Professor Bainbridge...on law, politics, religion, culture & food

Crooked Timber versus Sullivan

Just what part of “Congress shall make no law ...” does Chris Bertram fail to understand? When Andrew Sullivan called him out for supporting regulation of speech, Bertram responded with a candid yet spurious admission:

The right frame, in my view, is to think of the state as “we, the people” and to ask what conditions need to be in place for the people, and for each citizen, to play their role in effective self-government. Once you look at things like that then various speech restrictions naturally suggest themselves. ... [I]f we are trying to implement such a conversational ideal in a society riven by deep ethnic or religious divisions, we’ll need to take seriously the idea that despised or stigmatized groups might not get their voices heard, and that one reason for this might involve the discourse of other citizens. This isn’t a matter of “the government” policing speech, it is a matter of us regulating our collective conversation.

Piffle. We’re not talking about some junior debating society here. We’re talking about using the coercive power of the state to regulate speech and, thereby albeit indirectly, thought.

I stand with Justice Hugo Black, a flawed but great man, who wrote:

The phrase “Congress shall make no law” is composed of plain words, easily understood. The Framers knew this.

The Framers knew that speech can sometimes hurt the people to whom it is directed and, quite rightly, they didn’t care. To now overturn their firm stance would, as Sullivan explained create “a tyranny – where Crooked Timber and the benign left will call the shots and enforce their orthodoxy.” Once again, Hugo Black knew what he thought about that:

Misuse of government power, particularly in times of stress, has brought suffering to humanity in all ages about which we have authentic history. Some of the world’s noblest and finest men have suffered ignominy and death for no crime-unless unorthodoxy is a crime. Even enlightened Athens had its victims such as Socrates. Because of the same kind of bigotry, Jesus, the great Dissenter, was put to death on a wooden cross. The flames of inquisitions all over the world have warned that men endowed with unlimited government power, even earnest men, consecrated to a cause, are dangerous.

Left of center lawyer and blogger Glenn Greenwald gets it too:

People who advocate these laws somehow convince themselves that if they give the power to the government to prosecute people for expressing “hateful” or dangerous ideas, those laws will only be applied against ideas that they dislike. But that is never how laws work.