Monday, January 24, 2005

In Favor of the Speech

I think the classic liberal position is that the state is only justified in limiting rights such as the right to free speech if it infringes on the rights of others. In that case I think situational factors such as time and location are more likely to count than content. I'm thinking here of something more like making a speech in favor of violent overthrow outside a classroom window rather than the situation around Eugene Debbs. Based on this I think arguments for the state limiting hate speech are much stronger.

It could be argued that speech advocating violent overthrow of the government infringes upon some sort of "collective rights" but the arguments for the existence of collective rights is shaky at best and in this case its not clear even what collective right could be.

This is all theoretical though practically speaking there may be good reasons for limiting such speech though I'm inclined to think it's not the case. It is certainly true that such speech could alter individual attitudes towards how changes in government, or changes of a specific government, should take place. However for such speech to have an effect is much more likely to be the result of the structure of the institutions of the government. The argument goes something like this: If people think that if the government has enough power to affect them negatively, then they need only have a belief in a small probability that the government will use its power in this way. However, if they believe that the government has little power to affect them negatively it requires a belief in a high probability that the government will use its power in this way. If speech advocating violent overthrow in the government cites good reasons why the government will use is power to affect them in a negative way, then the speech might raise people's belief in the probability that it will. In the case of the powerful government this might incite people to violent overthrow. In the weak government it's unlikely that it will.


Blogger Vergasy said...

I not sure I get your disctinction between Debs and "outside a classroom window," could you elaborate?

I'll post more later.

7:57 AM  
Blogger Tally Ho said...

Speaking about anything loudly outside a classroom window infringes upon an individual's right in a number of ways. Specifically, I'm thinking of the right to the opportunity to gain the education, knowledge, etc . . that's required to fulfill civic duties and become an active citizen.

I was thinkin of the Debbs case where Holmes wrote the "fire in a crowded theatre" decision. Debbs was advocating dissertion and what not.

11:18 AM  
Blogger Vergasy said...

we just talked about the debs speech in my first amendment class a day or two ago--he really got a raw deal (he was in Ohio speaking as the Socialist candidate for president at a Socialist Party convention; he didn't really advocate anything serious--perhaps his biggest "fault" was expressing admiration for some draft-dodgers).

the classroom window example isn't a content based ban. the question is should a DEMOCRACY permit subersive adovcacy? isn't it just being spoken by individuals who can't get their way thru the democratic process so they want to circumvent it? this might be legitimate to do in an imperfect democracy, but otherwise . . . ? shouldn't a democracy channel political energy into democratic processes? isn't that the point?

your mention of "situational factors like time and location" is interesting considering that the Court ending up using a "clear and present danger" test, although they certainly examined the content.

1:04 PM  

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