<< I wish that I cold sue the NY Times or the tv broadcasters everytime they
told lies. Think of what we could do if we could sue politicians who
lied. >>
That's what the Alabama courts allowed in NYT v. Sullivan. There the NYT ran an ad in support of the civil rights movement that criticized the Birmingham (or was it the Montgomery?) police dept. Sullivan, police commish, the person whose policies would have been resposnible for attacks on civil rights demonstrators, sued because the ad contained a minor factual inaccuracy--I think it misstated the song the demonstrators were singing. Sullivan was not named in the ad. He persuaded an all-white jury that the ad referedsd to him, was false, since it contgained an error or two, and was harmful to his rep. He won about a half mil--in those days, 1963, real money. Brennan, God bless him, said that public figures had to stand for rubsut criticism, establised a recklless disregard for the truth standard to recover in a false and damaging report on a publlic figure.
This really is separate from the question of advocacy of illegal action prong of the 1A establsihed in Brandenburg, despite what Nathan says. However, I suspect Chales would want to reinvigoirate the group libel theory, long dormant, but still good law, as well as the rule of US v. Dennis (sending the CPUSA leaders to prison for conspring to advocate the overthrow of the government--really!), also never quite overruled. allowing speech to be proscribed that has a bad tendency, if that bad tendency is one he thinks is bad, e.g., racist.
Charles is correct that whatever laws we have, including the 1A, are interpreted by judges with particular views; it does not wholly insulate speech from statea ction to put it behind a constitutional fence. Moreover, Dennis, which came doiwn in the midst of the first cold war, shows that the protections tend to evaporate if the political pressure is high enough. True enough.
But the theory behind insulating speech at all is that it puts some limits on what the state can do, and creates a space where speech can happen, which is important because speech as such is valuable for all the usual Millean reasons, even if it is false and pernicious. Some limits are not no limits, and these rights are hard won and very precious. I would hate to see them eroded on the grounds that some speech serves evil causes.
Partly this is because there are varying views about which causes are evil. Most Americans and most of those in power think the causes we advocate are evil. I would rather have judges, or at least some judges, thgink, as Holmes once said, that if the dictatorship of the proletariat--about the worst thing he could think of--could win by persuasion, then it should be allowed to win.
Partly it is because I think that the evil of repressing even bad speech is worse than allowing it. Racism, antisemitism, and homophobia (to name three bad views) are repulsive. But so is throwing people in jail because of what they think and merely say. What they do is a different story; discrimination in employment, pohysical attacks, these can be proscribedw ithout raising a lot of concern. I myself see no problem in hate crimes legislation for reasons I have expalined. Merely saying things, even hateful and hurtfulk things, that has no immediate tendency to lead to bad actions, that calls for denunciation and refi\utation, not calling the cops. Bad ideas are not bad actions.
Charles' theory, as explained by Richard Delgado and other advocates of thought control, is that the 14A,a s properly interpreted, commits the government to racial equality in a way that qualifies the 1st, so that speech that compromises the purposes of the 14A, to end racial oppression, can be banned. Likewise Catherine MacKinnon claims that pornography and other representations of subordination of women is not "only words" but the moral equivalent of rape. I don't buy this because I think that advocacy and representations are really only words (or images) and do not necessarily lead to bad actions, actual oppression.
I also agree with Nathan and Doug that Charles' point that the laws are not interpreted or enforced by apolitical robots but by real people with political views and agendas cuts pragmatically against left wingers and dissidents advocating state repression of bad thoughts. Rehnquist is not likely to agree with us about which thoughts are bad, and is likely to find the tendencies we thing are good to be bad and proscribable, if we let him.
When Charles and I were at Michigan in the 1980s there was a student movement against a campus code of conduct that was worked up with the obvious intent of stifling the then active student movement of which Charles and I were part. The anti-code movement was doing pretty good, but then some fucking idiot got on the campus radio and made some stupid racist jokes. The antii-code movement immediately lost the support of the minority students, and the admin rammed through a code. It uspsended the moron who made the jokes, and then proceeded against left wing demonstrators who were sitting in against campus investments in South Africa. A great victory for antiracism that was, eh, Charles? The code was later overturned by the federal courts, I think.
--jks