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Freedom of speech is not just a “Western” thing

“Yes, in fact the freedom to examine and criticize people and beliefs is a positive good, and how else will we ever be able to separate good ideas from bad ones? There is no other way other than freedom of discussion. And one can’t specify in advance which ideas or criticisms are and aren’t permitted — that would assume we already knew and agreed on Truth.”

Charles Steele, a US blogger writing about some wretch by the name of Eric Posner, a tenured law professor who believes the US 1st Amendment is so just 18th Century, daaaahling.

34 comments to Freedom of speech is not just a “Western” thing

  • RAB

    He should be tethered not tenured, after all that’s what he wants for the rest of us, isn’t it? What is it about Chicago? Something in the water or the wind?

    If a supposedly clever Law Professor doesn’t understand that Law is based on fundamental unalienable Rights ( of which the First Amendment is certainly one) then he understands nothing.

    No you fuckwit, Law is not a compromise, it is the foundation upon which our Western Civilisation is built. We either stand up for our basic rights, over the barbaric criminality of lesser lands, or we end up slaves to assholes who want to make it up as they go along, like you Posner.

  • Richard Thomas

    “Progressive”, probably about as ironic as it’s possible for a word to be.

  • Laird

    Frankly, I was surprised to read this. Posner* (a former federal judge, by the way) isn’t always such an idiot; he occasionally has intelligent things to say (albeit generally on matters economic). Perhaps he just had a bad day.

    * And it’s “Eric”, incidentally, not “Ed” Posner.

  • Runcie Balspune

    “Progressive”, probably about as ironic as it’s possible for a word to be.

    “Progressive” has become one of those words similar to “conservative”, where the capitalised version means something completely different.

  • Stonyground

    “A form of rock music that emerged in the late nineteen sixties and early seventies, characterised by complex, elaborate and sometimes experimental arrangements.”

  • Alisa

    It seems to be a different Posner, Laird, and he is indeed Ed. And, there’s of course Richard Posner.

  • Alisa

    Oh, and freedom of speech *is* a Western thing.

  • Alisa

    …and, it turns out that Eric is Richard’s son…

  • Laird

    Sorry, Alisa, but Eric Posner is the author of the article under discussion here. See this. However, I was indeed thinking about Richard when I wrote my first post; he is the one who is a federal judge, and is pretty good on economic matters. Eric may indeed be an idiot; I don’t know, but the evidence of the article certainly suggests it. Mea culpa.

  • Saxon

    I am not sure free speech is a “western” thing – looking at the hate speech laws in “western” Europe and Canada …

    Free speech is an American thing – thanks to the 1st amendment (and 2nd amendment)

  • Julie near Chicago

    Let us not forget that the Law School of my alma Mater, The University of Chicago (one must capitalize the “The”) has gone all Living Document where the Constitution, bless its shredded heart, is concerned.

    It has welcomed and held to its bosom the likes of Cass Sunstein and the Execrable Obama. (Well, C.S. may well be execrable-er, as he knows perfectly well what he is destroying, nudge by nudge.)

    There is really no excuse for UC in all this.

    In its entry on Richard Posner, Wikipedia (remember, “trust, but verify”–whatever that means!) writes,

    Posner is a pragmatist in philosophy and an economist in legal methodology.

    ‘Robert S. Boynton has written in The Washington Post that he believes Posner will never sit on the Supreme Court because despite his “obvious brilliance,” he would be criticized for his occasionally “outrageous conclusions,” such as his contention “that the rule of law is an accidental and dispensable element of legal ideology”….’

    However, in a debate in Slate with Peter Singer over animal “rights,” Wikipedia quotes him as saying that

    “[I[t is wrong to give as much weight to a dog’s pain as to an infant’s pain.”

    I agree…with sorrow, because I love dogs. And animals in general, at least the ones with four feet. :>)

    Eric: Like father, like son, I guess–another “sort of [conservative], only–not.” Both are trying to justify whatever-it-is by whether, bottom line, it’s for the good of Society (by whatever metric is deemed to suit the circumstance).

    I see that DiLorenzo and Walter Block of von Mises Inst. are not terribly thrilled with Mr. Steele.

    And that Samizdata commenter Snorri Godhi has left a comment to the Steele piece…which I now hasten to read.

  • 'Nuke' Gray

    “Trust but verify” was a Reaganism, and it means you trust them enough to start peace negotiations, but you keep both eyes open, and don’t go in for group hugs.

  • Julie near Chicago

    Thanks, Nuke. :>)) I knew it was Pres. Reagan, but I didn’t know the context. And I’ve always wondered, “What the heck is that supposed to mean?!”

  • Alisa

    It doesn’t get any more western (or Western) than the US, Saxon:-)

  • PersonFromPorlock

    It’s not just that freedom of speech is a Western (or American) thing, but that Islam, which is essentially a theocratic system already possessed of The Truth, must necessarily be hostile to it.

    With Islam, the government is built in and the watchword is ‘submission’.

  • veryretired

    The right to freedom of speech is a human attribute, as a function of the right to a free mind and conscience.

    Absolutists of every stripe and flavor hate and despise this human characteristic for the most basic, and base, of reasons—it is a constant threat to their claimed monopoly on the truth, whether expressed as a secular ideology or a religious dogma.

    The basic human right is the right to make choices based on one’s own estimate of validity and utility. All autocrats and theocrats attempt to usurp and subvert that individual right, demanding it be submerged to some mythical “higher” loyalty or faith.

    The assertion that some ideas are off-limits to critical evaluation, or that some religious dogmas are to be protected from analysis and criticism, is a claim that freedom of choice must be suspended, and a critical human attribute deactivated, for the sake of the emotions of the true believer.

    It is the elevation of the ancient, reptile brain above the purpose and function, of the newer, higher cortex.

    There have been documented periods in human history in which our numbers were reduced to relatively few, and our species’ survival was in question. It was the capacity of some humans to say that they were embarking on a new course that ensured the survival of humanity.

    And, if anything was ever self-evident from history, the 20th century certainly showed the serious danger to human survival from the theory that the individual should be submerged, and totally subservient to, the will and ideas of the collective.

    The discovery of fire was nothing compared to the courage to use it, and the ability to make the choice to reap its benefits.

    We must not let the fire go out of humanity now, in the 21st century, merely because a new theocracy declares itself off-limits to the mind and its critical faculties.

  • Paul Marks

    Sorry Laird – you are out of date.

    Posner gave up saying sensible things about the economy years ago – he went over the Keynesians (supporting “stimulus” and so on).

    Actually I was expecting it (cyncial ……. that I am).

    You see even when he was on our side I did not like the reasons he presented for being so.

    He was a Judge and a Professor of Law – but he could not care less about the principles of the Constitution of the United States or the Natural Law doctrines on which it is based. In fact he did not think such things even existed.

    Posner was a Legal Positivist to his Hobbesian bones, and a utiltarian who had nothing but contempt for the Principles of the Founders (or the principles of the great thinker on law going back to Cicero and before).

    I know from old experience (from experience of a guy with an Irish name who presents himself as the ulitmate Englishman) that such folk are not to be trusted.

    So even when they are on our side I just wait for the betrayal – because it is going to happen (sooner or later).

    The short version……

    “Posner sells out on the First Amendment” – well shock-horror, Posner does not believe in any of the Bill of Rights. He does not believe in rights (that trump government calculations of utility) PERIOD.

  • Paul Marks

    On RAB’s point./

    Actually the University of Chicago has a mixed history – there have been a lot of interesting people there (Milton Friedman, F.A. Hayek……).

    But even in the University they are floating in a sea of Progressives – just as the University (and the old Chicago Tribune) floated in the sea of excrement that is the corrupt city of Chicago.

    It does not work – you can not keep clean if you are swimming in shit.

    Good people do exist in Chicago – but they should move out.

    They can not prosper (especially in the times that are comming) in this environment.

  • Laird

    I defer to Paul Marks’ (always) superior knowledge.

  • Bruce

    Eric Posner is a not very influential law professor. His father, Richard Posner, on the other hand, is one of the most influential Federal appellate judges in the U.S. His view is that:

    the constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution. The relevant provision of the First Amendment merely forbids Congress to abridge free speech, which as understood in the eighteenth century meant freedom only from censorship (that is, suppressing speech, rather than just punishing the speaker after the fact). A speaker could be prosecuted for seditious libel, for blasphemy, and for much other reprobated speech besides, but in a prosecution he would at least have the protection of trial by jury, which he would not have if hauled before a censorship board; and his speech or writing would not have been suppressed, which is what censorship boards do. Protection against censorship was the only protection that the amendment was understood to create.

    I’m not sure Posner is correct, but referring to the First Amendment is not a slam-dunk argument in favor of free speech.

  • RAB

    I will defer to My learned Friend Laird on this, as he knows far more about American law than I do, but according to this…


    A Blasphemy law is indeed unconstitutional. The divergence comes between State and Federal Law (i.e. the Constitution). The success rate of prosecutions by State Law isn’t exactly high though is it?

    So Posner Pere seems as lightly informed and dismissive about the law as his son appears to be, for all his eminence. Where does all the Censorship Board twaddle come from? Off the top of his head? Were there any such things in the 18th Century?

  • Bruce

    Well, yes. What is the legal understanding of one of the most influential and cited Federal appellate court judges when compared with the authority of the Wikipedia?

    Seriously, Judge Posner’s point is not the judicial gloss that has currently been placed on the First Amendment, but rather how it was understood when ratified.

    Judicial interpretation (“gloss”) can and does change. Those who would restrict free speech have a strong argument if they can point to how the First Amendment was interpreted at the time of ratification — not as a guarantee of legal consequence-free speech, but a guarantee against prior restraint.

    To understand how the First Amendment was interpreted it helps to look to Blackstone’s Commentaries on the Laws of England, which were widely read and cited by American lawyers and jurists of the late 18th century.

    “The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.”

    The intellectual underpinning of the American Revolution was that the colonists rights, as Englishmen, were being systematically violated. That was what James Otis argued when he challenged the Writs of Assistance before the Superior Court of Massachusetts in 1761, and it was Blackstone’s understanding of liberty of the press that informed how those who ratified the Bill of Rights understood the First Amendment.

  • RAB

    If we want to understand how things were when the 1st Amendment was ratified, then let’s have a look shall we?

    Probably the oldest newspaper in the world is the Times of London, first published 1785. Circulation in the mere thousands. Before that Pamphlets and periodicals. Free Press and Media? In its infancy, especially America, which has a highly localised media even to this day. The New York Times didn’t get started until 1851 fer chrissakes!

    Blackstone may pontificate all he liked, but the word “Commentaries” is the clue. He made no Law at all, Common, Statute or Precedent, he merely commented on them. This quote from yours above…

    but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.”

    Refers to publishing words that are an incitement to things that are already illegal. For example if what you publish is a flat out lie, then the Law of Libel comes into play.If you say I hate such and such a group, person etc, then that is free speech, you should be entitled to your opinion. But if you go further and say…. Isn’t time the rest of you out there took up arms and killed them, then you have wandered into an area of Law that is already a criminal offence. Not because of the offence of your speech, but of your incitement to the criminal act of violence against their persons.

    The intellectual underpinning of the American Revolution was that the colonists rights, as Englishmen, were being systematically violated.

    Anyone who believes that is seriously deluded. The average Englishman at the time had probably less rights than the Colonists. The Colonists just didn’t want to pay their dues for Britain saving them from Colonisation by the French is the truth of the matter, and at vast cost to the English Treasury. Let’s face it, George Washington didn’t distinguish himself particularly well in that little fracas did he?

  • Bruce

    Probably the oldest newspaper in the world is the Times of London, first published 1785.

    Newspapers long predate the Times. Newspapers in America date as far back as the 17th century.

    Blackstone may pontificate all he liked, but the word “Commentaries” is the clue. He made no Law at all…

    Blackstone was highly influential in America and his Commentaries informed the authors of the Constitution.

    [Blackstone] Refers to publishing words that are an incitement to things that are already illegal.

    Quite frankly, that’s wishful thinking and not the understanding 18th century lawyers and judges had. Consider, for example, the Alien and Sedition Acts of 1798, which restricted speech critical of the government.

    Anyone who believes that is seriously deluded. The average Englishman at the time had probably less rights than the Colonists.

    That’s probably true, but it is not the perception colonists, especially in Massachusetts, had. As John Adams observed:

    Every man of an immense crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.

  • Laird

    I agree with Bruce here. Certainly Blackstone is not statutory, but he was the most influential commentator on English common law for a span of a century, and most assuredly influenced the US Founders’ opinions. It’s almost impossible to have a serious discussion about the origins of the Constitution and the intent of its draftsmen without referring to him. Citing Blackstone in the 18th century was equivalent to citing the Federalist Papers today.

    That Wikipedia article isn’t particularly accurate. At best it’s a description of the state of free speech laws prior to 1865. With the ratification of the 14th Amendment the protections of the Bill of Rights were extended to cover state as well as federal actions. Prior to that, they only applied to federal action and many states had blasphemy and similar laws; some even established official state religions. And some of those laws remain on the books to this day, but that’s entirely due to institutional lethargy; no one believes they would be enforceable today. My own state (South Carolina) still has in its constitution a religious qualification to hold public office, but it’s never mentioned by anyone.

    Which is not to say that Posner’s comment is incorrect as a matter of history, but it’s irrelevant as a matter of current practice. The concepts of “prior restraint” and “chilling” have long been elements of first amendment jurisprudence, and that’s not going to change any time soon. Nor should it.

    RAB, I will concede that the “denial of rights” thing at the time of the Revolution may have been a bit overblown (what’s a little hyperbole among friends?), but there clearly were abuses and I will argue with your assertion that we weren’t “paying our dues”. Most of the taxes at the time went to pay for the King’s wars on the continent, which was of no benefit to us whatsoever. And there was a lot more to it than overt taxes, notably the prohibitions on trade with other countries. So I won’t apologize for some political “spin” to galvanize the populace.

    And what’s this with dissing George Washington? He was only in his 20’s and totally lacking in military experience during the French and Indian War. He “distinguished” himself as much as could be expected (enough so that the King wanted him to remain in the British army). Anyway, we can criticize GW; you can’t, you limey!

  • RAB

    Anyway, we can criticize GW; you can’t, you limey!

    Really? Why not? George desperately wanted a Commission in the British Army, but was denied one. Had we given him one, would he have fought on the British side?

    And everyone who fought in a war has historically been in their 20’s, or younger. Alexander the Great was dead at 30. Some folks are better at fighting than others. Then others are better at myth making and accumilating fame to themselves from others doing the heavy lifting for them. Err, like you would not be an independent nation without the French intervention; you know those blokes who captured young George and sent him home with his tail between his legs. Irony or what?

    The fact is there was a Geopolitical war going on back then between Britain and France, which Britain eventually won. America failed to pay it’s Bar Bill. Simple as that. and got ungrateful with it. This is what happens unfortunately all to often between the endebted and the endebtors. 😉

    Best not mention 1812 and the White House either I suppose.

  • Bruce

    America failed to pay it’s Bar Bill. Simple as that. and got ungrateful with it.

    I’m reminded of Lost Causers who insist the American Civil War was all about the tariff and had nothing whatsoever to do with slavery.

    To insist the American Revolution was just about “fail[ing] to pay its Bar Bill” is to ignore such matters as the Navigation Acts and Writs of Assistance, the Proclamation of 1763, the Intolerable Acts of 1774, and the effect the Enlightenment had on colonial thinking.

    The First Continental Congress was convened in late 1774 to press for repeal of the Intolerable Acts, not for tax relief. British regulars confronted by militia at Lexington and Concord were not searching for taxes. Colonial leaders such as George Washington, Benjamin Franklin, and John Adams did not place their lives at risk for a few shillings of tax relief.

  • RAB

    Aww it’s no fun winding you Yanks up, it’s too easy. Just expressing my right to Free Speech you see 😉

    As a matter of fact I believe the American Constitution to be the finest most important legal document ever written (wish we had one). Yes of course the causes of the Revolution were many and complex. More like the first Civil war really, as half us Brits were cheering you on.

    Then again to claim that the Civil War was ONLY about slavery is incredibly simplistic too. Not that you did of course.

  • Bruce

    Okay, I’ll bite.

    Was the Civil War only about slavery? No. Was it primarily about slavery? The seceding states answered that question in their Declarations of Causes. As Mississippi declared:

    Our position is thoroughly identified with the institution of slavery– the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth.

    And as General Grant wrote during the siege of Vicksburg:

    I never was an Abolitionist — not even what could be called Anti-slavery — but I try to judge fairly and honestly; and it became patent to my mind early in the rebellion, that the North and South could never live in peace with each other except as one nation. As anxious as I am to see peace, and that without slavery, re-established, I would not therefore be willing to see any settlement until this question is forever settled.”Ž

  • Laird

    Wow, we’ve drifted far off-topic here, haven’t we?

    Anyway, RAB, these days I find myself rather wishing that you’d repeat your little White House excursion of 1812. Not that one building means very much, but it certainly would be symbolic!

  • RAB

    Bruce, why are you still biting, and what are you biting on? This thread is supposed to be about Free Speech not a discourse on the American Civil war. We both seem to agree that Slavery was not the only or even primary cause of the Civil war. It was not Slavery per se that was the point of contention, but the expansion of it into the New Territories that were being opened up. Had the slave States said fair enough, we won’t export it, then perhaps the war would not have happened, and slavery not abolished. After all, the British Empire abolished slavery in 1833 (no big rush on the part of the Americans to do the same eh?)

    Quoting a nasty drunk, butcher and massively failed President doesn’t cut much ice with me either…

    “I never was an Abolitionist — not even what could be called Anti-slavery…”

    Um, so what was he fighting for during the first two years of the war? Obviously, by his own words, not the fundamental principle of anti-slavery. The preservation of the Union at all costs, just like Lincoln, is my opinion.

    Secession by the Southern States was considered treason that must be resisted at all costs. It killed more Americans than any other war in its history, and the wounds have yet to heal to this day. So the war was fundamentally political, not moral.

    If it was moral (the abolition of slavery and the introduction of equality) then how come it took another hundred years to end segregation, and how the hell could segregation laws be enacted in the first place?

    But enough from me, you feel free to…

  • Bruce

    Far from being a “drunken butcher”, Grant was a devoted family man who seldom drank.

    His campaign against Vicksburg was the most brilliant of the war. His army inflicted far more casualties on the Confederates than they suffered. (191,000 vs. 154,000). Lee’s army, alone, by contrast, suffered 209,000 casualties. Three separate Confederate armies surrendered to Grant, including, in the end, Lee’s.

    After the war, the “failed president”, as you call him, collected $15.5 million in damages from Britain for its role in aiding the Confederacy (The Alabama claims). The Louisiana Purchase, in comparison, cost only $15 million.

    I’m not going to spend time debunking DiLorenzo’s alternative universe, it’s been done elsewhere, but there’s something seriously wrong when self-styled libertarians glorify those who fought a war to preserve slavery and vilify the Great Emancipator.

    After the Civil War, blacks were able to vote, held high political office, and become successful in commerce and business. Three amendments to the Constitution were enacted with the intent of guarantying the rights of former slaves. As President, Grant appointed Frederick Douglass Marshal of the District of Columbia and Minister to Haiti.

    All this was gradually eroded through violence by such groups as the Klu Klux Klan (founded by six Confederate veterans) and southern Democrats. As part of the compromise that placed Rutherford B. Hayes in the White House, black rights were sacrificed in the interests of domestic tranquility.

    As Frederick Douglas observed:

    To Grant more than any other man the Negro owes his enfranchisement and the Indian a humane policy. In the matter of protection of the freedman from violence his moral courage surpassed that of his party; hence his place at its head was given to timid men, and the country was allowed to drift, instead of stemming the current with stalwart arms.

  • RAB

    My last comment was indeed going to be my last. But I can’t let this go…

    “there’s something seriously wrong when self-styled libertarians glorify those who fought a war to preserve slavery and vilify the Great Emancipator.”

    You are seriously lacking in comprehension skills good sir, if you think I did any such thing!