… we value free speech a bit much. Personally, this article greatly offends me. Perhaps if we showed our displeasure by rioting and violence, we’d have grounds to ban it by the Professor’s own standard? What good is free speech if you can ban any speech which might offend deeply enough to cause disorder? Under that standard, wouldn’t it have been in the interest of public order to silence Martin Luther King? Malcolm X?
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.
I do not care to repeat the mistakes of the 18th and 19th centuries. One problem I’ve always had with originalism is that perhaps free speech always meant what it’s come to mean in this century, but that the Courts just didn’t take it seriously enough before. There are a lot of things in that old document that judges have been saying “Surely they couldn’t have meant that,” to through the whole history of the republic.
9 thoughts on “According to at least one law professor …”
The subtext is: “I am among the elite(I am, after all, a law professor); and, around the world, the elite get to arrange things as they think best. When the likings of the elites run up against a principle, the principle must give way: people’s adherence to principle is never perfect, and we are still the elite.”
I will not submit to a heckler’s veto.
Attitudes like his are what allow political correctness to flourish.
Posner is playing a dishonest little game. There are categories of speech that were not protected by the First Amendment in the 19th century–nor are they protected by it today: those that qualify as treason and sedition, for example. Most restrictions on free speech in the 19th century were from state governments, not by the national government (which had a more limited notion of its duties back then). Some state governments did suppress various forms of atheistic writing (a translation of Voltaire was in dispute in a famous trial in 1833 Boston), but the notion that you could suppress “anti-Mohammedan books” (to use the terminology of the period) would have been absurd.
And remember, the First Amendment did/does not apply to State or local governments (hence the irrelevancy of using the “‘fire’ in a theatre” scenario when trying to justify exceptions to the absolutism of the First Amendment – Congress STILL cannot make a law prohibiting yelling “fire” in a theatre; that power is reserved to the States).
The First Amendment restricts only Congress. That is why strict construction is so important. And it is critical to the proper application of the Second Amendment (“right of the PEOPLE…shall not be INFRINGED”).
When our adversaries start saying the words don’t mean what they say, then they don’t mean anything, and we have no unalienable rights, only those the existing government says we can have.
That was true until the 14th Amendment was passed and ratified, which applied the Bill of Rights to state governments.
Well not right away. Let’s not forget the Supreme Court of the time at first nullified the 14th Amendment! We didn’t see SCOTUS begin to employ the doctrine of “selective incorporation” until much much later.
Scratch a liberal and find a tyrant in waiting.
Holy smokes, that article is so extreme I almost wonder if it was intentional satire. So it seems the American Left in word as well as deed is abandoning the principle of Freedom of Speech. So be it. Leave it to the rest of the Americans to carry on the principle. Let the Left wallow in their smug cosmopolitan authoritarianism.
Progressives have always had a difficult relationship with the concept individual rights.
For more historical perspective, try reading David Bernstein’s Rehabilitating Lochner: Defending Individual Rights against Progressive Reform or Tim Leonard’s Expertise in Democracy: The Dilemma of Economic Reform in the Progressive Era.
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