Meanwhile, please don’t bother commenting on a post of mine ever again. Your comments will simply be deleted.

And as to free speech and corporations as people, I’m not the one who measures the social as as an aspect of the economic or as a gathering of contract forming monads. I described the process of socialization of my Norwegian stockbroker. He did not choose to be this way: he is not a rational actor, and never has been. He is not “free.” He is constrained by obligations within the world that made him, as we all are. And for an asshole, he’s not a bad guy.

And as far as being polite. I don’t apologize to members of the libertarian cult, or their drinking partners. I suppose i should just attack Tyler Cowen’s idea’s and not him. But these people are his friends and somehow can’t even condemn the ideas, because he is their friend. I’m sure some people feel the same way about Charles Murray.
I have no patience left. And I’ve earned the right to feel contempt.

The two are not mutually exclusive. How do you feel about advertising regulation, for example (as in #111)?

Brett is right that the language of positive liberty is dangerous, since it allows you to claim it is necessary to negate a liberty in order to preserve that liberty.

You are “allowed” to do that anyway and it’s not hard to think of examples.

None of the ‘free speech’ discussion turns on this distinction.

Er, what? I’m not really sure what you mean but I’ll restate the point. You can’t defend a relatively specific First Amendment conception of what “free speech” amounts to, as various people have been doing here* as against the poster’s alternative conception, and when challenged retort that you are standing up for “the principle” of free speech. The disagreement arises partly from the fact that there are differing understandings of what free speech means and the First Amendment is only one of them; and one which I personally do not think exhausts our moral intuitions on the subject, even if as a matter of policy it has pragmatic considerations in its favour.

(* see eg. Seth’s defence above of the impossibility of drawing a principled distinction between political and other forms of speech—based, incidentally, on the misconception that it is “akin” to distinguishing between propositional and non-propositional speech—which is essentially an idiosyncrasy of American First Amendment jurisprudence)

Why do you insist on thinking that history is irrelevant?

Seth, you’ve been acting like a complete dick throughout this discussion. Your last post foists so many silly views onto me which I do not hold that I don’t really know where to begin. I don’t equate “the people with the state”. I believe that history informs the discussion of moral questions. (Incidentally, the first injection of historical facts into this discussion came from Matt on the last thread, who pointed out that pace certain commenters, hate speech laws were introduced in Germany and Austria post-1945 and that this did not lead to the sky falling in and was arguably been effective.) If I say hand-on-heart that even though neither I nor my parents have been anywhere near New York or Berkeley recently I am a Man of Letters, like yourself, am capable of regurgitating chunks of Lionel Trilling and Philip Roth on demand and am reasonably well acquainted with the history of the 20th century and to a certain extent that of the US, would you then please try to stop coming off as such a snob?

Brett is right that the language of positive liberty is dangerous, since it allows you to claim it is necessary to negate a liberty in order to preserve that liberty. I think the meat of the positive liberty argument—the need for some material resources in order to participate in speech communities—is mostly attainable through moderate, predictable, and limited state redistribution of material resources, without limitation of the speech rights of others. Like spectrum or TV advertising time for political parties. Perhaps I’m wrong, but that’s my view.

I linked to an article about the Butler decision. mq brought up McKinnon. I mentioned attacks on Huck Finn. There’s data on all this everywhere. Why do you insist on thinking that history is irrelevant to the discussion of rights and obligations? That’s the question I have for you and the others:

Why do you insist on thinking that history is irrelevant?

I’ll repeat that I think it’s because you’re more interested in preserving your own tidy logic and your own sense of moral seriousness than in dealing with the complexity of a world shared with others. You’ll call that an insult and I’ll say I have history on my side.

Why is International PEN is based in the UK, if there is no First Amendment to defend? What’s the point?
Oh that’s really a great question.

the US First Amendment really ought not to be the touchstone for left/liberal discussions of free speech issues

I have been graced with replies from Sebastian Holsclaw (a conservative) and MQ (a libertarian).

And Sebastian, like it or not, people in the UK—left, right or centre—simply do not discuss the moral issues about free speech with reference to USSC case law and rightly so.

None of the ‘free speech’ discussion turns on this distinction. This is a really the positive-rights/negative-rights discussion and it can apply to absolutely any discussion about ‘rights’.

and

“The Americans have a long tradition of trying to discuss these things using the language of an 18th-century document. Given the difficulties of shoehorning a lot of real-world problems into that frame, that gives them a long history of acrobatic hermeneutics somewhere in the vague area of free speech. Some of it is even relevant. The trouble is that many Americans (at least the ones who comment on blogs!) can’t tell the difference between discussing the free speech and discussing the application of their constitution.”

The more substantive free speech points have been well covered, (and I’m agreeing with abb1, yikes!), but this type of point confused me until I got near the end.

You can’t really throw away the numerous, in-depth, intellectual discussions that can be found in US discussions over the past 100 years by waving the “18th century document” card. I mean of course you can, Chris clearly just did, but it isn’t a particularly good dismissal because there isn’t anything particularly “18th century” about the discussions. It is true that not all countries in the world have a document that says “X shall make no law” and it is true that having a document that says that doesn’t magically make it so. But that has very little to do with it.

If you think that free speech is a very fundamental right, the 1st amendment expression of that right is comprehensible. If you don’t think it is much of human right, of course you don’t like the 1st amendment expression of it. But that has nothing whatsoever to do with 18th century language. You’re making technical objections to the form, when you really object to the content.

The numerous US-based discussions of free speech can in fact be illuminating, (I was going to say ‘despite’) BECAUSE of the background of taking the right fairly seriously.

If your response to the largest number of very deep looks at the practical and philosophical problems and virtues of free speech is “that is just America” because it comes with a background of the 1st amendment, you don’t seem to be taking the intellectual question very seriously.

The key problem with restrictions on speech content is that the people choosing between ‘good’ speech and ‘bad’ are always going to be the people in power. The American response to that is that speech is an important enough right (no matter how you label the rights, be they ‘human rights’ or otherwise) that we sharply circumscribe the legitimate authority of the government when it comes to policing speech.

There isn’t an appeal to an 18th century document in the above paragraph.

But Seth, the point that some people have been trying to make to you is that “free speech” is not “the principle behind” The First Amendment. The principle is roughly freedom from government interference with speech, which is a rather different thing. And if the insults which you have been flinging at people have been in the cause of some alternative “principle of free speech”, it might be helpful if you were to tell us what it is…

Again, see Dan Kervick’s excellent post at 75 for a discussion of how central the freedom of expression is, even just as a preference or desire.

No, there’s really no need to refer us all again to the same post you have already gushed over with sufficient intensity above. Incidentally, did you realise that the original argument was for the possibility of curtailing free speech for the sake of free speech. Arguments about the “centrality” of free speech would seem to be completely irrelevant to that.

Such people also tend to be eager to expand the definition of immorality

This is just ad hominem…

It is an authoritarian view to want to restrict the interest in liberty only to a freedom to pursue interests the arbiters of morality define as “moral”.

This is a straw man…

Ellen Willis’ essay … more or less devastates a lot of the arguments made here.

This is essentially an argument from authority…

The more I read this thread, the more respect I get for the First Amendment and the more central it seems to me.

This is just your opinion…

What have been the effects of similar attempts and what have been their effects as precedent? How have the arguments been expanded over time? Not what “might be” but what “have been” the unintended consequences?

It’s like listening to an economist argue that if the data doesn’t fit the theory then the data is wrong. “It must be!”
And this is how to make policy?

I argued for freedom of speech and the response was a lecture on judicial review, as if I was arguing for the power of judges over the power of the people, or from the first amendment and not the principle behind it! I was arguing against the power of any one over any other. b and b are the self-righteous moralists. They’re willing to assume that the people are the state, and to defend the tyranny of the majority (or is it the tyranny of the “just?”) They’re assuming that eveyone will look to the original intent. And they can’t even acknowledge the irony.
Their rationalism and yours (and brett’s) all have too much in common.

“And THAT is exactly the problem with rejecting non-contradiction. A person may like to think that they’ve got some kind of moral/ethical principles, but if those principles are self-contradictory, they can be manipulated to justify ANYTHING.”

Brett, people who are entirely consistent in their lives and action exist only in fiction. think of Socrates or Christ. You’ve made enough arguments here and at Balkinization based on little more than paranoia and bile that no one has much reason to think of you as rational. And now you argue for the brittlest definition of logic. Believe me you’re not alone.
I’ll use the same question I asked last time this came up:
Are Jews in American culture white or not white [A or Not A]?
The answer of course is that it depends on context.