Tuesday, January 30, 2007

Discuss and Debate Amongst Yourselves

Interesting, interesting post at the Volokh Conspiracy on the suppression of the speech of the radical right.

Obviously, this is a very controversial, very interesting subject for debate, so I'll just include a few thoughts of my own. First, it's sort of scary how the sedition argument actually echoes some extreme right wing rhetoric. Let me just say simply that this is why we don't define treason broadly. We don't want to start executing nutty anti-war protesters and nutty religious extremists.

Secondly, is it really true that we have no right to preach the extermination of others, as Chris Hedges suggests? If I were to say that all child rapists should get the death penalty am I really exceeding the bounds of what I should be able to say. Of course, I'm using an extreme example to make a slippery-slope point, but if Hedges wants to lay down a moral principle then everything that moral principle entails should be considered.

The real disconnect here is in regards to the degree of the rhetoric. I don't think there are any radical right preachers who make speeches telling their followers to go out and kill homosexuals. This is the sort of speech that falls close to shouting fire in a crowded theater- it is direct incitement of violence. Arguing that our laws should be changed and certain people should be put to death is the other side of the spectrum- this is pure political speech.

It's easy to lay out a general principal that inciting violence is illegal- it's much harder to lay out a general principle that certain types of speech are beyond the pale, most simply because of the problem of deciding who makes the moral judgments about what speech is okay and what speech is not.


Blogger A Fan For All Seasons said...

I don't know what it is, but you're touching on a lot of things I'm learning in class this semester...this time, it's my Law of Libel class for journalism.

According to Supreme Court rulings, starting with Shenck vs US and culminating with Brandenburg vs Ohio, we have the right to say anything as long as there is no "clear and present danger" and there is no "imminent lawless action". These cases pertain more to government overthrow, but it's the same principles. In simple terms, you can say what you want, but if you incite action you are held responsible. In the Brandenburg case, Brandenburg was a clans member who invited TV crews to his farm and then went on live TV promoting the Klan and saying they should march on Washington and take back the White House. What he said was perfectly fine according to his 1st Ammendment rights. If, however, the clan did march on Washington and there was an attempted violent overthrow, well Brandenburg would've been in serious trouble.

It's funny you cite crying fire in a movie theater. Now, if you were to cry fire and nothing happened, you aren't in any real trouble. If , however, you yell fire and people start fleeing to the exits in a panic, you are in trouble.

I didn't read the article, but from what I can tell, the people speaking are completely within their rights to say what they are saying. Once again, if a radical said we need to kill homosexuals, and that leads to the death of homosexuals, legal action can be taken.

How do you like dem apples?

11:18 PM  

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