Thursday, December 14, 2017

How Much Free Speech


When I studied some political philosophy while majoring in English, my prof, Robert Rowan, was a civil liberties activist, prominent in the B.C. Civil Liberties Union or Association (or whatever it was then called).

He once in debate aired on CBC radio punched the philosophic lights out of Herbert Marcuse. This was the sixties and theories of guys like Marcuse and Norman O Brown got a lot of play.

Rowan was a disciple of Joseph Tussman, of Obligation And The Body Politic, a Kantian in some respects. Tussman himself was a student of Alexander Mekllejohn, who wrote Education Between Two Worlds, the worlds before and after WW 2. It had a big impact on me, as callow as I was.

A big issue we took up, and Tussman was famous on it, was what limitation, if any, should be put on the 1st Am guarantee of free expression. 

It was Tussman’s (and Rowan’s) thesis, historically based as they argued at least, that it should be limited to political speech, or, more precisely, that speech that enures to a politically informed citizenry, that being the very engine of a well functioning liberal democracy. 

Commercial speech, for instance, doesn’t make the protected cut on this conception of the width of protected free speech. 

I’m making a short story long here because I just read an accessible article by Cass Sunstein on the work of a University of Richmond law prof, Judd Campbell. 

Sunstein calls Campbell’s work on the 1st Am extraordinarily illuminating. 

The argument in a nutshell is that the original meaning of the guarantee is quite restricted and relates in big part to what custom and convention deem to be conducive to good order, with some exceptions. So speaking hard against the national interest is seditious and hence not protected and is in fact criminal. 

This conception of restrictable expression is at odds with modern case law on the wide sway given to protected expression and poses interesting challenges for originalists, who to a man and woman tend to be strongly libertarian, as in “State do your minimum functions and otherwise get out of my hair.” 

But enough of me. 

Here’s the guy who really knows what he’s talking about and is a hell of a good writer to boot.

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