<< The kind of "First Ammendment"
absolutism that the ACLU for instance defends seems to
me largely an artifact of the way that American jurisprudence
works.
This wouldn't be surprising, since the 1st Amend. is part of American law.
>>It can be argued that it in the US it has been historically
difficult to defend the civil liberties of leftists or other dissidents
using any standard short of a "First Ammendment absolutism."
Anything short of a "First Ammendment absolutism" seems to
leave too many loopholes that the state can use to repress the
speech of leftists.
Actuallly our 1st Amend. jurisprudence hasn't done too well in protecting the speech of leftists when it counted. And US v. Dennis, upholding the conviction of the CPUSA leaders for--am am not making this up--conspiring to advocate the overthrow of the government--is still technically good law.
>>Thus we get the spectacle of progressives
who would normally argues against a strict constructionist
interpretation of the Constitution taking an almost fundamentalist
view of the Bill or Rights (excluding the Second Ammendment).
This is very confused. The Nixonian term "strict constructionst" means nothing. Justice Black, the absolutist architect of most of our 1st A jurisprudence in the ACLU vein, was a quasi-textualist, insisted on the litearl ,eaning of the words, but then paid no mind to the word "Congress" in the text, reading that to mean "government." As far as original intent goes, it's very unckear what the framers had in mind, or what the Amendment mewant back then to an ordinary reader. The framers had no trouble with the Alien & Sedition Act, for example.
The sniping remark about the 2d Amend is uncalled for. If you want to be a strict constructio9nist or textuialist or an orginalist or whatever you want to call it, you can do what the S.Ct did in Miller, the governing case from the 30s on this, and give weeight to the prefactory clause, "A well regulated militia . . . "
As Richard Epstein has argued at length, the real snake in the barrel of the Bill of Rights is the Takings Clause of the 5th Amend, "Nor shal;l private property be taken for public purposesw ithout just compensation." Give taht one some play and it will get you to right wing libertarianism of Epstein's variety.
Progressives, incidenatrlly, also downplay the 10th Amend., which has been getting some teeth lately in a series of recent states-right S.Ct decisions.
>> Philosophically I think that a free speech absolutism is difficult
to sustain but given the realituis of American jurisprudence
and such factors as the historical weakness of the left then
a First Ammendment absolutism may in fact be pragmatically
the best course for leftists to take.
As a pragmatist, iI'd say, so much the worse for your philosophy then.
>>> In other more
progressive countries a more nuanced approach to free speech
may be the best course to take.
If you think our 1st Amend jurisprudence isn't nuanced enough. try readinga treatise on the suvject. You want nuances? We got nuances.
--jks