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Harvey » Sun Jan 10, 2021 11:55 am wrote:What timorous beasts you are. Enjoy the corporate nirvana, after all, you asked for it.
Three Generations of a Hackneyed Apologia for Censorship Are Enough
SEPTEMBER 19, 2012 BY KEN WHITE
https://www.popehat.com/2012/09/19/thre ... re-enough/
In her Los Angeles Times opinion piece justifying prosecution of the author of the "Innocence of Muslims" video on YouTube, Sarah Chayes opens exactly the way I've come to expect:
In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. "The most stringent protection," he wrote on behalf of a unanimous court, "would not protect a man in falsely shouting fire in a theater and causing a panic."
Holmes' famous quote is the go-to argument by appeal to authority for anyone who wants to suggest that some particular utterance is not protected by the First Amendment. Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the "fire in a crowded theater" quote for two reasons, both bolstered by Holmes' fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying "well, some speech is protected by the First Amendment" is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don't have to rely on a 90-year-old rhetorical flourish to support your argument.
Holmes' quote is the most famous and pervasive lazy cheat in American dialogue about free speech. This post is not about fisking Sarah Chayes; her column deserves it, but I will leave it to another time. This post is about putting the Holmes quote in context, and explaining why it adds nothing to a First Amendment debate.
Holmes' Full-Throated Approval For Suppression of Wartime Dissent
Holmes' famous quote comes in the context of a series of early 1919 Supreme Court decisions in which he endorsed government censorship of wartime dissent — dissent that is now clearly protected by subsequent First Amendment authority.
The three cases in question arose from socialist criticism of conscription during World War One. The criticism at issue, to modern tastes, was a clearly protected and rather mild expression of opinion. Here's what got Socialist Party of America chair Charles Schenck prosecuted and imprisoned under the Espionage Act:
continued, festooned with links, and well worth it
https://www.popehat.com/2012/09/19/thre ... re-enough/
Harvey » 11 Jan 2021 02:55 wrote:What timorous beasts you are. Enjoy the corporate nirvana, after all, you asked for it.
DrEvil » Sun Jan 10, 2021 4:33 pm wrote:It's not censorship, it's Amazon, a private entity, exercising their right to freedom of association. If they don't want to host Nazis openly planning murder and mayhem they don't have to.
Same principle as people getting booted off this forum for posts that break the rules.
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