The Limits of Common Sense

Although dealing w/ the WI stuff this article has a good discussion of free 
speech, including the current law as set forth by SCOTUS.  Suffice it to say I 
am even more confident that the "encouraging suicide" conviction will be 
overturned as it seems to fly in the face of Brandenburg v Ohio.

http://online.wsj.com/article/SB10001424052748703899704576204491415029906.html?mod=googlenews_wsj



 
The Limits of Common Sense 
Why toleration of outrageous speech is necessary for political freedom.
By JAMES TARANTO 
Our Monday column on union thuggery prompts this response from reader John 
Benjamin:
Rarely do I write to comment on commentary, but that was  simply too much. That 
you, unlike Ann Althouse, view Brian Leiter's  "political violence" comments 
with "amusement" indicates a bit of  callousness towards the sentiment 
expressed.
Frankly, Leiter borders on incitement. Not to see that  comments such as his 
enhance the possibility of actual violence in the  future is unacceptable. There 
is a profound degree of antipathy in  political circles today and one would be 
denying reality if one  expressed surprise at an act of political violence 
today. Shock and  horror, yes, but surprise, no and it's due precisely to the 
allowing of  intellectual lunatics such as Leiter the light of day on campus or  
anywhere inside civilization.
Tolerance in this instance simply encourages more of the  same until, one day, 
riot. I find tolerance of ideological malfeasance  to be akin to the broken 
windows theory of policing--when we allow  foolish, crazy or hostile ideas to 
survive, they do nothing but cause  ruin and further ruin. There is a limit to 
the First Amendment and it's  called common sense.
Let's begin by rehearsing the Leiter statement in question. Referring  to 
government policies of which he disapproves--specifically,  curtailments of 
public-sector "collective bargaining" privileges and  funding for public 
universities--Leiter, a scholar of philosophy and law  at the University of 
Chicago, wrote on his blog: "At some point these  acts of brazen viciousness are 
going to lead to a renewed philosophical  interest in the question of when acts 
of political violence are morally  justified."
This comes nowhere near meeting the legal definition of incitement, which the 
Supreme Court set out in Brandenburg v. Ohio  (1969):
Freedoms of speech and press do not permit a State to forbid  advocacy of the 
use of force or of law violation except where such  advocacy is directed to 
inciting or producing imminent lawless action  and is likely to incite or 
produce such action. 

The key word here is "imminent." Leiter's statement not only is  unlikely to 
incite or produce imminent lawless action but is carefully  worded to refute any 
claim that that is its intent. As a legal scholar,  he presumably knows the 
legal limits.

In fact, he could have been much more direct without risk of legal action. As we 
noted in January,  the hard-left sociologist Frances Fox Piven has expressly 
advocated  political violence and is at no legal risk for it. Leiter doesn't 
even  advocate violence; he merely says that "at some point" (not imminently!)  
there will be "renewed philosophical interest in the question."
We find this amusing rather than menacing because it is so  pathetically weak. 
Again, contrast Piven with Leiter. She came right out  and called for "something 
like the strikes and riots that have spread  across Greece"--a despicable 
sentiment, but one that at least has the  virtue of clarity, in contrast with 
Leiter's coy insinuation that there may be  challenging academic papers in the 
offing if his political foes aren't  careful. Piven, a woman who will be 80 next 
year, is acting manlier than  Leiter, decades younger and male.

Althouse does not profess to find Leiter's statement menacing either  but 
"disgusting." (Nor does she urge that he be silenced.) If we read  her 
correctly, her disgust is largely the product of  what she, as an  academic with 
integrity, sees as his abuse of his scholarly authority:  "He's inclined to 
approve of the impulse toward violence on the left and  willing to mobilize the 
discipline of philosophy to generate rhetoric  to support its political goals. 
It's quite disgusting."

The reason we find Leiter's comments amusing rather than disgusting  is that we, 
unlike Althouse, are not part of academia and thus have no  personal investment 
in the ideal of disinterested and honest  scholarship. Rather than offend our 
ideals, Leiter reinforces our  stereotype of academia as being filled with fools 
and knaves. You can  see why this would bother Althouse, a scholar who does not 
fit the  disparaging stereotype.

Althouse's emotional reaction to Leiter's comments is similar to ours  when the 
New York Times publishes blatantly slanted stories on its news  pages or 
outright lies on its opinion pages. Those are our professional  standards the 
Times is transgressing. Some of our readers thought our  outrage at the Times 
naive; we would say that, like Althouse's disgust  with Leiter, it was merely 
idealistic. It is possible to be knowing  without being cynical.

To return to John Benjamin's letter, we certainly agree that it is  better if  
"foolish, crazy or hostile ideas" do not survive, or at least  do not thrive. A 
good deal of our work is devoted to combating them  with the weapons of logic 
and mockery. As the disgusted Althouse  demonstrates, shaming can also be an 
effective tactic. 


Look at Leiter's defensive updates to his initial blog post. He accuses Althouse 
of an "inflammatory  hatchet job" and us of a "drive-by smear." He answers by 
asserting that  "I did not, and do not, call for political 
violence"--technically an  accurate statement, as explained above, but a curious 
claim for him to  deny since neither Althouse nor this column ever made it. 
Leiter  wouldn't be acting like such a crybaby if he weren't losing this  
argument. 


This little kerfuffle is a good illustration of the First Amendment  piety that 
the answer to offensive speech is more speech, not  censorship. Indeed, for 
generations the U.S. Supreme Court has protected  speech far more offensive to 
common sense than anything Leiter has  likely ever said:

Brandenburg overturned the conviction of a Ku Klux Klansman who had advocated 
(but not incited) violence against blacks and Jews. Hustler v. Falwell  (1988) 
overturned a civil award against a  pornographic magazine for what the court 
described as "an ad parody  offensive to [the plaintiff], and doubtless gross 
and repugnant in the  eyes of most." And most recently, Snyder v. Phleps  (2011) 
overturned a judgment against the Westboro  Baptist so-called Church, the "God 
hates fags" creeps, for protesting  near the funeral of a fallen Marine.

All these decisions were unanimous save for Snyder, which  drew a lone dissent 
by Justice Samuel Alito. We found Alito's opinion  to be a compelling and 
eloquent defense of common sense, and we're glad  he wrote it--although we're 
also glad no other justice joined it.  Political freedom is much better served 
by a regime of near-absolute  free speech than one that attempts to impose 
common-sense limits on  speech.

This is for two reasons. First, exhortations to respect common sense--defined by 
Merriam-Webster as "sound and prudent judgment based on a simple perception of 
the  situation or facts"--presuppose that one has discretion over one's  
actions: "If you post that on your blog, you'll look foolish, Prof.  Leiter. 
That's just common sense." It's too vague a basis for making  legal rules, which 
require the drawing of clear lines. The First  Amendment, in fact, is such a 
rule, designed to limit government's discretion in policing speech.

Second, common sense is too easily swamped by senseless  intellectualism. The 
experience of generally free countries that do  limit speech--including Canada, 
England and many Continental European  lands--is that the limits are dictated by 
political correctness rather  than common sense. The same is true of American 
institutions of higher  education.
We might accept common-sense limits on free speech if Justice Alito  were making 
all the decisions. But we don't for a second trust the  political and legal 
elite to ensure that future justices are men like  Alito, whose nomination was 
fiercely opposed by the party that now  controls the White House and the Senate 
majority. Yielding to the  temptation to censor the speech of guys like 
Leiter--or even Fred Phelps  of Westboro infamy--would only make it more likely 
that guys like  Leiter would eventually gain the power to censor the speech of 
the rest  of us.

Baghdad Bob Again  
All these years, we're beginning to think, we've failed to appreciate  the comic 
potential of the fatuous E.J. Dionne, whom even his own  newspaper, the 
Washington Post, describes as a "left-leaning columnist."  Here's Dionne with 
the New York Times's David Brooks and host Robert  Siegel, discussing Gov. Scott 
Walker's legislative victory in Wisconsin:
Dionne: I think that Governor Walker  and the Republicans are going to regret 
this fight. Yes, they definitely  won this round by ramming this thing through 
the Senate in a  questionable way. But what they have done is they have 
mobilized  Democrats and the labor movement--Democrats in a way President Obama  
wasn't able to in 2010, and the labor movement, as it's never been  mobilized 
before. . . .
Brooks: I just can't think of an  historical example where somebody was tough on 
unions and paid a price  for it. Maybe there are examples. But I was thinking 
around trying to  think of one, I couldn't think of one.
Dionne: Well, this may be the first and I think so far that's proving true 
because I don't think Reagan lost ground the way Walker did.
Now of course, to say "it's never happened before" doesn't settle the  matter. 
Sometimes things happen for the first time. But "this will be  the first" is a 
very weak rejoinder. If you want to claim persuasively  that a longstanding 
historic trend is about to be broken, you ought to  have some evidence either 
that conditions have changed or that the facts  of the case in question are 
unusual. The best Dionne can do is allude  to selective and evanescent poll 
numbers.
Although at least he didn't claim, like fellow left-leaning Post writer Greg 
Sargent in a headline, that "The Public Agrees With Dems, but They Don't Know  
It." It's not even clear who "they" are--Dems or the public?
Meanwhile, check out this New York Times report on actual voters who have had 
their say in Miami:
Mayor Carlos Alvarez of Miami-Dade County was removed in a  recall election on 
Tuesday as voters punished him for raising property  taxes and increasing the 
salaries of his closest aides at the height of  the recession. . . .
He pushed through a budget that raised property taxes for 40  percent of 
homeowners, despite plummeting property values, to avoid  laying off 
firefighters and other public employees. Yet, most county  workers are getting 
raises this year.
Alvarez is a Republican, but his policies are not what you'd call  Walkerite. 
(He also gave big raises to his aides and drove around in a  tax-subsidized 
Beemer, a warning to pols of both parties who like to  live large.) He lost by 
an astonishing margin of 88% to 12%. That speaks  louder than polls, pundits or 
even mobs of greedy government employees.

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