On the Loss of Freedom of Speech

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59 Responses

  1. Avatar Saul Degraw says:

    I think the image you choose to illustrate this post. If you choose it, maybe Tod did.

    I think this is how people generally imagine Free Speech. The man in Norman Rockwell’s painting is speaking his mind but at an organized town meeting and the meeting is probably covering a narrow range of topics.

    Norman Rockwell’s painting does not show pornography, it does not show a vagabond begging for change and then cursing you out as middle-class scum who will hang during the revolution, it does not feature guys cat-calling women as they are walking about during the day with lewd sexual comments (I’ve had women say this happened to them when they were as young as 12-13), The man in the picture is not being heckled and is not heckling, he is presumably not going off on a tangent for his pet issues (though this is a possibility), etc.

    I don’t think the popular concept of what free speech is or should be is what the concept actually is legally. Most of the landmark free-speech decisions of the second part of the 20th century were not unanimous. Cohen v. California (“Fuck the Draft”) was a 5-4 decision. Miller v. California was also 5-4 and basically seen as a conservative victory even though it probably created the pornography industry as we know it today.*

    Basically, we have always and will always debate about what the free speech in the 1st Amendment is.

    Leeesq likes to mention from time to time how one of the biggest problems liberal democracy faces is dealing with illiberal people. Basically people who do not respect the tenants of liberal democracy. Liberalism can’t cope with authoritarians except by hopping authoritarians don’t reach critical mass.

    I think that civil libertarians and civil liberties don’t quite know how to deal with those who disagree on the scope or of potential negative side-effects. I am fully willing to believe that posting harassing stuff on social media might just be a lot of talk but it also causes a lot of people to sincerely fear for their lives and safety. The Civil Libertarian response tends to be telling people to just toughen up and not take the threats seriously but I can see why that would be troubling and annoying to those who are being threatened.

    Free Speech as a civil liberty is also simply not very well equipped at dealing with nuts. A while ago TAL had a story about an internet site that worked as a small-town gossip place. One guy was run out of his small town in Georgia. He wisely hired a lawyer before moving to a bigger city. The lawyer was able to find out that all of the posts were by one woman and a lot of sock-puppet accounts. They sued for libel and won. The guy was able to move back. TAL interviewed the woman and she was clearly unrepentant and nuts. Nothing in the world could convince her that she was wrong.

    My view is that often times free-speech advocates don’t have an answer for these problems so they downplay them as problems. But most people like stability and they don’t want to live in a free for all anarchy.Report

    • Avatar Saul Degraw says:

      I forgot my asterisk again.

      In the early 1970s, the Supreme Court was seeing case-after-case over whether a particular film or book was obscene or not. They had something called dirty movie night where they had weekly viewings of the evidence. Harlan II was legally blind at the time so his clerk had to provide descriptions.

      I suspect that the Court instituted Miller just so they could stop hearing obscenity cases. At the time, people thought it was a huge victory for conservatives. Considering the amount and types of pornography freely available on the Internet, I find it odd that Miller is seen as an anti-pornography ruling.Report

    • Avatar aaron david says:

      ” Liberalism can’t cope with authoritarians except by hopping authoritarians don’t reach critical mass.”

      This is what the post is about.Report

      • Avatar Burt Likko says:

        The other thing to do, because authoritarianism turns out to be popular from time to time, is to create and enforce legal limits on the extent of the power of the government. Four instance, the government can argue that people may not say what they like and use their money to promote the saying of things that they like during political campaigns, but the government lost Citizens United. Report

  2. Avatar Stillwater says:

    Admittedly this post surely deserves a longer response than I’m prepared to give right now, but that said, I still go back to the reasons why I am supposed to accept that a complete blanket protection for speech (even threatening speech!) is normatively the obviously correct view to hold. I’m essentially a pragmatic about this sorta stuff and decisively not (at this point anyway!) a free speech absolutist. So my worry/wondering is why I’m supposed to react with a viscerally or emotionally based objection to the idea that government wants to curtail certain types of speech. Especially if there are prima facie good reasons to restrict it.

    On other words: it still seems to me the burden is on free speech absolutists to demonstrate that blanket protections on all types of speech will necessarily lead to better outcomes. I haven’t seen that yet (even going back to our Charlie Hebdo threads where free speech absolutists presumably fired their best shots).Report

    • Avatar Kolohe says:

      Stillwater: On other words: it still seems to me the burden is on free speech absolutists to demonstrate that blanket protections on all types of speech will necessarily lead to better outcomes. I haven’t seen that yet (even going back to our Charlie Hebdo threads where free speech absolutists presumably fired their best shots).

      That’s never been the standard in American political life. The burden of proof, thanks the first amendment and sociopolitical norms has always been on the restrictors of speech*; it’s never been the case that the burden of proof is on the speaker.

      You’re also stealing a base talking about ‘free speech absolutists’. There may be a tiny sliver of anarchists – on the left and right – that may think that even saying untrue stuff about someone or something is hunky dory, but the vast majority of the hardcore civil libertarian advocates (again, both on the left and right) are fine with the government stepping in those cases. So, in short, we’re already haggling over the price.

      *which now, to my layman’s knowledge has two valid restrictions – slander/libel & attempts at fraud, one borderline restriction – ‘fighting words’, and one BS restriction – obscenity.Report

      • Avatar Stillwater says:

        So, the argument is appeal to tradition?

        I somehow thought that it’d go deeper than that, to something we could effectively disagree about. I mean, if gummint is subverting tradition when arguing for certain restrictions on speech, well, end of debate, yes?

        Also, I don’t understand your defense of FSAs as haggling over the price when my whole point is we’re haggling over the price.Report

      • Avatar Stillwater says:

        There may be a tiny sliver of anarchists – on the left and right – that may think that even saying untrue stuff about someone or something is hunky dory, but the vast majority of the hardcore civil libertarian advocates (again, both on the left and right) are fine with the government stepping in those cases.

        Wait. Aren’t you one of those folks, Kolohe, who reject Fox’s disinformation (ie. saying untrue stuff) but defend to the death their right to say it? If you are, the SC agreed with you, contra the view that “hardcore civil libertarian advocate” are fundamentally fine with government stepping in.Report

        • Avatar Kolohe says:

          my whole point is we’re haggling over the price.

          Your price is prior restraint, if the the advocates of free speech need to prove its a good thing.

          Wait. Aren’t you one of those folks, Kolohe, who reject Fox’s disinformation (ie. saying untrue stuff) but defend to the death their right to say it?

          There are standards for libel/slander and for attempts to perpetrate fraud. Having pretty blond women say that Obama is a Kenyan Muslim Marxist does not come close to meeting that standard. (now the dude that’s still trying to sell silver and gold because of his assertion – for about 5 straight years now – that the stock market will crash by the end of the year, he’s a different story.)Report

          • Avatar Stillwater says:

            There are standards for libel/slander and for attempts to perpetrate fraud. Having pretty blond women say that Obama is a Kenyan Muslim Marxist does not come close to meeting that standard.

            Only because of a convention, yes? One that rests on your preferred interpretation of speech and fraud and libel and the first amendment and so on. So what justifies the convention?

            That is, it’s not like this stuff came to us inscribed by God on pages of gold.Report

  3. Avatar Kolohe says:

    ‘The Bush protesters were Rank’

    ‘You said it, they stunk on ice’Report

  4. Avatar zic says:

    The really compelling thing to me is that you wrote this post, and posted it without fear of jackbooted thugs with swat gear coming to arrest you in the middle of the night.

    Since I’ve experienced my share of intimidating speech from asses exercising free speech rights, I just gotta say that we either have norms or we have laws, and people (like me!) who want free speech rights really do need to exercise our own rights and tell asses they’re being asses and to stfu. But I really do deserve to walk down the street or post on the internet without threat; and we have not managed to get to that particular norm.

    This is very much why a lot of whining about PC stuff bugs me, too; that’s working to establish social norms that protect the interests of a 12-year old girl to walk down the street and for me to write about that without rape threat; it’s looking out for the voices of small groups that often get lost in the power crowds. Yeah, sometimes it goes overboard.

    Finally, I’m an artist, I’m married to an artist, and most of my friends are artists. In the early 2000s, we performed a play, a spinoff of the Jesus story and Jesus Christ Super Star — Jesus Christ, Terrorist; mostly in response to the 9/11 terror craze where we began surrendering civil rights for safety. One show; all original music, at a small coffee house in a sleepy little town in the woods of Maine. Before the show, there were nearly a dozen state police cars surrounding the place, and they sat there, all freakin’ night long, tailing most of the audience to their houses. I talked to the town manager the next day (he’s a libertarian, and now county manager,) and yes, the name of this play caused an alert and put the WOT into high gear policing our own; and yes, I scolded his lame ass for not quelling this whole silly notion and getting caught up in the macho-military thinking and forgetting liberty.

    This kind of stuff happens to artists a lot; and the less mainstream (particularly looking,) the more likely. So I’d say if you really are serious about free-speech protections, be serious about making it unclear that assholery is not cool, it’s asinine and irresponsible and you don’t merit defense form verbal shaming when you so partake.Report

    • Avatar Kolohe says:

      The really compelling thing to me is that you wrote this post, and posted it without fear of jackbooted thugs with swat gear coming to arrest you in the middle of the night.

      “I don’t know why you’re worried about this potentially cancerous lesion on your lung when you can still run marathons”Report

      • Avatar Glyph says:

        Heh. Doctors and oncologists do seem particularly prone to making slippery-slope arguments, don’t they?Report

      • Avatar zic says:

        Having known some number of people who came here from countries where their lives were threatened by speech — often not even their own, but family members — that doesn’t really hold much weight with me, @kolohe

        It’s easy to be snarky. It’s not so easy to get up on stage and perform a show criticizing the government when you suspect, at the end, you’re going to jail.

        I’ve done that. Have you? I wrote about our war machine and international trade, getting myself on watch lists. So yes, that Aaron David dared write this and post it means we haven’t sunk so low that he feared to write it; and probably without the trepidation that that performance I described held.Report

        • Avatar Oscar Gordon says:

          We have not yet sunk so low, but those who regularly pull the lever for team D should be more than a little concerned with how willingly their politicians are hacking away at the earth under the foundations.Report

          • Avatar Stillwater says:

            Libertarians are the anti-Stalinists in this dispute, yeah?


            More seriously, folks that vote D support social the social safety net, accessible healthcare, regulations on financial institutions, safety standards for consumers and employees, and so on. I don’t think I understand how supporting those things amount to “hacking away at the earth under our foundations”. And I’ll come clean on Citizens United, at least: I think it was incorrectly decided.Report

            • Avatar Oscar Gordon says:

              Stop being disingenuous. You can support a politician for pushing for social welfare policies & still be critical of them for trying to restrict speech. One is not dependent upon the other.

              Any other deflecting you want to do?Report

              • Avatar Stillwater says:

                Hey, you’re the one who brought up the Big Stereotypes on the other thread, yeah? Libertarians=freedom; liberals= … what was it again?

                I don’t mean anything personal about pointing that out, actually. Since you seem like a decent person and clear thinker and I don’t have any attachment to how you view liberals/Dem voters. Just an observation, ya know?

                Edit: But to your point, yeah, believe it or not, even folks who vote Dem can recognize the exact same distinction you point out. Amazing, no?Report

              • Avatar Oscar Gordon says:

                I also accepted I was wrong & offered a mea culpa.Report

              • Avatar Stillwater says:

                It’s weird to have this discussion coming from this angle, since usually the libertarianish jab at liberals (never conservatives!) is that they’re ideologically mind-melded into a collectivist/anti-FREEDOM!/government-first paradigm which obliterates the concept of the individual or reality.

                In this case, tho, the argument is that liberals are incapable of seeing important distinctions in policy outa … well, something else: a D-voter blind spot, the effect of which, to me, is to ascribe a level of ignorance/stupidity to liberals that The Libertarians have risen above. To their self-acclaimating credit! (Stoopid libruls….)

                I dunno tho. Maybe I’m getting the dynamic wrong. It just seems like everytime I get into a dispute with a libertarianish I feel like the speaker is trying to educate me about the Troof rather than simply present a different pov.Report

              • Avatar zic says:

                Personally, I think that’s because libertarians see the case law described as the problem; look at government squelching free speech; and as a liberal, I see it as the process of how we preserve the liberty of free speech. What would be worrisome is if there weren’t that body of case law, in other words.

                But I’m quite sure I’m wrong, and someone is quite free to tell me just how I’m wrong.Report

              • Avatar aaron david says:

                “Personally, I think that’s because libertarians see the case law described as the problem; look at government squelching free speech; and as a liberal, I see it as the process of how we preserve the liberty of free speech.”

                Could you elaborate, as I am not sure how we get from one to the other as you describe it.Report

              • Avatar zic says:

                I think the government overreached.

                And it continues trying to overreach.

                But people challenge it, we develop new norms to deal with new things. That’s the process. You writing about the problems is great; being an activist is great, supporting the ACLU and supporting a full pardon for Snowden, a hero, is great.

                But I’ll point out that the courts ruled the things Snowden revealed were illegal; and in theory, they’ve stopped without court order. There’s always going to be battles over our privacy rights and how they conflict with public ways; same as on the street in a vehicle. Personally, I’m a hella lot more concerned about the information private companies have about me, and how they can track me then I am the government; I have some hope of tracking what the government does, as this very discussion sort of proves, no?Report

              • Avatar Oscar Gordon says:

                Re: overreach

                That is kinda the point (& ties to a comment @stillwater made above), this isn’t liberal bashing per se, it’s being concerned about the overreach under the administration of a man (& party) who was harshly critical of his predecessor’s policies with regard to speech & transparency, who openly promised to do undo the damage & be better, but who has not hesitated to attack speech & transparency when it served his/their purposes.

                It’s a criticism of Obama & the Democrats more than it is an attack on liberals, except to ask why liberals aren’t pushing back on the Administration for breaking promises & being hypocritical of this issue. Is it hold your nose kind of loyalty, or does no one care too much about it?

                Liberals being in general, not anyone here specifically.
                The GOP gets a pass on this usually because the security hawks just ignore the more libertarian wing of the party on this, & make no pretence on paying them any mind.Report

              • Avatar aaron david says:

                Thank you Oscar, you nailed it.Report

              • Avatar zic says:

                I think I have a better way to answer you.

                When I was reporting, I wrote a story about a company that put field-repair manuals for helicopters onto formats for accessing on game consoles, because there were a lot of game counsels in Afghanistan and Iraq, nearly everybody serving there had access to them; and this was incredibly useful for patching together helicopters in remote places. Another company made virtual reality simulations from gear people wore during house-to-house training exercises so that they could play the exercise back to analyze how they did.

                In both cases, people told me information that wasn’t classified at least from the source they had, and was classified someplace else. It was a nightmare of reporting, terribly common for reporters, and you just muddled through as best you could.

                If I’d have inadvertently revealed classified information because from my source’s POV, it was public, I’d still have broken the law, and it would have been a court case, possible legislation to refine a broken law, and most likely, a revision of the rules about how the law is to be implemented.

                We empower government to both make laws (legislative) and to make rules on how to implement those laws (executive function), and often, until specific questions get asked, we don’t know the answers.

                The last time I checked, making guns was a privileged monopoly owned by a few arms manufacturers, and a monopoly granted by Congress. Perhaps that’s the real problem in your first example; perhaps the DYI genie’s already out of the 3D-printed bottle, and the arms lobby is grappling what they can to preserve their monopoly.

                For what it’s worth, my son refused good-paying jobs drilling gun barrels because he didn’t want to drill the barrel that blew up in someone’s ear. I’m not all that certain I’d be too keen on a DYI gun.Report

              • Avatar aaron david says:

                Well, it is perfectly legal to build a firearm for personal use, per the GCA ’68. One cannot engage in the trade (selling or distributing) but for that one needs an FFL type 7 ($1000 fee.)

                But that wasn’t the point of the article, as I state at the top “It matters not what you feel about firearms.” What matters to me is that the government arbitrarily deciding that the internet changes long standing rules. That plans that have been freely available in libraries are no longer available to be distributed online. In the same way that I wouldn’t like any gov’t to say that I couldn’t watch Jesus Christ Terrorist on Youtube.Report

        • Avatar Kolohe says:

          Well, forget it. If you think aaron david’s decade and a half long (plus) list of government’s attempt to restrict speech is whining about PC, then I’ll just shut up and say nothing, including when you are in jail on President Walker’s watch in 2022.Report

    • Avatar Burt Likko says:

      “I just gotta say that we either have norms or we have laws…”

      No, we get both. We need both. And we need to learn to distinguish between the two.

      You shouldn’t have to face sanctions from the government for saying the N-word. But you probably should have to endure a degree of social ostracism if you say it.Report

    • Avatar Jaybird says:

      Zic, please imagine an argument that begins like the following:

      “I believe in a woman’s right to take birth control but I seriously want to discuss what it means for us, as a society, now that we have these phenomena going on which I will begin to list…”

      Would you see this sentence as a warning flag of any sort?Report

      • Avatar zic says:

        Yes, @jaybird

        When we vote in elections, we get two or maybe three choices; a package, and it’s always about picking the lesser of evils. So my interest align with a candidate who will support reproductive rights; and I honestly think the ‘well regulated’ part of he 2nd needs life support, it’s been shot through the heart.

        But you’re still missing the point: reproductive rights, gun rights, it doesn’t really matter the issue — it’s a process — laws, implementation of laws, enforcement of laws, and challenges to laws/implementation/enforcement through the judicial system. The the stuff I might complain about with reproductive rights and you might complain about with gun laws are part and parcel of the discussion about that process.

        The concern would be if we couldn’t hold that discussion or if holding the discussion resulted in arrests and incarceration.

        If anything, I’ve learned here (from Burt, Mark Thompson, etc.) that that process is slow, but more importantly, it often turns on the details of specific events, not on general perceptions, and when it comes to the judicial part of the system, ultimately revolves around specific decisions that produce opposing outcomes that need to be reconciled.

        I have a friend who’s father was a nuclear physicist and taught at one of the Ivies. Back in the early 80’s, he put the material, all publicly available, for a class online; stuff that basically gave instruction for how to build a nuclear warhead. The reaction was even bigger than 3D gun directions, too; he was forced to pull the website, faced legal charges and a whole lot of discussion ensued about freedom of speech and academic freedom. It was exactly the same thing — collecting information publicly available into a single source and making it easy to download. Was that a violation of his free speech rights, or is there some compelling interest in not having diy instructions for nuclear bombs available on the net?

        That we sometimes don’t like restrictions on speech, we get riled up, and we pass laws and challenge laws and enforcement of laws is the process of how we balance free speech. Like I keep saying, set it and forget government doesn’t work.Report

  5. Avatar Oscar Gordon says:

    So is anyone going to address the ACTUAL arguments made, or just run off on tangents about bullying & threats that are not true threats but just open assholery?Report

    • Avatar Stillwater says:

      Oscar, sorry it took so long to reply, but no, we’re gonna bully and threaten for a bit longer. Check back in an hour from now, when the dust settles. 🙂Report

    • Avatar greginak says:

      I don’t think anybody has good answers for distinguishing true threats from the ordinary super tanker of filth that comes out of the web. Most threats, of all types, are never carried out. So of course 99.9% of the threatening idiots on the web are just loud morons. But many people who do act out violently make threats. The signal to noise ratio is terrible for law enforcement. However just saying to ignore the threats or just chalking it up to standard net dbags isn’t much of an answer since that means some true threats will be ignored.Report

  6. Avatar trizzlor says:

    The purpose of The Federalist article is not to provide legal analysis, but to dress up a standard editorial screed with the patina of legalese. Here is an actual export controls lawyer discussing the issues at stake in this decision. He’s not happy about where things are headed, but at least he’s actually informing the reader about the case. My understanding is that the following sequence of events occurred:

    1. Until 1985 the ITAR required pre-approval for ITAR-controlled technical data. This was removed for technical data in the public domain. [source: Defense Distributed lawsuit]
    2. Unlike copyright law, ITAR-controlled technical data is considered in the public domain only if it is “information broadly available in mostly pre-digital formats” [source: Slate piece & 22 CFR 120.11].
    3. DD is suing the State Department for restricting free speech with such a definition, and for stalling in the pre-approval process.
    4. The State Department is now soliciting public comment on a regulation change that would broaden the definition of public domain to include digital media (which is good) *but also* re-apply the pre-approval requirement for such data (which is bad).

    So, yes, there’s an issue over how this kind of speech should be regulated and the government has gone back and forth on how to do so. The proposed rule change probably seems like a compromise for State, but in practice would create a serious barrier for the individual and potential for broad abuse. Whether you see this change as more or less fair likely depends on whether you’re working with pre- or post- digital formats. All that said, The Federalist’s summary of this case gets pretty much all of the facts wrong.Report

    • Avatar Kolohe says:

      So because the Federalist is finally on the same side of liberals about Cold War paranoia, *they’re* the bad guys? (not that they aren’t a bunch of so-con wankers most of the time)Report

      • Avatar trizzlor says:

        They’re the bad guys because they reported on the issue in a way that misinforms the reader under the guise of an explainer. Yes, their usual pearl-clutching about the rise of gay fascism or the tragedy of Caitlyn Jenner is unseemly but at least you know what you’re getting. Here Sean Davis is taking a real issue (the government is trying to modernize their regulations on ITAR-controlled technical data, what’s the right way to do this) and turning it into a cliche screed (Obama is taking your speech away and rewriting the laws! Only in Washington … Orwell wept .. . etc etc).Report

    • Avatar aaron david says:

      Thanks for the Slate article. I wished I had seen that before writing this, as I would prefer to cite left leaning sites for anything I would write for a left leaning audience. That said, it seems to cover the same ground, with just a little more weight for the left as it is from an experienced lawyer.Report

      • Avatar trizzlor says:

        I think there’s a big difference between these two scenarios:

        A) What DefDis was doing is generally considered legal, they sued the government, and the government is trying to re-write the laws to make it illegal.

        B) What DefDis was doing is generally considered illegal, they sued the government, and the government is trying to close a loop-hole that gave leeway to pre-digital vs. post-digital speech (a revision that doesn’t actually effect DefDis).

        In (A) the problem is an out of control administration using bureaucracy to get certain speech banned; in (B) the problem is a law that was written before the digital age, and a Congress that needs to think long and hard about how this law should be revamped.Report

        • Avatar aaron david says:

          I see the point you are making, but I do not see how the slate article squares that circle. I will reread it as I have time, but I would love it if you could point me to the parts that do that.Report

    • Avatar Damon says:

      Well, given that a lot of the info WAS available in non digital printed public domain, I’m not seeing the case. Buy a gun, you get a manual and info on how to service it. I’m sure there were plenty of news letters and mags about servicing your new toy. Frankly, invoking ITAR on a 20 year old bolt action hunting rifle is bogus. It smacks of over reach.

      This is State trying to get DD back in the box when they found a wedge/loophole. They sued after waiting 2 years. It smacks of nothing but scorched earth political payback.

      And yea, I recently finished my annual ITAR and EAR training.Report

      • Avatar trizzlor says:

        >>And yea, I recently finished my annual ITAR and EAR training.

        Awesome! Perhaps you can help me understand this then. The way I read it is that at least some of what DD was putting online had not previously been in the public domain the way ITAR defines it. That’s why they initially agreed to go through the approval process. Now that approval has taken years with no reply, they’re suing the government challenging the whole system as well.

        The State Department rule change, on the other hand, is to make all public domain materials play by the same rules that DD had to follow. In that, it doesn’t really effect DD at all, but rather effects people who were previously getting through on the weird definition of “public domain”. That’s why I’m not seeing this as Orwellian. The State Department is removing an outdated loophole that gave pre-digital publishers preference over digital ones; that’s a good thing. It would be great if State removed the pre-approval process entirely, but that’s a big change and not something they should have flexibility to do. If anything, State saying “we decided that no one has to go through this approval process” seems like exactly the kind unilateral law-making by decree that we should be against.Report

  7. Avatar LeeEsq says:

    The bulk of American politicians and citizens had misgivings about free speech before the ink was dry on the Constitution. Its why the Alien and Seditions Acts were planned or why most Americans were fine with the Postmaster General seizing allegedly obscene material for decades even if it was only a novel about divorce rather than real pornography. This doesn’t make censorship correct but it does explain why different administrations have gotten away with various attempts at it until the judiciary comes in.Report

  8. Avatar LWA says:

    I suppose any post that lists a few free speech decisions or laws that are troubling is one thing, but then one that broadens out to declare a War On Free Speech invites some partisan and ideological fingerpointing.

    I also find some of the examples disagreeable and downright troubling, and am one of the critics of the Obama admin on the Snowden/ National Security State issue, to the extent of being accused of firebaggery from the folks at Balloon Juice.
    Like others, I think its important to pick battles wisely. There ARE legitimate restraints on speech, as there are for every other right, for all the reasons given elsewhere.

    I will link this to my earlier complaints about speaking only in terms of rights protection vs rights violations; That sort of language lends itself too easily to absolutism, as evidenced by the slogans that “If you can vote on it, its not a right” or “rights pre-exist the state”. It doesn’t lend itself to nuanced and flexible boundaries, where this sort of speech is protected but that sort is not.Report

    • Avatar aaron david says:

      Yes, it is very important to pick your battles, and to make sure you know what hill you are willing to die on. My point is that it is very easy to backslide on issues such as this, and to excuse the party in power if it is the party that we support. Also, it is easy mistake what is going on when we support the party in power.Report

      • Avatar LWA says:

        I completely agree that its easy to let our partisan desires con us into hiding our private misgivings.
        What the firebaggers (for lack of a better term) lose me is to imagine that there exists somehow an alternative.

        Because even though there exists a Left/ Right spectrum on economic issues ranging from Walker to Sanders;
        And a Left/ Right spectrum on social issues ranging from Santorum to Hillary’
        On national security, the spectrum ranges from Kennedyesque Hawkish to OMG Dr. Stangelove insane.

        As Alinsky would say, you have to accept the terrain you have not the one you wish you had, and react accordingly.

        For those of us favoring a dovish foreign policy and greater civil liberties, we have to admit that we are a vanishingly small minority, and that our ideas are terrifyingly toxic to any politician who remembers Dukakis.

        Our problem is not with Obama or Bush but with the American people. Its not to surrender, but just accept that progress isn’t going to be made with Green Lanternism magic. Even President Sanders isn’t going to change 935 military bases to 25, or welcome Edward Snowden to the White House for the Medal of Freedom.

        However, raising these issues at the House or Senate race level is probably a good strategy. What we really need, frankly is a couple of scalps. If even a couple Congressmen lose their seats due to overly hawkish posture, we will see a bit of movement. In that regard, its like marijuana legalization or same sex marriage, that once the penguins see that the water is safe, they all jump in.Report

  9. Avatar Burt Likko says:

    Interestingly, I am expecting a freedom of speech decision from the Supreme Court tomorrow morning.Report

  10. Avatar Road Scholar says:

    @aaron-david, I share your general concern with erosion of free speech rights. However, I do have to take exception to the characterization of your take on CU.

    I don’t believe you were around for the discussion, at least under your current name, when DOMA was being argued before SCOTUS. If you recall there was something of a kerfuffle (actually, screaming outrage from predictable quarters) over the Obama admibistration’s decision not to defend DOMA before the court. My recollection, which may be faulty!, is that opinion around these parts ran 2 or 3 to 1 against the administration on that score. The general argument being that since the Clinton administration had signed the legislation that meant that the “Executive” had done so and so “the Executive” was now obligated to defend the legislation that “the Executive” had supported. I disagreed.

    I guess where I’m going with this is that I don’t know how much it really says about “the Administration” that they fulfilled their customary obligation (at least as some see it) of defending legislation being challenged before SCOTUS. Further, given that many around these parts were expecting the Justice Department to mount a vigorous defense of a law which the President had publicly stated he believed to be unconstitutional, I don’t know how you can necessarily ascribe the arguments put forth by J.D. lawyers to the “Administration” in general or to the President in particular.

    Now I happen to disagree with the CU decision but not all of it. I agree that the particular section that was originally in question, the one being used to stifle the Hillary movie, was unconstitutional and deserved to be struck. What I disagree with was the way SCOTUS went well beyond the specific question laid before the court to then strike down rules against huge piles of cash in general.Report

    • Avatar aaron david says:

      Well, first thank you for the measured respose @road-scholar

      Second, I understand where you are coming from re: campaign cash and at one time I would have agree with you. But as it stands now I have come around to the decision that money equals speech, especially with the outsized power that media companies can wield with regard to how candidates are presented. For example, what would it be worth to Hillary to be on the cover of all Time Warner publications as Person of the Year? To my eyes, that type of exposure and coverage is worth more than money could buy. The Rupert Murdock scandals have doubly convinced me of this.

      While I wasn’t around yet for the DOMA discussions (was hanging out at The American Scene then) I do feel the executive should ably represent all laws passed by former executives. Not because I want something like prop 8 in CA, but I would hate to see an admin decline to litigate a pro-sodomy law because the new admin thought “ewww.”

      The main point of the article was that if we believe in the concept of free speech (even if we are not free speech absolutists) we really do need to keep a careful eye administrations that we support, as it is easier for those we trust to make the most mistakes.Report

      • Avatar Road Scholar says:

        aaron david,

        Well, I just disagree about the money=speech thing. What it means ultimately is that a few very wealthy people have craploads of “speech” while you and I have tiny little whispers. But what of media companies you ask? There was a time when broadcasters, in order to justify their monopolies over chunks of the E-M spectrum, were required to provide equal time for opposing viewpoints. There was also a time, not so long ago, that there were literally hundreds of print outlets, as opposed to the current half-dozen or so conglomerates.

        This is one of those situations where we superficially have more “freedom”, defined as less onerous government regulation… but only for some very few people in reality. It’s reminiscent of the saying that goes something like, “the law, in its majesty, forbids the rich and poor alike from begging on the street and sleeping under bridges”.

        Better hope we end up with a beneficent bunch of plutocrats. Sorta like the way we used to have to hope for a decent King.Report

        • Avatar Oscar Gordon says:

          Road Scholar: But what of media companies you ask?

          That doesn’t really address the question. How do we deal with media outlets that actively promote a single candidate or party? This is the Gordian Knot in all this.Report

          • Avatar DensityDuck says:

            Well, obviously the solution is more laws to fix all the problems. In fact, maybe what should happen is Congress should pass a law saying “as of today, all the problems are illegal. We leave it to the regulatory bureaucracy to make rules that will cause this to happen.”Report

            • Avatar LWA says:

              No no, we need fewer laws and regulations.

              Such as, lets repeal the laws on copyright protection.

              Lets repeal the onerous restrictions on trespass on private property and the nanny state regulation that protects corporate trademarks.


              • Avatar Oscar Gordon says:

                I don’t know about repealing copyright, but it could certainly use some rolling back &/or repair.

                Not entirely sure where you are going with regard to trespass & trademarks…Report

      • Avatar zic says:

        I do feel the executive should ably represent all laws passed by former executives. Not because I want something like prop 8 in CA, but I would hate to see an admin decline to litigate a pro-sodomy law because the new admin thought “ewww.”

        You have to put this in proper context: each executive has the right and power to write rules (and this is a public process, including publishing proposed rules with schedules or public hearings, and public comment,) on how it will enforce those laws. The laws instruct the executive branch to do something; the rules spell out the details of what and how to do that something. The Bush admin., for instance, made enforcement of deep-sea oil rigs a low priority and significantly weakened the regulatory and enforcement rules that it inherited from the Clinton admin.

        I think you’d really benefit from wrapping your mind around the rule-making process, @aaron-david. This, and not law-making, is where most rent seeking happens and it’s often the tool of choice for crony capitalism.Report