Thursday, October 02, 2014

Andrew Koppelman defends religious speech as high-value speech, but is happy to learn that an obvious corollary is based on false history.
Here’s a familiar rule of First Amendment law: free speech protection does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. 
...In an important new paper, Genevieve Lakier shows that this story is false.
Genevieve Lakier, "The Invention of Low-Value Speech"
Abstract:
It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern.

This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech — was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently. By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern.
I grew up around legal discussions of the constitution. I never once heard the phrase "low value" speech. It's fucking absurd.

I was born in 1963
Fuck Tushnetagain

the above, reposted and expanded in January

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