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Should We Long For The Good Old Days Of The Alien And Sedition Acts?

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With the major exception of campaign finance, I’m inclined to think that the near-libertarian consensus that’s grown around the First Amendment is a good thing. But it is an international outlier, and there is a potentially intelligent argument out there exploring the advantages of other ways of thinking about free speech, even if I would be highly unlikely to find it persuasive. But, atypically, Eric Posner’s First Amendment critique is not that — it’s somewhere between “#Slatepitch” and “outright trolling.” I hardly know where to begin. Well:

But there is another possible response. This is that Americans need to learn that the rest of the world—and not just Muslims—see no sense in the First Amendment. Even other Western nations take a more circumspect position on freedom of expression than we do, realizing that often free speech must yield to other values and the need for order. Our own history suggests that they might have a point.

Despite its 18th-century constitutional provenance, the First Amendment did not play a significant role in U.S. law until the second half of the 20th century. The First Amendment did not protect anarchists, socialists, Communists, pacifists, and various other dissenters when the U.S. government cracked down on them, as it regularly did during times of war and stress.

It is true that the modern understanding of the First Amendment did not become entrenched in American constitutionalism until the 1960s. But that’s neither here not there unless Posner can point to the advantages of the previous regime, which he rather conspicuously fails to do in a remotely convincing fashion. Personally, I don’t long for the days in which you could be thrown in horrible jails and fined the modern equivalent of hundreds of thousands of dollars for criticizing a public official, or in which a prominent labor leader could receive a ten-year prison sentence for making an anti-war speech. I don’t pine for the era in which schoolchildren could be coerced into giving a Nazi-style salute to the flag and subject to expulsion and/or physical assault if they didn’t comply. The dissenters who mocked the idea that the repression of powerless dissenters was all that stood between us and an American Stalin during the Red Scare were obviously right. The pre-Warren Court conception of free speech that Posner cites admiringly is in fact an excellent argument in favor of the contemporary understanding.

Even more depressingly, Posner gives us the same willful misunderstandings one would expect from College Republicans holding an Affirmative Action Bake Sale but are odd coming from a professor at an elite law school:

Meanwhile, some liberals began to have second thoughts. They supported enactment of hate-crime laws that raised criminal penalties for people who commit crimes against minorities because of racist or other invidious motives. They agreed that hate speech directed at women in the workplace could be the basis of sexual harassment claims against employers as well.

This is just transparently wrong. Whether one agrees with them or not, hate crimes laws don’t suppress speech per se, and taking invidious motives into account when assessing relative culpability is utterly banal. (Does Posner think that laws that make distinctions between first degree murder and manslaughter conflict with the modern understanding of the First Amendment because they take intent into account, sometimes using speech acts as evidence?) Sexual harassment laws, similarly, are not suppression of speech any more than laws banning conspiracies to extort are. Even Douglas and Black would quickly concede that when speech is brigaded with conduct it not longer automatically receives First Amendment protection.

Anyway, what are the advantages of the era in which the First Amendment was an empty shell supposed to be? Well, he never gets around to telling us, but he does have a nice non-sequitur in which he explains that actual rights should trump phoney-baloney rights:

Americans have not always been so paralyzed by constitutional symbolism. During the Cold War, the U.S. foreign policy establishment urged civil rights reform in order to counter Soviet propagandists’ gleeful reports that Americans fire-hosed black protesters and state police arrested African diplomats who violated Jim Crow laws. Rather than tell the rest of the world to respect states’ rights—an ideal as sacred in its day as free speech is now—the national government assured foreigners that it sought to correct a serious but deeply entrenched problem.

Oy:

  • “States’ rights” were never “sacred.” Jim Crow politicians didn’t care about state autonomy; they cared about segregation.    Gilded Age judges who tried to enforce ridiculously narrow readings of the commerce clause also invented doctrines that constrained the ability of the states to regulate the economy, because they cared about laissez-faire capitalism, not about states’ “rights.”   From the Louisiana Purchase to the Fugitive Slave Act southern “strict constructionists” always managed to find room in their hearts for constitutionally dubious expansions of federal power so long as they entrenched the slave power.   Etc. Etc. Etc.   Of course the federal government didn’t believe that “rights” nobody actually cares about should trump fundamental human rights when this created international embarrassment for the United States.   What this has to do with the First Amendment I have no idea.
  • I can understand why Posner would prefer not to bring this up, but if we’re going to use civil rights as a rhetorical cudgel here, it seems relevant to note that the systematic repression of freedom of speech and freedom of association were crucial to the maintenance of both the slave power and the apartheid police states that emerged after Reconstruction.   Odd how this doesn’t make it into Posner’s narrative about the good old days when we weren’t bound by the “symbolism” of providing robust protection for free speech rights.

There might be a case worth hearing for why the anti-Muslim video should cause us to reflect on our current understanding of the First Amendment.   Posner’s sure isn’t that.

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  • Auguste

    I think we’re well past the days when “odd coming from a professor at an elite law school” was a legitimate phrase, no?

    • somethingblue

      Harumph.

      • timb

        heh indeed, box wine, and do law professors practice law when they write amicus briefs

    • david mizner

      How bout this tenured Ivy League professor, who says the makers of the video should be put in jail, but, hey, she values free speech! (This was before it was revealed that Sam Bacile doesn’t exist)

      If there is anyone who values free speech, it is a tenured professor!

      So why did I tweet that Bacile should be in jail? The “free speech” in Bacile’s film is not about expressing a personal opinion about Islam. It denigrates the religion by depicting the faith’s founder in several ludicrous and historically inaccurate scenes to incite and inflame viewers. Even the film’s actors say they were duped.

      http://www.usatoday.com/news/opinion/story/2012-09-12/Sam-Bacile-Anthea-Butler/57769732/1

      • Richard

        Remarkably stupid article. She seems to be saying that if protests about The Last Temptation of Christ had led to riots, Martin Scorsese should have been arrested

        • rea

          I think there is an argument from the facts we know that the whole thing was deliberately set up to provoke riots in Islamic countries. I still not sure whether that can or should be prosecutable consistent with the 1st (and 14th) Amendments.

          • Holden Pattern

            First Amendment jurisprudence is generally pretty clear that the government does not get to enforce the heckler’s veto. [*]

            • Holden Pattern

              [*] and there’s no note there; decided against qualifier based on “despite local action against whatever some local player decides is too inflammatory”.

      • BobS

        How about the interview this law professor gave to Bill O’ Reilly in which he seems to be supporting the dismissal of Ward Churchill from the University of Colorado faculty?

        O’REILLY: Am I being unfair to this Churchill guy?
        CAMPOS: No, I don’t think so. I think it would be very difficult to be unfair to him actually.
        O’REILLY: But what is his agenda? What is he trying to do? I mean, it’s so over the top and so hateful, it’s hard to believe.
        CAMPOS: Well, it is incredibly over the top. And I would encourage everybody who’s interested in this debate to actually read his essay, which is widely available on the Internet so you can decide for yourself whether these characterizations of it are accurate or not.
        Once I actually went and read the entire thing, I was so appalled, that I wrote a column about it, decrying and denouncing the idea that the University of Colorado would have as a tenured member of its faculty somebody who could be spewing this kind of disgusting nonsense in the context of a supposedly academic environment.
        O’REILLY: But then you go over to the — you know, I want to tell everybody you do write a column for “The Rocky Mountain News.” But then you go into the freedom of speech area. And that’s where all these academics are hiding.
        They’re basically saying OK, we all deplore what Professor Churchill says, but it’s freedom of speech. He has a right to do it and all of that. How do you answer?
        CAMPOS: Well, yes, he does have a right to do it in the sense that the government does not have the right to stop him from publishing what he wants to publish. And in that sense, yes, he has a First Amendment right, like all other Americans do, to say what he wants to say.
        That does not mean that if he engages in conduct, including publishing things that bring into question his professional competence that the University of Colorado, his employer, cannot sanction him for behaving in that fashion.

        • david mizner

          Wow — not his proudest moment, to say the least.

          • BobS

            Not unless he was trying to please David Horowitz or Lynne Cheney.

    • dilbert dogbert

      Yoo Hoo?

  • Bexley

    Quick question: Is it absolutist readings of the first amendment (combined with the belief that corporations have first amendment rights) that allow big pharma to market direct to users?

    • Logistics

      Advertising is commercial speech and there can be greater restrictions on commercial speech (but it’s still protected to some extent). We have pharma direct to consumer advertising because of good lobbying of the FDA more than because of free speech absolutism. That’s my understanding.

      • “We have pharma direct to consumer advertising because of good lobbying of the FDA more than because of free speech absolutism. That’s my understanding.”

        As near as I can tell, that’s pretty much correct. This is from NPR, so take it with a grain of salt, but it seems to have the basic story correct (http://www.npr.org/templates/story/story.php?storyId=113675737):

        In the early 1980s, FDA regulations required that drug ads include both the name of a drug and its purpose, as well as information about all the side effects. But side-effect information often took two or three magazine pages of mouse print to catalog, and this wouldn’t do for a major television campaign. As Castagnoli says, “We couldn’t scroll the whole disclosure information over the television screen — OK?”

        But then, in 1986, while designing an ad for a new allergy medication called Seldane, Davis hit on a way around the fine print. He checked with the Food and Drug Administration to see if it would be OK.

        “We didn’t give the drug’s name, Seldane,” he says. “All we said was: ‘Your doctor now has treatment which won’t make you drowsy. See your doctor.’ ”

        This was one of the very first national direct-to-consumer television ad campaigns. The results were nothing short of astounding. Before the ads, Davis says, Seldane made about $34 million in sales a year, which at the time was considered pretty good.

        […]

        In 1997, the FDA rules governing pharmaceutical advertising changed, and now companies can name both the drug and what it’s for, while only naming the most significant potential side effects. Then, the number of ads really exploded. The Nielsen Co. estimates that there’s an average of 80 drug ads every hour of every day on American television.

        • sparks

          Hey, I got that drug for severe allergies, for two years. Fortunately I am not dead as a result.

          Also, too, Vioxx, from a surgeon who refused to give me anything stronger even though I was in constant, severe pain post-surgery.

          Sometimes I think I’m lucky to be alive for all the cupidity of those quacks.

          • JoyfulA

            That’s the same era when lawyers and doctors were first allowed to advertise, right?

    • Scott Lemieux

      As of now, commercial advertising is not covered by the libertarian First Amendment that applies to political speech.

      • L2P

        Do you think Alito and Roberts aren’t drooling at the chance to distinguish away the Commercial Speech doctrine? Ima kinda figuring it’s life depends on who gets Kennedy coffee the day of oral arguments the next time that issue gets granted cert.

        • Bexley

          My default assumption is that the right wing justices spend most of their time drooling when they aren’t making stupid arguments about broccoli.

      • Are you sure that’s accurate? Yes, commercial speech can be regulated for truthfulness, but the FDA has not been permitted to require graphic warnings on cigarette packs, DTC drug advertising is permitted, etc. So the court has most definitely found that commercial speech is protected by the First Amendment, no?

        • Scott Lemieux

          You’re right — if I had said that commercial speech was not at all protected under the First Amendment, that would have been wrong. I didn’t say that, but if I did it would have been wrong.

  • Yeah, kinda. The First Amendment is obviously intended to protect speech which has some component of political or social advocacy or argument. In the text, speech is explicitly connected with freedom of the press, and political assembly. One can certainly argue that the amendment is not intended to protect commercial advertising. That is a discussion worth having.

    Also, libel and slander are obviously not protected. It’s a slippery slope and a tough distinction, but one could see Innocence of Muslims edging into the libel zone. I wouldn’t go there, but it’s not totally absurd.

    • Vance Maverick

      Can you expand on what you mean by “intended”?

      I don’t think the First was intended by the framers to permit the publication of Ulysses, but I do think it does permit it, and I think that’s a good thing.

    • rea

      Also, libel and slander are obviously not protected

      Not accurate. Rather, the first amendment protections aren’t absolute. See NY Times v Sullivan, etc.

      • I was speaking in shorthand. If you’re a public figure, it’s much harder to prevail on a claim of libel. But if it is found to be libel, you’re liable.

    • Holden Pattern

      Libel and slander are private claims by private actors, not government actions.

      The First Amendment doesn’t say that you aren’t accountable for your speech under whatever laws happen to apply (defamation cases being one example), just that the government can’t prevent you from speaking except in very limited cases.

      • Yes, they’re claims by private actors, but they are enforced by the government.

      • rea

        Libel and slander are private claims by private actors, not government actions.

        No, there is state action if the matter is submitted to a court for resolution.

        • Holden Pattern

          Oh, good lord. On that metric, all private contracts are also state action, because if there’s a breach, the state could enforce it.

          • T. Paine

            Well, right. That’s why anti-black housing codes aren’t enforceable. Because the State can’t enforce racist private property contracts.

            • T. Paine

              Sorry, I’m mixing two concepts there – the racist property covenants aren’t enforceable for this reason. Racist housing codes aren’t enforceable because of the Constitution.

    • Jim

      But who would be the plaintiff in that libel suit? Mohammed? Any Muslim?

  • Logistics

    I was studying defamation law this summer and kept finding myself thinking, “Have we gone too far in protecting speech over truth?” Of course, if we limited our free speech protections and strengthened our defamation protections, the wealthy and the connected would be able to enforcer their rights in court, quietening us while they continue defaming without much concern.

    • Holden Pattern

      Welcome to England!

      Google “SLAPP” for some legislative responses to the problem you identify.

  • thusbloggedanderson

    I think maybe ONCE there was something worth reading by Eric Posner. Or maybe it was Adrian Vermeule.

    The guy is reliably a hack, Glenn Reynolds with a famous dad. The Jonah Goldberg of the legal world.

    • rea

      Glenn Reynolds with a famous dad

      Reynold’s dad was fairly well-known as an anti-war protestor, back in the day.

  • david mizner

    I can’t imagine “an intelligent argument out there exploring the advantages of other ways of thinking about free speech.””

    Free speech is good! It’s one area in which the United States is actually better than other countries.

    Yesterday, Pakistan, speaking for the OIS at the U.S. Human Rights Council, used a clever talking point in arguing for restrictions on Islamophobia. The Foreign minister called for equal treatment, since there are laws in European countries banning Holocaust denial, but of course, those laws are stupid.

    • L2P

      It’s not really worth getting into in a blog comment. There’s a lot of scholarship on it, and if you’re interested go to LEXIS and start reading.

      Basically, even in the US our First Amendment rights aren’t total. We balance free speech (as a fundamental right) so high that the government can infringe on free speech only w/ a narrowly tailored limit that supports a compelling interest. There’s like 2 or 3 times total that the courts have found the governmetn has met that test. There’s some awkward results from this doctrine (local tax laws, for example, are a mess).

      The arguments center around either (1) finding values that we should put more weight on, so that we don’t always just invalidate government regulations, or (2) finding holes in the justification for freedom of speech to begin with.

      For (1), the issues are things like is protecting privacy “fundamental” enough? What is a “narrowly tailored” law to protect privacy? What about false advertising? Why does that seem different than other “free” speech?

      For (2), the issues are things like are people persuaded by certain speech differently than others in ways that mean the government should limit it? Think of this situation. Say we discover that the word “War” automatically triggers an emotional reaction that makes it impossible for the listener to rationally analyze anything else in the next 20 words. Imagine that the listener AUTOMATICALLY AGREES with the next 20 words said.

      What if the listener is only 80% likely to automatically agree? 75%?

      They’re interesting questions, IMO. YMMV.

      • david mizner

        I know there are other arguments; I just haven’t read a persuasive (a better word in this case than intelligent) one.

      • RickD

        “Say we discover that the word “War” automatically triggers an emotional reaction that makes it impossible for the listener to rationally analyze anything else in the next 20 words. Imagine that the listener AUTOMATICALLY AGREES with the next 20 words said.”

        We want to construct our understanding of constitutional law based on unreal fantasies of hypnosis?

        I would prefer basing our legal framework on a slightly more realistic understanding of human psychology.

        • Holden Pattern

          This is absolutely correct. “War” is the wrong word. The current word is “terrorist”. It used to be “communist”.

          • Joey Maloney

            “‘Terrorism’ and ‘child porn’ are the root passwords to the U.S. Constitution.” — pretty much everyone on the internet who fancies themselves clever.

        • L2P

          “I would prefer basing our legal framework on a slightly more realistic understanding of human psychology.”

          Then you should read the scholarship, and not my very short summary! If you think that’s “unreal fantasies,” I have some very, very bad news for you.

    • DrDick

      I do think there are legitimate arguments that can be made for restricting free speech to promote other social goals. On the other hand, these pale to insignificance in comparison for such restrictions to be abused and used to suppress legitimate political speech. I by far prefer to error on the side of too much freedom of speech than too little. That said, stronger laws holding people responsible for the consequences of their speech (defamation, hate speech, etc.) would be good.

      • DrDick

        Just to clarify, my last sentence refers to situations where said speech has harmful material consequences (inciting violence, loss of jobs/revenues/etc.).

        • L2P

          Have you thought about untrue speech?

          IMO that’s the most interesting area right now. We don’t have a good First Amendment doctrine for untrue speech (we’re agin it, but we generally allow it), and people kind of go every which way on it when they think Deep Thoughts.

          • DrDick

            I actually think that untrue speech should not be protected, if such speech is directly intended to have material consequences (hence exempting artistic expression). I am thinking here of political speech, slander/libel, commercial speech, and the like.

  • John

    It seems relevant to note that the systematic repression of freedom of speech and freedom of association were crucial to the maintenance of both the slave power and the apartheid police states that emerged after Reconstruction.

    Don’t disagree with the point here at all, but I will now derail the thread to once again wage my lonely fight against referring to Jim Crow as “apartheid.” Apartheid was a specific policy adopted in South Africa in the 1940s. It was substantively different, and much more extreme, than the previous policies of racial segregation in South Africa, which, in fact, closely resembled Jim Crow (or, at least, more closely resembled Jim Crow than Apartheid did). Referring to Jim Crow as apartheid introduces an unnecessary conceptual confusion in the service of creating emotional resonances. Jim Crow was bad enough on its own. If you want to talk about it in more emotional terms – as the maintenance of white supremacy, for instance – that’s fine, but the use of “Apartheid” to refer to it is misleading at best.

    • djangermous

      it’s not like “jim crow police states” lacks rhetorical zing.

    • greylocks

      This argument is as silly as the one that says “holocaust” (lower-case) should be used only for the Holocaust (upper-case).

      There’s really no upside to this sort of hair-splitting over slightly different degrees of intolerable inhumanity.

      • John

        That’s not the same thing at all. “Holocaust” is a pre-existing English word. “Apartheid” is a word imported into English to describe the South African system.

        And, again, South Africa had a very Jim Crow-like system before instituting Apartheid. If “Apartheid” is to be just a general word for any system of racial segregation, then you have to describe South Africa’s pre-apartheid system as apartheid, which is deeply confusing.

        It’s not about the degree of inhumanity. It’s about the fact that Apartheid was a system introduced into an already segregated South Africa and that specifically referred to policies that were never instituted in the United States. South Africa already had something equivalent to Jim Crow when Apartheid was instituted.

        • DrDick

          I think perhaps using capital “Apatheid” for the formal South African system and small “apartheid” for other usages wors just fine. This is fundamentally a silly argument, as we use these kinds of analogies constantly with no confusion whatsoever. Just because we call some event apocalyptic, does not make everyone assume that it really is the end of the world and the second coming of Christ.

          • The Dark Avenger

            Dr. Dick, it would be like getting in a tizzy because people used the name Jesus Christ instead of “Jesus the Anointed One”.

            • DrDick

              Or more properly Yeshua bar Yosef Mashiach.

          • Republican

            Again, this is not the argument I’m making.

            Once again, “Apartheid” is, strictly speaking, the term for a new and very extreme system of racial segregation introduced in South Africa in the 1940s. The Apartheid system replaced a pre-existing system of racial segregation in South Africa, which was not and is not called “Apartheid.” Calling Jim Crow “Apartheid” basically implies that it’s appropriate to call any system of racial segregation “Apartheid.” Logically, this would include the pre-Apartheid system in South Africa. Which turns the whole thing into nonsense.

            So, a substantial terminological confusion has been introduced, since now the pre-Apartheid South African system of racial segregation can legitimately be described as an Apartheid system.

            If there were some great benefit to using the term to describe Jim Crow, I suppose this might be okay, but I fail to see what that benefit is.

            • John

              Oops, that was me. I posted as “Republican” in another thread to make fun of Republicans, and forgot to change back. (Really! I did! You can check and see! I’m not actually a Republican!)

          • What are you, a trash talking Apolcalypse denier

            • DrDick

              Now that you mention it ….

        • greylocks

          That’s not the same thing at all. “Holocaust” is a pre-existing English word. “Apartheid” is a word imported into English to describe the South African system.

          About 3/4 of modern English common-use vocabulary was imported from another language, and a shitpile of that originally meant something else.

          You’re basically making a pedantic prescriptionist argument along the lines of “aggravate is not a synonym for irritate.”

          Besides, I really wonder why it’s so important to you to represent Jim Crow as somehow less evil than Apartheid.

          • John

            The point isn’t that it’s less evil. It’s that it’s different, and using the South African term to refer to Jim Crow introduces terminological confusion with no particular benefits.

  • Interesting.

    This is sort of rearing its ugly head again after the release of that hideous anti-Muslim video that’s caused so much violence in the Middle East and elsewhere.

    According to the right-wing, it’s free speech. According to me, it’s yelling “FIRE” in a crowded theater, since any reasonable person would assume that to maliciously slander a religious icon would incite violence among his followers.

    I’ve always maintained that the Constitution is about half a document for freedom, because freedom brings with it responsibilities.

    In a tyranny, your responsibilities, like your rights, are handed down by the tyrant. In a democracy, your rights flow upward from the law. Similarly, your responsibilities should be primarily to that law, and if you fail to live up to the responsibility, you should lose your freedoms, the degree of said loss is open to subjective opinion.

    In addition to the Bill of Rights, the Constitution should have included a Bill of Responsibilities. This would have made some of the original intent (like in, say, a “well-regulated militia”) a lot clearer.

    • Is it really that hard to see why banning speech as a response to religiously motivated violence might cause some additional problems down the road?

      • My point was larger than this. Under the current system, I see no reason to ban dangerous speech. We have to live…or die…with the consequences. It’s the system itself I take issue with.

        • Vance Maverick

          I’m still trying to guess what your substantive proposal is. As the poster of a YouTube video, what are my responsibilities to the law? And what’s the “subjective” process by which I might lose my freedoms? I trust you can understand why this sounds like deliberate murk-mongering.

          • JosephW

            I’m not aware of exactly what you post on YouTube, but you are aware that YouTube has policy guidelines that restrict content, correct?

            For starters, if you decided to upload a video and you used Prince’s “Purple Rain” as background music, that’s a violation of the law IF you did not receive permission from Prince or his duly-appointed representatives to use the content–especially if the music were sufficiently loud enough to be recognizable. Now, a mere snippet of the song might be acceptable under “Fair Use” guidelines but I’m thinking more along the lines of you upload some sort of video diary/blog and you think that “Purple Rain” has a certain quality that would enhance the contents of your post. Since you don’t hold the copyright to the song, you can’t use it. Infringing on your freedom of speech? Perhaps. But “intellectual property” rights tend to trump “free speech.” Pretty much as you wouldn’t want someone taking the ideas you post in your video and passing them off as their own.

            Also, IMS, YouTube does prohibit or restrict certain language–especially certain “hate” or incendiary language.

            Of course, there’s also the fact that YouTube is NOT “the government.” Like any other business, if YouTube is hit by people who object to content posted in a video, the video can be pulled until it can be reviewed. You might have an opportunity to explain your content but, ultimately, it’s YouTube’s site and YouTube relies on the goodwill of its users and viewers. You might want to recall Michael Jackson’s little problems with the song “They Don’t Care About Us”–the song’s lyrics originally contained the phrases “Jew me, sue me” and “kick me, kike me” which, to put it mildly, upset Jewish civic leaders. Was Jackson wrong to use the lyrics in the first place or was he wrong to alter the lyrics following the criticism? Only one answer can be correct. But again, no one from the GOVERNMENT came in and forced him to change the lyrics for the records or alter/garble them in the video. He did it of his own volition following the controversy. Now, do you think that we would see a right-wing musical act apologize or change/alter the lyrics of a song that could be viewed as disparaging Muslims? It’d never happen.

          • My substantive point was this:

            In addition to the Bill of Rights, the Constitution should have included a Bill of Responsibilities. This would have made some of the original intent (like in, say, a “well-regulated militia”) a lot clearer.

    • david mizner

      I wouldn’t say the video “caused” the violence. More like: served as a pretext for politically motivated, demagogue-incited, multi-caused protests that led in some cases to violence. The video had been available for weeks online (along with loads of other anti-Islam materials) when a wingnut host on a Saudi-financed pro-Salafi TV station aired it and called for protests, and the militants in various countries took it from there, encouraged by repressive governments in Syria, Saudia Arabia, and elsewhere.

      • Scott Lemieux

        This.

      • That might be true in the instance of Libya, but in the, you know, non-ambassador-murdered distrubance in Egypt, no one has suggested that the video was anything but the primary cause of the disturbance.

    • Regarding Holmes’ unfortunate ‘fire in a crowded theater’ metaphor, this “Three Generations of a Hackneyed Apologia for Censorship Are Enough” is essential reading.

      Thankfully, Holmes said better things later on about free speech, including “Every idea is an incitement.” Unless it’s limited along the line of Brandenberg, incitement is just a justification for stopping any speech authorities prefer to stop.

    • smintheus

      FALSELY yelling fire in a crowded theater. That has always been the weakness in the use of that analogy, ever since Holmes tried to elide the distinction between uttering an opinion and making a factual (factually false) declaration (with intent to cause harm).

      Hard to see how there could be a legal requirement to use speech ‘responsibly’. What we have is a governmental guarantee not to infringe speech understood within the context of the normal obligation not to infringe the civil or criminal codes.

      • I always took “falsely” as implied there. I assumed everyone else had too, because, gee, if there’s a real fire, I want to know about it.

        • smintheus

          Then you are dealing with the more narrow and rarer problem of litigating intentional deceit regarding factual matters. Posner was addressing the expression of opinions.

        • rea

          Authority figure: “There is a small problem and we need to evacuate the theater. Everyone please stay calm and file toward the exits in orderly fashion.”

          Irresponsible person in audience: “Fire!”

          [Mass panic ensues. A hundred people trampled to death in rush for exits. Everyone could likely have been saved if they had stayed calm].

          I don’t think it necesarily turns on whether the cry of “fire” was false . . .

          • I don’t see any possible means for prosecuting your hypothetical audience member, if for no other reason than that they could obviously just argue that they themselves were panicked when they yelled it.

            • L2P

              That’s causing a public disturbance. You could charge a PC 647 violation as a misdemeanor, or charge mayhem or something.

              They can defend themselves by saying, “But I was ascared! Rilly I was!” But I think implied in Rea’s comment is that there’s plenty of evidence the defendant was laughing and talking about how much they wanted people to die and stuff.

              • Well, I didn’t catch that implication at all, but that could be different, yes. I simply took rea as saying that whether or not there actually was a fire is immaterial to whether you could say so or not.

          • Holmes did acknowledge, in a weasily way to be sure, that the falsity of the alarm call was what turned the speech into a crime.

            • The way I understood his comment was, a man/woman in a crowded theatre screams “Fire” when indeed there is none.

              Now, if a (wo)man sees a fire and is the first to notice is, I sure as damned hell don’t want him/her to calmly walk up to the usher and whisper “there’s a fire”.

              I don’t see how anyone can argue against that case.

              • Well, that may be a better way to do things functionally so as to avoid a panic, but the point would be that you couldn’t possibly build a criminal case against someone in a theater who yelled out in response to an actual fire.

          • Tom Servo

            But the case itself (dicta notwithstanding) very clearly states “would not protect a man in falsely shouting fire in a theater and causing a panic”

            Were I on a jury, I would not convict a man who shouted fire when there actually was a fire. Unless you want to punish people who are scared and make exclamations of sense impressions. Which is fucking stupid and immoral.

    • Richard

      Under this theory, and to cite the example given by the Penn professor above, you wouldn’t have a problem with throwing Scorsese in jail since he clearly knew that directing and showing Last Temptation of Christ was a malicious slander of a religious icon likely to incite violence among his followers (assuming there had been some violence when the movie opened as I believe was the case)? Its an argument that makes criminal responsibility contingent on the violent, irrational response of the followers of the religious icon. If Jerry Falwell’s followers had rioted when he was admittedly slandered in Hustler magazine, then no problem in throwing the Larry Flynt in jail? Or does that not count because Falwell is a religious icon you dont like? Very bad doctrine.

      • You define “malicious” poorly, I’m afraid.

        • Richard

          Flynt was clearly acting maliciously, was he not, when he published a cartoon depicting Falwell having sex with his own daughter? And even with Scorsese, wouldnt it be a jury question whether he was acting maliciously when he portrayed Jesus as a sexually active man?

          • I don’t think it was a cartoon, but rather a fake interview, and it was his mother not daughter, but I could be wrong.

            • Jim

              It was a fake interview as part of a fake ad, based on a series of then-current whiskey ads, based on the theme of “a special night when you cracked open the ______.”

              • Richard

                Interview or cartoon, mother or daughter, there seems little doubt that he was acting maliciously against Falwell and if Falwell’s supporters had resorted to violence, Flynn could have been punished according to the doctrine espoused above.

                • Falwell was a public figure and able (and did) to defend himself. No one rioted over that smear. And I’m fairly certain a billion people don’t hang on his every word.

                • Richard

                  None of that matters. Mohammed is a public figure. His followers are surely able to defend his status and reputation. Plus, he’s dead so whatever this yokel filmmaker says about him obviously wont matter. If Falwell’s followers had rioted, would you support the criminal or civil prosecution of Flynt? If not, why not (other than the fact you dont like Falwell)? Unless you want dissenters like a Flynt (or any other type of agitator) punished if the object of their attack resorts to violence.

          • JosephW

            No, because Scorsese was adapting a BOOK that had been in print for a quarter-century or more (I think Kazantzakis wrote the book in the 1950s).

            Also, it’s clear from the FILM itself, that Jesus’s sexual escapades were a “what if?” scenario. (It’s the “Last Temptation” as mentioned in the title.) All Scorsese would’ve had to do is demand–as part of his defense–that the jurors and judge be required to view the entire film.

            Just for those who may not have seen the film, the Devil appears to Jesus as He hangs on the cross. As he did before, the Devil tempts Jesus with a way out of the suffering he’s enduring. All the Devil wants is for Jesus to renounce His divinity and He can have the life of a simple carpenter who’s married and has a family and dies quietly in his bed as an old man. The scene shifts back to the Devil in front of Jesus (still on the cross) and the Devil basically says, “Well? Do we have a deal or not?” And Jesus turns the Devil away and dies in proper New Testament fashion.

            If a jury were forced to watch the movie as it was intended to be seen, Scorsese would’ve been acquitted and the film would’ve been rereleased and done major box-office. Unfortunately, the Religious Wrong won the day by stirring up so much controversy and protesting theaters that a lot of filmgoers simply didn’t want to deal with the problem. (Of course, it didn’t help that certain large retail video chains then refused to stock the video because they didn’t want the Religious Wrong stirring up more protests in front of their stores.)

            • RobW

              I just gotta point out that in the film, what you’re calling “sexual escapades” is marrying and having kids. You know, being human and living a life. THAT was the last temptation, not merely getting laid.
              And yes, this point is irrelevant to the topic. Sorry. Carry on.

              • RobW

                And I reacted to your second paragraph before reading the third paragraph in which your made the same point, only better. Oops.

    • JL

      …any reasonable person would assume that to maliciously slander a religious icon would incite violence among his followers.

      This logic could be used against many forms of protest against Christian supremacy in the US. And in fact, I expect that with any similar law it would be marginalized people who are targeted, not dominant ones.

      I think “shouting fire in a crowded theater” may even beat out “time/place/manner restriction!” as concepts overused in the public discourse by people who want to ban some sort of speech or assembly.

      • I think that the history of the Religious Right in America would prove that extremism is not out of their purview. Yes, if someone made a similar movie calling Christ a child-raper, I’d want them to be held responsible as well.

        • This is a ridiculously unworkable legal standard, if for no other reason than that it ultimately rests on punishing people not for their own actions, but for the actions of others.

          And where do you draw the line of offensiveness? Does any violent response to an anti-religious statement all the way down to “there is no God” mean that the person who expressed the anti-religious viewpoint is guilty, or are we going to employ a “we know it when we see it” standard to defining inflammatory speech?

    • greylocks

      Making bad anti-Islam propaganda does not cause anyone to protest and riot and kill people. They choose to do so.

      Yelling “Fire!” in a crowded theater, however, gives the people who hear this little choice but to assume they must leave.

      • That’s a rather Americentric perspective. Indeed, the Koran has very strong mandatory punishments for *any* depiction of the prophet.

        • So?

          • Scott Lemieux

            Exactly — I don’t understand your point. The heckler’s veto swallows the First Amendment no matter what the textual source of the disagreement is.

            • It’s also another case where the standard couldn’t possibly be consistently applied in any sort of just manner. We wouldn’t, for example, take claims that a religious instruction to murder fornicators gave someone the right to do just that, or that some young unmarried couple kissing in a public park in front of such a person put the onus for his violence on them, so why should we care if a religious text commands you to murder in response to insults against your beliefs?

  • L2P

    There are some interesting arguments that in the US we put too high a value on Freedom of Speech. I’ve spent a lot of time going over them drafting laws to protect gay rights, workplace rules, trade and marketing laws, and hate crimes. There’s lots of interesting ideas that I’m somewhat persuaded by that the “marketplace of ideas” doesn’t (or shouldn’t) include certain concepts, or that our psychology doesn’t react to certain speech in the way our First Amendment doctrine assumes it does. It’s at least worth a look.

    But I can honestly say that this is the first modern argument I’ve heard that we need less protection for speech because speech is just sometimes bad. That’s a . . . novel position. So we sometimes give protection to speech that is troubling, or causes arguments? Well, color me persuaded! Let’s ban it!

  • shams

    The core problem is that free-speech is forbidden by the Quran and thus by shariah law. The Quran is the source of all jurisprudence in islamic states by the consent of the governed.
    The Quran forbids the proselytizing of the poor and ignorant, and freedom of speech legalizes the proselytizing of everyone.
    Sure, that could change, but not while al-Islam is under attack.
    That is why OIF and OEF were such epic fails. Since there is no separation of church and state in Islam, Bush’s moronic attempt to install/impose/implant secular democracy in Iraq and Afghanistan was an attempt to change the religion of 60 million muslims.
    Even a fifth grader should be able to see that is impossible.

    • Hob

      Oh God, it’s matoko-chan, but with better spelling.

      (One of many names used by a crank commenter who’s been banned from Balloon Juice, whose main hobbyhorse was succinctly stated above. If this isn’t her, they’re reading from the same pamphlet.)

    • JosephW

      If you want to get technical, free speech is forbidden by the Bible. (Quick. Go read the Books of Exodus and Leviticus. Being a loudmouth brat to your parents warrants being put to death.)

      As for the “secular democracy” strawman, Afghanistan HAD a secularized democracy (similar in nature to that of Turkey) prior to 1978. And, it’s amazing that one Arab dictator could manage to squelch Islamists so easily for nearly 3 decades while another Arab dictator managed to incorporate Islamist philosophy for well over 3 decades. Yet after both men fell, somehow these dreaded Islamists have taken amazingly different paths–in the former country, they’ve largely taken over power while in the other, they’ve been marginalized following an American ambassador’s death.

      I’ll also note that Israel is OFFICIALLY a “Jewish” state. While it ostensibly allows freedom of religion, the fact is that most Israeli family lives are handled under RELIGIOUS courts and it’s political Judaism (aka Zionism–ironically enough, given the historical nature of Zionism) that wields undue power over the people of not only the State of Israel but also the millions on NON-Israelis living in the Occupied West Bank and Gaza Strip.

      Oh. You might also want to take a quick look back at American history and see how pleasant life was for those in Massachusetts Bay and Plymouth colonies if they didn’t adhere to the strict Puritan doctrine. And if you think that the First Amendment would hold up under a Christian Taliban regime, you’re sadly mistaken. We’d be right back to a time when religious minorities would be subjected to persecution (the type that so many right-wing Christians currently whine about–except REAL). Not being able to vote because you attend the wrong church. Not sitting on a jury because you carry a rosary. Having to pay an extra fee because you’re wearing a Star of David. Being evicted from your home because someone got a whiff of your Sunday fried chicken dinner. Yeah. These were the REAL effects of life before the First Amendment (and there are places in the present era where your Freedom of Religion isn’t completely safeguarded–less than 20 years ago, a Jewish family in Troy, Alabama, took action because their youngest son was required to write an essay in a PUBLIC school about how Jesus was his friend and the school officials didn’t see anything wrong with it). The Christian Taliban simply envy these Muslim countries and how the state and religion are so intertwined. They talk a good talk about wanting to preserve “freedom of religion” but when you start talking about religious denominations that support marriage equality, then that “freedom” suddenly becomes of lesser importance. (There really needs to be a religious denomination that sues a state for infringing on THEIR religious freedom by denying same-sex couples the right to marry. See how quickly the right-wing targets those groups as being “insignificant” or “not really representing the majority of that religious group.”)

  • Anon21

    This is just transparently wrong. Whether one agrees with them or not, hate crimes laws don’t suppress speech per se, and taking invidious motives into account when assessing relative culpability is utterly banal. (Does Posner think that laws that make distinctions between first degree murder and manslaughter conflict with the modern understanding of the First Amendment because they take intent into account, sometimes using speech acts as evidence?)

    Well, I don’t think that explanation works at all. The distinction for homicide is intent (that is, one’s conscious object in undertaking a certain act), and for hate crimes laws, it’s motive (why you undertake the acts, or form the conscious object). The latter seems self-evidently closer to impinging on core First Amendment values. And yeah, I know motive is routinely used in criminal cases not involving hate crimes, but generally just as an evidentiary matter, and not as a substantive element of a crime or the basis for a more severe sentence.

    I’m still eagerly awaiting an explanation of hate crime laws that’s consistent with the modern interpretation of the free speech clause.

    • But hate crime laws are ultimately merely a sentence enhancer, and motive and other such factors get considered in sentencing regularly. So even under that broader view of things, the analogy still fails.

    • Aaron B.

      Because you can’t get charged with a hate crime for saying “Nigger.” You have to actually commit a violent crime first. It’s not a speech act that’s being punished, but a speech act in conjunction with violence.

      • Aaron B.

        There’s also a (much more expansive) rationale justifying hate speech laws in particular by comparing them to “fire in a crowded theater” or incitement speech acts which, even in American law, aren’t considered protected speech. This should be seen as a separate argumentative line, and one that I’m much less sympathetic to.

    • L2P

      Despite arguments to the contrary, a defendant’s motivation is NOT a protected free speech right. You’re right that it “seems closer” to free speech, but it isn’t.

      A typical hate crime will penalize some act done, say, “for the purpose of intimidating or interfering with a person’s rights under the Constitution.” So how does it work? Let’s say someone gets in a fight. That’s an assault and battery (if they prove it up.)

      Let’s say they prove the defendant only attacks black people, because they don’t want black people in my town. Now that’s a hate crime. They might not need to put on any evidence of any speech I’ve ever done to prove that, but they probably will put on evidence of my Stormfront tattoos, my saying “Die, Nigger, die” in each fight, my posters of lynched black men with handwritten notes saying “Good Riddance.” Case closed.

      This isn’t any different, as far as the First Amendment is concerned, then putting on the same evidence to show that the defendant was the one who got in the fight in the first place. It isn’t criminalizing the speech; it’s criminalizing the conduct of getting in a fight with a specific motivation – to stop someone from exercising their civil rights.

      You can feel like this is incorrect, but that’s the law.

      • Anon21

        You’re right that it’s not criminalizing speech, but it is criminalizing thought and belief. The real problem with hate crime laws is that they involve the government picking and choosing what beliefs and values are good or bad, and then enforcing those value judgments (e.g., racism is a particularly noxious ideology, and crimes committed to further that ideology are particularly bad/socially damaging) through criminal law. A person receives more prison time in part for espousing and acting on a belief that society judges wrongful than they would for the same acts motivated by some other, less unpopular purpose.

        • Crimes committed with those motives have pernicious effects that facially-similar crimes committed for other motives lack.

          When someone is lynched in Texas, there are black people and white people in Florida and Massachusetts who look at each other differently.

          This doesn’t happen when someone dies in a bar fight.

          There are very legitimate reasons for considering violent hate crimes to be particularly serious.

          • Anon21

            There are very legitimate reasons for considering violent hate crimes to be particularly serious.

            I don’t dispute that at all. But of course, the First Amendment keeps the government from doing a lot of things that it has very legitimate reasons to believe are good ideas. You generally have to go higher than that, but I take it your argument is simply that hate crime laws simply aren’t subject to First Amendment scrutiny, so the strength of the government interest is irrelevant.

            • Not quite.

              My position is that hate crimes laws, properly written and applied, pass the strict scrutiny test which is the standard for judging claims that a government action intrudes on a fundamental right.

              • You do, indeed, have to “go higher than that” to overcome a First Amendment Claim. These laws do (or at least can. I’m sure some proposed hate crime law somewhere was insufficiently narrow).

              • Anon21

                Ah, well, that is quite a different position, but I guess it’s not an argument I’m so interested in having. At this point you just get into value conflicts about the relative importance of free speech versus protecting marginalized groups from living in fear. Being a dude with no real marginalized characteristics, I suppose it’s not entirely surprising that I come down on the speech side of that value conflict, although not without some doubts.

                • At this point you just get into value conflicts about the relative importance of free speech versus protecting marginalized groups from living in fear.

                  No, you don’t. By making sure the law is sufficiently narrow as to only apply to violent crimes in which the belief served as a motive, you do not have to have an argument about speech.

                • Anon21

                  Again, beliefs are the source of all speech, and a category of considerable importance to First Amendment law. I don’t think you can separate them as easily as you attempt to.

        • Cody

          How is this really any different than giving someone first degree murder over second degree murder for premeditation?

          They went into the situation planning on killing someone; thus, their sentence is more harsh.

          In a hate crime, the prosecutor is arguing that this person went out LOOKING for trouble, based on their previous actions demonstrating their pre-meditation.

          I understand your argument, but think if you’re going to argue we can’t prosecute based on someone’s thoughts you are opening a very large can of worms.

          • Anon21

            I shouldn’t have said “thoughts,” above. “Beliefs” or “opinions” capture the correct concept. There is most definitely an intelligible distinction between intent (what you mean to do) and motive (why you mean to do it). And I’m not so certain that all motives even involve beliefs, rightly understood, or at least not the kind of beliefs (more opinion/ideology-like beliefs) that should trigger constitutional protection.

            In a hate crime, the prosecutor is arguing that this person went out LOOKING for trouble, based on their previous actions demonstrating their pre-meditation.

            No, I don’t think that’s right. If you just brought in racial animus as evidence of motive or planning or whatever, it would be serving an evidentiary function: it would demonstrate that it was more likely to be the defendant than some other guy who committed this crime, or it would show absence of mistake or accident. The pernicious thing about hate crimes is that once you prove the disfavored motive, it becomes an independent basis for an enhanced sentence.

            • Sherm

              The pernicious thing about hate crimes is that once you prove the disfavored motive, it becomes an independent basis for an enhanced sentence

              I believe that discriminatory intent is an element of these crimes. Intent thus separates a hate crime from a simple assault in the same manner in which it separate murder from manslaughter.

              And since you realize these laws have been enacted to provide protection to historically marginalized groups, why do you find them so objectionable?

              • Anon21

                I believe that discriminatory intent is an element of these crimes. Intent thus separates a hate crime from a simple assault in the same manner in which it separate murder from manslaughter.

                It varies from statute to statute. Some are elements of the offense, some are “sentencing factors.” The effect is the same–you’ll be punished more harshly for committing a criminal act if you have a bad motive than if you have a motive lawmakers don’t care about.

                And since you realize these laws have been enacted to provide protection to historically marginalized groups, why do you find them so objectionable?

                I don’t find them objectionable in the way that right wing crazies do–because they think that gay bashing is, if not just fine, really no worse than any other form of bashing (and maybe a little better, although that’s the quiet part they strive not to say). But my view on these laws is the same as it would be on laws that criminally punish “hate speech”: some political values trump even a worthy policy goal like protecting marginalized groups.

                • Sherm

                  Is malice aforethought entitled to first amendment protection as well?

                • Anon21

                  No. Malice aforethought is not a belief or ideology. The First Amendment does not protect careful consideration, although it protects certain products of careful consideration (but not violent acts).

                • Sherm

                  But its not the belief or ideology which is being punished, it is the acting out upon the belief or ideology. In that respect, I see little distinction between acting out on malice aforethought and acting on discriminatory beliefs. They both result in crimes which would not have occurred but for the underlying thought process.

        • You’re right that it’s not criminalizing speech, but it is criminalizing thought and belief.

          How so? Reread what L2P wrote:

          It isn’t criminalizing the speech; it’s criminalizing the conduct of getting in a fight with a specific motivation – to stop someone from exercising their civil rights.

          Perhaps it’s more helpful to say that it’s criminalizing the conduct of getting into a fight in order to stop someone from exercising their civil rights. It’s like intimidating someone to keep them from going into a store.

        • djw

          The real problem with hate crime laws is that they involve the government picking and choosing what beliefs and values are good or bad, and then enforcing those value judgments

          Doesn’t this work equally well as an argument against many civil rights protections? There are lots of value judgments I might make that would lead to me kicking someone out of my store, but only acting on some of them will get me in trouble.

        • L2P

          “A person receives more prison time in part for espousing and acting on a belief that society judges wrongful than they would for the same acts motivated by some other, less unpopular purpose.”

          Well, that’s just not true. The law literally does not give more prison time for anything that they say.

          The law gives more jail time because they do something with a specific intent – doing something to hate on someone else, basically. The proof of that hating might involve evidence of speech, but the speech itself isn’t criminalized. I’ve proven a hate crime simply by pattern.

          I don’t know what else to tell you. The hate crime laws that are constitutional literally DO NOT criminalize speech. They literally criminalize conduct. The jury instructions will tell the jury that they can convict without ANY speech so long as they have no reasonable doubt of the “hate” behind the act.

          If you think the First Amendment protects conduct done with a specific intent that harms another person, then I don’t know what to tell you. It just doesn’t.

    • The latter seems self-evidently closer to impinging on core First Amendment values.

      “Closer to impugning on” is weasel-wording. “Self-evident” is an attempt to dress up the weasel wording.

      Punishing people for their acts – not their speech, but their acts – has nothing to do with the First Amendment.

      Using the word “self-evidently” is not an argument that considering motive in weighing the seriousness of an act intrudes on freedom of speech.

      • Anon21

        But you’re actually punishing them twice. Once for the act, and once for the motive. The wrongful act clearly makes them susceptible to some criminal punishment, regardless of motive, but I can’t agree that once you pass that first gate, you can bring in constitutionally protected beliefs and speech to ratchet up the prison term.

        • No, you’re punishing them once. They are given one prison sentence, or one fine. There is often a range of potential punishments for violating any given statute, and a list of considerations to take into account when determining where in that range the punishment for this particular act should fall.

          I can’t agree that once you pass that first gate, you can bring in constitutionally protected beliefs and speech to ratchet up the prison term.

          Perfectly legal beliefs and speech often lead people to commit crimes. Committing a murder for hire, for instance, is a penalty-enhancer, and wanting to make money is a perfectly legal belief to have.

          • Anon21

            “Wanting to make money” isn’t a belief at all. It’s a desire. You’d be better off saying “the belief that money is more valuable than human life under certain circumstances,” although you’d probably need to refine that somewhat to get at the thing that’s truly bad about murder for hire.

            For me, it comes back to viewpoint discrimination, which doesn’t always follow bright lines. We know, because the courts have told us, that things that look like efforts to punish unpopular beliefs for their own sake are highly constitutionally suspect. When it comes to racism or homophobia, there’s a lot more reason to think belief qua belief is being targeted than there is in the case where pecuniary gain is a motive. That is, our experience tells us that government is not generally interested in punishing the belief that money is good (or however you want to characterize it), but it is generally interested in punishing the belief that whites are superior to blacks.

            • “Wanting to make money” isn’t a belief at all. It’s a desire.

              In other words, a motive, just like the desire to deny someone their civil rights.

              you’d probably need to refine that somewhat to get at the thing that’s truly bad about murder for hire.

              The thing that’s truly bad about murder-for-hire (above and beyond facially similar murders) is the consequence of creating a market in murder. Just as the thing that’s truly bad about hate crimes is the creation/growth of ethnic and racial oppression. In both cases, the acts are particularly dangerous because of the consequences for the larger society, above and beyond those for the immediate victim.

              • Anon21

                In other words, a motive, just like the desire to deny someone their civil rights.

                Eh, I don’t know… that would seem to make hunger into a “belief,” which seems to be stretching the concept a bit. I think a belief in First Amendment sense is probably closer to a contestable proposition about the state of the world. Desires are related, but separate.

                This is maybe getting into philosophical territory.

                • It’s getting into irrelevant semantics territory.

                  The relevant concept is “motive.”

                  The motive punished in hate crimes is the desire to deny someone their civil rights for reasons of race, religion, etc.

                  Not “hunger,” but “the desire not to be hungry.”

            • Christ on a fucking cracker, are you trying to be dense or something? Putting aside your obviously incorrect “punishing twice” claim, there’s really nothing difficult about the concept of giving someone a harsher sentence because their crime has a larger social effect than other random acts of similar violence, nor is there any reason viewpoint protections should matter once a person has already been convicted of an illegal act. You might as well just go all the way here and argue that the mere fact that people get different sentences for the same offense based on any number of mitigating circumstances or even just that they had different judges presiding is a violation of equal protection.

              • Anon21

                Putting aside your obviously incorrect “punishing twice” claim

                How would you like to characterize it? Formally it’s a single sentence, but as a matter of law you aren’t exposed to the extra prison time unless the bad motive is proved. If you want to put it in Apprendi terms (Apprendi was a hate crime case, after all), the bad motive is a “fact that increases the penalty for a crime beyond the prescribed statutory maximum.” That’s additional punishment because of the disfavored motive.

                there’s really nothing difficult about the concept of giving someone a harsher sentence because their crime has a larger social effect than other random acts of similar violence

                It’s not as though I don’t understand the rationale. It’s just that I don’t think it’s consistent with the First Amendment, insofar as those “social effect[s]” are predicated on a fear of the spread of bad ideology or reactions against that ideology.

                nor is there any reason viewpoint protections should matter once a person has already been convicted of an illegal act.

                That’s obviously too broad. You’d surely concede that giving a purse snatcher an extra year for having an Obama bumper sticker isn’t constitutional just because the purse snatcher has already been convicted of an illegal act.

                • “How would you like to characterize it? Formally it’s a single sentence, but as a matter of law you aren’t exposed to the extra prison time unless the bad motive is proved. If you want to put it in Apprendi terms (Apprendi was a hate crime case, after all), the bad motive is a “fact that increases the penalty for a crime beyond the prescribed statutory maximum.” That’s additional punishment because of the disfavored motive.”

                  Which is no fucking different than murder for hire or possession with the intent to distribute. Or, in other words, something the justice system does with regularity for numerous reasons pertaining to motive. So what?

                  “It’s not as though I don’t understand the rationale. It’s just that I don’t think it’s consistent with the First Amendment, insofar as those “social effect[s]” are predicated on a fear of the spread of bad ideology or reactions against that ideology.”

                  And this is why I say you’re being as dense as I’ve ever seen anyone this side of McManus be: it’s not “fear of more people being racists” that’s you’re worried about, it’s the fear of more people committing racist based crimes against others and/or the crime itself creating a chilling, intimidating effect on the target group freely exercising their rights.

                  “That’s obviously too broad. You’d surely concede that giving a purse snatcher an extra year for having an Obama bumper sticker isn’t constitutional just because the purse snatcher has already been convicted of an illegal act.”

                  Well, I didn’t think inserting a qualifier about pertaining to the motivation for committing the crime in the first place was necessary, but I guess in retrospect that should have been obvious given your other posts on the matter.

                • Anon21

                  Which is no fucking different than murder for hire or possession with the intent to distribute.

                  Again, I think it is different than murder for hire, because while there is no reason to believe that such a crime is partly an attempt to suppress the “belief” that “money is a nice thing to have,” there’s substantial reason to believe that hate crime laws are partly meant to suppress noxious ideologies such as racism and homophobia. Laws with incidental and unintended effects on speech are usually fine, while laws which are meant to suppress speech, even in part, are subject to more rigorous scrutiny.

                  Possession with intent to distribute is intent, which no one has yet even tried to convince me is the same thing as motive.

                  And this is why I say you’re being as dense as I’ve ever seen anyone this side of McManus be: it’s not “fear of more people being racists” that’s you’re worried about, it’s the fear of more people committing racist based crimes against others and/or the crime itself creating a chilling, intimidating effect on the target group freely exercising their rights.

                  “[F]ear of more people committing racist based crimes” is really closely related to a fear that the ideology will spread, even if they’re not quite the same thing. The “intimidating effect” is based purely on the expressive effects of the targeted conduct and beliefs. And regardless of the objective, the means (punishment based on the offender’s beliefs) is impermissible.

                  Well, I didn’t think inserting a qualifier about pertaining to the motivation for committing the crime in the first place was necessary

                  If you’re familiar with the American approach to sentencing, you should have seen the need for that qualifier. People get enhanced sentences for factors that don’t directly relate to the crime of conviction all the time (most commonly, criminal history). The First Amendment imposes an independent bar on the consideration of certain factors, and I think that’s so regardless of whether they relate directly to the crime or not.

                • ” The “intimidating effect” is based purely on the expressive effects of the targeted conduct and beliefs.”

                  So what? Basically all harassment law fits the same description. You would take the position that you can’t criminalize burning a cross on someone’s yard beyond the issue of trespassing and possible damage to property?

                  “If you’re familiar with the American approach to sentencing, you should have seen the need for that qualifier. People get enhanced sentences for factors that don’t directly relate to the crime of conviction all the time (most commonly, criminal history). The First Amendment imposes an independent bar on the consideration of certain factors, and I think that’s so regardless of whether they relate directly to the crime or not.”

                  This is transparently stupid. To use your own example: if I’m an Obama supporter in a Voter ID law state snatching purses on election day in an attempt to steal ID’s and prevent Romney supporters from casting votes then a) my political beliefs are very much relevant to the facts of the case and b) it would be highly appropriate to give me a harsher sentence than a mere purse grabber would get for the same act, based on the intent of the crime.

      • Murc

        Using the word “self-evidently” is not an argument that considering motive in weighing the seriousness of an act intrudes on freedom of speech.

        Freedom of speech is a shitty argument against hate crime laws. Hate SPEECH laws, yes, but not actual hate crime laws.

        A better argument rests on Due Process, I think. “You can’t treat someone who kills people for their money differently than someone who kills people in the exact same way just because they’re black” seems a lot more solid.

        I don’t know if its solid enough to WORK, mind you. We already consider both extenuating and aggravating circumstances when charging people and when pronouncing sentence, and those really equally on motive in a lot of cases.

        • Scott Lemieux

          Right. The First Amendment is irrelevant, because we’re talking about punishing conduct. The classifications could raise in equal protection problem, but it’s hard to see how under existing law. If you can punish someone more harshly for violence against a police officer, you can punish someone more harshly for a crime of racial intimidation.

          • L2P

            Any classification “could” raise an equal protection problem. That’s what classifications do. But unless you find some fundamental right or protected class at issue, it usually doesn’t raise an interesting equal protection problem.

    • Scott Lemieux

      I’ll just re-state what I said and you haven’t actually refuted: 1)inquires into intent and motivation in terms of sentencing and classifications of criminal acts is utterly banal, and 2)even the hardest core free speech libertarians don’t think that speech brigaded with action receives automatic First Amendment protection.

  • smintheus

    Shorter Eric Posner: “Congress shall make no law respecting…” should be construed as “Congress shall make laws respecting…”

    He’s a Constitutional concern troll.

  • Heron

    All you need to do to know state’s rights was never something the Framers had much respect for is read the Federalist Papers. The whole point of drafting and ratifying the Constitution instead of keeping the Articles was to create a robust, active federal government that would enfranchise the individual by disenfranchising the States and thereby create a national identity and the Federated State which would rely upon such an identity. They don’t even cover that later on in the essays; these issues are dealt with before Federalist 30.

  • Emily68

    Flag burning should be part of this discussion somehow. It infuritates some people but so far, it’s protected speech. Back 20 or 30 years ago, the Republicans tried to get a Constitutional amendment passed that would ban flag burning. Banning flag burning seems to me to be exactly the same as banning insults to the prophet Mohammed.

    • Leeds man

      Stupid question: Isn’t flag burning an act, rather than speech? If speech, how are acts and speech distinguished?

      • Aaron B.

        Pretend you’re the courts, call it a “speech act” and deny there’s any important difference.

      • Sherm

        Its symbolic speech and protected just like “offensive” artwork.

        • Richard

          Or holding up a sign. The courts, thankfully, have never bought the argument that the First Amendment only covers verbal comments and not signs, posters, and expressive acts.

      • You can ban the act of burning things for legitimate public safety reasons.

        You cannot single out the burning of the American flag, because you would be doing so purely because of its symbolic value.

    • Snarki, child of Loki

      Hey, but burning CONFEDERATE flags is totally legal!

    • Sherm

      If memory serves, it was a big phony issue in the 1988 election and used by the republicans to make the “card carrying member of the ACLU” look unpatriotic.

  • bob mcmanus

    Wow. It is really hard to find mainstream or blogger pieces on Chris Hedges and the NDAA. Injunction granted against NDAA last Friday, Obama got an emergency stay, goes to a three judge panel September 28.

    I think it’s a neat case, the gov’t does not want to explain why Hedges does not have standing.

    Free speech case? Or terrorism?

    • Malaclypse

      It is really hard to find mainstream or blogger pieces on Chris Hedges and the NDAA

      Ahem.

      • bob mcmanus

        Truthdig, democracy now, common dream…I said mainstream treatments. Like LGM, although I certainly would be someone to tell blogging lawyers what they should post about.
        Posner is important!

        Fun stuff, Hedges says “Do I have to worry that something I write could be construed as aiding and abetting terrorist organizations?”

        And Obama says:”We don’t want to talk about that. But Hedges does not have standing cause we say he doesn’t”

    • Cody

      Was really hoping Obama would leave the courts alone on this one…

      (Not that I think the SCOTUS would ever strike this down)

      • rea

        How the heck does Obama leave the courts alone with respect to a case in which someone sues him?

    • rea

      the gov’t does not want to explain why Hedges does not have standing

      Hedges, Chomsky and Wolf don’t have standing beause there is no plausible scenario under which they get indefinitely detained as terrorists. Not much explanation is required–it’s pretty darn obvious. Generally speaking, the Courts don’t do well handling hypothetical issues rather than actual cases.

  • Snarki, child of Loki

    Well, it’s pretty clear that the US has already taken the first steps towards criminalizing speech.

    Step 1: criminalize certain monetary transactions as “support of terrorism”

    Step 2: campaign finance rule, MONEY = SPEECH

    Step 3: SPEECH = MONEY = support of terrorism

    Goodbye 1st Amendment, it was nice while it lasted.

  • rea

    Rather than tell the rest of the world to respect states’ rights . . .

    I don’t think even Jefferson Davis thought of “state’s rights” as a human right on the order of free speech. It’s a matter of the structure of the American government. It doesn’t tranlatre to other countries. Nobody thinks the British government is oppressive because Yorkshire doesn’t have its own divorce laws.

  • jon

    Since, ‘They hate us for our freedoms’. I say we give them more to hate us for.

  • shah8

    One of the things I hate most about defenders of the libertarian interpretation of the First Amendment, other than willfully ignoring how the guard labor (in the Bowles sense) like abortion protestors and ultra right wing organizations have more vigorous and effective defense than the rest of us, is the liberal use of the slippery slope argument in support for what is legal idolatry. We’re just supposed to put up with the bad stuff, as if we can’t have an organic relationship with Law, and tweak until bad stuff on either side of the ledger is minimized.

    • I don’t at all get the point you’re driving at here. The abortion protestors bit, for example, really only proves that carve outs are going to be inconsistently applied based on popularity of viewpoint. It doesn’t really say anything about a more absolutist preference.

      • shah8

        Well, let me challenge you this:

        Are Westboro Church members popular? Yes or No?

        Do people, by and large, support changes in laws surrounding procreation–provided that they get clear language? Yes or No?

        Are NeoNazis and other right wing factions/militias popular with the country at large, even in Louisiana? Yes or No?

        Brien Jackson, the above are only popular as means for the elite to control the rest of us. Period.

        Meanwhile, speech for students, speech for “unpopular/uncharismatic foreigners”, say donating money to palestinian charities and speaking out about atrocities, speech for socially necessary whistleblowing/mudracking activity, along with many others, are constrained, legally and extra-legally.

        Pam Gellar can put up overtly racist hate speech all over our subways–but hey, what do you think will happen if someone were to try and put up pro-Marxist posters.

        Practically, libertarian mode free speech is only for the elite, and only in very right-wing aspects. That’s why libertarians are so much for worshiping the First Amendment, even if it means state involvement. Lord of the Manor-itis.

        • Well, again, I don’t really see what the point is, because carve outs to free speech rights would certainly be applied unevenly to the elite and “offensive speech we like” as well. So…yeah…you’ve proved that the law applies differently to the favored. What’s the over-arching point?

          • shah8

            Oh, wow, thanks for the opportunity to clarify!

            The overarching point is that we have a duty to modify the practiced law so that this demonstrated uneveness of application is minimized, and social utility is maximized. That means low/no protection of hate speech, baiting speech, and relying on the good judgment of the public to figure out what kind of speech really should not be permitted, rather than reactionary judges. We can always fix things later if some slippery slope action actually comes true!

            • But you haven’t even remotely proven that limiting free speech rights will reduce the unevenness of application of the law, and indeed the de facto of abortion clinic protestors from anti-harassment laws in heavily anti-choice areas is highly suggestive that such laws will be just as unevenly applied as expansive free speech protections, if not moreso.

              • shah8

                Oh, so…uh…

                People will just *ignore* the law and *ignore* those police officers, and they’ll do things *anywayze* muthafokkas! And they have bottomless pockets for paying out civil judgements

                Perhaps you should try again, village idiot.

                • Um, no. The police and other law enforcement agencies (especially local law enforcement) won’t actually apply the law evenly against people whose “illegal” speech they approve of. Because, you know, law enforcement applies the law unevenly on this basis all the fucking time.

                • shah8

                  And the end here is reached.

                  The world is unfair. That means we shouldn’t even *try* to make it fair.

                  uh, okay.

                • But you haven’t in any way demonstrated that you would be making it more fair. To wit: you’ve already conceded that the authorities do not apply speech *protections* evenly, but you haven’t made any effort to explain why you think the same authority will apply speech *restrictions* in a more socially even manner.

                • Or applied to a real world example: you seem to be saying that you think the same governments who wouldn’t prosecute white supremacists for murdering civil rights leaders in Mississippi in the 1960’s would nevertheless rigorously enforce a law that made it illegal to advocate in favor of segregation. My contention is that this seems…unlikely…so even if I accept your premise on a theoretical level, it completely breaks down once we try to actually apply it to the existing world. You’re going to be left with a system that still treats speech unevenly, but in which the government will have an actually codified affirmative ability to shut down and punish unpopular speech.

                • shah8

                  Brien Jackson, repeated attempts at getting me to engage with a tautological conundrum is unlikely to work, unlike with some Star Trek bot.

                • I do applaud your use of big words, but I would also note that at his point you’ve reached the stage at which you’re expending a lot of effort while simultaneously dodging the necessary point (in this case, why we should expect restrictions to be more evenly enforced that protections) altogether. Unfortunately that maneuver has been patented by DocAmazing, so to avoid the need to pay him royalties, you should probably just get to explaining your reasoning here.

  • top6

    “With the major exception…”

    When a statement praising free speech or the First Amendment starts out this way, it’s a pretty good sign the writer isn’t really a supporter of free speech or the First Amendment.

    • Congratulations: in a thread full of stupid you have managed to say the single stupidest thing I can possibly imagine being said (non JenBob division). Your prize is in the mail.

      • shah8

        You know, one reason, when I’m being sensible, I always try not to call stupid, is because the ones who call other people stupid usually are the stupid people who’ve missed the point and are wading in waters they don’t comprehend.

        • Oh, no, this is stupid, and calling it anything less would be far too kind. Consider the statement:

          “With the major exception of threatening to kill any women who try to vote in an election, I think people ought to be free to make whatever political statements they want.”

          Does my qualifier in that case prove that I don’t actually support free speech rights, or just that as it applies to the real world all individual rights have to have some limitation at the point they begin to infringe on the rights of others?

          • shah8

            /me rubs forehead

            /me tries to help out, in a generous feeling…

            Why not compare it to, “I’m not a racist, but…” type argumentation?

            Any intellectual being serious about arguing the fine point about the issue at hand will just dive right into the issue. Equivocation at the start, with noted support for some norm, is a classic type of playing to the crowd prevarication. If there is no reason to assume good faith by the speaker, then it probably should be thought of as being in bad faith.

            There, my one good deed for the day, an illumination task is complete!

            • This only makes sense if we postulate some cadre of people who support free speech rights without any sort of exceptions whatsoever. Since such persons do not in fact exist in any meaningful number in the U.S. or anywhere else, to say that any supporting any carve outs at all means that you don’t support free speech is a very stupid statement.

  • I’m not sure whether I really want to get into a big argument about hate crimes, but it does seem to me that comparing hate crimes to the distinction between first and second degree murder is not completely compelling.

    It seems to me that in a crime such as homicide, there is a distinction between trying to figure out what the perpetrator was trying to accomplish and trying to figure out why he wanted to accomplish it. In order to establish that an act was murder, as opposed to an accident, you have to know that the suspect was actually trying to kill someone. You also need to know a little more about the state of mind of the suspect, such as whether he believed that his own life was in danger from the victim (in other words, did he believe he was acting in self-defense).

    Suppose you’ve established that a suspect planned to kill someone, had no reason to believe that the victim was a threat to himself or others, and carried out the plan, resulting in a dead victim. All this information is about intentions–what did the suspect intend to do–and I certainly think that the punishment should take that into account. However, once we’ve established what the suspect’s intentions were, I’m a little wary about picking and choosing among motivations for murder: You say that you just killed him to collect on an insurance policy? Well, that’s not so bad, as long as you didn’t actually HATE the victim.

    We as a society have already gone down the path of making hate a factor in judging the severity of a crime, so maybe it’s too late to argue about it. But I think that there is a way to have extra punishment for hate crimes which depends on the intention behind the acts, rather than the motivation.

    The worst kind of hate crimes are acts of TERRORISM. The intention is not merely to harm one individual, but to frighten or attack an entire GROUP. If someone kills a gay man because he hates gay people, I don’t think he’s done anything worse to the victim than if he kills a man because he wanted to collect on the insurance. But the person who was killed is not the only victim. Every gay person is harmed by an anti-gay hate crime, because he is made to feel less safe and less free.

    Rather than letting “hate” be a factor in determining the severity of a crime, my preferred approach is to make terrorism against a group its own crime. If the intention behind an act is to make a group feel afraid, then it should be punished as its own crime of terrorism, rather than as an intensifier to the whatever crime the original act involved. To give another example, consider burning a wooden cross. It’s not that “hate” makes the crime of illegal bonfires or air pollution more severe. Cross burning has a symbolic meaning, given the history of lynchings and the KKK, and is an act of terrorism in its own right.

    The difference with my preferred way to deal with hate crimes is that it’s neither necessary nor sufficient to show that the perpetrator hated anybody. Terrorists don’t have to hate their victims, they only have to have the intention of instilling terror in their victims, for whatever reason.

    • L2P

      Wow.

      So let’s make burning a cross a crime, for any reason, regardless of intent, than the current method of actual looking at why someone’s doing it? So if a priest has a bunch of old crosses in the ol’ Cathedral to get rid of and decides to burn them in the front yard, I charge him on the same day I charge the Stormfront Kommando who burns a cross in front of Rabbi Silverstein’s house?

      Maybe we should, you know, take a peak at intent? And since we’re looking at intent, you know we’ll be looking at motive, right? And since we have to look at motive ANYWAY, why not just make it part of the crime, since motive is that only goddamn thing we care about?

      And what the hell is the distinction between “wanting to instill terror in my victims” and “hating my victims?” Try to think of 10 real world examples of somebody you’d call a “terrorist” who “wanted to instill terror in victims” but didn’t also hate their victims (as a class, I mean).

      Because that’s how hate crimes work. I don’t prove that Whitey McHate hates his SPECIFIC victim; I prove he hates his victim’s “type.” You’re going to have a crime that works against like 3 people. Maybe some psychopath who joins Stormfront by accident, because he likes tight white shirts and shaved heads? A Jew with amnesia who signs up with Al Queda? And of course a blind black guy raised by a white family who joins the Klan (thanks, Dave Chappelle).

      • “Maybe we should, you know, take a peak at intent?”

        Are you responding to what I said? I specifically said that we SHOULD take into account intent, but that it is important to distinguish intent from motivation. Someone burns a cross with the intention to instill fear in a certain group. That should be a crime. Whether he was motivated by hate or not doesn’t seem particularly relevant. Maybe the perpetrator didn’t hate black people, he was just trying to scare them off so that he could buy their land cheaply. That doesn’t make his actions any less terrible.

        Whether or not hate is the motivation seems irrelevant to me.

        • L2P

          You’re drawing a distinction between “intent to instill fear” and “motivated by hate?” You’re drafting a law to distinguish between those very, very important cases when somebody has an “intent to instill fear” but isn’t “motivated by hate?”

          Well, I’m sure both of the victims of your law will be thrilled to know you were thinking of them. The thousands of people that aren’t are going to wonder what the hell you were thinking about.

          • The point is that it is of no importance whether the perpetrator hated his victim. It doesn’t make the crime any worse that hate was the motivation, and it doesn’t make the crime any better that the perpetrator didn’t hate the victim. So hate has nothing to do with it.

      • And what the hell is the distinction between “wanting to instill terror in my victims” and “hating my victims?”

        I gave an example: You terrorize a group for the purpose of getting them to abandon their property so that you can buy it cheaply. There’s no hate involved, it’s about greed. But it’s no less an act of terrorism.

        I think it’s a big mistake to assume that cruelty is due to hate.

        • L2P

          We already have crimes for that: extortion (involving SPEECH with INTENT, btw), racketeering, and (probably) attempted burglary.

          You’re trying to get RID of perfectly good and useful crimes that have protected the rights of millions with a useless crime that does something we ALREADY DO.

          And I’m still waiting for a real world example of somebody doing that without hating on the people they’re trying to steal from. Whenever you’re ready.

          • I think you’ve got the causality reversed. When African slavetraders captured slaves, they weren’t acting out of hatred. They were motivated by greed. When settlers to the New World slaughtered the natives, they weren’t acting out of hatred, the natives were just in the way. Hatred of either group is irrelevant to the crimes.

            Of course, in intergroup violence, hatred almost always becomes a factor, but it isn’t the cause. If anything, hatred is a tool used by the beneficiaries of the violence. Those beneficiaries may themselves harbor no particular hatred. That doesn’t make them morally superior to their underlings who have been manipulated into hating.

            In practice, I don’t see much difference in who would be prosecuted for “hate crimes” if we remove “hate” from consideration.

  • Joe

    The idea the 1A really didn’t matter to the 1960s is overkill. Surely, various groups were targeted at various times, but free expression of ideas in this country as an ideal and general practice allowed a range of things (including things critical of the government or promoting some controversial idea such as “let’s bring back the slave trade” or “believe in twenty gods or none, no skin off my nose”) long before 1960.

    “Dissenters” had a long history in this country and largely (qualifier) left alone. Let’s take “pacifists.” Other than WWI, really, how often would one get in trouble? People opposed the Mexican War, e.g., and on the end other than Thoreau getting in trouble once for not paying his taxes, who was arrested?

    Blasphemy laws were on the books in Jefferson’s time but his ability to criticize religion (some choice quotes can be found) underlined the limited reach in action. Free speech was not totally forgotten.

    • Scott Lemieux

      This is correct. The First Amendment wasn’t really enforced much by federal courts until the 1960s, but some political actors took it seriously. There were free speech violations in the Civil War, but especially adjusting for context Lincoln took the First Amendment seriously and was much more conscientious than Adams or Wilson.

      • Joe

        And, you cite in effect low points in war or quasi-war situations, which provides a something artificial flavor to the true reach of the 1A.

        The A/S was a quasi-war situation and the backlash, including in various cases revoking fines, was influenced by ideas of what the 1A demanded. In that sense, the 1A played a “significant” role even in 1801.

        And, even the A/S, a low point, provided more checks than might be thought in part because the 1A was seen to demand it.

  • nixnutz

    I think if Law & Order: Depraved Indifference were still on the air that Jack McCoy could at least get an indictment in this case.

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  • Bob

    Law professors may have law degrees, but they are, largely, not lawyers, at least not in any sort of meaningful sense of actually able to practice law in any venue.

    For examples: Glenn Reynolds, University of Tennessee College of Law, Knoxville.

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