The First Amendment had a pretty good week.
In Matal v. Tam the United States Supreme Court unanimously held that a federal law prohibiting "disparaging" trademarks violated the First Amendment. Though the eight voting justices broke into two groups of four taking slightly different paths, their language was equally blunt. From Justice Alito:
The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.
And from Justice Kennedy, reaching the same result:
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
Four of the eight justices endorsed this sound rebuke of the "hate speech is not free speech" trope:
Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).
But the Supreme Court wasn't done. How committed is it to the First Amendment? So committed that it will uphold the rights of a convicted criminal — at least so long as the right in question is the right to free speech. In Packingham v. North Carolina the court unanimously held that North Carolina violated the First Amendment by prohibiting convicted sex offenders from visiting a wide variety of common websites. Though the judges used slightly different rationales to reach that result, they concurred that the state had not offered sufficient reasons to meet the applicable level of scrutiny. This — the Supreme Court rejecting a state's rationale to do things to a convict — is not a common occurrence.
But it wasn't just a good week. It's been a very good millennium for the First Amendment.
The modern Court has repeatedly and forcefully rejected attempts to narrow free speech based on new social norms or theories. In the crucial Stevens v. United States — dealing with a federal law prohibiting distribution of depictions of cruelty to animals like "crush videos" — the Court rejected 8 to 1 the notion that the government could create new ad-hoc exceptions to the First Amendment by "balancing" public interests against free speech rights. In Snyder v. Phelps, dealing with the despicable funeral protests of Westboro Baptist Church, the Court rejected 8-1 the proposition that ugly commentary can be punished through the ruse of "intentional infliction of emotional distress." In Reed v. Town of Gilbert, the Court unanimously rejected (through slightly different approaches) the argument that the government can ban entire subjects so long as it treats all viewpoints about that subject even-handedly — here, by rejecting a local law that prohibited political signs. Citizens United v. FEC is the odd man out with the bitterly divided 5-4 decision, but still came down strongly in favor of speech.
In short, the First Amendment is enjoying extremely strong support from the Supreme Court — arguably stronger and more consistent than any other constitutional right, and arguably as strong as the Court has ever been in favor of free speech. It's a golden age.
So why are so many people so pessimistic?
On the cultural side, we're mostly hearing stories of woe about free speech. Folks — and here I explicitly include myself — are emphasizing stories about intolerance, heckler's vetoes, censorship, and academic hostility to different viewpoints. Discussion of free speech is dominated not by recognition of how strongly modern courts protect it, but with stories of freakish intolerance at Evergreen State College and violent heckler's vetoes at Berkeley.
Why? Well, "everything sucks and we're doomed" is more interesting to write than "everything is swell." Portraying the academy as a hotbed of imbecilic progressive intolerance serves political ends. Pointing to young people acting like asses is viscerally satisfactory to old farts like me.
But there's substance, too. However clearly the Supreme Court recognizes free speech rights, they're no good if the government refuses to acknowledge them, as universities have effectively done by refusing to protect unpopular views from violence or hecker's vetoes. Justice Kennedy isn't there to tell Dakota McScreamyface to stop hitting me with a bike lock if I engage in crimespeak. As Judge Learned Hand said in his "Spirit of Liberty" speech more than 70 years ago:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.
The Supreme Court is upholding the black letter of liberty, but are Americans upholding its spirit? When college students, encouraged by professors and administrators, believe that they have a right to be free of offense, no. When Americans hunger to "open up" libel laws or jail flag burners, no. When our attitude towards the hecker's veto becomes "let's do it to them because they did it to us," no. Not only is speech practically impaired, but in the long term the cultural norms necessary to sustain good Supreme Court precedent are eroded.
We should all keep talking about threats to free speech. But the discussion should be seasoned with recognition of how strongly its legal underpinnings are right now.
Last 5 posts by Ken White
- How the Southern Poverty Law Center Enraged Nominal Conservatives Into Betraying Free Speech Values - June 29th, 2017
- Shock, Dismay In Academia At Scorpion Acting Like Scorpion - June 28th, 2017
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
Justice Kennedy isn't there to tell Dakota McScreamyface to stop hitting me with a bike lock if I engage in crimespeak.
Pretty sure there are already laws against that.
Did you actually read the prior sentence?
The thing that worries me is that both major sides of the US culture war are coming to a broad agreement that… actually I would go so far as to say that they agree diversity in general is a bad thing, but more specifically, both sides are beginning to broadly agree that controversial views are intolerable.
In other words, no matter where they think they fall on the political spectrum, young people are starting to agree that some views are so extreme, so intolerable, that allowing them to be expressed at all creates an "unsafe" environment, so people must be forced not to express them in public.
Recently, in Portland, OR, there was a rally for "Trump and Free Speech" which, as you'd imagine, attracted several counter-protests. One thing that seemed notable to me is that large swaths of everybody there, whether they were on the "left" or "right", agreed on something. And what they agreed on was this:
If somebody says something that makes you angry enough, it is morally okay to hit them.
As much as the rally was for "Free Speech" and the organizer called for non-violence, I know at least two of the featured attendees are people who became famous memes after videos surfaced of them brawling with protesters. One of them just flat out sucker punched someone who was yelling at him.
It actually only hit me just now how effed up it is to invite people who are famous for attacking others or fantasizing about attacking others because of their speech to your "Free Speech" rally.
Anyway, the left protesters here in Portland are no better; not long after the Richard Spencer video some douche sucker punched a guy with a Trump sign, and one of my friends lamented… that the police protected the Trump sign guy, when they don't protect left-wingers.
Again, these people see themselves as opposites, but they've agreed on the basic premise: If somebody says something that makes you angry enough, it is morally okay to hit them.
Is there a verb missing after "are"? This sentence feels incomplete.
Christopher,
I will readily admit that my POV is limited. That said, what I saw through the general election was a series of claims that Trump supporters were committing acts of racism and violence, most of which seemed to turn out to be hoaxes perpetrated by the Usual Leftwing suspects. I'll admit I didn't even try to follow up on all of them.
Starting pretty much immediately after the election was called, I started to see Progressive/Left assertions that violence against "fascists" was laudable. And in the new year, I started seeing examples of Rightwing or Libertarian spokespersons being assaulted.
Not unpredictably, this has inspired elements of the Thug Right to puff and blow about how much they are looking forward to 'fighting back'.
There have also been incidents of Trump supporters who, when attacked, did their level best to beat the stuffing out of their attackers.
I'm not ok with proactive violence, no matter what side is advocating it. I AM ok with anyone who, when attacked PHYSICALLY, fights back. I am also more than good with the idea of arresting idiots who come to protests and throw things, play with fire in an unsafe manner, commit acts of vandalism, or hit pretty much anyone with pretty much anything.
Thus far (and I'm afraid this is going to change) what I'm seeing comes mostly from an element of the Left that I choose to call the Hobby Protesters. I am just tired enough of these pests that a part of me wants to see them try their "smash fascism" nonsense on some genuine fascist thugs. I wish their dentists a lot of reconstructive work. But it ain't gonna be a good thing, when all's said.
My wife's and my free speech rights are being greatly violated right now. No attorney will take the case because they are afraid of the institutions doing the violating of the First Amendment, so as far as I'm concerned free speech protections in the courts are of little use, no matter how much it is protected in the courts once the victim gets to court.
I can "go pro se" because I'm pretty good at it, but my wife is not an attorney and neither am I so she is at a great disadvantage without the help of an attorney.
I even have to give a fake name, which I have never done before, so there won't be more retaliation.
I actually laughed out loud at this sentence.
Ken,
Do you think there is a route cause driving Dakota McScreamyface to act in this manner? I can imagine that young Dakota has never really had someone challenge them so they react, in a way that they've seen elsewhere in others. But aren't some of the Dakotas of the world reacting as a way to express their feelings of 'impotence', whether real or perceived?
I'm honestly torn whether I think this is just symptom of 'spoiled kids' or if there are a confluence of factors that are making it seem worse at this juncture in time.
@Douglas Bailey
Delete the "ly" from "strongly".
@Tim
To give them as much credit as reasonably possible, I'd suggest that they firmly believe that in their perfect world, everyone respects everyone else, no one insults someone else because of the color of their skin, etc. I don't happen to really disagree with that desire, btw. But, they lack the experience with large human organizations to understand that you can't just force that on a population without descending down a rathole.
Jeff
You had me, Ken, until Citizens United. Money ain't speech. And, no, it ain't symbolic speech, either. It wasn't in Buckley, and it wasn't in CU. It took 58 years to overturn Plessy and I still hope in my heart of hearts the same happens to Buckley, not just CU.
It wouldn't be humanity if the old people didn't complain about the young people. Que the quote from Socrates complaining about the young. What were' experiencing right now with the polarization of politics and the violence around it is a phase, not unlike the phase that occurred during the Vietnam war and the anti-war protests that frequently turned violent.
I'm not worried about college kids because their views will mature as they age. If we relied on 19 year olds to write and enf0rce laws the country would be violently anti-freedom of every kind. But as these kids age, get families, kids and careers their views will mature and they like all the generations before them will embrace the freedom that makes this country what it is. At 19 they've barely left the nest and begun to experience real interaction, most have not even looked into politics in their lives. They live in self reinforcing communities with like minded similarly aged idiots and that dramatically colors their views.
This semi-violent phase of the cultural war will eventually pass like all the phases before, hopefully before the boomers begin to die off. And in the meantime the 19 year olds will have aged to 30, started families and careers and their views will mature.
It was good to see the trademark decision, especially that it was an 8-1 verdict. It was always silly that the government could refuse to give a trademark because of some nebulous definition of disparaging. Now if we could only get the court to stop siding with the government in 4th and 5th amendment cases.
If the Supreme Court recognizes a right, but the local police where it's being fought over refuse to defend it or let victims defend it themselves, then that "right" doesn't really exist. Isn't there a legal maxim that every wrong is supposed to have a remedy?
Today's government is as ineffective — in the things it SHOULD be doing — as the one in 1787. I only hope we can replace it with one that works with as little violence as our ancestors did then.
And I'm not only talking about the right to free speech in places like Berkeley, but also the rights of people in places like Evergreen State College to color-blind treatment.
In the tradition of every "best of" list having some jerk in the comments section saying "You forgot one!", you forgot Brown v EMA.
Regarding Citizens United; if a group of people band together to espouse a position, how is denying them the right to do so NOT a violation of their First Amendment rights?
That is what the case is about. They wanted to air a film about Hillary Clinton. Maybe it was lies and slander. If so, she had a right to sue them AFTER THEY HAD THEIR SAY. Nobody had the right to keep them from airing the thing if they could find a way to do so.
The "Money isn't speech" narrative spouted by the Left (and some others) is swill. Indeed, from where I stand, ALL restraints on campaign funding BY U.S. citizens are violations of the first amendment.
But I'm a Crank.
If money isn't speech, what is the distinction between a corporation spending money on political speech and a newspaper editorial board endorsing a political candidate, or an "indie" (or even these days a regular) newspaper? Both are corporations, with the explicit goal of making money. Both are spending that money to advance a political cause or individual. So why is one perfectly ok while the other is not? Is it simply because the one corporation pretends to be serving the public interest by publishing news? If so, now we have to get into the hairy discussion of what makes a journalist.
I think that 200 years ago the distinction between "speech" and "expression" existed; protecting "speech" but not specifically protecting "expression". I accept that speech can be codified in printed words; but that's just printed speech. Burning a flag is not speech; it is or can be expressive. The problem I see with that approach is that pretty much anything can be cast as "expressive" and if it has the same protection as "speech" well then society has a problem as with that guy in Oregon masturbating in public and calling it free speech.
I can see a terrorist flying an airplane into a building as an "expression" of contempt for the United States. It is likely that most terrorist attacks are political expressions.
I have a great idea for a law. The New York Times may publish whatever it likes, but is limited to spending no more than $2500 per year on all of its publishing activities.
This will obviously be entirely consistent with the First Amendment because money ain't speech, yo.
SocraticGadfly says "Money ain't speech."
Agreed; speech is speech. The Supreme Court's argument was that people's First Amendment rights do not disappear just because they band together to do something. What each individually can do they collectively can do. These rights can be delegated; without which there is also no police power. Police are utilizing your own rights to self defense which you delegate to the police. Otherwise it would be one human assaulting another in a never ending chain of who-started-it.
So in the case of Citizens United, people freely associated (First Amendment) to "speak" (First Amendment). Publishing speech on a large scale is expensive so of course there's money handed from person to person; but in Georgia the past few days 55 million dollars was spent to "speak", apparently most of it Democratic. Were you planning on complaining about that?
I wholly agree with this post. That's why I sometimes worry a bit with the flat "Hate speech isn't free speech is stupid, since the Supreme Court disagrees" comments from lawyers. It's completely understandable why practicing lawyers would focus on that, as that's what matters in Court, and it's good to know what the law is. Sometimes those comments end up just sounding like mockery, though, and don't really explain to the earnest but misguided folks why creating a new hate speech exception would be bad. They're left thinking, "OK, this isn't the law now, but why shouldn't it be? I want to change the world to get rid of bad policies, and isn't your objection just reactionary conservatism, no different from when people mocked the idea of gay marriage" or similar.
But maybe that's not always a job for practicing lawyers to explain, but for law professors and others who need not worry about what the law is so much as what they think it should be.
My wife was born in Thailand, so she easily understands thanks to that nation's policies how the people in power will always be the ones deciding what one can and cannot say. Others, however, simultaneously think that they are an embattled, powerless minority, and yet that restricting speech on a case-by-case basis will somehow be used in the service of the powerless instead of the powerful.
We just got through a Presidential campaign where the guy with far less campaign contributions and spending (but lots of coverage, due to celebrity) won the Republican primary, and then won the Presidency, again being outspent both with campaign money and outside money. I think he's terrible, and I also think it goes to show the kind of candidates who might win with campaign finance restriction. I'm confused as to why that would make people on the left think that the worst thing with politics today is the lack of Citizens United.
I do personally know several people on the populist right who are thrilled with Trump, enthusiastically voted for him because they believe he was so wealthy as not to need campaign donations, support campaign finance reform, and hate the Citizens United decision, which they feel helped prevent them from getting the Trump-like candidates that they wanted, instead getting Bushes who were, among other things, too pro-immigration. They're consistent in that way.
That really makes me swell with patriotic mucus.
Years ago, Ken said that the "Money is Speech" argument was best saved for a different ranty post. I've waited a long time for this post.
Maybe if we argue about Money being Speech long enough down here, I'll realize my dream.
Those of you complaining about Citizens United would do well to read Citizens United. It basically says, publishing a book is clearly covered by freedom of speech and the press, the law forbids publishing the book before an election, therefore the law is overbroad and unconstitutional. An election is no excuse to restrict protected speech.
The "money is speech" mantra misses all the subtleties.
The Citizens United decision doesn't bar Congress from replacing the unconstitutional law with a narrower one, they just haven't done so.
During the whole nazipunch debacle, I was surprised and a bit bothered by the number of people who believed that if people like Richard Spencer were allowed to speak, new Nazi movements would take root and begin to actively harm people.
I find myself wondering why that's a fear. Are we becoming so afraid of each other that we can't trust each other around a shitty opinion? Do we regard our fellow Americans not as respectable human beings but as dangerous, prejudiced imbeciles who need only the right kind of coaxing to start a pogrom? When we look at somebody that voted differently than us, do we see a patriot who cares enough about our country to want to have a say in its future — or do we see a "racist bigoted redneck"/"pearl-clutching sjw snowflake" acting on blind hatred and indoctrination?
What is happening to us?
@cyril
another way of putting it is "I disagree with what you say, but will fight for your right to say it"
Yes, the Right has violated this in the past, but who is better, the person who did something wrong and then changed their position to the right one when it affected them? or the person who claimed to want the right thing when they were weak and it helped them, but changed to oppose it when they got power?
It may be that the Right will again oppose free speech in the future, but if you always assume the worst in people, you never have any progress or cooperation.
@John Thacker
We have no idea how much the Russians spent, so it is hard to calculate.
I'm glad to see SCOTUS clearly defending the right to engage in what some call hate speech, but I'm not at all clear on how failure to issue a trademark is in any manner a violation of 1st amendment guarantees. Not receiving government protection for claimed intellectual property doesn't seem to me to constitute an infringement of the right to freedom of expression. Can you connect the dots?
@Trent: I'm not as confident as you about the maturation of today's youth for one simple reason – Social networks.
While in theory social networks are a tool that could help expose us to ever greater varieties of viewpoints, what they actually do is funnel us towards viewpoints their recommendation algorithms think we'll like because our happiness and contentment are more profitable to them than our intellectual growth.
And therefore people have constructed around them a virtual echo-chamber that most are not even aware of. This is what accounts for flat-earth truthers and vaccination refusal. Ideas that would never survive in the harsh light of the marketplace can flourish in facebook-supported greenhouses.
These college students will continue to grow in a bubble. maybe they'll break out of it at some point, but I'm not at all confident that enough of them will.
"Patriotic Mucus" is a great name for a Christian Shock Rock band.
The unstated problem with any campaign finance legislation is that it always creates new and unaccountable structures for influencing elections. If people could freely give money to candidates their candidates could control their message. If people could freely give money to political parties the parties could influence who they put forward as their representative. By restricting how people can spend money on elections you ultimately create unaccountable blocks attempting to influence elections Pretty much every campaign finance law has created structures to avoid it those structures in my opinion are worse than the original problem.
The Right has changed its position on free speech? I'm pretty sure it's the same as it's always been: generally in favor of it, but always willing to shut speech down when it's to their advantage. Much the same as the Left.
somebody "What is happening to us?"
The internet.
Fast spreading viral memes. A hundred million Americans learn in minutes that the governor of Virginia declared 93 million Americans lost every day to guns.
Huffpo preaches its carefully selected news story; and if that is your only feed, you get a heavily slanted view of the world — one that supports your world view which is why you went there.
Or Drudge Report.
It's like cellular division when the chromosomes pull apart into two camps so the cell can divide.
Ritual purification. It is the new religion of Millenials.
David Lang wrote "who is better, the person who did something wrong and then changed their position to the right one when it affected them?"</i?
The better one is he who actually knows what is the "right position".
Being right requires a Standard, an Authority, of right and wrong. A God. For some people that god is emergent; herring swimming in a circle, readers of DailyKOS ridiculing anyone drifting from an already-drifting moral code.
jaxkayaker "Not receiving government protection for claimed intellectual property doesn’t seem to me to constitute an infringement of the right to freedom of expression. Can you connect the dots?"
Yes, but it is tortured. Many people believe government must also provide a platform for that free speech. If it protects YOUR speech (commercial message; branding) it must protect MINE.
The pendulum swings quite a bit; sometimes narrowly interpreting "speech" and sometimes so broad you can drive a battleship through it. The Boy Scouts of America was very narrowly granted a right to its own speech and right of association, two important rights in the First Amendment.
But the *direction* of drift seems to be predictable toward less traditional morality. When the drift is in that direction the barn doors are wide open.
Czernobog writes: "facebook-supported greenhouses."
Exactly. I not only have nothing to do with it but I black-hole facebook (c:\windows\system32\drivers\etc\hosts 127.0.0.1 http://www.facebook.com) Not even the little facebook icons on nearly every page in existence show up on my computer. It also means facebook isn't tracking me.
My children have all suffered anguish because of facebook; it has become their god, their friend, their enemy, their advisor, their counselor.
Strange, I didn't type the "http" part, the software editor put that in automatically after I posted. That doesn't go in etc/hosts. I've noticed sometimes that this editor software changes my words thinking I meant something else.
I've just had my two daughters go through college and have gotten zero reports of SJW abusive tactics being used. To be clear I deplore the actions going on in some places but everyone should keep in mind that it is (still) pretty rare and these are exceptional events. There are 20M students in the US university system and 99.9% of them could care less about actively prohibiting speech.
The insular world of the grievance majors needs some behavioral modifications. The problem seems to be the appeasement of these activists by the administrations for fear of being labelled intolerant and racist (the scarlet letter of the left). This feedback system has created some real FrankenActivists that are simply going to push harder and harder until someone starts pushing back. The media enablers who love to amplify conflict are less than helpful.
The counter protest groups exist mainly because the university system has ironically and cowardly refused to enforce equal rights for all sides. So who is going to do the pushing back? I actually find Middlebury's response to be completely satisfactory because they put out a serious effort to allow speech to occur, and punished the bad behavior (although one can argue it was a slap on the wrist).
Students are many times young and misguided, so exploring the boundaries of behavior is expected and perfectly fine by me, but when the adults join in on the insanity then there is a problem. It is clear that if these people were allowed to make the rules all white men who didn't bow before the alter of grievance politics would currently be in Guantanamo for thought crimes.
Here is a fine recent example of rationalizing the oppression of speech. These type of articles are always written by lifelong academics.
The case for restricting hate speech
http://www.latimes.com/opinion/op-ed/la-oe-nielsen-free-speech-hate-20170621-story.html
You don't have an article about Murray suing John Oliver? Surely, that must be ripe for some humor?
@somebody I want to respond to something you said:
"I find myself wondering why that's a fear. Are we becoming so afraid of each other that we can't trust each other around a shitty opinion? Do we regard our fellow Americans not as respectable human beings but as dangerous, prejudiced imbeciles who need only the right kind of coaxing to start a pogrom?"
As a leftist I think this is partly a response to the shock of Trump winning the election. Prior to that election most liberals and moderate leftists did trust the American people to oppose openly racist and sexist politicians. The election has forced us to reevaluate that belief.
In light of that, the difference between Mr. Trump and Mr. Spencer is more a matter of degree rather than a matter of kind. If the American people will vote for a man who says that Mexicans are rapists, why won't they support a pogrom against "Mexicans"?
It's like the author of that op-ed read Ken's piece on false tropes and said "I can do all those!"
On the other hand, she almost made a valid point, wholesale restrictions on panhandling are, IMO, unconscionable violations of the 1st Amendment. (I know a few towns that restrict following or harassing people who have clearly said no, which I'm OK with.)
>> Justice Kennedy isn't there to tell Dakota McScreamyface to stop hitting me with a bike lock if I engage in crimespeak.
> Pretty sure there are already laws against that.
Laws don't make bike locks hurt any less.
Money is not "speech." But it is a means for mass dissemination of speech, aka "the press," also protected by the First Amendment.
The first part sounds great, of course, and the second part is a soberingly accurate indictment of our society. As much as my free speech is protected legally, I will unfortunately need to continue to live in fear of revealing my views in person.
In practice, I am surrounded by individuals who loudly proclaim that people who believe what I believe should be beaten, locked away or murdered – to the approving sidelong glances of my peers and even my employers. Because while our culture professes tolerance, people gladhand presumption about anyone who dares to think differently.
Ah wouldn't be a thread on free speech without someone claiming "immoral" speech shouldn't be protected. The only problem being of course who gets to define what "immoral" is.
@Tom Scharf:
I agree with the sentiment that I think you're trying to express: That the suppression of free speech isn't the ubiquitous problem in academia that [insert whichever political group is shouting loudest about being the most marginalized at a given moment] likes to claim it is, nor is there a pervasive conspiracy complicit in perpetrating that suppression of free speech. The people actually pushing to create safe zones, etc. are actually a small, but vocal, minority.
However, your statement is also true in another way: 99.9% of university students don't care enough to perpetrate suppression themselves, but they also don't care enough to speak up against censorship until the day it's directed at them, personally. They're the good cops who believe they're good cops because they turned the camera away before the beating started and therefore didn't know the beating took place. We can take solace in the fact that they're not so completely complicit in the bad things happening, but we should also be gravely concerned that they're so willing to ignore those bad things.
Besides the Heckler' s Veto there is also the Corporate Veto: where you can get fired or forced to resign for expressing views that are unacceptable: mainly right wing and/or nationalist views, even when not on company time. No one ever got fired for expressing leftist views.
@Robert What
Guess you never heard of Kathy Griffin.
What the everloving fuck are you talking about? I mean, let's just start with the thousands of people who got fired/blacklisted during the McCarthy era, and then work our way forward.
TheZorker "Maybe if we argue about Money being Speech long enough down here, I’ll realize my dream."
Well then let's kick it off!
I suggest it depends a lot on other political and economic theories, particularly the labor theory of money; that money is a representation of labor.
To the extent that what you DO can be treated as "speech" (if politically motivated), then money you earn doing politics is speech, but so is the reverse, money you SPEND doing politics is also speech!
Guy writes "Guess you never heard of Kathy Griffin."
But even if he had; what does that have to do with leftist views? Perhaps a revisit to what is a "leftist view" is in order.
Robert What? "No one ever got fired for expressing leftist views."
The workplace can become unpleasant and hostile if you express leftist views in a red state or libertarian views in a blue state. I have no information to decide which is more likely; in my opinion leftists tend to have a more stringent requirement for ideological purity.
There is no rightwing equivalent of Karl Marx so far as I know. No grand definer of the right. I have a doubt there's actually such a thing as the right wing; my operating theory is that there is only one wing; one "attractor" (see Lorenz Attractor). Everything else is just everything else, might clump together in little clumps.
I was taking a sociology class in northern Virginia when I discovered just how minority is either libertarian or right wing; not sure what I am since I seem to be a little more complicated than all that.
Anyway, the professor asked, "Why would anyone want to carry a concealed weapon?"
I had written in my notebook: "Keep your mouth shut!" but I wasn't really paying attention. The question sounded sincere, off the book, a genuine puzzlement. Now here I am a Navy veteran in a class of mostly younger people. Anyway, I spoke sort of automatically, and said, "Criminals already carry concealed; it seems to me that equality demands that a few citizens also carry concealed to level the playing field."
The result was astonishing. Every student in the class started shouting at me, even other military members whose employment was to carry guns and shoot the enemy. The nearest students leaped to their feet, the farther students climbed on top of their desks to see over the people nearest me. I felt like I was at the bottom of a bowl of angry human faces.
I had carefully chosen "equality" and "level playing field" expecting the professor, a black woman PhD, to empathize and comprehend the importance of these concepts. The discussion went on a few other examples and it was clear that the left wing cannot even have a rational discussion of an irrational topic. Once their feelbads have been triggered, that's it, there will be no rational discussion, it isn't even a matter of choice. They are triggered, an entire classroom of them, and this was before "triggered" was a word in common use.
What I have come to believe is that leftists project themselves into situations as if they were personally involved in "X" situation. But they sometimes project into the wrong or non-optimum side. He imagines himself as the criminal on a subway train and me as the vigilante going to shoot him, a thing he does not want. He does not cast himself AS the vigilante protecting citizens FROM criminals.
Another example I gave to the class: "You live alone, upstairs. At oh-dark-thirty you hear footsteps slowly creeping up the stairs. You can equip yourself with (1) nothing, (2) a baseball bat, (3) a gun. What is your choice?"
Amazingly, not one student made a choice even of a hypothetical situation. One said, "It might be your kids!" and I reminded her that the scenario is "living alone". Obviously if you have children the situation is much different, you MUST identify who it is first. But I lived alone and so did most of the students.
Again, what happened is the student projected herself as the person creeping up the stairs, NOT the person in bed waiting for doom, even though the scenario was to consider that you are the person in the bed. The left wingers choose the *victim* role in these scenarios, but instead of seeing the person in the bed as the potential victim, cast themselves as the *criminal* about to meet an armed man in bed.
WHY they do that I have no idea; but that they do, I have plenty of experience and likely so do you. Where do your sympathies lie? With whom do you identify; the homeowner or the burglar? How many times would you have been shot had your pranks gone bad?
I haven't had a chance yet to read the ruling in Matal v. Tam, but it sounds like the excerpts don't support the holding. Wasn't the holding that if the government is going to issue licenses to suppress commercial speech, it must equally permit the suppression of commercial speech that is offensive?
For example, "Speech may not be banned on the ground that it expresses ideas that offend." Great. How does that relate to a holding that permitted speech to be made punishable?
And "A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society." Great again, but how does that relate to a holding that permitted trademark law to be direct to suppress speech found offensive?
Am I wrong in thinking that a trademark is, in essence, a license from the government to make some (largely commercial) speech punishable? Doesn't this holding make it easier to use the government to punish people who, for example, use offensive speech to disparage "The Slants"?
What speech is permitted by this holding? The Slants can say the same thing with or without this holding.
Ayn Rand, and since when is Karl Marx the "grand definer" of the left?
(Your analysis tends to be that of someone who knows only what people who believe what you do actually know. You don't understand your opponents; you only understand what your side knows about your opponents. Those are not anywhere near the same thing.)
By the way, I got an "A" in sociology, probably for making the class interesting. Sociology is as goofy a class as you're ever likely to see but it is useful having some of those talking points; such as there is no such thing as "crime" in sociology. It's only a different behavior choice and cannot be "better" or "worse" than any other choice.
Total suggests "Ayn Rand"
A libertarian reference person, not right wing. Right wing is poorly defined. Libertarian is better defined with the irony being that any libertarian is as authoritative as the next as to what the word means. There can be no authority of the meaning of libertarian, but she's as close to it as anyone is likely to get.
A religious authority would probably qualify as a right wing authority, but hardly universal.
"and since when is Karl Marx the grand definer of the left?"
1800's. I suppose anyone could look it up. He's the popularizer of the modern left; you'll see his writings at pretty much any People's Climate March at several booths. he was preceeded of course and Plato comes to mind.
He in turn took inspiration from the French, the Jacobites if I remember right but I'm stretching those memory cells a bit.
Interestingly, your emailed comment included only the Ayn Rand comment, not the parenthetical that you added.
You are correct of course with one exception; I don't have a "side". But you are correct that I cannot actually understand other sides; if I could, I would probably BE other sides.
But in what way do you differ? This has been my point made several times already; no side can fully understand any other side. It is worth *trying* but the ultimate goal is impossible.
An emotive person cannot grasp what it feels like to be autistic, completely removed from interactive human emotion. Conversely, that person has no idea, nor can there be inserted, understanding of human emotion and interpersonal relationships.
At best I understand that such things exist, and over a long period of time adapt as much as is reasonably possible to become functional in areas of my weakness, without of course giving up my intellectual strength.
I found the movie "The Accountant" a wonderful description of the phenomenon. I'm nowhere near in that league, but i have always been an intellectual and socially less connected. I see no value in Twitter or Facebook.
If one looked it up, one would discover that there's a lot of other folks who define the modern left who have nothing to do with Marx.
Wait, you mean you understand the complexity of the side you're on, but have no sense of anything but a monolithic vision of the side you oppose? That's unpossible!
Of course you do; you just like to play the disinterested savant. Strangely, the savantness all echoes the standard right-wing talking points with some handwaving historical gloss.
Yes, I know that you can't. If it makes you feel better to imagine the latter, go ahead. It's pathetic, but go ahead.
Wow, Total, you have a gift for psychologically projecting the worst onto others, discerning their hidden motives from online comments, and pounding people into narrow political categories.
Ever think of becoming a prosecutor?
Just being accurate, big guy. Label it however you want.
@Robert What?
No one ever got fired for expressing leftist views.
Too young to have ever heard of McCarthyism?
On a non-R/L axis, it wouldn't surprise me to see someone get fired for supporting ISIS. Much less using their money to "speak" in favor of ISIS.
Once again Ken very enjoyable article & yes, I loved "Justice Kennedy isn't there to tell Dakota McScreamyface to stop hitting me with a bike lock if I engage in crimespeak" too. Made me snarf Diet Pepsi onto the screen. "But I don't WANNA be hit w/a bike lock!" "Well you should've thought of that before you espoused a contrary view! I'll give you something to cry about!" Maybe it's the revenge of Young Whippersnappers who got sick of being told to Get Off the Lawn…
My best friend once told me, "Never read the comments… NEVER READ THE COMMENTS." I have to say the comments on Popehat, even when they degenerate to people being dicks, are more entertaining than some others. So there's that…
Replace "strongly" with "bigly" and it all makes sense.
Nice try, Michael, and as I noted, the problem goes back to Buckley. And, in plain English, that's what SCOTUS said then, too: "money = speech."
@somebody
As someone who has gradually moved away from the left and out of the leftist blogosphere over the past decade, I can attest that this view is quite prevalent there. While rarely spelled-out, it is almost always operative during their political discussions.
It centers around the Bigot, an archetype of the left. This Bigot is legion; he (it almost always manifests as a "he") is everywhere, and influences almost every aspect of society (because he is also, of course, white). He is immune to reason and nuance; only the dream of a perfectly homogeneous society inspires him. He is the primary impediment to all things Progressive. What's more, he is on a continuum with all other versions of himself throughout history, including Nazis. So, the thinking goes, all it takes to get pogroms is to "normalize" a certain level of bigotry. With that, the Bigot will take the opportunity to do what he has always wanted to do—that is, be the Bigot-iest Bigot he can possibly be. It is thus imperative to slide the Overton Window as far away from bigotry as possible, sometimes forcefully so, because it is perpetually slipping in favor of the Bigot.
Needless to say, this kind of thinking is historically and sociologically illiterate, not to mention pathological when taken to extremes ("systemic racism is everywhere!"). It is also unprincipled. Leftists care not a whit about motivated hatreds that operate beyond their little archetype. They are morally satisfied to oppose him, and him alone.
@Guy who looks things up,
"Have you never heard of Kathy Griffin?"
Ok, I'll give you that. Extremely rare though.
@Total,
"What the everloving fuck are you talking about? I mean, let's just start with the thousands of people who got fired/blacklisted during the McCarthy era, and then work our way forward."
The fact that you have to go back that far just proves my point. Now it is reversed: you lose your livelihood for not being a Leftist.
And as an aside, turns out McCarthy was right about the communist infiltration.
@Michael 2
You are correct: the Right is definitely well behind the curve on political activism. The Right is more in favor of limited government so they tend to not run to the government to take their side, as the Left does. But now with the rise of the Alt-Right and the utter failure of conservatism, you may see the Right slowly catch up to the Left in activism.
Oh pish — I was starting with McCarthy, but I easily could have invoked the semi-hysteria post 9/11 where a fair number of people espousing left wing views (like: let's not go to war with Iraq) got squelched. I also could have mentioned that espousing gun control ideas in the wrong place and time has gotten people shut down pretty quickly. I could have talked about women raising sexual harassment issues and how they get silenced. McCarthy was just giving some historical context.
If you want a random article on this:
https://www.washingtonpost.com/opinions/the-right-shuts-down-free-speech-too/2016/12/15/745fa352-c30d-11e6-9578-0054287507db_story.html
Colonel Jessup wrote "It centers around the Bigot, an archetype of the left."
I am amazed that you so succinctly sum it up in two paragraphs what I never quite seem to describe, but have been trying to.
The nearest I arrive at that label is "Goldstein" in George Orwell's "1984", something to be feared and hated; which focuses the herd and distracts them from problems within the herd.
It also explains the odd behavior of my father and of the writer "Total" here.
On returning to the USA from my Navy career, I obtained strange combative language from my father, accusing me of being a neocon, announced he hated Rush Limbaugh. Who is Rush Limbaugh? I asked in return, and what does that have to do with me?
Clearly he had been poisoned by an idea, and with absolutely no reason that I have ever discovered, decided I was the enemy.
One day he decided I was a Young Earth Creationist, so he wrote two pages explaining evolution and Science. I capitalize it because he doesn't actually know or do much Science; it's just "good" so he has it and I do not, whatever it is.
So I acknowledged Science and explained that I follow Science regularly in National Geographic and by other means (Science News is pretty good). In fact, Nat Geo had an article on the US Navy breeding dolphins to make them more intelligent; also an experiment with chickens — after 50 generations of selective breeding for largest and smallest the result was astonishing. The biggest are nearly the size of turkeys and the smallest fit in the palm of your hands.
So what did he do with my agreement? Turned it around! Suddenly HE became the creationist, writing: "Dolphins cannot change or be changed. They have always been dolphins and they will always be dolphins."
In other words, the "binding rule" was that I was the Enemy. There can be no agreement with enemy, no comfort or solace to the Enemy. It is forbidden. He didn't actually have anything resembling permanent ideas or principles; there is and nothing I can agree with because he will instantly change his most cherished beliefs in order to maintain that opposition.
You can see this on this comment thread with Total. Observe what happened when I agreed with his assessment that I do not and cannot understand his side, for he is correct. Of course, the parallel is that he cannot understand me (I don't really have a "side" as in more than just me having my thoughts).
What is important for Total, and everyone like him, is to be in opposition to the Enemy.
As to WHY that is, I do not understand and probably never will.
Rick H. says "…discerning their hidden motives from online comments, and pounding people into narrow political categories."
I can do that, too. But really these categories aren't narrow; there's exactly two: "us" and "them".
Total, branching off into more interesting avenues of conversation, writes:
"If one looked it up, one would discover that there’s a lot of other folks who define the modern left who have nothing to do with Marx."
Many. People are many, not lot.
In one sense I agree with you; Marx was not the founder of the leftwing, he is as much a product of it as anyone else, but he articulated it in a way that has endured.
"Wait, you mean you understand the complexity of the side you’re on, but have no sense of anything but a monolithic vision of the side you oppose? That’s unpossible!"
No, yes, maybe.
I don't have a "side", unless you include the possibility that the only person on Earth with my exact thoughts and beliefs constitutes a "side".
What I am seeking is the Attractor of the Left, the magnet or gravitywell around which all leftists orbit like moths to a light; even Marx was in that orbit but was not himself the Attractor.
Unipolar is rare in nature. For positive there is negative, for the north pole of a magnet there is the south pole. For good there is evil. Gravity seems to be unipolar but it might have an opposite.
A more correct understanding is on the axis of liberty; which if we created a polar chart with the Attractor at the center, distance from that center is increasing liberty, proximity to center is perfectly ordered society and ordered everything else, minimum entropy, ultimately extinction (zero entropy).
Left and right wings merely describe the direction of your orbit around this Attractor; left and right vary in how much control they wish to impose on others, and over what topics.
"Of course you do; you just like to play the disinterested savant. Strangely, the savantness all echoes the standard right-wing talking points with some handwaving historical gloss."
Yes. It does seem that right now what is sometimes called the right wing aligns better with ideas of liberty and self-choice. Socialism by its very nature cannot allow choice.
"If it makes you feel better to imagine the latter, go ahead. It’s pathetic, but go ahead."
You mistake that I need your permission for anything, and I do imagine that your inability to understand other points of view is permanent, innate, unchangeable. You could show me wrong, but it is unlikely.
You seem intelligent and you react with precision to certain ideas. That tells me you are aware of these ideas and find it worth your time to deprecate or trivialize the ideas; but your sense of honesty is such that you cannot quite bring yourself to denounce the idea itself as wrong or incorrect. Liberty is simple; I choose for me, you choose for you. In that simple formula is risk of failure; your choices for you might not succeed, and then where would you be? The Left is all about failure: the weak, the poor, the handicapped. You imagine yourself in their shoes and want to make it all better. That would be nice, but the most charitable person in western tradition also pointed out that the poor will always be with us. So does the Iron Law of Wages. There is not enough OPM (Other People's Money) to solve poverty. But I doubt you really care. It is a projection; you fear for YOU, lest you fall on hard times you want social safety nets. Well, so do I, but the net can only catch so many people before it is overloaded.
Trent asks: "The only problem being of course who gets to define immoral"
That would be religious leaders. (removed the trailing, unnecessary "is").
They don't always agree on the particulars.
Alito: "We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend."
——————————————————————————————————————————
Maybe it can't be officially banned but official authorities seem a pretty happy to turn a blind eye to vigilante speech-banners whom they consider to be on the moral high ground…which is actually much worse.
Furthermore, how does SCOTUS' principled defense of free speech mesh with the recent explosion in Hate Crime statutes?
Do they (hate crime laws) actually criminalize previously legal forms of speech and/or thought….or are they technically "double-word score" qualifiers that make already illegal acts (assault, murder etc.) more serious offences?
At best it seems like free speech ALL BY ITSELF may have withstood another direct challenge but in practice there can be no doubt that the areas in life where free speech can be safely exercised are shrinking.
If people want to boycott or disparage this band because they take offence to their name that's fine but if "activists" (trying not to use a triggering acronym here) violently disrupt an otherwise peaceful and lawful performance by this band while the cops stand by and do nothing and public officials egg on the activists….that's not so cool, no longer uncommon and, more to the point, amounts to the practical impairment of free speech.
The State of Wisconsin is considering a bill that would punish students who disrupt campus presentations. I am sympathetic to the general notion that there should be some consequences to hecklers, especially when they turn violent. IANAL, but the wording sounds broad, and based upon prior actions, Governor Walker does not have my trust. Huffpost_Article
Money ain't speech. And, no, it ain't symbolic speech, either.
So you'd be fine with a ban on the purchase of a flag for the purpose of burning, or the kerosene and matches with which to burn it? Or on a newspaper's purchases of paper and ink, or of the services of its employees? Or on the purchase of bullhorns, sign-making material, and transport to and from a demonstration?
Obviously you wouldn't be OK with any of these, because you know full well that the money used to purchase the means of speaking is an inherent part of that speech.
Yes, you are wrong. Trademarks cannot be used to punish people who disparage a trademark holder. Their only use is to protect consumers from fraud; fraudulent speech is not and never has been protected. The government's position was that it may refuse to protect would-be purchasers of "The Slants" albums, appearances, and merchandise from being defrauded, with the express purpose of forcing the band to change its name.
By the 1870s Marxist socialism had killed off all pre-Marx socialisms, and completely taken over the left; since then there have been no leftists not intellectually descended, one way or another, from Marx.
What connection do you see between them? How do they affect speech in any way at all?
Oh, and come to think of it, what explosion? How many jurisdictions can you name that have enacted such statutes in the last three years? Five years? Ten?
Of course not. Why would you even think that?
Not even that; they merely direct judges in sentencing to take the motive into account. Motive has been a sentencing factor for as long as our legal system has existed; these statutes merely formalize one aspect of that, taking official notice of the fact that such crimes have more victims than the immediate one. Not just that other people are affected, but that the crime was deliberately targeted at those people and intended to have that effect on them.
How so? It seems very plain to me: Heckling that does not prevent the speaker from being heard is still lawful. Heckling whose purpose and effect is to shut the speaker up is not, and shouldn't be.
Note that the people who disrupted the Trump-as-Caesar play in NYC were arrested, and nobody seems to have a problem with this. Why should the same not apply to speakers on campus?
Milhouse "you know full well that the money used to purchase the means of speaking is an inherent part of that speech."
Interestingly, it seems the founders recognized this principle in protecting freedom of the press; without which "speaking" has a rather limited range.
Not only do you have a right to speak; but also a right to get it "out there"; published.
@ Michael 2
Jeez, I thought your college class was bad enough, but your father too? My experience as a veteran has been heavenly by comparison.
Also, to weigh in on the "Marx is the grandfather of leftism" debate:
Yes, the U.S. left has a long history that is largely independent of Marx. Economically, it has focused more on unions than true socialism, and socio-politically it has simply emphasized the universality of liberal values ("women and minorities are people too, dontchya know?").
However, both those aspects started changing in the 1970s. The left couldn't give a damn about organized labor now, and seems to think economic parity is only possible via government policies. That's not really Marxist though—more Progressive, in the traditional, early 20th century, "there should be an income tax" sense.
What is descended from Marx—clearly—is the whole post-modernist / SWJ / intersectionality phenomenon currently emanating from universities. I say "currently;" it's been stewing there for a good four decades now, and flared up briefly in the '90s. But yeah, the only differences it has with original Marxism are its conception of classes, which are racial / sexual rather than economic, and its lack of historicism—the belief in a utopian conclusion to the dialectic. Besides those, everything is the same—the blank slate theory of human nature, the obsession with power dynamics, the belief that liberal scruples only serve to benefit the "bourgeoisie," or the "patriarchy" in modern parlance. Marx, Marx, Marx.
I realize, of course, that most who identify themselves as members of the left aren't all that into this neo-Marxism. But the leftist narrative certainly seems to be increasingly dominated by those who are.
@ Col. Jessup
"The left couldn't give a damn about organized labor now, …"
In my neck of the woods, unions represent a large political and monetary base for the left, and they are constantly bemoaning the decline in union membership.
And of course public sector unions are also strongly left, which is consistent with your idea that the left looks to the government for all solutions, but I wouldn't call it an abandonment of unions.
To my view, the categories into which people on one side lump people on the other side are more like "communist" and "Nazi" (some use the more fashionable "fascist").
Although looking at the Wikipedia definition of fascism ("a form of radical authoritarian nationalism, characterized by dictatorial power, forcible suppression of opposition, and control of industry and commerce"), I would argue that the progressive left fits that almost perfectly, except for the nationalistic part.
@Robert What?
I don't often take Total's side on, well, anything at all, but this time I feel compelled to point out how ludicrous your argument is.
I don't think Total "had to go back" to find that example; rather, the McCarthy hearings are arguably thearchetypal example of government-backed suppression of unpopular viewpoints in the U.S.
If someone argued "You think genocide has never happened? Let me tell you about a little something called the Holocaust," apparently your retort would be "The fact that you have to go back nearly a century to find an example of genocide clearly demonstrates that genocide simply isn't a thing that happens anymore."
@Iforgotmyname
While there is the issue that was pointed out that McCarthy was actually right about many of his targets being agents. I agree that it is the archetypal example of anti-free speech.
Which gets to the point I was making earlier about the direction of movement of the two 'sides'
One was actively suppressing speech and has stopped doing so and now is advocating free speech
Another side was championing free speech, but now has stopped doing so and is advocating suppression of speech it disagrees with.
If you claim that both sides are the same and will always work to suppress speech they oppose if they are in power, then neither side is morally right.
However, I much prefer to be optimistic and believe that it is possible for people to improve (if not, then what does it matter?). And if you accept that people can improve, I don't see how you can say that people who went from suppressing opposing speech to not doing so are just as bad (or worse) than people who went from championing free speed to suppressing opposing speech.
IForgetMyName "the McCarthy hearings are arguably thearchetypal example of government-backed suppression of unpopular viewpoints in the U.S."
Communism is incompatible with American ideals and liberties. It isn't just an "unpopular viewpoint". While many Americans were communists (including my father) most weren't in positions where their curious viewpoint could harm the United States.
As you probably know, it was (and remains) the stated intention of COMINTERN to destroy the United States and the way to do that is via democratic methods from within. Therefore, critical functions of the USA ought not to be in hands of COMINTERN, or in modern times, ISIS.
David Lang wrote "And if you accept that people can improve"
Persons improve; people generally do not.
Dear Mr White,
Caught a glimpse of a CBS video clip on YouTube, starring one Ken White as legal defender of John Oliver and HBO, who are on the receiving end of a lawsuit by a certain Mr Murray (CEO of a coal corporation, whose feelings have been hurt).
Can't think of better representation. One could wish for a dash of Mr Randazza's piquant sauce, but Mr Oliver's original dishing was quite tasty enough.
@Total,
Did you actually say "oh pish"? That Washington Post article was bogus – as most Washington Post articles are. The Right have no capability of shutting down free speech on campus since they represent a tiny fraction. I think I read that across the country maybe 90% of faculty and administration vote Democrat. As for having been against the Iraq wars (as I was – both of them) there is a difference between being criticized and excoriated for it versus being doxxed and losing your livelihood. The latter is a tactic employed exclusively by the Left in modern times.
I did actually say "oh pish." It seemed appropriate. Given your comment about the Post, I see that there's no evidence you would actually believe. Why did you ask for some, then?
@Michael 2
I am left-leaning. Just like creationists don't speak for everyone on the right, reactive left doesn't speak for me. While I don't question your examples, I have encountered people like that, I don't think it is warranted to generalize from that. Sadly, Left is at it intellectual lowest point and it is too easy to point out outrageous examples of tribalism.
@Milhouse "By the 1870s Marxist socialism had killed off all pre-Marx socialisms, and completely taken over the left; since then there have been no leftists not intellectually descended, one way or another, from Marx."
This doesn't pass even basic empirical observation test. Northern Europe, Canada practice, with popular democratic support, socialism that is in no way or form related to Marxism. Looking forward to your No True Scotsman reply.
Dear Robert,
He [Total] is right, you know. Not about all right-wingers being against the Iraq wars (most of those I knew at the relative times tended to object to them on the grounds of economic and occasionally human cost), but about Washington Post articles being bogus. Do better, please. Those articles constitute evidence of opinion, and usually present reliable factual evidence too, which you should rebut where possible.
Also, not everyone affiliated with WP is necessarily a left-winger, cf. the Volokh conspiracy. It feels strange saying that: "left-wing" or "liberal" in the USA is far to the right of the accepted meaning in the rest of the world. But even in US terms the Post is mainstream.
@milhouse: "Their only use is to protect consumers from fraud; fraudulent speech is not and never has been protected."
That's complete nonsense. Among many other ways you can use a trademark to do much more than protect consumers from fraud, the Trademark Dilution Revision Act of 2006 specifically prohibited creating even a likelihood that a trademark's distinctive quality will be reduced.
So, the good news is that we can complain as loudly and colorfully as we want as the rest of our constitutional rights vanish?
Are we culturally in any worse position than we were at any time in the past? The ideal of an open marketplace of ideas is ALWAYS under attack! Go back 15 years and it was pornography (on the right) and violent video games (on the left). Go back further and it was unpatriotic speech or communist speech.
Inevitably, one political party is more aligned with speech restrictive causes and campaigns and in response the other party wraps itself in the first amendment and signals its virtue (i.e. tries to take the moral high ground) by defending even speech they disagree with. Not because they truly value free speech but simply to look better than the other side.
It may be that conservatives are taking up the mantle of free speech defenders while liberals slough it off but aside from switching sides I see nothing more ominous than it was before. Of course free speech is always under attack so defense is always needed.
Milhouse,
"violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct that interferes with the free expression of others."
I would like to see a definition of "interferes with" written into the bill. Also "boisterous" is an odd adjective to throw in. The House of Commons gets boisterous IMO.
That is simply not true. The European social democratic parties were genetically descended from Marxist organizations.
Indeed it does, but not to the extent of interfering with the ability of the member who has the floor to continue speaking. When it does reach such a level the Speaker immediately shuts it down.
This doesn't prevent anyone from using the trademark to criticize the holder or his products. Dilution means passing off ones own products as those of the holder, and that is a kind of fraud.
This is a sincere, non-partisan question, and I would appreciate a like answer. I think David Schwartz asked something similar, but I don't see that he got an answer.
The First Amendment says that "Congress shall make no law…abridging the freedom of speech…" What speech was being abridged in Matal v. Tam? The interpretation of the trademark law prohibiting "The Slants" from registering their name was not prohibiting them from CALLING THEMSELVES "The Slants."
@ Robert What?
No one ever got fired for expressing leftist views.
Sooo…. You've never worked in minimum wage retail where you can literally be fired or your pay cut for even talking about the concept of unions?
Believe you me, there are nuts in the academic and white collar world that will blacklist you for being libertarian, but a far more common trend at the blue-collar and (I forget the proper term) gray vest levels, you know where alot of the country works, is active social discouragement and even outright economic censorship of any leftist ideas outside of corporate policy guidelines.
So yeah… Don't even have to stretch back to Old Man McCarthy or even be as intellectual as Marx.
No it doesn't, you dishonest ass. Dilution and counterfeiting aren't the same thing.
@Demosthenes
I believe the argument is that if the Government confers legal protections on some expression; but not others, based on the content of that expression, they are artificially promoting some expression while limiting others.
Dilution and counterfeiting aren't the same thing, but they're both fraudulent attempts to pass off ones goods as those of the trademark holder. With normal trademarks, if I were to create a line of wrenches and call it "TOR wrenches", or "Bimbo wrenches", nobody will think they're made by TOR Books or by the Bimbo bakery, even if I use a logo identical to theirs. But if I were to start selling "Virgin wrenches", especially using the Virgin logo, consumers would automatically think "oh, Branson has now branched into hardware", and assume that these wrenches were made by the same Virgin that is in so many other industries. Ditto if I were to market "Proctor & Gamble wrenches", since they're in so many things already.
@Demosthenes, by telling the band that if they call themselves the Slants it will not give them the same protection from fraud that it gives their competitors, and that it will give them if they use some other name, the government is preventing them from using that name, exactly as it would be if it were to deny them fire brigade or police protection if they used the disfavored name.
Milhouse asserts "the government is preventing them from using that name, exactly as it would be if it were to deny them fire brigade or police protection if they used the disfavored name."
While I see the nature of the argument you are making, it is also a bottomless pit to start dragging in spurious concepts, expanding scope, stuff like that. The government is simply not supposed to make laws abridging your speech. It can have its own speech; and in some cases government speech will align with someone's private speech, in other cases government speech will oppose private speech. So long as no law forbids you from making your private speech then no law (in this context) is violated.
The government encourages private speech frequently through tax policy in particular. Right now "green" policies, anti-climate-change policies, gun control policies (well, over the past 8 years) were government speech and aligned rather closely with some private speech (Tom Steyer and George Soros come to mind). Now of course all that's going to change for a while.
Since I am libertarian leaning I don't see any need for government to be making value judgments on what it prefers; this trademark good, that trademark bad. The limitations on trademarks ought to be solely practical; Simpson doesn't get to trademark "OJ", a phrase in common use to signify orange juice. But within a specific sphere of merchandise, such as sports memorabilia, then I would grant a trademark of "OJ" since in that context it clearly means OJ Simpson.
As to "The Slants", well there's a whole lot more suggestive out there, such as "Barenaked Ladies" (disappointing, by the way) [https]://en.wikipedia.org/wiki/Barenaked_Ladies
@michael2
read the ruling and see the details of why they say that trademark registration is allowed speech and the government cannot bless some and oppose other.
It's far better to read the details of the opinions than to try and re-hash them here.
https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf
The ruling was 8-0, but there were lots of things written as to why the different justices ruled this way.
quote:
ALITO, J., announced the judgment of the Court and delivered theopinion of the Court with respect to Parts I, II, and III–A, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and in which THOMAS, J., joined except for Part II,and an opinion with respect to Parts III–B, III–C, and IV, in which ROBERTS, C. J., and THOMAS and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., took no part in the consideration or decision of the case.
David Lang suggests "It’s far better to read the details of the opinions than to try and re-hash them here. https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf"
Indeed, it is easy to follow the argument. I wonder, however, if the Supremes would have been so supporting of free speech if the music band wanted to call themselves something offensive to a more fightful clan.
well, you can always play what-if games, but the court has a log history of protecting free speech.
I suspect that they would have been just as protective of a black group using the N word in it's name, and their historic rulings on protests and other things make me think that they probably would have even supported a trademark for a skinhead or KKK group.
The key is that it's not up to the government to decide what names are good and what ones aren't. That's up to the public and the marketplace. The government is just tracking the trademark, not picking it.
As opposed to license plates, which are the government's own speech. The government will generally say on them whatever you want it to say, but it's definitely the government speaking, not you, so it's entitled to refuse to say things it objects to.
Alito's argument that it can't be government speech because it uses very little discrimination, and often says contradictory things at the behest of different people, is nonsense. All he showed is that the government is a whore, willing to say almost anything for money. But even whores are entitled to choose their customers, and turn down those they can't stomach. The days when it was considered impossible to rape a prostitute are thankfully behind us. And the State of Texas is similarly entitled to refuse to issue license plates with messages it objects to.
Milhouse "But even whores are entitled to choose their customers, and turn down those they can’t stomach"
Strange times we live in when whores have more rights than a wedding cake baker or wedding photographer.
But I wonder if prostitutes must comply with ADA (Americans with Disabilities Act)? Accomodating could be quite interesting.
The Supreme Court will surely soon put an end to this dishonest doctrine some lower courts have adopted, of conflating refusal to participate in an act one thinks wrong with refusal to deal with homosexual customers.
I don't think the ADA applies to the provision of services. It applies to 12 specific kinds of places of public accommodation, including "A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment", so a brothel would probably have to be accessible to disabled potential customers, but I don't think the independent contractors who work there would have to provide them with actual services. State or local anti-discrimination laws may apply, of course. (Note that all the same-sex-marriage cases are state or local cases, because there's no federal law against open discrimination on the basis of sexual orientation.)
Extreme upholding of free speech will lead to counter extreme free speech and an inability of governments to stop incitements and recruitment to conduct violence, hate groups marching in the streets, and general acceptance of a degenerate free for all society. Both left and right extremes are not acceptable! The only resolution is by enshrining reasonable man/ golden and silver rule standards as acceptable behavior models. Social media runs counter to the resolution.
Dear Cindy,
The world has a habit of making us accept unacceptable things, so plan also for bronze and lead standards. As for social media, good luck with abolishing it. I am not now, nor have I ever been, a member of the facebook or twitter communities; but that is surely uncommon.
Cindy "The only resolution is by enshrining reasonable man/ golden and silver rule standards as acceptable behavior models."
As defined by whom? The boundary as presently established is pretty clear: There isn't one, not at federal law anyway. No need to wrestle with your opinion versus mine.
Golden rule? I hope not. Treating others as you wish to be treated? Be careful what you wish for you might get the wrong end of some SM. It's better than almost everything else and back when pretty much everyone in the USA had at least a foundation in Christianity it made some sense.
In the Navy I interviewed a sailor that was being punished for going AWOL while on probation for having earlier gone AWOL. He declared in all seriousness that it was the Navy's job to prevent him from going AWOL, through fences and round-the-clock supervision if necessary; and where it was actually possible for him to just walk off base it was the Navy's fault, not his.
Absolutely no sense of personal responsibility. In his mind, the golden rule would simply be "do whatever you can get away with".
I also am not, nor have ever been, in Twitter or Facebook. Very little of my writing would fit in a "tweet" and I don't need facebook as I have my own *real* web pages, pure HTML 1.1.