Then the first U.S Supreme Court decision on the First Amendment in 1919 ( the Bill of Rights was passed in 1787, but no court cases on the First Amendment until 1919) has a couple of famous exceptions carved out by Oliver Wendell Holmes. You are probably familiar with his saying, the First Amendment does not protect crying "fire" falsely in a crowded theatre. He mentions this example, which has nothing to do with the facts in the actual case, to make the basic point that the right is not absolute and that there are exceptions to it. In the actual case, he carves out a whopper, from a left standpoint. He finds that a socialist protestor to WWI was not protected by the First Amendment in passing out leaflets urging workers not to follow the draft because it is a capitalist war against the interest of workers. Holmes says this creates a clear and present danger to the state ( or the established order or some such idea), and makes an exception.
Well , I don't agree with Holmes specific exception on the war protestor ( I agree with him on crying fire falsely in a crowded theatre). But, I agree with the American Revolutionists crowd and the general sense that the 1st Amendment does not describe absolute rights.
The exception I argue for is based on historical experience and fact: the incredible horror of WWII fascism ( and really the whole history of racism, including U.S. Indian holocaust and slavery, worldwide colonialism). In balancing the important right of speech and the important right to be free of fascistic racism, I would come down for an exception in the former based on the latter. This type of balancing is pretty typical in jurisprudence ( you know, the scales of justice).
To say it succinctly: we have already had enough experience with Nazi and fascistic racist ideas in the marketplace of ideas and we can conclude that their free flow in society is very unlikely to lead to a better world and is likely to result in world historic crimes. Afterall, the rationale underneath freedom of speech IS that allowing ideas to flow freely in "the marketplace of ideas", including unpopular ideas, is likely to result in some way in improvements in society. It is not based on the value that people must be able to just say what they want as an end in itself. Even the bourgeois conception of freedom of speech is aimed at allowing ideas to flow that may seem bad at first ,but turn out to be good for society. And on this there is an interesting point. "Pure" ideas that remain "pure", in the sense of ideas that never leave the mind and effect actions and society outside an individual's mind , ARE OF NO INTEREST TO SOCIETY. The First Amendment is not really designe! d to protect ideas that never , ever impact actions in some way. It just tries to give some ideas more of a hearing , so to speak, but they still are only of interest if they leave the individual's pure thinking. ( I don't know of anyone else arguing this point).
So, of the two only possibilities: 1) if Nazi/fascistic ideas stay in a person's mind, society has no interest in protecting them (because they don't impact society. ) 2) If Nazi/ fascist racist ideas leave the person's mind and start to influence action, we have already had enough experience with the likely effect of Nazi ideas impacting action such that we can treat them like crying fire falsely in a crowded theatre.
There are more parts to the argument, but I will stop here. I don't think my proposal is completely unproblematic, but all important decisions have such difficulties
CB
>>> kirsten neilsen <kirsten at Infothecary.ORG> 10/16/99 04:23PM >>>
Charles Brown wrote:
>> After WWII and the fascists, I am sure he would
>> agree that there must be an exception to the general >> right of freedom of speech for fascistic racists ...
charles i am interested to know how you would construct such an exception.