w/r/t the boy scouts case, it turns out that it’s possible, if you have a Republican majority on the court, to reframe the question of discrimination against homosexuals almost entirely as a freedom of association and therefore freedom of speech question

    They didn’t reframe it. Freedom of association predates the Boy Scouts case (NAACP v. Alabama). Obviously individuals have a right to fee association (you can’t have a law that forces someone into interracial dating , for example) but so do Expressive Associations: groups that engage in activities protected by the First Amendment, like a religion or blog.

    This much was accepted by both sides. Prior to the case, in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, scotus 9-0 held that the parade organizers had a right to exclude pro-gay rights participants. In Boy Scouts, scotrus was asked if an expressive group could discriminate on the basis of sexual preference , not viewpoints (as in the st patricks day parade).

    Even the dissent conceded that there was a rright to do so. However, the crux of the dissent was that even though the scouts were an expressive grup, they didn’t form in order to express anti-gay sentiments. So, presumably if they did, event he dissent would’ve protected them.

    • Scott Lemieux says:

      They didn’t reframe it. Freedom of association predates the Boy Scouts case (NAACP v. Alabama).

      Yes, but essentially all civil rights legislation on some level abridges the freedom of association, so that doesn’t get you very far. The dissenters in Dale hardly disagreed with the concept of “freedom of association” per se.

      • Holden Pattern says:

        Yes, but essentially all civil rights legislation on some level abridges the freedom of association, so that doesn’t get you very far.

        Seeing as how Manju is a self-proclaimed right-wing libertarian, I suspect that it gets Manju all the way to rejection of civil rights legislation.

  17. Manju says:

    What you’re doing here is reconfiguring right-libertarian claims about property rights and regulation of various kinds of activity (privileging the incumbent default power structure) as primarily free speech claims in order to cloak your actual agenda. It’s crap, and I’m giving it all the respect it deserves — probably far more.

    The irony here is your framework mimics Mckinnon’s methodology. Whether you intended to or not, you’ve deconstructed my argument by revealing its true purpose: “privileging the incumbent default power structure.” My argument is a “cloak” for my “actual agenda.”

    This is classic critical legal studies. Such deconstructionists do not address the actual argument the opposition makes, but rather look to the underlying oppression that these arguments justify. The fact that someone who claims he is a bluedog or something uses this frame work demonstrates how influential McKinnon and other’s are.

    The philosophical roots of this methodology go back to Marx. Marxists held that John Locke’s natural rights philosophy was really a ruse, ie a cover for a political arraignment suitable to Locke’s particular social class: the rising bourgeoisie. The fact that you use this argument against a fundamental right in the constitution, demonstrates how you are underestimating the influence of the very thinkers you’ve been scolding me for using, presumably because they are influential.

    • gmack says:

      For the record, deconstruction has very little to do with the interpretive practices you are describing. You are describing a kind of crude ideology critique, which is a rather different practice than deconstruction.

      Also for the record, I have no interest participating in whatever this discussion is (I hesitate to call it a debate). MacKinnon was influential on the left (not as much any more), and also really controversial on the left (and many of her main critics on the left were deconstructionists!). Is there anything else that needs to be said?

      At any rate, I just get annoyed when people decide to use the term deconstruction inappropriately; oh, and your reading of Marx’s critique of rights is also a bit off–not badly so, but somewhat. Marx didn’t think rights were a “ruse.” He just didn’t think gaining them was the same as gaining genuine human emancipation, and that the rights of a liberal democratic order tended to reinforce or erase substantive inequalities. But that’s a story for a different day.

    • Holden Pattern says:

      Your arguments aren’t “arguments” in any meaningful sense. When you’re conflating Malcom X with Cass Sunstein with the ACLU, all as leftist enemies of “speech”, you’re clearly out of your depth. You have apparently learned some moderately clever rhetorical tricks, where you toss out some names and some jargon and hope that people don’t recognize that you’re full of shit. And the “critical legal studies” = “deconstructionism” = “OMG MARXISM” and “see, you’re totally influenced by these leftists even if you don’t know it, so I’m totally vindicated!” is really in Glen Beck territory.

      So basically you’re full of shit. More to the point, you’re really full of shit when you try to police of the borders of what “liberals” ought to think by trotting out some has-been boogeymen on some list of internal enemies of FREEDUM!

      Also, BTW, the woman’s name is Catharine MacKinnon. See the “a” in there? You can’t be much of a student of her work if you can’t even be bothered to spell her name right even after people spelled it correctly several times in the thread.

    • Holden Pattern says:

      The fact that you use this argument against a fundamental right in the constitution, demonstrates how you are underestimating the influence of the very thinkers you’ve been scolding me for using, presumably because they are influential.

      Let’s be very clear. Based on this comment thread, you know almost nothing about my views on freedom of speech. All you know is that I think you’re full of shit when you start trotting out a list of boogeymen that you bellyfeel are badthinkers and wagging your finger at “liberals” to make sure that liberals don’t engage in that type of badthink.

  18. […] liberals generally see “hate speech” as being protected by the First Amendment.  (cf. the recent Supreme Court decision protecting the rights of Fred Phelps, in which the only dissenter was that well-known radical […]

  19. […] And Lawyers, Guns and Money has its take on the first amendment issues of the day […]

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