Miyazaki hates Otaku.

updated a few time, this time at the top. It's all so fucking stupid.

The Idiot Tushnet, and co., restating his old argument.

The Supreme Court has unanimously held that Jackson Pollock’s paintings, Arnold Schöenberg’s music, and Lewis Carroll’s poem “Jabberwocky” are “unquestionably shielded” by the First Amendment. Nonrepresentational art, instrumental music, and nonsense: all receive constitutional coverage under an amendment protecting “the freedom of speech,” even though none involves what we typically think of as speech—the use of words to convey meaning. 

Jackson Pollock from 1952, 

Jackson Pollock, Blue Poles (Number 11)

Daniel Bell 20 years later. "Behind the chiliasm of modern man, is the megalomania of self-infinitization." 

Atomization, isolation and the illusion of absolute community. The low buzz and hum—the violence and warmth—of neurological overload. 

Lewis Carroll's conservative mathematical fictions.

I've said it all before 

[Weber] imagines an impersonal relation to the world. It’s a common trope of the literature of the period, but the impersonal in art and technocracy, though the product of the same events are very different things....  

By the time anything becomes known as an idea, it’s been around for awhile 

From rationalism to positivism to a world of shit.

---

Two from the NYRB

“There is a big secret about sex,” wrote Leo Bersani in 1987. “Most people don’t like it.” The same might be said of translation, which many readers secretly consider a necessary evil.

Translation is transliteration. It's a necessary evil. Utilitarianism turns practical necessity into the ideal, so its weaknesses are now "secrets". And another name for the file of women getting their model of sexuality from homosexual men. Post-feminism is pre-feminism on crank, and rationalism makes you stupid. Or the other way around. An asshole doesn't have a clitoris.  Call it female circumcision by category error.

In his films for children, Hayao Miyazaki has used the labor-intensive art of animation to study the major problem of adult life.

That was the subhead, but still. No fucking shit.

The director sticks to a deliberately vague line, one that could be applied to the most anodyne Disney venture, that all his films are about “how to live.” Few scholars or critics have done the work to penetrate this author’s statement. “What’s it about?” asked Nigel Andrews of Spirited Away. “Simple answer: Everything.” Ligaya Mishan writes that Miyazaki’s films seem to “thwart the Western mind.”

A world of idiots.

Miyazaki is the benign ruler of his domain. He's a master and treated as one by his employee/servants. He's a filmmaker and an artist. His wife "hasn't forgiven him" he says, for making her stop working as an animator. Nothing about any of this"thwarts the Western mind". There are many things in his work that are foreign to the Western mind, but French art is foreign to the English. You can't translate Rimbaud, Mallarmé, or Lady Murasaki, but there's nothing to translate in a painting—a material thing—or an image; the difference is in the perception by individuals and members of various groups. Japanese people understand Miyazaki in ways Europeans will not, but the thing absent perception is the same. 

Spirited Away is a film about children and the adults who care for them. Miyazaki's closest equivalent in the US is Maruice Sendak. In Europe it's Tove Jansson.

You will never understand the inner workings of another mind; all you have to work with is your perception of their actions, or the record or description of those actions by others, rendered in form. Proust is untranslatable; he could never be an English novelist; the past is another county. Acknowledging these things is the beginning of adulthood and intellectual life. We're ruled by big children in university chairs and editorial offices, and it makes me want to puke. 

---

in re: the "Western mind". A commenter, Zina Hitz, on Leiter's post reporting the death of Harry Frankfurt

When I met him at Princeton I was already trained as a scholar in Greek philosophy. But I had not fully realized that I could use philosophy to think about my life or what t means to be a human being.

Princeton philosophy in the 80's

"My students were all obsessed with sex. Not the idea of sex, or the meaning of sex, but sex!"

Rakesh Bhandari comments about Frankfurt's discussion of 1st and 2nd order desires. Maybe Frankfurt will be remembered for teaching geeks that there's more to life than being geeks, the same transition Derrida played a part in. One of them would be amused. I still think I coined the phrase second-order curiosity, meaning the ironic awareness of an interest, as a way of explaining the problems of analytic philosophy. Autism is the model of first order curiosity: subtext, and other people, are irrelevant. "I'm a liberal"; "I'm a nice guy!" "Some of my best friends..." "I have an extended mind!"

Mathematics can't tell you why you wanted to be a mathematician. "Science can't even justify science." Steven Weinberg, whose philosophy justifies Zionism, as Leiter's does.

Bhandari, in the past, and recently.

---

Two by Tushnet: one pushing his version of the "unitary executive" and another, on free speech and art, again. He belongs with the idiots above.

A few weeks ago, my family went on vacation in Copenhagen, where we ate at several top-of-the-line restaurants. My reaction to the meals? “How incredibly creative of the chef.”

A few weeks ago, my family went to DC, where we met with several top-of-the-line law firms. My reaction to the briefs? “How incredibly creative of the partners.”

Briefs are referred to as well crafted. "Lawyers are tradespeople!"

None of these cases are about speech; they're about the relation of speech to commerce. 

The idiot

A different example, with the same analytic structure, clarifies the problem. Switch from discrimination on the basis of religion to discrimination on the basis of race. Now the chef makes dishes to preserve white culture. An African-American comes to the restaurant, but the chef says, “Sorry, I won’t serve you because my message that these foods are preserving white culture would be diluted if people saw Black people eating at the restaurant.” We might say that the restaurant owner’s choice of a business model is his way of expressing himself: His expressive conduct is his expressive activity.

White Trash Cooking is a cookbook, and anyone can buy it. The KKK can open a restaurant, but it has to serve niggers, gooks, spics, and kikes. Equal access to the market, in a commercial culture: from Wickard vs Filburn to civil rights, the market takes precedence over social and private life. 

After Tushnet's open letter: 

—NBC, Alabama Republicans refuse to draw a second Black congressional district in defiance of Supreme Court.

—National Review[!], Harvard’s Mark Tushnet Wants Joe Biden to Become a Dictator

Tushnet is a famous opponent of judicial review, and now Alabama Republicans and supporters of the independent state legislature theory have heeded his call. On executive supremacy, Posner and Vermuele at least are consistent. And all of this and everything above, with the same paper-thin idea of language, and politics.

updated

I've said it all before. 

Arguments could be made that the original intent of the reconstruction amendments was "unconstitutional", inconsistent with previous understandings, or that the framers wrote amendments in race neutral terms but then while they could promoted discrimination based on race. A brilliant decision, to set their own policies on auto-destruct, only after they'd begun to do their work.

[I]n 1867 Congress passed a law providing relief for “freedmen or destitute colored people in the District of Columbia,” to be distributed under the auspices of the Freedmen’s Bureau. Of particular importance in the late 1860s was the Bureau’s operation of schools for blacks, to the point that black children in the South were often better educated than their white counterparts.

"to the point that black children in the South were often better educated than their white counterparts." How's that for a brilliant way to sow anger and mistrust among the poor white trash? Divide the poor, and conquer. The policy was blatantly unconstitutional, but it was the only call the white liberal elite were capable of making.

Equality before the law is a simple phrase, but not a simple fact.

[Jackson's] argument stood out from those employed by her liberal peers: Justice Elena Kagan focused on real-world effects, tracking the demise of the VRA and grilling Alabama’s solicitor general about whether his theory could create a map with zero majority-minority districts. Justice Sonia Sotomayor pointed out that while the Black belt, a Black-majority region of the state, has been cracked over and over again into multiple districts, predominantly white counties were repeatedly left intact. 

Follow the bouncing ball...

Black Lives Matter sentiment is essentially a militant expression of racial liberalism....Black Lives Matter is a cry for full recognition within the established terms of liberal democratic capitalism.

The 1619 Project is bad history in the model of the New York Times bad history of Zionism. 

I watched Jackson cry listening to Cory Booker kiss her ass; it was like watching two annoying children.

And after writing the above I go to google and find this at the top.

Booker began his remarks by thanking AIPAC president Mort Fridman for his “leadership and his friendship,” telling the crowd that he and Fridman “talk often” and “text message back and forth like teenagers.” 

Again and again. I'm not complaining: "Whichever book you open, you will find precisely the passage you need." 

Liberals who've criticized judicial review are praising Jackson—they're ecstatic—but the pendulum has moved away from elite decision-making to politics from below. 

The woman on the left in the photograph, from 2011, ran for congress this year

Leiter links to Leiter, (my emphasis)

5.  Most discussion of appropriate and inappropriate restrictions on speech on campus are not based on legal requirements, but on ideals of freedom of thought and inquiry that universities are (often uniquely) thought to stand for.  (Recall that even Marcuse, in his critique of "repressive tolerance" for harmful expression, thought universities should be bastions of unbridled expression....)

Absolute fucking bullshit. Academia polices speech in ways the government can't. 

McWhorter and Rauchway and Ronell and Tushnet

Hüppauf is honest

The university belongs, like the church and the military, to the social institutions that are situated at a considerable distance from democracy and adhere to premodern power structures. 

I grew up listening to legal discussions of the First Amendment and freedom of speech, arguments about the principle and the Constitution. Supreme Court justices were acknowledged as political appointees and mostly mediocre minds. And these were debates among lawyers and others involved in cases at the lowest level, who were advocates for people, not ideas. This is how change happens, how principles are preserved, expanded, shaped. The Supreme Court makes government policy; rulings can't define the terms of debate (see the idiot Tushnet, above). The same applies to discussions of foreign policy among those who eschew easy definitions of the foreign. This is what it means to be intellectually serious. Left to its own devices authority serves only itself.

Two articles on judicial review in the UK.

Neal Ascherson reviews Linda Colley

This storm has been brewing for a long time. Take a late 20th-century example: during one of those recurring leak panics, somebody in Whitehall revealed to a journalist that a cabinet minister was lying. In the uproar that followed, a civil servant was challenged to confirm that she owed unconditional loyalty to her minister. But she demurred. ‘At the end of the day, I answer to the little lady at the end of the Mall.’ That reply confirmed that the United Kingdom is still essentially a monarchical structure. Not in terms of direct royal intervention, but as a polity in which power flows from the top down. The idiotic doctrine of parliamentary sovereignty – the late 17th-century transfer of absolutism from kings endowed with divine right to an elected assembly – excludes any firmly entrenched distribution of rights. Popular sovereignty in Britain is a metaphor, not an institution.

Francis FitzGibbon, The Supreme Court Retreats,

Common Sense: Conservative Thinking for a Post-Liberal Age was published in May by the self-styled Common Sense Group of around fifty Conservative MPs. Along with chapters on such themes as ‘What is Wokeism and How Can it be Defeated’, ‘The conservative case for Media Reform’ and ‘A Common Sense Model for Poverty’, are the reflections of two MPs on ‘The Judicial Activists Threatening Our Democracy’. The group has received favourable coverage from the Telegraph and the Express.

Anyone who thinks that British courts have become a hotbed of anti-government ‘judicial activism’ should ponder two judgments given by the UK Supreme Court on 30 July. The cases of Re A and BF (Eritrea) limit the scope of judicial review of administrative decisions at least as much the government’s own proposals in legislation currently before Parliament.

banging my head against the fucking wall.

Tushnet 

Reflecting on the reported advance for Amy Coney Barrett's book: She has a salary of $265,600, a spouse who works for a small law firm, and seven kids, at least some of whom are going to go to college someday. Is it too -- I don't know -- banal to suggest that she might actually need the money?

Tushnet 

The answer is no

The idiot Tushnet 

Yesterday I was contacted by a reporter with PolitiFact, with a question based on this statement by Joe Biden: “The only court packing is going on right now. It’s going on with the Republicans packing the Court now. It’s not constitutional what they're doing.” The question to me was in connection with a “fact check,” and asked, “Is what's happening right now -- the Republican push to install Amy Coney Barrett as the ninth Supreme Court justice -- in any way unconstitutional?” 

I now realize that I should have answered that the question was badly posed as a “fact check” one because treating a claim about the Constitution as implicating a fact – rather than an opinion, or a prediction, or an assessment of whether there are reasonable arguments one way, the other way, or both ways – is just a mistake. But I didn’t, and the result, I think, was a decrease in civic knowledge (if anyone pays attention to PolitiFact).

Here’s my initial response: “As usual with this sort of thing, the answer’s complicated because ‘unconstitutional’ can and does mean many things. (1) If ‘unconstitutional’ means that a court would find what the Republicans are doing to be inconsistent with the Constitution, the answer is no, no court would make such a holding. (2) If ‘unconstitutional’ means that what they are doing is inconsistent with what some people reasonably view as fundamental principles underlying the constitutional order, then yes, what they are doing is unconstitutional. The political uses of the word ‘unconstitutional’ are different from the purely legal uses, but both (or all) kinds of uses are well within the bounds of the way we -- ordinary people, politicians, and lawyers -- talk about the Constitution. I know that this isn’t the way you do things, but I personally wouldn’t award any Pinocchios to the statement.”

I responded to a follow-up question about my second point by identifying as a relevant “fundamental principle” that “the political system should operate over time to ensure that overall all of our institutions are roughly in line with what the American people want.”

PolitiFact’s editors awarded a “False” to the Biden statement. The reason, supported by statements they got from Sai Prakash, Ilya Shapiro, and Robert Levy, appears to be that the word “unconstitutional” can be applied only to practices that are addressed by some express terms in the Constitution, supplemented with the proposition that everything not so addressed is to be determined by politics, understood to include sheer political power but not to include fundamental principles underlying the constitutional order. That reason and proposition are coherent and defensible (though wrong, in my view), but so are alternatives, and the labels “true” and “false” just aren’t apposite. (The formulation of the question to me – “in any way” – ought to have caused the PolitiFact editors to reflect a bit more upon their choice.)

So bored of this shit (a link to the old Balkin, not the new one).

I've said it a dozen times. In the past the ACLU took no position on the Second Amendment. It was the only principled response to questions that could only be resolved politically. 

If the labels "true" and "false", "constitutional" and "unconstitutional", aren't apposite, neither are the labels "sheer political power",  and "fundamental principles".

(The formulation of the question to me – “in any way” – ought to have caused the PolitiFact editors to reflect a bit more upon their choice.)

Shorter Tushnet: "It's their fault I can't explain things simply."

No trial lawyer would make Tushnet's mistake. A smarter politician wouldn't have made Biden's.

Academics don't take politics seriously. They're theologians defending their own ratiocinations as truths. Most law professors forget, if they ever knew, what it means to be a lawyer. They identify with judges. 

The university belongs, like the church and the military, to the social institutions that are situated at a considerable distance from democracy and adhere to premodern power structures. 

Complain all you want about the Senate and the electoral college; the lack of a federal secondary education system is a bigger problem. It's a country of 50 states, and Americans as a collective are the most powerful, uneducated, inarticulate, narcissistic people on the planet.

the political system should operate over time to ensure that overall all of our institutions are roughly in line with what the American people want.

I want to say Tushnet would do more good teaching high school or at a community college, or night school but he'd fuck that up too.

Liberal Fascism etc.

2024: Amazon Smartfridge™ locked for dinner tonight after overhearing banned article discussed in living room that afternoon.

— Murtaza M. Hussain (@MazMHussain) October 14, 2020

see previous et al.

repeats:

Harry Brighouse

-I would say, in fact, that the first amendment tradition has a terribly distorting effect on American public discussions of free speech. 

-I think there is a very strong case that hateful epithets can be distinguished and treated differently from propositional content, and do not merit protection under “the right to speak what one sees as the truth”.

Chris Bertram

The right frame, in my view, is to think of the state as “we, the people” and to ask what conditions need to be in place for the people, and for each citizen, to play their role in effective self-government. Once you look at things like that then various speech restrictions naturally suggest themselves. 

Henry Farrell

I’ve suggested that academic freedom is a good thing on pragmatic grounds, but also made clear that it fundamentally depends on public willingness to delegate some degree of self-governance to the academy. If the public decides that academic freedom isn’t working out in terms of the goods it provides, then too bad for academic freedom. 

Mark Tushnet

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?

Brian Leiter

Much, perhaps most, speech, in fact, has little or no positive value all things considered, so the idea that its free expression is prima facie a good thing should be rejected. And since the only good reasons in favor of a legal regime of generally free expression pertain to the epistemic reliability of regulators of speech, we should focus on how to increase their reliabilty, rather than assume, as so much of popular and even some philosophical discourse does, that unfettered speech has inherent value.

Rick Hasen

The Supreme Court’s libertarian First Amendment doctrine did not cause the democracy problems associated with the rise of cheap [sic] speech, but it may stand in the way of needed reforms.

Tim Wu

-The First Amendment first came to life in the early twentieth century, when the main threat to the nation’s political speech environment was state suppression of dissidents. The jurisprudence of the First Amendment was shaped by that era. It presupposes an information-poor world, and it focuses exclusively on the protection of speakers from government, as if they were rare and delicate butterflies threatened by one terrible monster. 

But today, speakers are more like moths—their supply is apparently endless.... The low costs of speaking have, paradoxically, made it easier to weaponize speech as a tool of speech control. The unfortunate truth is that cheap speech may be used to attack, harass, and silence as much as it is used to illuminate or debate 

-What is more important: freedom
of speech, or freedom from propaganda?

Jeremy Waldron

The Harm in Hate Speech

Genevieve Lakier

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.

Mark Graber

I do not think I have a First Amendment right to post on a public website either “I fantasize about beating the world chess champion” or “I fantasize about murdering the world chess champion.” Doing so may be highly therapeutic, but with apologies to a significant percentage of my family, the Constitution provides no special protection to therapy. The First Amendment protects discourse about public affairs, defined broadly but not capaciously. A very high percentage of what takes place on the internet is not discourse and has little or nothing to do with public affairs.

Ryan Cooper

Free speech, like any public good, requires regulation.

Siva Vaidhyanathan

How free speech overwhelms democracy  

all the above, here, with more of the same.

Sometimes twitter made it easier:

 

On breaking up Facebook and Google, this is the second of two posts, from August and April. It's all pretty obvious. And this too, Since Ryan Cooper is now ranting against SCOTUS and arguing against free speech, on the same day.

As'ad AbuKhalil was thrown off Facebook for a week

I am told that I have been violating “community standards” and I don’t even know what they mean by that, unless by community standards they mean Zionism, which I violate daily in my life. 

The Council of Elders

As I said recently.

Take me back to 2003:
Judicial Review, and the overlapping term, "pendulum"

SCOTUS is a stabilizing force. Leiter calls it a "super-legislature", but it's more than that, if only by degree. If anyone wants to scream about democracy (and Leiter certainly doesn't) then they should complain we don't have referendums on everything. We elect our various representatives for set periods of time. Ending lifetime tenure for justices is a good idea but I'll always argue changes in behavior are more important than changes in rules. Ginsburg's self-absorption was obvious and the hero worship of the Notorious RBG just fed into it.  Liberal narcissism is responsible more than anything else for all this crap.

Someday I'll make the effort to find the passage in Montesquieu where he says strong societies need fewer laws. Rules are not a cure for immaturity.

Nothing above is an argument against a top marginal tax rate at 100%.

Balkin and the idiot Tushnet.

There is considerable agreement between Tushnet's arguments and the arguments I make in my own book on the cycles of constitutional time, which is out next month. That is not surprising. First, both Tushnet and I are working with the ideas of Yale political scientist Steven Skowronek about the cycle of political regimes in the United States. Tushnet has long been interested in regime theories-- his Harvard Foreword in 1999 offered a variation on these themes.

Second, both Tushnet and I think that the Reagan regime that has dominated American politics since the 1980s is on its last legs, and that the country is about to embark on something new. What that new thing is, however, is yet to be determined. That is why the book alternates between describing the constitutional commitments of an extended, Trumpist regime, and the possibility of a new progressive regime.

Third, both Tushnet and I also argue that how people feel about judicial review depends on where they are in the rise and fall of regimes.

NFS means No Fucking Shit.
Take me back to 2003:
Judicial Review, and the overlapping term, "pendulum"

The idiot Tushnet
And Balkin now has a tag. He should have been one of the first.
He's really turned into a putz; negotiating with the right from the passenger's seat, from originalism, to "information fiduciaries." Corporations are people. Monopoly is a fact. Assume a Gilded Age.

Information Fiduciaries and the First Amendment

Abstract 

Collection, analysis, and use of personal data increasingly affect everything we do in the information age, from our personal privacy to our opportunities for jobs, housing, travel, and health care. As algorithms for making decisions based on this data become more powerful, so too will the people and organizations who collect and use the data. Reformers will press for government regulation in the name of protecting personal privacy and preventing abuse and discrimination. In response, businesses that collect, analyze, use, distribute, and sell personal data will likely raise First Amendment defenses. It will only be natural for them to try to prevent what they regard as meddlesome and invasive government regulation by invoking the First Amendment - one of the most central of our constitutional liberties.

The First Amendment in the Second Gilded Age

Free Speech is a Triangle.  No, it's not.

David Pozen. A Skeptical View. The post comes with politesse puffery and a cute cartoon, but at least it lays out the obvious.

Balkin’s theory has been enormously influential. Scholars, advocates, and journalists have hailed it as a solution that can “make Facebook and Google behave” without crushing the tech industry. Mark Zuckerberg has sounded supportive notes. Lawmakers from both parties have expressed increasing interest; the Data Care Act would inscribe Balkin’s scholarship in the U.S. Code. The conventional wisdom, as Frank Pasquale expressed it in a recent essay, [updated link] is that the information-fiduciary proposal is not just a much-needed breakthrough but “hard to challenge.”

This Balkinization contributor dissents. Uneasy about the fiduciary turn that Balkin has inspired, Lina Khan and I have written an essay arguing that the information-fiduciary proposal is flawed—likely beyond repair—on conceptual, legal, and normative grounds. A first draft of our essay is available here.

Zuckerberg is supportive, as if that's a good sign.

Pasquale's essay is titled "Toward a Fourth Law of Robotics: Preserving Attribution, Responsibility, and Explainability in an Algorithmic Society"
Algorithms for management and profit. Technocracy is not democracy. And if democracy itself is a myth, then I don't want the ruling class made of of acolytes of Weber and Bentham, optimists and fantasists.

Dig the Asimov reference. Geeks.
Pasquale has a tag now too.

---

Earlier, in April, on Facebook, Google, monopoly and free speech.

Harry Brighouse

-I would say, in fact, that the first amendment tradition has a terribly distorting effect on American public discussions of free speech. 

-I think there is a very strong case that hateful epithets can be distinguished and treated differently from propositional content, and do not merit protection under “the right to speak what one sees as the truth”.

Chris Bertram

The right frame, in my view, is to think of the state as “we, the people” and to ask what conditions need to be in place for the people, and for each citizen, to play their role in effective self-government. Once you look at things like that then various speech restrictions naturally suggest themselves. 

Henry Farrell

-I’ve suggested that academic freedom is a good thing on pragmatic grounds, but also made clear that it fundamentally depends on public willingness to delegate some degree of self-governance to the academy. If the public decides that academic freedom isn’t working out in terms of the goods it provides, then too bad for academic freedom. 

-But there’s also a much bigger point there, about the kind of space that the Internet has created. Liberalism of the small-l kind goes together with a strong emphasis on free speech. The implicit assumption is that we will all be better off in a world where everyone can say whatever they want, to whoever they want, even if it is inconvenient, or wrong minded, or crazy.

However, this assumption rests on empirical assumptions as well as normative ones. And as speech becomes cheaper, it may be that those assumptions don’t hold in the same way that they used to (see further Zeynep Tufekci, Rick Hasen and Timothy Wu, as well as Molly Roberts’ forthcoming book).

Eric Rauchway

If Kramer’s report is accurate, you can see why the Columbia faculty got frustrated. They wanted Bollinger to offer a traditional defense of academic freedom, which goes something like this: Academic freedom predates free speech. Although Prussia gave constitutional protection to Lehrfreiheit in 1850 (“science and its teaching shall be free”), academic freedom generally does not enjoy legal protection outside of contractual guarantees; rather, it rests on the authority and ability of a community of competent scholars to police their own discourse and on the willingness of universities to affirm this authority and ability....

[Perhaps Bollinger] knows the history and sources of academic freedom, but he thinks it uncongenial to assert them in this anti-elitist day and age.

Mark Tushnet

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?

Brian Leiter

Much, perhaps most, speech, in fact, has little or no positive value all things considered, so the idea that its free expression is prima facie a good thing should be rejected. And since the only good reasons in favor of a legal regime of generally free expression pertain to the epistemic reliability of regulators of speech, we should focus on how to increase their reliabilty, rather than assume, as so much of popular and even some philosophical discourse does, that unfettered speech has inherent value.

Rick Hasen

The Supreme Court’s libertarian First Amendment doctrine did not cause the democracy problems associated with the rise of cheap [sic] speech, but it may stand in the way of needed reforms.

Tim Wu

-The First Amendment first came to life in the early twentieth century, when the main threat to the nation’s political speech environment was state suppression of dissidents. The jurisprudence of the First Amendment was shaped by that era. It presupposes an information-poor world, and it focuses exclusively on the protection of speakers from government, as if they were rare and delicate butterflies threatened by one terrible monster. 

But today, speakers are more like moths—their supply is apparently endless.... The low costs of speaking have, paradoxically, made it easier to weaponize speech as a tool of speech control. The unfortunate truth is that cheap speech may be used to attack, harass, and silence as much as it is used to illuminate or debate 

-What is more important: freedom
of speech, or freedom from propaganda?

Jeremy Waldron

The Harm in Hate Speech

Genevieve Lakier

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.

Mark Graber

I do not think I have a First Amendment right to post on a public website either “I fantasize about beating the world chess champion” or “I fantasize about murdering the world chess champion.” Doing so may be highly therapeutic, but with apologies to a significant percentage of my family, the Constitution provides no special protection to therapy. The First Amendment protects discourse about public affairs, defined broadly but not capaciously. A very high percentage of what takes place on the internet is not discourse and has little or nothing to do with public affairs.

Ryan Cooper

Free speech, like any public good, requires regulation.

Siva Vaidhyanathan

How free speech overwhelms democracy

all the above, here, with more of the same.

See: Tushnet

The distinctions between speech and non-speech, art and non-art, are absurd.
---

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

JUSTICE GINSBURG: --- the question that I started out with, I --- I wanted to clarify that what you're talking about is a custom--made cake. You are not challenging his obligation to sell his ordinary wares, his, as you put it, already--made wares?

MS. WAGGONER: Not at all. And, in fact, Mr. Phillips offered the couple anything in his store, as well as offered to sell additional cakes, custom cakes, that would express other messages.

JUSTICE GINSBURG: Going -­-

JUSTICE KAGAN: Ms. Waggoner -­-

JUSTICE GINSBURG: -- you mentioned -­- you brought up Hurley, but in Hurley, the parade was the event. It was the speech, a parade. At a wedding ceremony, I take it, the speech is of the people who are marrying and perhaps the officiant, but who -- who else speaks at a wedding?

MS. WAGGONER: The artist speaks, Justice Ginsburg. It's as much Mr. Phillips's speech as it would be the couples'. And in Hurley [Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.], the Court found a violation of the compelled speech doctrine.

JUSTICE GINSBURG: Who else then? Who else as an artist? Say the --- the person who does floral arranging, owns a floral shop. Would that person also be speaking at the wedding?

MS. WAGGONER: If the --- if they are custom--designed arrangements and they are being forced to create artistic expression which this Court determines is a message --­

JUSTICE KAGAN: So could -­-

JUSTICE GINSBURG: How about the person who designs the invitation?

MS. WAGGONER: Yes. 

JUSTICE GINSBURG: Invitation to the wedding or the menu for the wedding dinner?

MS. WAGGONER: Certainly, words and symbols would be protected speech, and the question would be whether the objection is to
the message provided or if it's to the person.

JUSTICE KAGAN: So the jeweler?

MS. WAGGONER: It would depend on the context as all free--speech cases depend on. What is the jeweler asked to do?

JUSTICE KAGAN: Hair stylist?

MS. WAGGONER: Absolutely not. There's no expression or protected speech in that kind of context, but what if --­

JUSTICE KAGAN: Why is there no speech in --- in creating a wonderful hairdo?

MS. WAGGONER: Well, it may be artistic, it may be creative, but what the Court asks when they're -­-

JUSTICE KAGAN: The makeup artist?

MS. WAGGONER: No. What the Court would ask --­

JUSTICE KAGAN: It's called an artist. It's the makeup artist.
(Laughter.)

MS. WAGGONER: The makeup artist may, again, be using creativity and artistry, but when this Court is looking at whether speech is involved, it asks the question of is it communicating something, and is it analogous to
other protected -­-

JUSTICE KAGAN: But I'm -­-

MS. WAGGONER: -- forms of speech.

JUSTICE KAGAN: -- I'm quite serious, actually, about this, because, you know, a makeup artist, I think, might feel exactly as your client does, that they're doing something that's of-- of great aesthetic importance to the -- to the wedding and to -- and that there's a lot of skill and artistic vision that goes into making a -- somebody look beautiful. And why -- why wouldn't that person or the hairstylist -- why wouldn't that also count?

MS. WAGGONER: Because it's not speech. And that's the first trigger point -­

JUSTICE KAGAN: Some people may say that about cakes, you know?

MS. WAGGONER: Some -­

JUSTICE KAGAN: But you have a -- you have a view that a cake can be speech because it involves great skill and artistry.
And I guess I'm wondering, if that's the case, you know, how do you draw a line?? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I
think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist??
I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes?? Where does that come in?

MS. WAGGONER: Your Honor, the tailor is not engaged in speech, nor is the chef engaged in speech but, again, this Court -­

JUSTICE KAGAN: Well, why -- well -­ woah. The baker is engaged in speech, but the chef is not engaged in speech?

MS. WAGGONER: The test that this Court has used in the past to determine whether speech is engaged in is to ask if it is communicating something, and if whatever is being communicated, the medium used is similar to other mediums that this Court has protected. Not -­-

CHIEF JUSTICE ROBERTS: Does it depend on -­-

JUSTICE SOTOMAYOR: So that begs the question, when have we ever given protection to a food? The primary purpose of a food of any kind is to be eaten.
Now, some people might love the
aesthetic appeal of a special desert, and look at it for a very long time, but in the end its only purpose is to be eaten.
And the same with many of the things that you've mentioned. A hairdo is to show off the person, not the artist. When people at a wedding look at a wedding cake and they see words, as one of the amici here, the pastry chef said, there was a gentleman who had upset his wife and written some words that said "II'm sorry for what I did,"" something comparable, and the chef was asked, the cake maker was asked, was that affiliated with you?
And she said no. It's affiliated with the person who shows the cake at their wedding. It's what they wish to show.
So how is this your client's expression, and how can we find something whose predominant purpose is virtually always to be eaten? Call it a medium for expressive expression. Mind you, I can see if they've -­ create a cake and put it in a museum as an example of some work of art, that might be different because the circumstances would show
that they want this to be affiliated with themselves.
But explain how that becomes expressive speech, that medium becomes expressive speech.

MS. WAGGONER: Certainly not all cakes would be considered speech, but in the wedding context, Mr. Phillips is painting on a blank canvas. He is creating a painting on that canvas that expresses messages, and including words and symbols in those messages.

-"Certainly not all cakes would be considered speech"

-"You are not challenging his obligation to sell his ordinary wares, his, as you put it, already--made wares?

MS. WAGGONER: Not at all. And, in fact, Mr. Phillips offered the couple anything in his store, as well as offered to sell additional cakes, custom cakes, that would express other messages."

logic is not philosophy. Psychology is not philosophy.

Ruth Marcus would have been livid......if she had lived to see this. Ruth told me years ago that Butler had great difficulty passing the logic requirement in the Yale PhD program in philosophy, and finally, Ruth took pity, and gave her a pass. I had the sense she later regretted that. On Butler, Martha Nussbaum got it right many years ago Critical Theory has been in a downward spiral for a long time now, but that an obscurantist posturing faker like Butler should be deemed its heir...oy veh.

repeats: Nussbaum and Butler
Butler defends principles in action that Nussbaum defends only in theory.

Modernism was the fantasy of writing with the assumption that from then on there would be only reading with and no reading against. To read tale against teller or to read against the grain would be gross error. Rebellion against this has always taken the form of the rebellion of youth against their parents, with the more sympathetic elders caught in the middle, trying to justify the revolt while trying to make it fit with what they know and what they are. So we get the obscurantist poeticizing of Derrida -the philosopher magistrate as wise old fool- and the blandness of Rorty and Nussbaum, struggling to find a way beyond technocracy while being mocked for the attempt by professional technocrats and lionized by amateur enthusiasts. The model of the Continental philosopher was as Pope and Antipope combined, a philosophical self that could contain an other, in a sense obviating the need for actual democracy. And now that Continental and Anglo-American philosophy are joining, out of necessity and the need for survival, we see parallels in Bruno Latour's Collective and David Chalmers' Extended Mind.

Palestinians are the next wave of civil right movement: shopkeepers, housewives and husbands. They’re leading themselves just as, in the past, American blacks, women and homosexuals led themselves. When forced to face real engagement Judith Butler became an articulate and plain spoken defender of Palestinians’ claims to basic civil equality. She defended liberalism when liberals who’ve attacked her refused to. That’s the important fact, not the theoretical gobbledygook that came before. Could it be that gobbledygook was emotionally necessary as a way to defend humanism in an anti-humanist age? Maybe “theory” as poetry kept humanism alive: the poetry of technocracy, fighting against itself. 

I don't know if Marcus was a Zionist, but there are plenty of mathematicians and physicists who are, while at the same time referring to themselves as "liberal". Would Marcus fail them?

see also Jon Elster
Leiter: The Case Against Free Speech
What's the "epistemic value" of Jabberwocky? Google the page for Tushnet.

Leiter again, and Knobe again

The fact that people are held responsible for thoughtlessness that results in a bad outcome while not given credit for thoughtlessness that results in a good one -an "asymmetry in responses"- is common knowledge. Here it's somehow a new and surprising thing, named for its "discoverer". Knobe may want to make a distinction between intention and responsibility but the author of the passage doesn't give it much thought, slipping from one to the other just as I assume the "folk" Knobe interviewed did. It's as if Knobe were surprised to see a woman on the street wearing a bikini while he doesn't notice that the road is running by a beach. Taking a break from his life in the library stacks -and not the stacks in the law library where he'd find discussion of why "ignorance of the law is no excuse"- he thinks he's discovered something new.

And Greene, again. From Leiter's link

For example, Greene conducted experiments showing that people react more negatively to the idea of pushing someone to their death in order to save five lives (a variant of the Trolley problem) than hitting a switch to drop someone through a trapdoor. 

“You can’t know this by introspection, you have to do an experiment."

Question: Why is an executioner called an executioner if he's only following orders?

Tushnet: "Mathematicians" and the Law

A fair number of the mathematicians say that in the course of their work they have made more than a few mistakes -- pursued lines of analysis that didn't pan out, thought they had proved something when they hadn't, and the like. (The thought here is clearly stronger than the one Andrew Wiles articulates in connection with his proof of Fermat's Last Theorem, which in its initial version had a mistake that forced Wiles to do quite a bit more work before he eliminated the error.) 

That led me to wonder whether academic law really has a category of "mistakes." One test that occurred to me was this: What's your estimate of the number of papers presented at workshops that are never published, just put back in the drawer, because the author[s] concluded that the paper was just wrong? My own estimate is "not many at all" (I don't exempt myself from this -- I do have a handful of papers in my "drawer" that I'm never going to publish because they didn't work out, but not many).

A new tag. Kurt Gödel meet David Addington
---

Robert Reich

The other night I phoned a former Republican member of Congress with whom I’d worked in the 1990s on various pieces of legislation. I consider him a friend. I wanted his take on the Republican candidates because I felt I needed a reality check. Was I becoming excessively crotchety and partisan, or are these people really as weird as they seem? We got right into it:

Me: “So what do really you think of these candidates?”

Him: “You want my unvarnished opinion?”

Me: "Please. That’s why I called.”

Him: “They’re all nuts.”

Me: “Seriously. What do you really think of them?”

Him: “I just told you. They’re bonkers. Bizarre. They’re like a Star Wars bar room.”

Me: “How did it happen? How did your party manage to come up with this collection?”

Him: “We didn’t. They came up with themselves. There’s no party any more. It’s chaos. Anybody can just decide they want to be the Republican nominee, and make a run for it. Carson? Trump? They’re in the lead and they’re both out of their f*cking minds.”

Me: “That’s not reassuring.”

Him: “It’s a disaster. I’m telling you, if either of them is elected, this country is going to hell. The rest of them aren’t much better. I mean, Carly Fiorina? Really? Rubio? Please. Ted Cruz? Oh my god. And the people we thought had it sewn up, who are halfway sane – Bush and Christie – they’re sounding almost as batty as the rest.”

Me: “Who’s to blame for this mess?”

Him: “Roger Ailes, David and Charles Koch, Rupert Murdoch, Rush Limbaugh. I could go on. They’ve poisoned the American mind and destroyed the Republican Party.

Me: "Nice talking with you.”

Him: “Sleep well.”

repeats: Tony Judt

But this is not at all the conclusion Robert Reich would have us reach. In his version of our present dilemmas no one is to blame. “As citizens, we may feel that inequality on this scale cannot possibly be good for a democracy.... But the super-rich are not at fault.” “Have top executives become greedier?” No. “Have corporate boards grown less responsible?” No. “Are investors more docile?” “There’s no evidence to support any of these theories.” Corporations aren’t behaving very socially responsibly, as Reich documents. But that isn’t their job. We shouldn’t expect investors or consumers or companies to serve the common good. They are just seeking the best deal. Economics isn’t about ethics. As the British Prime Minister Harold Macmillan once observed, “If people want morality, let them get it from their archbishops.” 

In Reich’s account, there are no “malefactors of great wealth.” Indeed, he contemptuously dismisses any explanation that rests on human choice or will or class interest or even economic ideas. All such explanations, in his words, “collapse in the face of the facts.” The changes recorded in his book apparently just “happened,” in a subjectless illustration of the creative destruction inherent in the capitalist dynamic: Schumpeter-lite, as it were. If anything, Reich is a technological determinist. New “technologies have empowered consumers and investors to get better and better deals.” These deals have “sucked...social values... out of the system.... The story of what transpired has no heroes or villains.”

repeats: some evidence for Reich.
The link to Reich's blog via Leiter, whose "hermeneutics of suspicion" consistently puts him above it.

"cultural democracy"

Jack Balkin reinvents the wheel

I've posted a draft of my latest article, Cultural Democracy and the First Amendment, on SSRN. This essay is part of a symposium on the First Amendment that will appear in the Northwestern Law Review. It further develops the theory of cultural democracy that I introduced in my 2004 essay Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society. 

Here is the abstract: 

The First Amendment is designed to secure cultural democracy as well as political democracy. A central purpose of freedom of expression is to guarantee the right of individuals and groups to participate in culture and influence each other. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The abstract for "Digital Speech and Democratic Culture"

This essay argues that digital technologies alter the social conditions of speech and therefore should change the focus of free speech theory from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning - making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual's ability to participate in the production and distribution of culture. The essay argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet.

From the paper

...A serious difficulty with the progressivist/republican model has always been that a wide variety of activities, of which art and social commentary are only the most salient examples, have always fit poorly into a democratic theory of free expression. Lots of speech is not overtly political. Nevertheless, it gets protected under the progressivist/republican model because it is useful for political discussion, because it may become enmeshed in political controversies (and thus threatened or suppressed for political reasons), or because it is very hard to draw lines separating what is political from what is not.[61] In like fashion, lots of activities cannot easily be classified as deliberation—like singing, shouting, protesting, gossiping, making fun of people, or just annoying them or getting them angry. Nevertheless, these activities are protected because we can think of them as raw materials for further democratic deliberation or because we cannot easily draw lines separating them from the social practice of deliberation.[62] In both cases, then, we have kinds of speech that are at the periphery rather than the core; we protect them in aid of something more central and precious. In short, the progressivist vision sees democratic deliberation about public issues at the core of constitutional concern and other subjects and other forms of expression as peripheral or supplementary. ...

61. Meiklejohn himself argued that works of art were protected speech because they promoted knowledge, sharpened intelligence, and developed sensitivity to human values, thus helping people to make political decisions. Meiklejohn, First Amendment, supra note 48, at 255–57. Other scholars have recognized that not all artistic expression equally promotes democratic self-government. See, e.g., SUNSTEIN, supra note 49, at 153–59 (1993) (suggesting that nonpolitical art should be relegated to lower tier of First Amendment protection). And of course Robert Bork, who also had a democracy-based theory of the First Amendment, famously argued that art should receive no First Amendment protection if it was not political speech. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 26–28 (1971).  

62. Cf. Owen M. Fiss, The Unruly Character of Politics, 29 MCGEORGE L. REV. 1, 2–7 (1997) (noting limitations of Meiklejohnian metaphor of town meeting as applied to confrontational politics).

My parents were doing PhDs in American lit at Berkeley when they met and became friends with Meiklejohn and Ann Fagan Ginger, and all of them marched with Harry Bridges.  My parents met doing their MAs in Minnesota where they studied with John Berryman and became friends with Jerome Liebling, though my father may have known him from Brooklyn College, where my father went and where his friends studied with Mark Rothko and they all hung out at the Cedar Tavern. I think my father fucked Grace Hartigan. And Ann Ginger's sister died with Maxwell Bodenheim.

My parents spent 30 years in the thick of politics, from the desegregation of the Berkeley public schools my brother and sister attended, to teach-ins in Philadelphia (through friends in Ann Arbor, who like my father had gone from Brooklyn to Berkeley), to housing draft dodgers and aiding and abetting the theft of the COINTELPRO files, my mother's 20 years on staff at the ACLU of Philadelphia, and my father's on the state board.  I've quoted my mother before and I'll I'm sure I'll do it again: "Rawls isn't interested in people; he's interested in ideas!" Her contempt was absolute. My parents' library was called the best private library in the city of Philadelphia. The Philadelphia lawyers who volunteered their time at the ACLU said my mother could pass the bar easily.  She read Hume and Jane Austen; my father read Henry James and Thomas Pynchon. My sister is named for Anne Halley. Her widowed husband phoned our mother on her deathbed. "Old lovers come to call" she said, before adding hurriedly: "it was not adultery!"

Balkin who has spent his life in the law library, thinks he's created a new "concept". Deleuze says that's what philosophers do.  He's wrong.  The bureaucratic, technocratic, academy is not a model of democratic culture, the culture of self-government, and it's done more to weaken it than support it. Balkin is better than most. Sunstein has always been an ass.

And again: on Koppelman and Graber and Tushnet [update: and Leiter, above, since he'd slipped my mind. I can't remember eveything]

"Democracies have freedom of speech not because governments grant it but because the government is not granted the power to take it away."

The Gettysburg address does not refer to government "of the elite, by the elite" and then tack on, "for the people". Leadership is an ambiguous thing, and Lincoln was a politician not a college professor, least of all a professor of political theory.

Philosophers are comfortable dividing speech into the "propositional" and the merely "expressive"; readers of what's called literary fiction are not nearly so sanguine. And literature like politics is craft.

Dance is abstract art. One image below depicts religious activity, the other secular. Both images and activities are protected by the US fucking constitution. Anyone who says otherwise, no matter what their title, is a fucking idiot.

Corey Robin is not always a putz. The law is the law, even if it's made by fools. But laws made by fools should not make you into one yourself. The relations of conscience and democracy are such that one can have both an obligation to the law, and to the need to change it.

repeat from October, with additions, and a new tag for Charlie Hebdo, for reasons that will become clear.
---
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 Tushnet, again
---

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.

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 Tushnet, again

the above, reposted and expanded in January
---

addendum. dashes included.

Leiter

NewApps drives out another old-timer but, in the process, continues to be a source...

...of unintentional amusement. (You have to wade into the comments--and read the "response" by Ed Kazarian of Rowan University--to get the full flavor of this bizarre display.) (It is a testament to the abysmally low level of the discourse at NewApps that Jon Cogburn (not exactly my favorite blogger there) comes off looking like the paragon of rational virtue--he even got a shout-out from the wild Meta blog, Apparently, this latest incident has led Cogburn to quit NewApps too!)

A couple of posts down the page: "Another scalp for the Israel thought police".  And a few before that, "The Case Against Free Speech".  Earlier agreement with Tushnet on the need for hate speech laws. So absurdly conflicted.

Cogburn's post is a discussion of "ableism". It's not very interesting.  There are a few posts on his own blog. The first ends with this

We want our kids to be as able as possible, but also love them infinitely just the way they are. This is a difficult normative space to be in, and I can't pretend to have anything philosophically helpful to say with respect to it.

When formal logic fails Cogburn he falls back on formal faith. He's a Presbyterian. "I pray to God that she grants me the grace to start being an agent of her grace." When formal logic fails Leiter he contradicts himself.

I'll do this again because it's the simplest way

There’s a difference between caring for someone, in the sense of emotional attachment, and being attentive to them, to their wishes or their pain. Pain itself is lonely and expressions of sympathy are often theater used to hide incomprehension and fear.
I’m watching the old watch their friend die. They have become professionals at this. They are honest actors: the most aware both of the distances between people, and the similarity of their experience.

"Moral responsibility is hard to describe because it’s hard."

New tag: Freedom of Speech and Academic Freedom

Zionists: transforming "antisemitism" from something horrible into something honorable since 1948. #Gaza #FreePalestine
— Steven Salaita (@stevesalaita) July 20, 2014

"academic freedom" and "hate speech", my page, and the latter at Leiter's.

Leiter writes a review in the NDPR, "The Harm of Hate Speech"

Jeremy Waldron makes a spirited, if somewhat meandering, case for the legal regulation of "hate speech," one that American scholars in particular would do well to consider. Such regulation is unconstitutional content-based regulation of speech in the U.S., but is common in most other Western democracies. Is there a good reason for the U.S. to be the outlier here? As Waldron notes in passing, in the U.S. "the philosophical arguments about hate speech are knee-jerk, impulsive, and thoughtless", which is at least partly due to confusion about what is at stake. Waldron observes that "hatred is relevant not as the motivation of certain actions, but as a possible effect of certain forms of speech", and thus the real issue is "the predicament of vulnerable people who are subject to hatred directed at their race, ethnicity, or religion"

...Of course, most people are just regurgitators of pablum, vectors of ideological and commercial forces at work in the broader culture, so what they "disclose" is only, in their eyes, a mark of their individuality.

Also my page, on Tushnet

It says something about the decline of this country that a specialist in Middle East Studies writing about Kuwait gives a better defense of free speech than a professor of American constitutional law does writing about The U.S. 

 And of course, Brighouse, against free speech

I would say, in fact, that the first amendment tradition has a terribly distorting effect on American public discussions of free speech.  

...I think there is a very strong case that hateful epithets can be distinguished and treated differently from propositional content, and do not merit protection under “the right to speak what one sees as the truth”.

and Bertram the same

The right frame, in my view, is to think of the state as “we, the people” and to ask what conditions need to be in place for the people, and for each citizen, to play their role in effective self-government. Once you look at things like that then various speech restrictions naturally suggest themselves.

For more by both the above go here (and follow the instructions for sources)

On Salaita, Leiter links approvingly, to this

Wise argues, “What we cannot and will not tolerate at the University of Illinois are personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.” Of course, this standard is ridiculous: individuals should be free to say personal and “disrespectful” things about others (for example, everyone should be free to say that Wise’s argument here is both stupid and evil, without facing punishment from the respect police). Respect is not a fundamental value of any university, and being “disrespectful” is not an academic crime. But it’s notable that Salaita really didn’t say anything personal about anyone. So here Wise greatly expands the concept, declaring that not only persons but “viewpoints themselves” must be protected from any disrespectful words. I am puzzled as to exactly how a free university could possibly operate when no one is allowed to be disrespectful toward any viewpoint. Presumably, Wise will quickly act to fire anyone who has ever disrespected or demeaned Nazism, terrorism, racism, sexism, and homophobia. Since all “viewpoints” are protected, then biology professors must be fired for disrespecting creationism as false, along with any other professor who is found to believe or know anything.

My comments

“Respect is not a fundamental value of any university, and being “disrespectful” is not an academic crime.” 

Salaita: “Zionists: transforming ‘anti-Semitism’ from something horrible into something honorable since 1948.” 

The post has been linked by a respected academic who agrees with it while also (unmentioned in his link) being a supporter of “hate speech” laws. I won’t offer an opinion on whether or not the quote from Salaita can be classified as hate speech, but I don’t have to because I oppose the laws made to regulate whatever it is. 

The author of this post tries to separate the formal and structural (the integrity of academia etc) from the normative. Not gonna happen. 

The pale of the academic normative is broader than the pale of the common normative, but they shift in tandem. You should leave discussion of academic “freedom” to libertarians and focus on tenure as due process and academic independence—best defined as “once past the post, you’re in”—as better for society than its opposite. Salaita was let in and he followed the rules. Wise hasn’t.

The academy isn't removed from politics; tenure and academic freedom grant those allowed to teach a distance from its consequences. Larry Summers is allowed to say whatever he wants about the intelligence of women. J. Phillip Rushton and Arthur Jensen never lost a job as a result of their opinions on race and IQ. Even John Yoo has a job. Colin McGinn and Peter Ludlow got in trouble for the opposite of yelling "fire" in a crowded building—whispering "pussy" in a private room—but as exceptions to the rule they're of a kind.

Salaita's tweet in context, here.  It takes away somewhat from my use of it as illustration, but since we've gone down the slippery slope from "hate speech" to "trigger words", it still works. As with hate, the trigger is in the mind of the beholder, and if the beholder is prejudged as "victim" and as needing protection, then who or what is the protector? This is where liberal concern becomes a defense of Holly Golightly and Hollies go lightly, the opposite of liberalism.

Arendt, "Zionism Reconsidered"

Not less dangerous and quite in accord with this general trend was the sole new piece of historical philosophy which the Zionists contributed out of their own new experiences; "A nation is a group of people ... held together by a common enemy" (Herzl)-an absurd doctrine containing only this bit of truth: that many Zionists had, indeed, been convinced they were Jews by the enemies of the Jewish people. Thereupon these Zionists concluded that without antisemitism the Jewish people would not have survived in the countries of the Diaspora; and hence they were opposed to any attempt to liquidate antisemitism on a large scale. On the contrary, they declared that our foes, the antisemites, "will be our most reliable friends, the antisemitic countries our allies" (Herzl). The result could only be, of course, an utter confusion in which nobody could distinguish between friend and foe, in which the foe became the friend and the friend the hidden, and therefore all the more dangerous, enemy.

The paradox of needing hate and hate speech to define yourself; the paradox of fascism. The photograph below is a fascist image, and a partial model of the Zionist self-image.

flickr

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"The pale of the academic normative is broader than the pale of the common normative, but they shift in tandem." Maybe I need to add another circle.