Thursday, April 19, 2012

Rough edit. More on Tushnet.
He takes the Supremes far too seriously as intellectuals. How many justices would be remembered by history if not for their appointment to such a powerful position?

He uses three cases which he calls "blocks" that together form the basis the Court's logic and somehow therefore our own.

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, a 1995 decision which considered the question of whether or not a parade is speech, and not whether the state should be obliged to promote bigoted speech at the cost of hundreds of thousands of dollars in overtime pay. Nationalist pageantry is a political statement. Where is the argument?

Cohen v. California, a 1971 decision, that in Tushnet's words "identifies the meanings that the First Amendment covers."
The case’s facts are well known, as is its central rationale. Cohen carried a jacket with the words “Fuck the Draft” written on the back. He was arrested for engaging in offensive conduct. As Justice John Marshall Harlan carefully explained, the case turned on whether the state “can excise... one particular scurrilous epithet from the public discourse.” The state argued that doing so did no damage to anyone’s ability to assert any proposition. On the state’s view, Cohen could continue to assert, and write on his jacket, “Down with the Draft,” or “Abolish the Draft.” But, Justice Harlan replied, those words meant something different from “Fuck the Draft”: “much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force.” Prior to Hurley, perhaps this building block might have been limited to cases in which the noncognitive component was attached to some distinctive cognitive one. But, Hurley’s endorsement of multivocality means that every form of expression has some cognitive content for some viewers or listeners. Cohen is thus available as a general building block.
Tushnet is quick to admit that King's Letter from Birmingham Jail works better than a paraphrase, but still somehow the difference is noncognitive. I don't understand the use of the english language. Cognition- The mental action or process of acquiring knowledge and understanding through thought, experience, and the senses. If a sobbing wretch and a lothario both speak the 3 syllables "I love you" the words will not have the same meaning; Gielgud's Hamlet is not Olivier's, and there is nothing "noncognitive" about it.
This phenomenon applies similarly, but perhaps to a greater extent, with poems, representational art and nonrepresentational art. Absent Cohen, doctrine might need to be structured to deal with the question that we can put as, “Is the loss of meaning from paraphrase or restatement or statement (in the case of nonrepresentational art) small enough to make nonrepresentational art sufficiently similar to expository writing that it should be covered in the same way that such writing is?”
"...nonrepresentational art sufficiently similar to expository writing"  The state in no position to judge what is expository and not.  The state is enjoined explicitly from judging the stories of the Bible as fiction or fact.  Why should religious speech be granted a freedom that secular speech lacks?
Yet, perhaps that is the wrong way to think about the problem of art’s coverage. Cohen might be taken to reject the idea limned by MacLeish that artworks do not mean at all, but rather simply are. For MacLeish, to state what artworks mean is to commit a category-mistake, to apply to artworks concepts suitable for something else but unsuitable for them. If so, saying that artworks are covered by the First Amendment would be something like saying that dish detergent is covered by the First Amendment. Despite the force of MacLeish’s insight, Cohen appears to reject it.

So, Cohen suggests, nonrepresentational art has the noncognitive force associated with words. Indeed, nonrepresentational art’s multivocality might rest on its noncognitive force: representational art, we might think, says something particular; nonrepresentational art “says” many things. “No ideas but in things" [William Carlos Williams] takes on another meaning: Only things convey ideas fully fleshed out, because ideas expressed in words can be polluted by the noncognitive features of their precise mode of expression. Things, in contrast, allow viewers to impute all possible noncognitive meanings to the ideas the things embody—and to choose for themselves which of those meanings makes the most sense for them.
I am more than my ideas, and as a craftsman I'd like the products of my labor to be seen as sharing at least some of the integrity the community affords me as a person. Acknowledging that it may not always be enforceable, I should be able to assume that most people understand the courtesy.
Tushnet reminds me of Bourdieu: he reads the fantasies of poets like a rube.
[I]f Hurley’s emphasis on defining the First Amendment’s coverage with reference to the meanings viewers impute to covered material and Cohen’s emphasis on the noncognitive aspects of covered material explain why the Amendment covers nonrepresentational art, the two cases threaten to undermine the distinction between covered and uncovered material. At the least, if enough people come to understand ticket scalping as a performance of opposition to the regulatory state, ticket scalpers might have a First Amendment defense to the prohibition of their activity. Perhaps more serious, Hurley and Cohen create what might be thought of as a paradox in copyright law. One standard defense of copyright against a First Amendment challenge is that copyright’s built-in limitations narrow its scope to the point where the incentive effects of copyright provide a strong enough reason to justify barring people from speaking (by infringing on others’ copyrights). One of those built-in limitations is that copyright protects the expression of ideas but not the ideas themselves.184 But, given Hurley and Cohen, it might seem that either nothing is copyrightable or everything is. On the one hand, nothing, because ideas and expression—the cognitive and noncognitive aspects of expression—are inseparable: You cannot copyright an expression without copyrighting precisely the idea that it expresses. But, tweak the expression a bit—place an emphasis here rather than there—and you have another idea. Further, Hurley suggests that if enough viewers see complete copying as an expression around which the “infringer” has placed visible or invisible quotation marks, the quoted material expresses a different idea from the original. On the other hand, everything, because “no ideas but in things” implies that every discrete object is simultaneously an idea and an expression of that idea. 
The possibility that explaining why the First Amendment covers nonrepresentational art could create chaos in our understandings of the Amendment is compounded by the Supreme Court’s third and most recent building block.
Gielgud can now safely shout soliloquies in strangers' ears without fear of harassment from the cops. He can also claim authorship, even if he's reciting from a dog-eared copy of Macbeth.

The third case Tushnet refers to is Holder v. Humanitarian Law Project. The government again, as in Cohen tried to separate speech from conduct, but Roberts in his decision, reminds them why they lost that case.
Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their pure political speech. That claim is unfounded because, under the material-support statute, they may say anything they wish on any topic. Section 2339B does not prohibit independent advocacy or membership in the PKK and LTTE. Rather, Congress has prohibited “material support,” which most often does not take the form of speech. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations. On the other hand, the Government errs in arguing that the only thing actually at issue here is conduct, not speech, and that the correct standard of review is intermediate scrutiny, as set out in United States v. O’Brien, 391 U. S. 367, 377. That standard is not used to review a content-based regulation of speech, and §2339B regulates plaintiffs’ speech to the PKK and the LTTE on the basis of its content. Even if the material-support statute generally functions as a regulation of conduct, as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.

...This context is different from that in decisions like Cohen. In that case, the application of the statute turned on the offensiveness of the speech at issue. Observing that “one man’s vulgarity is another’s lyric,” we invalidated Cohen’s conviction in part because we concluded that “governmental officials cannot make principled distinc­ tions in this area.” 403 U. S., at 25. In this litigation, by contrast, Congress and the Executive are uniquely posi­ tioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not.
Tushnet
Taken seriously, that standard would convert many regulations heretofore understood to be content-neutral—general regulations of land use, for example— into content-based regulations when the regulated activity “communicates a message.” Taken together with Hurley and Cohen, Humanitarian Law Project implies that any activity that enough people regard as having some meaning, noncognitive as well as cognitive, must survive the highest level of scrutiny, because Hurley and Cohen tell us that those are the conditions for determining when something communicates a message.
Again and again Tushnet regards stupid or badly reasoned court decisions from the vantage point of a lawyer who has to deal with them, but not as someone cognizant of the broader issues themselves. His professionalism is an argument for amateurism. But amateurism should be knowledgable, or at least observant. The paper, again, is titled Art and the First Amendment
Jenny Holzer’s installations are made up of words in illuminated neon “signs.” Yet, one errs in paying too much attention to the words that flow through the installations. The art lies in the words’ visual impact and, perhaps, in the cognitive disjuncture between the visual appearance and the meaning observers find themselves almost compelled to impute to the words they are seeing.
Holzer's most famous aphorism reads, "Protect me from what I want." My father, in a pique, once defended the Berlin Wall as protecting East Germans from the banality of capitalism. Holzer's words are the best rejoinder, a rueful and mocking condemnation of Modernist political puritanism.

Speech can be regulated. Fraud is punishable, but lying is not. Screaming in the ears of strangers will get you arrested. The argument over when speech is only that will go on, case by case. Situations and assumptions will change and change back; all that is constant is argument.

The argument if there is one between actors and writers, or better between musicians and fans since its been well documented, is over terms. As I wrote years ago, the fight over the morality of downloading is stupid. Downloading is theft, but if the opportunity is ubiquitous then theft will be too, and you will need to change your model. Musicians now -again- make their money touring. It's amusing that academics can be enthusiastic supporters of "remix culture" while being sticklers about plagiarism.

"Fuck the Draft" was an accusation of obscenity: the war was obscene. Leaders were hypocrites. Compared the the war, the words were civil.  Free speech includes the right to be angry, the right to mock, the right to offend as one has been offended, and (again) the right to blaspheme.

The government can not require citizens to wear uniforms; high heels will not be outlawed as a danger to health or morality -now even for men- but walking naked down 5th Ave will get you arrested and zoning regulations will be enforced. The line exists where it's drawn. The more people state their opinions plainly and openly the better.

Law is a blunt instrument. Legal categories are oversimplifications, vulgar by definition. Technocrats [see-1] equate the government of their envisioned just state with the people, but our government and society are distinct. Managers celebrate the moral economy of management and of their own power. Laws are "necessary but not sufficient".  Power corrupts, even by laziness.  Reasoning only with the logic of the political appointees who make up the Supreme Court, the forces of free inquiry begin to atrophy, weakening the defense of free speech.


One more. Tushnet's discussion of City of Dallas v. Stanglin is as annoying as the decision itself. From the decision
We think the activity of these dance-hall patrons - coming together to engage in recreational dancing - is not protected by the First Amendment.
The city authorized and licensed dance halls for teenagers where those older than 18 were not allowed. It did not deny teenagers the right to go elsewhere. The decision was reasonable, the justification above absurd.

Of the two images, one is religious; the other is secular. Are we prepared to fight over this in 2012?

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