<< Since
Justin is himself a legal realist (he would describe himself
as a Marxian legal realist)
We are all legal realists nowadays.
one might think that he would not
be so quick to dismiss Marcuse's arguments. Just as J.S. Mill
attempted to defend free speech on consequentialist grounds
so Macuse likewise attempted to use consequentialist reasoning
But I am not a consequentialist. That's someone who things the the right thing to do is to maximize the gooid, whatever that is, and fgor maximization to make sense, all the goods there are have to be commensurable, for one thing, and I don''t think they are. This doesn't maen I don;t think that consequences matter, of course i do. I'm just not a consequentialist, unlike Mill--at least officially. I don';t think he raelly was either, but that's another story.
to show that there were circumstances under which speech
could be legitimately limited.
Sure, everyone agrees with that. For example, solicviattions to commit crines ("Murder my wife, I'll apy you $5000."). Speech acts which are themselves crimes. ("This is a robbery. Give me the money.") Immediate incitements to illegal conduct. ("Let's lynch the [epithet]!", spoken to an angry cro9wd and pointing at the victim.) No one, not even the most rabid, extreme, and uncompromising defender of freedom of speech (and I count myself in that grouip) thibks these types of speech should be protected.
One can concede the general
validity of Mill's arguments (such as Mill's contention that free
speech is a necessary condition for the collective search for truth)
while arguing that certain forms of speech such as what
Charles would call "fascist racist" speech may prove to be
incompatible with the ends that free speech is supposed to
serve.
But this is too vague. A generalized incompatibility which might or might not operate sometime inm the distsnt future is much to weak a ground to risk underminding the values that support freedom os speech. Brandeis in the Gitlwo case (I believe) properly emphasized that for speech inciting illegal conduct to be proscroibale you need an _immanent_ threat of an _immediate_ harm, such that more speech can't cure the problem.
Thus if racist speech has the effect of helping to demoralize
whole sections of the populace so that they withdraw from
public discourse then theend which which free speech is
supposed to serve - the collective search for truth - will to
that extent be impaired.
A persfect example ofa state interest taht is too weak to justify suppression. Or to turn it around, if this will justify suppression, then anything will.
One could then argue not unlike Marcuse
that under such circumstances, restrictions on certain forms
of speech may prove to be conducive to the ends that >>
"May" etc. Bah. The bad tendency view that Charles advocates, that Marcuse advocated, is very scary.
I should say that my First Amendment teacher was David Goldberger, the ACLU attorney in the Nazi-Skokie case. But I agreed with his view on this before I went to law school. We don'ta lways agree. E.g., on campaign finance.
--jks