Title: Those Evil Warbloggers
Stardate: 20021026.1025
Word Count: 2,247
Impetus: Some Brit blogger who’s upset that actual conservatives use the Internet too. And that whole Little Green Footballs vs. Anil Dash MSNBC hate speech thing.
Thesis: If speech is unrestricted, truth will out.
Historical Reference: Justice Holmes’ 1919 dissent, in Abrams v. U.S.: “The best test of truth is the power to get itself accepted in the competition of the market.”
Evaluation: I doubt it. And “the marketplace of ideas” is a lousy reason to defend free speech anyway. If said marketplace failed to disseminate truth effectively — and there can be no denying that certain false ideas, like astrology, have made considerable market headway — would that be a good reason to restrict speech? Holmes’ jurisprudence indicates that he would have answered that question yes. What would Den Beste answer?

Aaron Haspel | Posted October 26, 2002 @ 7:50 PM | General

4 Responses to “Den Beste Digeste”

  1. 1 1. Jim

    Yeah, you have a right to say what you like, as long as it doesn’t mislead others in to harming themselves ("fire" in crowded theater) or indicate that you are going to harm them (threats). Speech is an intrinsic right, not an instrumental, utility-based right.

    Oddly, vague threats are legal, such as "We ought to bomb the Empire State Bldg" or "Someday I’m going to kill you". Brandeis reasoned that there is a chance to talk the person out of it, so…. I’m not so sure. I think such language ought to be illegal. Everybody hates me for thinking this. Might have prevented Oklahoma City bombing or the D.C. sniper. Plus, what do we lose by locking up such people? I foresee no chilling effect on speech. Can you argue me out of this view, Aaron?

  2. 2 2. Aaron Haspel

    Brandeis’ reasoning is more instrumentalism, not even coherent instrumentalism. There’s a chance to talk people out of specific threats too; so what?

    But you dismiss the chilling effect too blithely. Ordinary male banter — one can hear quite specific and colorful threats at any poker table — will be made illegal under the Vague Threats Act of 2002.

    Best case: the Act is ignored, cultivating contempt for the law in general and taking another step toward a government of men, now laws. Dead letter is always merely dormant. Worst case: the Act is enforced. Everyone has to consider whether anyone he is talking to will inform on him should he slip and utter a vague threat. (And not just against his interlocutor either, if I understand you correctly — against anyone.)

    This is why I think the threat must be serious and credible, at a minimum, before it loses its First Amendment protection.

  3. 3 3. Jim

    Yes, serious and credible. But Brandeis said that even then, if it was not immediate there was time to talk the person out of it. The immediate threat, he thought, you couldn’t stop by reasoning with the person.

    Apparently, they got that terrorist cell in Oregon by hearing them make vague threats and watching them until they screwed up. But if most vague threats like the ones they made are empty, I guess you’d discount them as not serious or credible. I guess we just have to live with people getting blown up from time to time.

  4. 4 4. Aaron Haspel

    I should add that I don’t object to surveillance of people who make vague threats, even if the threats themselves pass First Amendment muster. In one of the classic threat cases a man said at a public rally against the draft that "if they ever make me carry a rifle the first man I want to get in my sights is L.B.J." The court, properly in my view, decided that wasn’t a criminal act. But if the police, on the basis of this remark, want to keep a particular watch on the guy, that’s OK with me.

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