osewalrus (osewalrus) wrote,

My lunch with visiting Israeli Scholar

So yesterday my boss Andy and I went down to Eli's (slogan: "Only Kosher Restaurant in Downtown DC -- Aren't You Glad Our Food Is Edible, Because We Don't Have To Make That Kind of Effort.") We were meeting with visiting Israeli scholar and First Amendment (but not lawyer) scholar guy. He's doing an article about hate speech, terrorist orgs, pedophile sites on the internet and international approaches to regulation.

It had a few amusing moments.

Me: I oppose government regulation of content via the Root because if that happened, .il would be voted out of the root by a vote of 147 to 3.

Israeli guy: Really? Why do you think that?

[During a discussion of hate speech on US radio]

Andy: Most of the hate speech is primarily anti-immigrant on the right (by which we mean "those damn illegals are bringing filth and disease into our country. If you see one of these in your community, stomp him like a roach"). But there is some on the left as well.

Israeli guy: Like what?

Andy: Mostly anti-semetic. You know, because of the Palestinian issue.

Israeli guy: I can understand anti-Israel, but why should they be anti-semetic? What do American Jews have to do with what goes on in Israel?

Me: [laugh] Kol Yisrael Arevim Zeh La’zeh. Do you know how many times I walk into a taxi and the driver wants to discuss Israeli politics with me just because I wear [point at kippah] this?

But most of the conversation was really about the American absolutist vision of the First Amendment v. the more nuanced European version, which is more likely to worry about the possible harm cased by certain kinds of speech (such as hate speech or speech facilitating the commission of a crime). Since the 1960s, U.S. law has generally found prior restraint of speech repugnant and preferring to punish conduct post-hoc. Thus, we do not restrain people from saying hateful things, even when the may ultimately encourage people to commit illegal acts of assault (the old "fighting words" doctrine having been severely trimmed back). But if we punish assault, we can use the intent to act against a class of people because of their status (e.g., black, gay) as an aggravating factor in sentencing. Furthermore, speech that would put a reasonable person in fear of actual attack is punishable as assault (which does not require contact) as opposed to battery (which does require contact). But general oratory is not prohibited.

We do a similar thing with speech that may encourage or facilitate crime. It is a crime for me to sell drug paraphernalia. It is -- dependent on circumstances -- not a crime for me to list places where I can get such paraphernalia or describe how easy it is to construct such things out of household objects in the context of saying "look how stupid this law is and how easy it is to violate!"

Even our laws on child pornography (as separate from obscenity) are based on the theory that forcing children to engage in the acts captured on film is a crime. Images or pornographic descriptions of child sex involving no actual children, while likely to violate the local obscenity statutes, are not enough to trigger child pornography laws. In striking down the federal statute that attempted to criminalize virtual depictions of child pornography that did not involve real human children, the Supreme Court explicitly rejected the theory that Congress could outlaw such images because seeing them would make it more likely for the viewer to seek actual children for sex. It is inimical to the First Amendment for government to restrict speech on the grounds that it generates bad thoughts that could lead to crimes.

By contrast, many European countries take the view that certain types of speech are so detrimental to the public welfare that they must be prohibited. These include various forms of hate speech (such as Holocaust denial).

We concluded our lunch with Israeli guy saying "OK, I know the law and your arguments. But, as a human being, how can you allow speech that causes real harm to people or facilitates real crimes against the hypothetical danger of what harm will happen in the future?"

Me: Are you familiar with the Comstock Act?

Israeli Guy: No.

Me: The Comstock Act was passed in the later part of the 19th Century [Wikipedia now tells me 1873] and outlawed seding pornographic materials through the mails. Almost immediately, it was used to suppress information on birth control -- including advocacy to change the law on birth control. In some cases, states that passed similar laws arrested women actively campaigning on birth control issues, and even other associated issues such as women's right to vote (because police or other defenders of the public good could usually find some rational for linking advocacy on women's suffrage with birth control).

So I don't have work hard to "imagine" about hypothetical harms. I just study history. I have no doubt in my mind that if we did not have such a deeply indoctrinated view of the First Amendment in this country, that on September 12, 2001, Congress would have been willing to pass a law outlawing possession of a Koran.

After that it was pleasantries all around.

To conclude. I do fault many of my fellow Americans for the rather parochial view that our vision of Freedom of Speech is the inherent end all and be all of freedom and anything less is total repression. All life and public policy is trade offs. There are real consequences to our decision that "the cure for bad speech is more speech, not less." OTOH, I do think that, on balance, our way yields a better public policy result. In periods of our history when we have been much more willing to outlaw speech (or permit the states to do so), we have seen a wealth of injustices and injuries. Comstock did not see his war on pornography and his defense of family values as any less valid a public purpose than European nations do in outlawing certain forms of speech. And I have no reason to believe that we are any better at making suh choices now than we were in 1873.

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