Monday, January 26, 2015

repeat from October, with additions, and a new tag for Charlie Hebdo, for reasons that will become clear.
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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
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1/15 Koppelman  continues to defend religious speech as high-value speech.
The American legal tradition of giving religion special treatment is justified, I have argued, because when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. Micah Schwartzman argues, in response, that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. I respond here to Schwartzman’s critique.
Schwartzman
The idea that religion warrants special treatment has been criticized as violating norms of equality and fairness. In response, Andrew Koppelman has argued recently that the American legal tradition of treating religion as a “good thing” is justified on the grounds that when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. In this essay, I argue that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. The case for adopting religion as a proxy turns on arguments against potential substitutes. Even if no category can serve as a complete substitute for religion, however, its use as a proxy can be complemented by protections for the freedom of conscience. The law need not choose between protecting religious and secular convictions. It can and should provide significant protections for both.
There's no line dividing religious from secular belief and neither Koppelman nor Schwartzman try to draw one, taking its existence on faith. Dualism is transubstantiation. The Bible is a book, just like Macbeth and The Story of O. "We hold these truths to be self-evident..."

The delusions of liberalism and the "enlightened" liberal state, the model of which is France.

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