Posted by: Doug Henwood | June 20, 2011

Courts: the popular angle

My pal Elise Hendrick posted this excellent comment on the “robed ghouls act in character” post to Facebook:

I’d say that part of the obsession, outside of élite circles, is due to a combination of : a) An educational system that hammers into people’s heads the notion that The Constitution and the Supreme Court are the representatives and defenders, respectively, of all that is good and right in society; b) A general lack of understanding of the history of the Warren (and early Burger) courts. People look at the decisions of the day – Brown v. Bd. of Ed., Brandenburg v. Ohio, etc. etc. etc. – and not at the social context. The Warren court was operating in an atmosphere of mass popular upheaval, and followed – not led – the public’s demands for change. The difference between Plessy and Brown is not so much the court’s composition as the public mood – segregation was already highly unpopular, particularly in the north, by the time the Brown decision was issued. The free speech cases that actually created the free speech rights that people now falsely believe have been applied since 1776 were handed down in the face of an insurgent public that was going well beyond the long-established limits of its accepted sphere (spectators, not protagonists).

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Responses

  1. I think that’s wrong. I think the “Warren” court was genuinely progressive but it’s an exception not the rule to the regressive nature of the court.

    We think the Court is a hero because all the books were written by people in love with the Warren court.

    Bush v Gore ended all that.

  2. Yes, and Brandenberg isn’t that great of a case since it protects KKK speech. It is truly too liberal.

  3. It’s a fatal error to try to analyse social phenomena based solely on the ideological preferences of those who work in institutions. Whether the members of the Warren court were ‘genuinely progressive’ or not is a secondary question – they could have been dévotés of Critical Legal Theory (OK, they really couldn’t have been), and they still would be operating in the context of the forces that shape the society as a whole.

    Charles writes in to let us know that he isn’t familiar with the concept of freedom of speech. The short version: If the state reserves the power to criminalise any speech based on its political content (even if it happens to be content that you don’t mind seeing criminalised), there’s no freedom of speech. If the KKK doesn’t have freedom of speech, then you haven’t got it either.

  4. Actually, I studied the US First Amendment first in law school in 1979 in my constitutional law class, and then of course in studying for the two bar exams I passed in 79 and 84. Then I did special research on the first amendment with respect to the issue of outlawing fascistic white supremacist speech. I developed a jurisprudential theory contra the standard liberal doctrine on the issue in part based on the United Nations Human Rights Convention which has a stricter incitement standard than the Brandenburg standard; the B standard only denies protection for speech that incites to imminent lawless action. Or we can say that I advocate a French standard on incitement. Le Pen and others have been convicted of violating laws against racist speech in France. The Left’s freedom of speech is not dependent upon protecting fascistic white supremacist speech. Your claim of that is fundamental fallacy of your argument. The first Supreme Court decision on the First Amendment was over a hundred years after the First Amendment became part of the Constitution. In that case, the great liberal Mr. Justice Holmes found an exception to First Amendment protection. That’s why he gives the analogy of “yelling fire falsely in a crowded theatre” .; because that’s speech not protected by the Frist amendment. Anyway, he put a socialist who was advocating that workers not fight in WWI in jail. Eugene Debs was jailed similarly. So, no right wingers or KKKers’ were being jailed for their speeches. There was no correlation between protection of kkk speech and protection of Left speech. Then in 1948 the whole Communist Party USA Central Committee was jailed for communist speech. The US was just out of a war against fascism, but weren’t no fascists kkkers going to jail. So, The bourgeois legal system demonstrated that it would jail Lefts and not jail fascistic white supremacists. Historically, contra your claim , Left freedom of speech has not been guaranteed by the protection of fascistic white supremacist speech; not to mention that the fascistic white supremacist pose a threat to the all around freedom and specifically freedom of speech of their racially oppressed target groups because they are going to succeed in persuading some white people to be white supremacists with much of their speech ( for example the reverse discrimination doctrine). we’ve already tried as a human race fascism and fascistic white supremacy, in Europe and the US in various ways from the late 1800′s through the 1950′s , KKK, Nazis, et al. It doesn’t work. We don’t need to keep circulating those fascistic white supremacist ideas in Brandeis’ marketplace of ideas. We can let fascistic white supremacist ideas go extinct like small pox . “Freedom “ of fascistic white supremacists’ speech is not freedom but slavery.

  5. Charles mistakes purported credentials for argument, a common mistake in people who haven’t got one, in hopes that we won’t notice that the ‘freedom of speech’ he espouses is that espoused by those whom he would deny freedom of speech. Opponents of free speech should just be honest about it. I think Chomsky put it quite nicely when he noted that ‘We do the victims of the Holocaust a disservice when we adopt one of the core doctrines of their murderers’.

  6. He also seems to be under the misapprehension that ideas die out when those disseminating them are oppressed. If that were the case, there would be no Left.

  7. “Le Pen and others have been convicted of violating laws against racist speech in France. The Left’s freedom of speech is not dependent upon protecting fascistic white supremacist speech.”

    And, as is in the case in all states that have decided to give themselves the power to imprison those saying things that they don’t like, the left has done much worse under these laws (take the recent criminal prosecution of a French left blogger for taking the piss out of the Home Secretary there).

  8. E fails to be honest and admit that my statement of credentials was to refute her smart alack remark :”Charles writes in to let us know that he isn’t familiar with the concept of freedom of speech. ” My “credentials” show that that is an ignorant statement by E. I am at least as familiar with the concept of freedom of speech as E is (lol). In other words, my credentials are relevant argument in response to ur ad hominem statement , E, concerning my familiarity with the concept of freedom of speech. And my post has also a summary statement, not of credentials, but of the history of US freedom of speech law with respect to white supremacist speech and left speech. I can see why E tries to divert attention to my statement of credentials first because, clearly , E would have a hard time arguing against my discussion and analysis of the substantive issues of US First Amendment freedom of speech law. E gives no response to my statement of the substantive issues. Left freedom of speech is not dependent upon granting fascistic white supremacists “freedom”of speech, and I gave evidence to support my claim. What is ur evidence supporting ur claim that “If the KKK doesn’t have freedom of speech, then you haven’t got it either.” E ? I gave evidence to refute ur claim. Chomsky is wrong on this issue. The French are correct. It highly honors the victims of the Holocaust to put speech denying the H out of the law.

  9. He also seems to be under the misapprehension that ideas die out when those disseminating them are oppressed. If that were the case, there would be no Left.

    ^^^^^
    What’s ur evidence supporting this ? U keep making general statements without any evidence to support ur claims Monarchical ideas are significantly dead or a very endangered species in the US. Did u know that the generations of Americans who authored the First Amendment’s statements on freedom of speech suppressed the expression of Tory ideas in the new nation ? So, oppression of Tories caused monarchical ideas to die out. Not only that the original conceivers of the American concept of freedom of speech ( which u thought I wasn’t familiar with but with which I am expertly familiar) interpreted to mean that expression of ideas of establishing monarchy in the US were not protected by the First Amendment. They didn’t seem to think that that would not cause them to die out; and they seem to be right, in that pro-monarchy doesn’t have much of a following in the US. And actually, the oppression of Communists by putting them in jail has had significant success in suppressing and diminishing very much the awareness of Communist , i.e. Left, ideas.

  10. [...] Courts: the popular angle from LBO News from Doug Henwood by Doug Henwood [...]


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