From: egnilges@phoenix.Princeton.EDU (Ed Nilges)
Newsgroups: misc.legal
Subject: Re: Legal criticism (was: Re: Hate Speech Okay, says the Supreme Court
Keywords: egnilges
Date: 28 Jul 92 14:15:17 GMT
Distribution: usa
Organization: Princeton University
Originator: news@ernie.Princeton.EDU

In article <1992Jul27.233740.26081@fid.morgan.com> sethb@fid.morgan.com (Seth Breidbart) writes:
>>>
>>Those who ignore history are condemned to repeat it.
>
>History shows that discriminating on the basis of race is bad.  I want
>such discrimination not to happen.

No, what history showed was that white European men decided that they
were hot stuff and designated by God to lord it over other peoples.
>
>>
>>Doing nothing also causes mischief.  "Benign neglect" has resulted in
>>health statistics for the Bronx at Third World levels, and black male
>>life expectancy is in decline.
>
>I didn't say "do nothing".  I said "don't base what you do on race".

But redress of racial injustice must logically be based on race.

>
>>(For the last time)
>
>I hope.

You wish.

>
>
>I've seen you criticizing them.  I've seen lots of criticism of
>Thomas; less of Posner, but I haven't heard about anybody prevented
>from critizing either of them.

The problem is that many discussants on this thread have a "digital"
model of politics whereas I am using a better "analog" model.  Anita
Hill was not formally prevented from appearing before the Senate
Judiciary Committee and presenting her facts concerning Clarence Thomas.
However, she was persecuted and called a "lunatic" in a campaign which
can yet destroy her career (the fact of Gloria Steinem's well-documented
penury should put to rest any ideas of a feminist "war chest" that
supports heroines of feminism in luxury.)  

Because there was (in a binary sense) no law saying "yo, Anita Hill
cannot appear to present her facts", discussants using the digital model
conclude that Anita Hill has absolute freedom of speech.  Whereas
(using an analog model) I interpret the very high pressure exerted
against Hill, up to and including the charges of lunacy, as
unConstitutional and anti-free-speech; in the "red zone" of an analog
dial, if you please, on my "Constitution engine" that indicates
precisely (or, being an ANALOG device, imprecisely but with finer
gradations than any digital device) how much freedom we have in our
society.

What's wrong, then, with the digital model?  It collapses, all to
readily, into sheer formalism, akin to the glowing problems of freedom
of speech found in the Soviet constitution.  For if the digital model
applies, I still pay all sorts of penalties for the exercise of free
speech without any legal recourse.  The formal freedom closes off any
further recourse for Hill and others.  And the situation PREVENTED, on
the digital model, by the existence of the Bill of Rights is strangely
akin to the situation that obtains under the current interpretation.
Here is why.

If the Bill of Rights did not exist, I could still exercise my freedom
of speech, WITH CONSEQUENCES.  The 17th century preacher John Bunyan
(author of the Pilgrim's Progress) had no bill of rights; he even
predated the bill of quasirights promulgated for "those citizens which
are Protestants" upon the 1688 accession of King William.  Yet Bunyan
chose to preach his disestablishmentarian "God's Grace Abounding to the
Chief of Sinners" interpretation of the Gospel and was thrown into clink
for his pains.  But because of Bunyan's spiritual discipline, jail was
somewhat of a haven, almost (like jail to Jesse Jackson's ghetto youth)
better than the streets.  Why was his punishment different in kind from
Hill's deregulated, but real, punishment?

In fine, freedom of speech does not exist because it is promulgated in a
digital (you got it or you don't) manner from On High.  Freedom of
speech is bottom up, and its friends aren't people who use kill files in
preference to dialog, who call law professors lunatics in preference to
dialog, or who approach supervisors at ACM conferences in preference to
dialog.  Nor are its friends people who believe speech has no
consequences, that "opinions are like assholes, everyone's got one."
No, friends of free speech know that it's part of action, that it has
consequences (can hurt) and that it much nonetheless be fostered.  By
dialog.  
>
>Everybody is subject to character assassination.  It's called freedom
>of speech.

Character assassination==freedom of speech?  I'm glad you young fellows
think so.  Pray, when does the situation escalate into real
assassination?  I need to get my passport upgraded.
>
>Considering how many people here had never heard of Pring or the
>Hustler Magazine article, I find it hard to believe that every
>possible employer had so heard.

Wyoming a small town, in effect, and every employer heard the Denver
Post's version of events, which was slanted against Kim.  Note that
because of media concentration, there was no WYOMING paper, effectively,
to balance the DP's account.  I personally feel that people should have
the right to work near their families if they so choose.
>
>In our society, abusive speech is permitted to everybody and therefore
>can be applied to anybody.  I've seen large amounts of abusive speech
>about Thomas and Hill; probably more about Thomas.

But if it was TRUE that Thomas said what he said, which was what Hill
CLAIMED, then this was not "abusive speech."  Truth is an absolute
defense against even metaphorical charges of libel, and telling the
truth about abuse on the job is not in itself abuse.  Or are we to
devise a concept of "reverse abuse", akin to "reverse racism", in which
the abusing parent, say, can scream "parent abuse!" when a child makes
the charge of "child abuse?"  Is formalism to go this far?
Newsgroups: misc.legal,alt.censorship,talk.politics.misc