Another unanimous opinion, though the controversial more divided opinions tend to come at the end of the year, and they have taken up less divisive cases than normal due to their former even number.
While I entirely agree with the decision, the writing of the opinion leaves a bit of an odd dislike, similar to how I felt about the Gay Marriage decision vs opinion, as I wrote on here when that was new.
It is about a free-speech case, where a band wanted the trademark to the name "The Slants".
Here is the WaPo article
, and a couple excerpts that quoted the opinions:
[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. 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."
A law found to discriminate based on viewpoint is an "egregious form of content discrimination," which is "presumptively unconstitutional." … 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.
THe second part, Kennedy's, is fine. But I couldn't quite put my finger on what or how I found Alito's opinion not quite right.
That may have in part to do with the fact that free speech is more restricted in my country, we actually have hate-speech laws.
So I meandered through the comments while processing this, and a commenter reached out and grabbed my finger (figuratively speaking
4:21 PM EDT
Two points offered in the (undoubtedly vain) hope of interjecting thoughtfulness into the recite-by-rote responses self-styled free speech advocates fall into whenever this stuff comes up:
1. . . . but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate."
See if you can think of any prouder thing you could say on behalf of free speech. If not, then, like Justice Alito, you may not have much idea what speech freedom is about, or why it is valuable. What Alito calls a proud boast is in actuality a sad necessity—one we would do without except that we can't otherwise think of any workable method to protect speech from government meddling, except to degrade the standard of protection to the abysmal level Alito is too dense to deplore.
2. . . . our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
Basically, the old saw restated, "The remedy for bad speech is more speech." Which makes sense in the abstract, but is no better than nonsense if the "bad speech" in question delivers actual damage to actual people right away, before "more speech" can come to the rescue. Which happens all the time. Indeed, when it does happen, the more-heedless among free speech advocates immediately get on board to demand suppression of "more speech," lest it too promptly interfere with delivery of the ever-cherished "bad speech."
The premise behind the "more speech" nostrum has always been that we are talking about speech in the abstract. Academic style speech. Forum and counter-forum. Publish and reply. In that context, "more speech" is a fine standard. It's not so useful as a remedy for weaponized speech—targeted speech of the sort contending parties utter in real-life venues all the time these days,
His words remind me of the saying "democracy is the worst form of government, except for all the others".
You could say the same about capitalism and complex economic systems.
But we certainly don't want the government deciding what is acceptable speech or not, because that power can be wielded against anyone, not just the people that we find deplorable today. That doesn't mean I don't begrudge contemptible words (content warning)
(/content warning) that were aimed at demeaning and marginalizing classes of people, even when not used towards that group. At what point does using those words become harassment? If an individual gets called these things once by a new person every day is not that harassment, even though the targeted is the same, but the targeter is not (though a targeter may target a wide swatch of strangers in this group).
Of course, I don't think any words, even these, should be outlawed. If nothing else, they are useful for figuring out which people may
be worth my time, and which people are definitely not
and probably can't be trusted.
So, I agree with the decision, I just don't care for Alito's reasoning.
I am going to do a second post about a 4-2 decision (where was 7, 8, and/or 9?) shortly, and keep that one short
Edited by sierraleone, 20 June 2017 - 04:45 AM.