Free Speech

[Justin Schwartz]

That's unhappy, but loophole is as loophole does. I mean, the courts have to 
interpret the law. There are various potential loopholes in the First 
Amendment that are huge, but the courts are unlikey to let anyone drive 
through them. For example, the Dennis case, upholding the conviction of the 
CPUSA leaders for (I am not kidding) conspiring to advocate the overthrow of 
the government (really! but this would pass muster under the Brit 
antiterrorism law) is still technically good law; it has never been 
expressly vacated or overruled. But no court in the country would allow such 
a conviction to stand today. If Brit courts read the ECHR protections 
strongly and the ringed the loopholes with hurdles, then they might have 
teeth. It's a point to bear in mind with civil libertarian litigation there.

Trying (sometimes successfully) to divide the left by sneaking right wing 
policies through on the grounds that they can be used against an enemy of 
some segment of the left is a common strategy. When I was at Michigan, there 
was campus organizing against a code of nonacademic conduct designed to 
repress student protest. We had a  good cross-racial, all-activist coalition 
with broad support. Then some moron used the campus radio station to make 
ethnic jokes. The U used this to peel off the minority support and ran 
through the code. It was of course promptly used on student activists, as 
predicted.

--jks


> >Jim,
> >
> >The state of free speech in England is becoming alarming. First, the new
> >terrorism law, now this harassment theory. Probably I could be liable in
> >England for something for saying this. For all the manifold defects of
> >American constitutionalism, it makes me want to go out and give the First
> >Amendment a great big hug. Is there any protection from the new laws in 
>the
> >EU, which has made some supranational right enforcveable in the courts of
> >member states?
> >
> >--jks
>
>There is the European Convention on Human Rights, to which UK is a
>signatory and has now incorporated into British law. Unfortunately the
>ECHR is the product of a rather different age than the American
>constitution. The rights set out there are muscular indeed, but the
>qualifications in the subsequent paragraphs - inserted by cautious
>ruling elites, self-conscious of the need to repress dissent - often
>negate the rights entirely. Most contain caveats about national
>security, public morals and welfare, which loopholes are bigger than the
>rights themselves. A few people (including myself, but perhaps more
>plausibly Conor Gearty) have argued that the application of the ECHR
>creates a sum reduction of liberty.
>
>The harassment/stalking laws have caught a lot of people unawares
>because they are framed in terms that those enlightened liberals amongst
>us are likely to sympathise with - such as the need to stop violence
>against women. (That said, Amnesty spokesman Conor Foley once pointed
>out once that the anti-stalking law had been used most often against
>hunt saboteurs!).
>
>--
>James Heartfield

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