>>> <JKSCHW at aol.com> 03/15/00 10:33PM >
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.
CB: I don't quite follow Justin here. I am, of course, completely against the Dennis decision. It should be completely overruled and the CPUSA should be paid billions in money damages for the whole jailing of Communists pursuant to Dennis. Dennis proves that intermittantly there is no real First Amendment right in the U.S. It was based on the Big Lie that the CPUSA was organizing the violent overthrow of the U.S. government. The "group": libelled in Dennis was Communists. The Communists' speech did not libel anybody.
This has nothing to do with outlawing fascitic racist speech as a narrow exception to freedom of speech.
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 down in the midst of the first cold war, shows that the protections tend to evaporate if the political pressure is high enough. True enough.
CB: Dennis in the late forties followed the very first decision by the Supreme Court on the First Amendment in 1919 ( Even though the Amendment had existed since 1787) in Schenk in which Mr. Justice Holmes found that Socialists passing out pamphlets against workers fighting in WWI were not protected by the First Amendment, and the others in which Debs was imprisoned for the same thing , the Palmer Raids where the Attorney General just started raiding Communists homes and offices in utter disregard for their First Amendment rights when there was no war going on. So, Justin in doubly correct on the protections evaporating from reality ( though still on paper so the U.S. can brag that it is such a great democracy and conquer other countries as in the war to end all wars) if the political pressure is high 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.
CB: I'd say Mill is wrong about speech being valuable even if it is false and pernicious. This is an idealist notion, the philosophy of the predominantly mental laborers who value ideas over being, give priority to thought over being. This idealist philosophical notion is reflected in the fact that the First Amendment is the Freedom of "thought" amendment, not just speech, but religion, press, political assembly. Freedom of Being is the First materialist "Amendment"
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.
CB: Yes, it is important for Marxists and Leninists to counter the pernicious lie that Communists seek to gain power any other way than Holmes is quoted here. Communists are the fullest democrats. We seek to institute the rule of the overwhelming majority of the People, the working class, BY PEACEFULLY PERSUADING THE WORKING CLASS TO TAKE POWER. The bourgeoisie are dictators, ruling by a minority elite, using repression of Communist speech to make the competition for persuading the majority unfair and disadvantaged to the Communists.
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.
************ CB: In the real world, the material world, the separation between speech and action, thought and being is not this sharp, as materialists have pointed out. The purpose of speech is to influence action.
Some areas of thought have been exhausted. We don't need to have anymore debate in humanity about the validity of racism or fascistic racism. These ideas have had their day in the bourgeois market place of ideas and have proven to be world historically toxic.
Also, there are two possibilities with "pure" ideas or thoughts, i.e. those that are not linked to action. They will either never cause any action or they will cause some action. If they never cause any action, remain "pure" , society has no interest in repressing them or protecting. Society is just not interested at all in permanently "pure" ideas. If fascistic racist ideas do cause some action it will be most likely of the type that this historical epoch has shown to be histories greatest crime against humanity. Thus, there is not result of fascistic racist speech that society has an interest in protecting. Therefore, they can be banned. What ever Mill argues to the contrary about "pure" speech is false.
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.
********* CB: Fascistic racist ideas specifically that lead to no action, society has no interest in protecting. Society is indifferent to them. There is no general value of "freedom" of thought or the ability to think or say whatever you want that somehow thinking or saying fascistic racist ideas will result in good actions for society. It is an idealist philosophical error to value thought in itself so highly. Idealists give too high a priority to thought , ideas and speech.
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.
CB: Delgado's theory is something like mine, but there are some more aspects to my theory than Delgado's. See this post and others. My theory is not just based on the 14th Amendment, but the Nuremburg principles and the UN Convention on the Prevention and Punishment of Genocide, the world legal standard on these issues. The U.S. standard and 14th Amendment are behind the world on this. My U.S. law theory is also based on the 13th Amendment.
Also, my theory distinguishes between fascistic racist ("genocidal") speech and plain racist speech. By my theory, non-fascistic or non-genocidal racist speech is still protected by the First Amendment.
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.
CB: I am delinquent in not developing the equivalent theory against "fascistic"male supremacist speech. It would take a factual, historical statement of the specific forms of fascistic misogyny, such as domestic violence. There are not quite the exact parallels to organizations like the KKK and Nazis in misogyny, although I am not saying that further study and analysis might not formulate equivalent misogynist institutions.
I am not quite the same or analogous as MacKinnon. I could see outlawing images that are specifically of violence against women, such as pictures promoting beating your wife or female partner. There has to be the explicit and open advocacy of violent misogyny, as with the KKK and Nazis who openly advocate genocide and violence against specific racial and social groups.
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.
CB: Trouble with this, as Herbert Aptheker once pointed out to me, is that it would have been an argument for not having the 14th Amendment. Afterall, the Burger and Rehnquist Courts have succeeded, by way of their perverted reverse discrimination doctrine, in using the 14th Amendment, the Great general anti-racism Amendment, AS A RACIST LAW IN STRIKING DOWN AFFIRMATIVE ACTION etc.
No law can be written beyond the perverted imagination of lawyers to turn into its opposite, so we would never pass a law if we followed this ultra-leftist approach.
Anti-racist, pro-worker, pro-women progressive laws have always been fought for and won KNOWING that the ruling class would eventually (or immediately) be able to pervert them as long as the legal changes were reforms and not full revolution. All reform laws will eventually be eroded unless comes the revolution.
************ 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.
CB: The suspending of the racist speaker was a victory ( not particularly big) against racism, yes. Antiracist activists should not rely on protection of racists speech for protection of their own speech. The bourgeois Universities act in non sequiturs all the time.