Posted May 15, 2020. To settle a pandemic-related financial crisis at UMass Dartmouth, law faculty are not receiving research compensation in summer 2020. I will be away from my desk, May 16 to August 15. Blog posts will be sparse, and I will not receive email. On the upside, summer 🌞! If you need to reach me, please send a message through the faculty assistants’ office (Ms. Cain and Ms. Rittenhouse). Stay thirsty.

Thursday, October 24, 2019

Everyone's talking First Amendment

So this one was the vision of what happens if things don't go the way [philosopher Richard] Rorty wants. And in his view, Bill Clinton and what we would now call the neo liberal left was ignoring workers' needs and was not paying attention to the things that give rise to populism and only the right was paying attention to those needs.
[Rorty] said, 'at that point, something will crack. The non-suburban electorate will decide that the system has failed and start looking around for a strong man to vote for. Someone willing to assure them that, once he is elected, the smug bureaucrats, tricky lawyers, overpaid bond salesmen and postmodernist professors will no longer be calling the shots.
'One thing that is very likely to happen is that the gains made in the past 40 years by black and brown Americans and by homosexuals will be wiped out. Jocular contempt for women will come back into fashion. All the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet.'
The New Yorker's Andrew Marantz on WNYC's On the Media, Oct. 11, 2019,
quoting the speculative fiction of philosopher Richard Rorty in 1997


The Conservator Society of the Providence Public Library, The Providence Journal, and The Public's Radio will host a forum on "First Amendment Frontiers" tonight at the Providence, Rhode Island, Public Library.  Panelists are Lee V. Gaines, education reporter for Illinois Public Media; Justin Hansford, executive director of the Thurgood Marshall Civil Rights Center at Howard University; Lata Nott, executive director of the First Amendment Center of the Freedom Forum Institute; and Alan Rosenberg, executive editor of The Providence Journal.  Ian Donnis, political reporter for The Public’s Radio, will moderate.

The First Amendment has been much in the news lately, in our strange times.  Two items from my listen-and-read list.  First, Brooke Gladstone for WNYC's On the Media hosted a discussion, "Sticks and Stones," with New Yorker staff writer Andrew Marantz, author of Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation.



In part one of three, Marantz challenges First Amendment absolutism.  That's not a big reach, but lays out the context for his discussion.  In part two, Marantz reviews the mostly 20th-century history of First Amendment doctrine.  It's familiar territory until he hits Citizens United (about 12 minutes into the 17 of part two, or 29 minutes into the 50-minute whole), when things heat up with the help of UC Berkeley Professor John Powell, Susan Benesch of the Dangerous Speech Project, and The Case Against Free Speech author P.E. Moskowitz.  The third part digs into the speculative fiction of philosopher Richard Rorty, which generated the quote atop this post.

The thrust of Marantz's thesis on OTM was that John Stuart Mill's concept of one's liberty ending at the tip of another's nose has been taken too literally for its physicality.  As Powell put it, psychological harm manifests physically, and physical harm manifests psychologically, so the division between the two is artificial and nonsensical.  Words cause harm, the logic goes, so we must rethink our free speech doctrine with regard to problems such as hate speech.

Moreover, Marantz explained that the First Amendment must be reinterpreted relative to the Reconstruction amendments, which call for a re-balancing between the individual rights of the Bill of Rights, such as free speech, and the rights incorporated y the Reconstruction amendments, such as equal protection.  At the same time, and to my relief, both Benesch and Moskowitz expressed reservations about abandoning doctrines such as Brandenburg imminent incitement.  Moskowitz observed that the latitude to regulate hate speech has been perverted by European governments to censorial aims.

Second, the SMU Law Review published a centennial anniversary symposium issue on the Schenck and Abrams "clear and present danger" cases.  These are the articles:

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