Thursday, January 08, 2004
Eugene Volokh has an NRO article arguing that there is no historical golden age* of the first amendment. He contrasts pre-incorporation doctrine first amendment with state free speech clauses.
My point is that he underestimates the text of those state clauses, which are more absolutist than the first amendment. Those state clauses have too often been interpreted as conferring no rights, and being subject to the police power, but that isn't a textual problem.
The first amendment protects the freedom of speech, while the state clauses protect speech.
Update: the above was based on what he had blogged about feedback to his article. Volokh writes so much and so well that i'd forgotten i'd read the article already.
Minor quibbles:
Do people have a constitutional right to send death threats to the president, or publicly threaten other forms of terrorism?
Yes, yes they do. First mior quibble, "other" does not fit here; threatening the commander in chief is not terrorism, which by definition targets non-combatants.
One may need to review Fraiser's the golden bough (the one volume set is fine, not the 13 volume set) to understand that killing the king is a time honored tradition. Regicide is not murder; it is justifiable pest control. Sic semper tyrannus. (this is a general point of theory, and is not directed at any particular rex.)
Death threats, even if they aren't accompanied by any actual violence, aren't a valuable contribution to public debate, and are potentially very harmful. So we could ban those works of shakespeare which contain death threats? How about, give me liberty or give me death, is that a death threat? "Nobody move or the duck gets it." -obscure ducktales reference.
Again, minor quibble to fine article.
Likewise, restricting campaign contributions is not literally "abridging the freedom of speech." People are still free to speak. The law only limits their ability to give money to officeholders, candidates, and groups that are closely connected to them — just as federal rules have long limited people's ability to give gifts to officeholders, for fear that such gifts might be implicit bribes.
There's some word-play here. In the name of campaign finance reform, laws like BCRA do directly limit speech, criminalizing some statements.
E.g. "Robbin Stewart for Township board - Vote Tuesday." See Stewart v Taylor.
I think it is those restrictions on speech which conservatives are objecting to, as well as the restrictions on expressive spending.
I didn't actually find anything in the article about state speech clauses.
My point is that he underestimates the text of those state clauses, which are more absolutist than the first amendment. Those state clauses have too often been interpreted as conferring no rights, and being subject to the police power, but that isn't a textual problem.
The first amendment protects the freedom of speech, while the state clauses protect speech.
Update: the above was based on what he had blogged about feedback to his article. Volokh writes so much and so well that i'd forgotten i'd read the article already.
Minor quibbles:
Do people have a constitutional right to send death threats to the president, or publicly threaten other forms of terrorism?
Yes, yes they do. First mior quibble, "other" does not fit here; threatening the commander in chief is not terrorism, which by definition targets non-combatants.
One may need to review Fraiser's the golden bough (the one volume set is fine, not the 13 volume set) to understand that killing the king is a time honored tradition. Regicide is not murder; it is justifiable pest control. Sic semper tyrannus. (this is a general point of theory, and is not directed at any particular rex.)
Death threats, even if they aren't accompanied by any actual violence, aren't a valuable contribution to public debate, and are potentially very harmful. So we could ban those works of shakespeare which contain death threats? How about, give me liberty or give me death, is that a death threat? "Nobody move or the duck gets it." -obscure ducktales reference.
Again, minor quibble to fine article.
Likewise, restricting campaign contributions is not literally "abridging the freedom of speech." People are still free to speak. The law only limits their ability to give money to officeholders, candidates, and groups that are closely connected to them — just as federal rules have long limited people's ability to give gifts to officeholders, for fear that such gifts might be implicit bribes.
There's some word-play here. In the name of campaign finance reform, laws like BCRA do directly limit speech, criminalizing some statements.
E.g. "Robbin Stewart for Township board - Vote Tuesday." See Stewart v Taylor.
I think it is those restrictions on speech which conservatives are objecting to, as well as the restrictions on expressive spending.
I didn't actually find anything in the article about state speech clauses.
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