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Is Relativism the Best Constitutional Defense of Free Speech? A Conversation with Hadley Arkes

with Hadley Arkes

The great constitutional and natural law scholar Hadley Arkes joins this edition of LibertyLawTalk to discuss the triumph of free speech on the Supreme Court and whether its premise anchored in moral relativism can actually hold?

Reader Discussion

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on July 16, 2018 at 17:23:18 pm

Great talk!
Prof. Arkes, as always, demonstrates the benefits of a mind whose power derives from a clarity of reasoning that is absent in so many in the academy. consequently, he has not fallen victim to confusion consequent to the innumerable legal / philosophical theories that have arisen during the last five or so decades. In short, he both possesses, and can recognize, common sense, a commodity noticeably absent from current jurisprudence and political rhetoric.

And it is that lack of common sense, or as some earlier writers have termed it, "The Common Mind" that has (juridicially) ushered in a season of division, hostility and animus amongst the citizenry. That which was understood, or that which was controlled by the ethos and mores of a Common Society is no longer recognized, indeed it is generally scorned as "privileged", "patriachal" or any one of dozens of newly coined epithets. Moral compasses are apparently confiscated upon arrival at campus. Students, academics, etc. are to "build their own" in the new millennium. Such is the advice and counsel provided as payment for excessive tuition. Yet, this counsel ignores the old adage about "The self made man quite often has a poor foundation."
Politicians of the past promised "A Chicken in every pot", or "Every Man a King". What utter lack of ambition by these old politicos. Now we promise "Every Man (woman and other gender / non-gendered, etc) a God" not only capable of creating his own moral code, but compelled to do so and to impose it on others.

And the Black Robed "diviners" of what is to be our new moral codes have determined that "Every Man a King in his own realm" be that realm in the public square or elsewhere. Consequently, no judgement other than the atomized individual King is to be afforded constitutional protections and that the presumption of liberty, following Barnett et al, does not permit of any restriction upon one's personal liberty. Speech is now apparently "divine"

EXCEPT

When uttered by those that do not count as Arkes recognizes.

Here is a question:

Agreed that Speech absolutism is a departure from both constitutional understandings and our historical traditions.
Given, however, the predilection of the Left, in particular the Leftist Legal Academy / Bar / Judiciary, is it not advisable for the Right to "prudently yet insincerely) "support" the absolutist version of the First amendment? Absent some formal recognition by the Black Robes that ALL speech is permitted would not the situation in the academy, in corporations, and the public square become intolerable for the Right?
Admittedly, the absolutist version yields unpleasant results.
BUT, the "moral / more" based version, given the makeup of current Judiciary would yield even greater power and influence to the Black Robes who would welcome the opportunity to "divine" who is hateful and who is not.
Just a thought!

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gabe
on July 16, 2018 at 21:16:08 pm

Excellent podcast!

A short while back, those folks who, like me, are regular participants in Liberty Law Site commentary, may recall a particular exchange where I tried (perhaps poorly) to defend Prof. Arkes reaction and position on the decision in Matal – with the especial caveat, that, “he can speak for himself”.

Thanks to Mr. Reinsch, by his own original accord, for giving Prof. Arkes an opportunity to do just that!

As like so many others, for me the book First Things, had a life-changing impact on my way of thinking and understanding, and articulated so well for the first time, what subconsciously for so long, had been making me feel increasingly uneasy about what I sensed to be the dysfunctional, unraveling predicament our country has gotten itself into. And, this by having long fallen prey to a relativistic moral philosophy by way of a sort of soft graduated ambushing, perpetrated against a mostly unsuspecting polity, over time in a manner so subtle and imperceptible, that few can recall having ever known another way; so thoroughly has this metastasization occurred, that it now pervades not only the organs of our government and jurisprudence, but also nearly every other aspect of American culture.

So, whenever I hear Prof. Arkes, ever humble and self-deprecating, quip that his book First Things “is used all over Chicago by (his) relatives to put under drinks”, I always feel compelled to respond, “in that case, those drinks seem to have better foundations, and to be based more solidly on a sound understanding of the Constitution, than do a great many of the Supreme Court Decisions over the last fifty years”.

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Paul Binotto
on July 16, 2018 at 23:53:43 pm

I suspect that Professor Arkes and I are in agreement on a great many principles, but I still disagree with his approach on matters of speech. Whether it is Professor Arkes's position or not, I reject the notion that moral relativism is a prerequisite, justification for, or a companion philosophy to "speech absolutism." I therefore answer the question that is the title of this post with "no."

I disagree with Professor Arkes that "verbal assaults" are a consideration that justifies the use of government force. I will state, categorically, that subjective offense is not a matter for legislation or prior restraint. What, exactly is an appropriate remedy for hurt feelings? I reject Professor Arkes's claim, for which he repeatedly makes appeal to Justice Murphy in Chaplinky, that common sense and natural law can guide which words are acceptable and which are not. I have considered his argument and given him the benefit of the doubt and am not convinced.

Being denied the use of some words on the grounds that others are available is insufficient. Supposedly one of the key moments in the O.J. Simpson murder trial was when F. Lee Bailey asked Mark Fuhrman if he had ever used the word "nigger." The question as posed in court was deliberate; it struck the ear with a certain timber and elicited a distinct reaction. One can imagine the distinct difference between the question as posed and "have you ever used the 'N-word?'" and whether, if the Judge had allowed only the latter usage, Mr.SImpson would have been denied a fair trial. Mandatory euphemisms and circumlocution are not compatible with the concept of free speech. Also I still believe that anyone who thinks that proscriptions on speech will be applied without political bias is naive.

I also disagree with Professor Arkes's assertion that Justice Scalia is the one who lacked confidence in his principles. It seems the Justice could very well return the same accusation against Professor Arkes. It is the latter who seems unsure of the chances of Natural Law principles to prevail in area's of discourse unhampered by limits on what speech is or is not acceptable. It is Professor Arkes that comes across as unsure of the possibility of arguing against moral relativism in an environments in which all arguments and manner of arguments are allowed, that the Truth can only be proclaimed in the presence of a government censor. I do not think that the Truth ultimately prevails only in civilized debate. I suggest that Professor Arke's substantive arguments about human dignity, and metaphysical equality will prevail regardless of whether certain terms are proscribed from the discourse. I think Professor Arkes would be justified in saying "you can say whatever you want, you can do whatever you want, be you cannot create the universe to be whatever you want." As regards the great social upheavals of our times, I would commend teh observation of John Paul II: "The outcome has already been decided."

I have a great deal of respect for Professor Arkes, both his character and his intellect. I sympathize with his views on a great many subjects, but on matters of free speech, I respectfully disagree.

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z9z99
on July 17, 2018 at 05:39:31 am

Z,

Your position, as always, is very well stated, respectful, intelligent, and above all, bears the weight of your honorable convictions. This extremely important topic deserves this type of honest and vigorous debate and exchange of ideas.

As to the specific points of concern you detail where you think Pref. Arkes' position is lacking, I will have to defer any rebuttal to him, should he wish to make on.

I will only reiterate here one salient point of my position earlier, as you seem to overlook or discount it, or at least, you do not seem to clearly address it in your remarks.

That point is, I do not detect or recall anything Prof. Arkes has said or written that indicates he is necessarily in disagreement with the outcome in Matal, but only rather his disagreement appears to be with the relativistic moral reasoning employed to reach it; this when an objectively sound, non-contradicting, and categorically true position of moral reasoning was available to arrive at the same result. As such, if the outcome in Matal were the same under proper moral reasoning, it’s unclear to me at least, how this would more so diminish free speech, or rather, more so empower, Progressive’s ability to suppress it.

I will close by only saying, I am in complete agreement, Truth will prevail, and as you rightly quote Pope St. John Paul II, indeed, “[t]he outcome has already been decided.” Therefore, respectfully, it would seem it is you who lacks confidence if you anticipate that Truth rigorously and rightfully defended, cannot ultimately prevail, even if it, “can only be proclaimed in the presence of a government censor.”

With highest regards, -Paul

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Paul Binotto
on July 17, 2018 at 13:31:57 pm

Paul,

I do not agree that the deference to subjectivity in Matal is endorsement of moral relativism.

I take Professor Arkes's position to rest on the notion that allowing individual persons to decide for themselves what words are and are not offensive would not arise except for embrace of moral relativism. I can see his "camel's nose under the tent" concern, but I disagree with it. He seems to adopt the view, not unreasonably, but in my view incorrect, that a person cannot choose what is offensive to others; there must be some objective standard or reference that keeps gratuitous offense out of public discourse. He offers "common sense" and natural law as providing such standards and reference. Then he concludes that there are certain words that can thereby be banned. This is his opposition to free speech absolutism. I think everyone should be allowed to decide for themselves what words are and are not offensive; they should just not expect anyone else, especially the government, to care.

Now on the other side they do not only argue that that a person can decide for himself what others should find offensive, but rather that each individual can decide for himself what is offensive to him, and thereby expect that those subjective words be banned. This is a situation rather like the joke whose punchline ends with

"$100 dollars? What kink of woman do you think I am?"

"We have already established that. Now we are just negotiating price."

Having established that "hurtful words" can be banned, and using Professor Arkes as a reference, we are now only arguing about the details of who gets to decide what is hurtful or offensive. I reject this ab initio. It doesn't matter by what criteria we judge words to be hurtful or offensive-- Natural Law, tradition, personal taste, or whatever, the threat of subjective offense is insufficient grounds for banning them. I do not doubt that there are words that, as Professor Arkes points out "wound by their very utterance." I don't think that there are any such words that justify brandishing truncheons and having the constabulary physically suppress such utterances. I was somewhat intrigued that Professor Arkes seemed surprised by his experience at Berkeley when his position seems very conducive to such a result.

As to your comment " it would seem it is you who lacks confidence if you anticipate that Truth rigorously and rightfully defended, cannot ultimately prevail," This is a non sequitur. I never said the truth cannot prevail, under any circumstances. I said the exact opposite. I reject the notion that certain speech must be banned in order for Truth to be "rigorously and rightly defended." If you look at the history of the early church, it flourished when believers were burned alive, fed to lions, and in the face of the most determined governmental opposition. Truth finds a way. I think it can withstand a little name-calling.

I think that on this point, we shall have to agree to disagree.

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z9z99
on July 17, 2018 at 15:14:00 pm

Z,

While I don't think you've exactly addressed my point specifically regarding the same outcome, via the alternative available (proper) moral reasoning in Matal, no worries, I won't feed to you the lions, or seek to burn you alive for it; or for disagreeing with me - ha! I find some of my best friends to be quite disagreeable, and they, me!

But, you'll forgive me if I still try every once in a while to change your mind... ;-)

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Paul Binotto
on July 17, 2018 at 16:00:52 pm

Paul,

With respect, I believe I did answer your question. To the extent that "proper moral reasoning" concludes that some speech may be banned by civil authority, I disagree with it. If Professor Arkes had made his argument without inserting that banning some speech is okay as long as a point can be made in other ways, I would less objection, but he didn't. He is the one who suggests that certain "hurtful words" can be suppressed. As to the specificis of your question:

"... it’s unclear to me at least, how this would more so diminish free speech, or rather, more so empower, Progressive’s ability to suppress it,"

I will simply say that, when the phrase "all lives matter" is considered offensive, I think I am on pretty firm ground.

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z9z99
on July 17, 2018 at 16:37:48 pm

Z / Paul:

A few comments:

Z, as always, in his insightful and trenchant commentary on both Prof. Arkes and Free Speech Absolutism (FSA) presents defense of FSA. If this defense is intended as a theoretical underpinning for a just / civil / republican society and not on offer as a regrettably needed accommodation to the zeitgeist, leftist in orientation and determinations, then I would enter some considered reservations against that which is on offer as an operating principle - FSA.

In my (as usual) truncated comments above I referenced a Common Mind, a rather useful concept for the understanding of social mores / practices and philosophies.
(https://www.amazon.com/Common-Mind-Politics-Christian-Humanism/dp/1621380114/ref=sr_1_1?s=books&ie=UTF8&qid=1531856557&sr=1-1&keywords=The+Common+Mind)

Simplifying the thesis of Andre Gushurst-Moore in this interesting book, one can, in the interests of concision, employ the shorthand "common sense." And it is precisely that *common* sense or understandings to which Prof. Arkes repeatedly refers. No, we are not here speaking of the common sense notion of constructing / erecting a fence, as an example, but rather that cultural / societal and yes governmental (more to follow) posture / epistemology on morality, behavior, rules of civil conduct and human fallibility, etc. Arkes bases his argument on the ability of the common man (as well as others not quite so common) to understand and recognize that which is improper, immoral or simply uncivil, e.g., epithets such as "spic", "wop" "Chink", among other terms of opprobrium AND for past generations of Americans to effectively "Send to Coventry" those whose mannerisms, vociferous invective laden outbursts offended the Common Mind and standards of decency and civility.
I think we would all prefer that some not too dissimilar social convention were still operative; where the norm would be a "kinder, gentler' form of intercourse, a respect for the opinions of others and a willingness to *engage* an argument rather than resort to all manner of ad hominems.
(From Powerline Blog, an example of The [former] Common Mind:

http://www.powerlineblog.com/archives/2018/07/what-liberals-used-to-be-like.php

Arkes is keenly aware, as evidenced by his concern over the future of discourse in America, that this (once) commonly shared assessment of proper and civil behavior has changed, if not disappeared altogether. As such one may no longer rely upon this particular form of etiquette to police malcontents / miscreants and other gadflies. He is quite correct in that assessment although he may appear reluctant or unwilling to acknowledge the depths to which our cultural behavior / norms have fallen.

YET, I would argue that Arkes is CORRECT and that history bears him out in his assertion that government can (I am unclear if "ought to" is appropriate) exercise a "policing" of public discourse.

Indeed, from the early years of the Republic, the government did PRECISELY that. Recall, it was not until the early 1970's that Lenny Bruce was "legally" able to say *fuck*, etc. Numerous moral codes were enacted and judicially enforced by early Legislatures and Courts along with numerous prohibitions on other forms of "immoral" uncivil behavior. One would have to weave a rather convoluted argument to assert that these State police powers were considered by the Framers, and their State counterparts, to be unconstitutional.
As indicated earlier, early courts routinely upheld the power of the Legislature to enforce these codes. essentially their reasoning in supporting these laws was based upon the same assertion that Arkes employs - natural rights AND the recognition that some liberties must, perforce, be *reasonably entailed in order that the "greater sphere" of liberty be protected. did this restriction prevent or severely limit the ability of a speaker to advance a political argument. (Let us not forget that the !st Amendment Speech guarantees was primarily aimed at protecting "political speech" as is borne out by a review of the historical antecedent events leading to the DOI). Other speech protections are, in my view, derivative of that *primary focus* of speech protections.
One may advance the argument that this regime of NON- FSA worked precisely because of the contemporaneous zeitgeist - The Common Mind. I think this quite correct if somewhat unremarkable.

One may also argue that absent such a common understanding of the expected norms, indeed, in a time characterized as a refusal to accept and submit to ANY norms, "nudging", moralizing by the government will be viewed with great suspicion. We do, in fact, observe such an attitude today - and it is apparently a perception common to both Left and Right.

Thus, we have rather serious, learned people advocating FSA.
Arkes stands astride this trend and "gently" shouts Stop!!!!

It is here where I must part company with Arkes who places great value upon the (proper) past practices of the American regime in its efforts to "police", impel and otherwise recognize moral standards.
I depart not because as a "theoretical underpinning" or an "operating precondition" it is wrong BUT simply as a practical matter. Madison is said to have remarked (paraphrase here) that the laws are nothing if not respected / acknowledge by a virtuous people. sadly, his fears have come to pass. There is no need to recount all of our present moral / intellectual failings as readers of this site may offer their own. The fact is that there is no underlying moral predicate uniting the people in an understanding of what constitutes civil / moral society.

To entrust our ability to exercise our 'Speech" rights to such an uncivil society, populated by all manner of positivists / moral relativists, indeed cultural relativists, as on display at this site, would be akin to the "Divine Wind" flights of fancy deployed by the Japanese Air Force circa 1945. You may succeed in killing only yourself, and as Paul Binotto suggests, "we do not want to commit anyone to the flames" of this Divine Wind.

Safer then, tactically preferred to accommodate oneself to the current Judicial climes. Indeed, we may need to insist that the Black Robes, at EVERY level, hold fast to the Speech Absolutism, that has up until this point served their "purposive" progressive goals. Insist that, absent some return to moral sensibilities that ALL SPEECH IS TO BE PROTECTED, as distasteful as that may be.

Without FSA we will be subjected to ever more charges of / proscriptions against *hate* speech, the nature of which is to be determined by ONLY those capable of reading deep into a man's soul having, of course, first pondered the "great mysteries of life" - Oops, I forgot, He resigned but his acolytes remain poised to delve ever deeper into the souls of the *hateful.*

It may need to get much worse before it gets better - not just speech but morals.

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gabe
on July 17, 2018 at 16:40:47 pm

Hey this IS silly. If one posts TWO links it must be put on hold.
Goodness gracious - can't we have like the TSA - "trusted travelers"?

who knows my long post may follow.
Oh I get it, One link is protected speech - Two links is "hate speech"

Jus kiddin, kiddies!

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gabe
on July 17, 2018 at 16:52:35 pm

I think this calls for the appointment of a SC to get to the bottom of this, Mr. Gabe; sounds clearly like a case of obstruction. I once quipped elsewhere that Trump was accused of obstruction after a journalist found an empty bottle of Metamucil in the White House trash...and another one accused him of being a loose cannon...I still waiting for the remark to emerge from moderation...

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Paul Binotto
on July 17, 2018 at 18:28:55 pm

Well it seems those damn Russkies are at it again - interfering in our politics.

I want some indictments handed down - and (pronto) короткий!!!!

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gabe
on July 17, 2018 at 18:38:34 pm

Ha! Sounds like its time we tell them to hit the golden showers, their game is up! Hey, Mr. Gabe, did you hear about the international incident outside the Helsinki men's room? Its seems, Trump was exiting just as Putin was entering and they had a, are you ready?... A collusion collision. wa-wa-waaaa!

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Paul Binotto
on July 18, 2018 at 07:34:26 am

Or is it that we now have a censor like Facebook or that dreadful Twitter thingy?

All i can think of is that my use of three words of ethnic derision, used as "examples" may be sufficient to prevent ones comments from being published.

This is annoying.

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gabe
on July 18, 2018 at 09:13:05 am

I am glad to see your post made it out of moderation, Mr. Gabe. As always, you distinguish yourself as a most uncommon man with an uncommon intellect!

Your points are well taken, and perhaps it is the wiser path, indeed, perhaps the path we are on as a nation is already a fait accompli.

My reservations (not speaking for Hadley Arkes) is that when nothing, common mind, good manners, or coercion does not intercede to keep people from telling other people what they really think about them, it is not long before fists begin flying and civil society fissures. People inevitably will reclaim from their government what their government fails to provide, and conclude the necessity to "settle" matters themselves. Because Progressives are NOT going to be satisfied with FSA, and Conservatives are not going to buckle under, or be silenced.

God forbid it, God permit it, the way I see it, FSA leaves but two options: 1) ultimate conformity by all to one manner of philosophy or the other, OR, 2) civil blood-shed.

Perhaps these are the only two options regardless. If so, for me, I'd prefer the truth (yes, we can know it) to have been spoken. Because, if (or when) the rending occurs, as it stands now, the relativists will enter the conflict carrying the banner of the Supreme Court's imprimatur.

Would the U.S. Civil War had been waged had Taney ruled differently? Probably. Was the Confederacy emboldened by Dred Scott? Probably most certainly. Would the war have been waged at such great cost and loss of life for so long had the Confederacy not felt fully justified in the rightness of their position by the Scott decision? We will never know, I suppose.

Shedding my cynical skin for a moment, I will don the less form-fitting one of optimism just long enough so as not to end this commentary on a sour note; I am hopeful civil war is not inevitable, nor do I reject the possibility that it can be averted by some sudden and miraculous eruption of common sense and decency.

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Paul Binotto
on July 18, 2018 at 14:53:49 pm

[…] Prof. Arkes on LibertyLawTalk with Richard Reinsch. Audio courtesy of LibertyLawTalk. […]

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“Is Relativism the Best Constitutional Defense of Free Speech?” Richard Reinsch Interviews Hadley Arkes for LibertyLawTalk | James Wilson Institute
on July 18, 2018 at 16:27:49 pm

I'm both late to this discussion and did not listen to the Arkes' podcast on L&L (because I have avoided L&L podcasts since suffering through its especially uninformative, indeed, botched podcast opportunity on "Mere Civility," which book, ironically, would be of great use in analyzing Arkes' point.)

But well before the podcast, last winter I read Arkes' extensive essay on the subject in the Claremont Review, in which he discusses his argument against the SCOTUS' position of absolute free speech.

http://www.claremont.org/crb/article/conservatives-and-freedom-of-speech/#.

I must agree with Arkes. And I would add that the Court's absolutist position is both a gateway drug in the process of social addiction to moral coarsening and political relativism and a strategic constitutional error in an existential culture war against progressivism. Except for spies, sleeping with the enemy is dangerous; embracing its ideology suicidal.

I fail to see how one fends off the forces of moral relativism and the PC speech/thought police, how one liberates college campuses from group-think captivity or how one makes the public square a safe place for conservatism (especially religious conservatism) by conceding to the Left both the moral high ground and the natural law foundation on which the constitutional right and political value of free speech rests.

As Arkes notes, the modern day ACLU (which does NOT defend the speech of those with whom it ideologically disagrees, just ask Alan Dershowitz) has made into a self-promoting, fund-raising slogan the constitutionally-dubious, intellectually-vacuous phrase that freedom of speech is “even for the speech we hate” and "for the people who may truly be hateful."

That the ACLU (and its allies of the anti-American Left) espouse the propaganda of absolute free speech in order to fund and wage war against authentic intellectual, moral, religious and political discourse is evidence that Arkes is right.

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Pukka Luftmensch
on July 18, 2018 at 16:46:14 pm

Good point!

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Paul Binotto
on July 18, 2018 at 20:01:40 pm

A few final thoughts:

1. One of the necessary elements of people interacting with one another in a civil society is the ability of people to assess others' character. When speech is limited by force, or even significantly by social pressure, this ability is diminished and civil society suffers.

2. A citizen in a free and civil society is not only responsible for the content and manner if his own speech, but also in controlling his emotional responses to the speech of others. Avoiding this fact by labeling certain speech "hurtful" and allowing mechanisms to suppress it legitimizes and promotes a debilitating flaw in the character of a free people, to society's detriment.

3. Free speech absolutism is a misnomer. I previously stated on Professor Rappaport's thread that the law may legitimately provide a remedy for harms that results from misleading assertions of fact. Furthermore, the deference accorded to verbal communication does not extend to anything that "activists" wish to label speech.

4. One very helpful notion to consider in evaluating policies, legislation and ordinances, particularly those involving bans and mandates is the possibility that the persons subject to such government machinations are in fact smarter than both the persons promulgating them and those enforcing them. Attempts in the Soviet Union to suppress speech resulted in samizdat. Attempts to regulate sexual content of speech gave rise to ingenious double entendres. There is no way for the authorities to surveil everywhere that an idea might spread.

5. The left is most certainly not in favor of free speech absolutism, or free speech in general. Professor Arkes, Charles Murray, Ben Shapiro, Jordan Peterson, James Damore etc. can attest to that fact. As mentioned previously, when the phrase "All lives matter" is considered "hurtful" there is literally no limit to the ideas that the left will offer up to the speech enforcers; on campus, in journals, internet websites, and potentially law enforcement, that cannot be claimed a proper subject of suppression. When this happens, the result is not more civil discourse; it is arbitrary and unpredictable application of government power. Recall that Matal involved a bureaucratic assessment of the offensiveness of the name "Slants." Also recall however, that in 1974 there was a a very popular song ("Come and Get Your Love") by a Native American group called "Redbone," a pejorative Cajun term for mixed race.

6. Once it established and accepted that the government may sanction someone for speech that is considered "hurtful,"or even "uncivil" we are then obligated to decide who will make such determinations. I am sure Media Matters and Think Progress have a list of candidates to hand. People are arrested in the UK for things they put on Facebook. I prefer to deny legitimacy to the whole farce.

7. Moral relativism is not compatible with free speech. In a free society a moral relativist may say" On what grounds do you claim your morality is superior to mine?" and a free person may answer. In the leftist vision the moral relativist will say "you cannot say that your morality is superior to mine and the police will not let you," and the respondent, being no longer free, will have no response. The essence of moral relativism is that all moral perspectives are equally valid, an artificial claim that has poor prospects in reasoned debate. It will only flourish when the debate is squelched.

8. It is difficult to defend moral ground, high or otherwise, if one allows others to determine which views are and are not allowed, and how they are expressed.

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z9z99
on July 18, 2018 at 20:56:16 pm

Z:

1) I am not so certain that one is unable to determine the character of another individual absent FSA (as I define it above).
2) My *apparent* support for FSA is purely a tactical matter and bears directly upon your concerns. what I have suggested is this:
In a world where it is assumed (practiced, actually) that certain speech is hateful, and in a world where the Black Robes have recently afforded previously deemed "hateful" speech as "protected and in the doing denied any moral basis or societal strictures upon speech (see "Slants), it can only be advantageous to insist that the Black robes, and to the extent the Leftist loonies and gadflies of today "claim" to respect SCOTUS determinations, not only continue to provide such a broad protection but that they assure that the "hateful" speech of those right of center is also protected.
3) As to #7 & the moral relativist enlisting the support of the police - that is precisely my point. At this stage of our societal / cultural deformation, BUT ONLY AT THIS STAGE, IT IS TACTICALLY wise to *insist* upon FSA. Sauce for the gander and all that!
4) However, we, as a nation, seemed to progress quite well under the now (perceived to be) outdated conception of civil behavior. The sciences advanced, the economy grew, political theories proliferated as did all the silly folderol otherwise known as the Social "Sciences"; and until recent decades, even religion was flourishing and exerted a "tempering" influence upon the population.
5) Re: Suppressed speech of those who may be smarter: Well, being a knucklehead, and somewhat proud of it, I cannot offer a definitive opinion on the matter of "smarts". I am, however, able to point to your own words regarding "double entendres" - They not only appeared but they proliferated. thus, the smart folks were neither suppressed nor left without a vehicle to so express themselves. Plus, (and I suspect many readers will share my opinion on this) it was a "Shitload more fun" than the rather coarse, often obscene presentations of the day.
6) quite right that not everything the Loonie Left considers speech is not speech. Defecating on the front lawn of a political adversary IS not speech and it does not require a mind of exceptional fecundity to declare that it is. Then again, perhaps, it does require a rather fecund mind.
6) As to #2 (alluded to previously): Rather than *observing* only a flaw in the character of the citizen, perhaps, we may want to focus more on the *virtue* of restraint. I suspect that most folks can make a fairly accurate assessment of another even if the other is not shouting, "Jew, Kike, Slant or Wop". To emphasize the need for an individual to be exposed to rampant stupidity (OK, that is essentially the content of the news media, I get it) in order to recognize a defective character is not only misleading but diminishes both the ability of civilized, rational people to detect defects in others and the value of restraining oneself.
7) Yet, as I indicated above: I agree FSA, minus libel, threats, etc) *ought* to be our default position BUT only in the current circumstances. Ultimately, it is our only protection against the fanaticism of the newly (and yeah, "hardened) zealots of the Progressive Left.
8) BUT, it ought to be our ultimate goal to restore the common sense and civility, as Arkes says, capable of being apprehended by the common man, the truck driver, landscaper, factory worker. Each of these, not corrupted by college MAL-education, is able to determine what is proper, what conduces to civic comity and can clearly discern the bullshit of "multiple genders" etc for the idiotic pablum fed to immature yet receptive minds for what it is.
Question:

Under an organizing principle that not only allows FSA, but in a sense demands it, how could it be improper for a Leftist Primary / Secondary School teacher (not that there are any Leftist members of the NEA) to indoctrinate young children on the "benefits" and "beauties" of the gay life or of switching genders, i.e. either cutting off a wanker or adding one (can that be done?)?
What prevents anyone from clamoring for more speech, no matter how dysfunctional it may be; no matter the effect upon the young.
You tell me: "Just how successful will a litigant before the Black Robes when *it* alleges that *it* is only engaging in free speech and advancing its own rather peculiar of gender and sexuality to impressionable F'ING FIRST GRADERS. (see recent issues in Minnesota Schools and elsewhere)

Under your prescription, the litigant "ought" to win because the truth will out. Well, Schucks, my friend (and I do mean that even in this sarcastic interlude), How is my 3 year old grandson, at this point, completely unaware of the concepts of sex / gender and (Ha!) *intersectionality* to be able to "will out the truth."

9) "It is difficult to defend moral ground, high or otherwise, if one allows others to determine which views are and are not allowed, and how they are expressed."
A question for you:

"How is one to defend moral ground, presumably HIGH, if one is Unprepared, Unwilling and / or otherwise unable to FIRST advance it, spread it and enlist a general societal / cultural consensus in support of those *First Things* (Yep, I know the Loonie Toons can argue the same BUT.... (We were at it First)

take care
gabe

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gabe
on July 18, 2018 at 21:01:34 pm

Z,

All good points. And, while I really was intending on giving you the final thoughts on this matter, I think it is important to make one final distinction regarding Matal at least as pertaining to your item #3 above.

Matal as I understand it, really isn’t about “verbal communication” in its truest sense of the meaning, and is so only incidentally to the much broader intended use of the word “Slant”. Rather, as a copyrighted branding, it was intended to be widely distributed, under every and all available forms of promotional and marketing communication; its “verbal” usage, being probably the least among them. Or are you defining “verbal communication” in a very broad manner as to encompass all forms of communication, verbal, digital, print, video, etc.? Maybe I am misunderstanding #3.

Maybe I misunderstand Matal; maybe the court ruled too broadly, when a narrower decision would’ve sufficed and been the wiser. Maybe the court could have still come to the same outcome by stating, in effect, “Yes, the right to free speech does have knowable limits, but this case does not rise to those limits.”

I could say more, but it would only be backtracking over ground we already crossed together, but failed to arrive at the same location. And, it’s too rocky for my tired feet to retrace at this late hour. No pun intended, time for this old boy to get some "Z's".

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Paul Binotto
on July 18, 2018 at 21:29:46 pm

"Defecating on the front lawn of a political adversary IS not speech", it may be, however, a protected expression of sentiment (and sediment), for me, one that the dictates of modesty necessarily demands I express only behind closed doors.

I see, Mr. Gabe, that maybe I misread Z's #3?

Anyway, I agree with you regarding the lost art of “double entendres” (within proper bounds), however, not so suprisingly, #MeToo seems to find it equally on par with rape, so

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Paul Binotto
on July 18, 2018 at 22:22:28 pm

Professor Robert George has written in "Making Men Moral" that a minimal respect for the social order is needed if we are to assure the freedom to pursue activities and lives that are worthwhile.
George says that because "speech that facilitates genuine cooperation for worthy ends is valuable" restriction of speech because of its content must be rare and narrow, based on social prudence and with an eye toward its true purpose, but would be permissible for speech that is "gratuitous abuse," "sheer manipulation" or "likely to result in serious harms or injustices." And he would argue, on balance, for more tolerance, tougher, thicker skins and less official restraint.

Sounds like Bejan's description of Roger Williams' attitude in her book "Mere Civility" but with a legally-protective, mild punch, and it makes sense to me.

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Pukka Luftmensch
on July 19, 2018 at 00:56:22 am

Gabe,

You misquoted me in my first point. I did not say that "one is unable to discern character in the absence of FSA." I said that the ability to discern character is diminished. Let people speak freely and they will often tell you who they are.

I sympathize with your desire for a return to "common sense and civility." I think this was Kevin Hardwick's stated desire in the thread regarding the Declaration of Independence, when there was even some support for the notion that defense of the Declaration was too civil. But I also noticed that you correctly associated this civility and restraint with virtues, and I would offer that authentic virtue has little need for government coercion, and what appears to be restraint, but which is in reality submission to government coercion, is not really a virtue.

As to your specific questions:

1.) Regarding teaching sex to third graders as a matter of free speech: This is not really a free speech issue for two reasons; i.) freedom of speech does not include freedom to have an audience, and ii.) it implicates a fundamental right of parents to direct the upbringing of their children. The Supreme Court explained:

These cases recognize the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children especially in a captive audience -- from exposure to sexually explicit, indecent, or lewd speech.

Bethel Sch. Dist. v. Fraser, 478 U.S. 675. There is a philosophical issue regarding whether it is the right of parents to direct the education and upbringing of their children, or the rights of children to have their upbringing directed by the people who know them best and care about them most, their parents. In either case, there is no free speech right on the part of the teacher to infringe on this"fundamental right" that has been consistently upheld since Meyer v. Nebraska in 1923. Protecting the right of the parents and students in the classroom does not infringe the freedom of speech of the teacher.

As to the second question, regarding defending moral ground: Morality has a source and it has a purpose. Not insignificantly it also has a history, a tradition and an inherent relationship to human dignity. These things are independent of general societal/cultural consensus. Certainly a moral society is healthier than one that is not, but defending moral ground does not require consensus; it requires confidence that there is a Truth, and that a person have the courage to proclaim it in the absence of consensus.

In my opinion.

Paul,

I am defining verbal communication quite narrowly. In the most basic sense it is words or clearly decipherable representation of words, like sign language. It is the capacity to convey ideas in a manner that affects the cognition of the audience and little else. (such as bodily integrity, freedom of movement, etc.) I actually agree with you. I think that the government can legitimately, through clearly defined policies refuse its imprimatur to such things as copyrights, vanity license plates and the like. I see no problem with the DMV refusing a license plate that reads SEXISGR8 or METHGOD. My disagreement with Professor Arkes stems largely from his reading of Matal as establishing "a doctrine that settles on moral relativism as the anchoring premise and the new default position in judging matters of speech".

After quoting Jusitice Alito "Speech may not be banned on the ground that it expresses ideas that offend," Professor Arkes wrote "the implication here was that 'offense' is entirely subjective—that there is nothing in fact, in principle, offensive and wrong." I think that Professor Arkes's anxieties are a stretch. I don't think that Alito's statement settles on moral relativism as the default position in settling matters of speech.

Maybe I'm wrong.

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z9z99
on July 19, 2018 at 06:13:56 am

This is a very interesting quote; I hadn't heard it before = thanks for including it here! Makes sense to me, too

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Paul Binotto
on July 19, 2018 at 07:49:40 am

Z - good morning,

I am glad we have found a common denominator of agreement; we probably are in much greater agreement than seems apparent; points of contention often make people seem to be standing miles apart when in truth they are standing shoulder-to-shoulder.

Maybe we’re both wrong for the right reasons; these questions really go to how best to restore and preserve what we both cherish beyond the adequacy of words.

This analogy of standing “shoulder-to-shoulder” raises an interesting question, perhaps best posited as a statement. But first let me state, I know you are not a relativist, but are willing to take it up in order to “fight fire with fire”. I totally get it.

I would only submit, even while it might seem counter-intuitive, that that aged-old saying between Americans, (and, incidentally, I can’t say I have ever heard two citizens of any other nation say it, or express a similar sentiment), “I do not agree with what you say, but I would die defending your right to say it”, would, could never be a sentiment derived and expressed under a relativistic theory of free-speech, because by its very implication, why would anyone ever willingly fight, let alone, die, for a principle that carries no more or no less weight than any other conceivable principle?

That this principle, and those many others contained in our Declaration of Independence and Constitution, do carry greater weight, is the binding force between Americans, and why we have been debating it for days – and rightfully so, and it is good that we do. Absent these distinctions, our society (at least as we know and love it, warts and all), can only deteriorate and lose its cohesion. And, there is already amble evidence that that has largely already happened, or at least, is happening.

There is another common saving among American’s that has of late fallen into disrepute, this one derived from the 2nd Amendment, “I will give up my gun when they pry it from my cold, dead, hands”.

I understand, why you have concluded, what Mr. Gabe would say is “tactically” vital “at this stage”, and you both may be right; still in my best judgement, I think the best way to combat, and ultimately defeat, this madness plaguing our country, can only occur, under the rallying-cry, (stealing from that other cry), “I will give up First Principles when they cut it from my cold, dead, heart”.

But, regardless, when it comes down to it, I will be there fighting right along-side, as we like to say in Pittsburgh, “yins guys”.

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Paul Binotto
on July 19, 2018 at 11:12:24 am

Absotively FINAL comments:

Let me express my appreciation for both Paul and Z excellent commentaries. Notice that we were not plagued by the usual trolls; consequently we were able to have a reasoned debate.
Indeed, it even made me drop by customary *voice* for a period.

I DO appreciate the thought / conviction and controlled spirit evident in your commentaries.

Take care
No back to the Open Championship where the Stewards of the Game see fit to allow the "play" to develop naturally, come what may.
should be fun!

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gabe
on July 19, 2018 at 11:28:10 am

Mr. Gabe, thank you for the kind words; I am humbled by your complement, but more so by the opportunity to engage here with such brilliant minds, and honorable characters.

Very truly, -Paul

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Paul Binotto
on July 19, 2018 at 20:01:43 pm

I was late to this impressive conversation, indeed, the most impressive I've seen on this site. The substance aside (that of commentator Arkes and his several serious commenters) I want to reply to Gabe's last comment, "...not plagued by the usual trolls; consequently we were able to have a reasoned debate."

That is a serious point which I have made repeatedly. The Left is now so deranged and so disruptive that one must ask, "Why pay attention to anything the Left says?"

I say not to debate barbarians at the gate for two reasons, they're barbarians and they're at the gate of civilization intent of its destruction.

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Pukka Luftmensch
on July 25, 2018 at 09:55:46 am

Watch this Claremont live panel discussion today at Noon EDT:
https://www.heritage.org/events

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Pukka Luftmensch

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