Tuesday March 01, 2005

FREE SPEECH FOR NEITHER ME NOR THEE. Andrew McCarthy reprises the no-free-speech-for-terrorists argument, in that dreary yet terrifying manner which is the right-wing Constitutional scholars' version of nuclear scientists' "megadeath" talk:

[Author Geoffrey R.] Stone buys wholly into Justice Hugo Black’s absolute conviction that Communists could safely be permitted to preach the need for violent overthrow of the government because (in Black’s words) “free speech will preserve, not destroy, the nation” (emphasis in the original).

Taking a proper historical view, however, one might state the proposition differently: doctrinaire civil libertarians can always be relied on, no matter what the crisis, to minimize the danger faced by the nation. In the real world, moreover, free speech can only produce its vaunted corrective effects if it has both the inclination and the time to work. The problem is that it often does not.

Today’s marketplace of ideas, for example, has been notably reluctant to engage even the subject of Islamofascism and the threat it poses to our institutions and our liberties. Nor does that marketplace strike one as a very effective weapon for bringing suicide murderers to heel, let alone for militating against electronically beamed fatwas capable of unleashing weapons of untold destructive power before other ideas have a meaningful opportunity to compete and persuade.

Clearly the First Amendment is not holding up its end in the War on Whatever. There are plenty of juicy soundbytes to go with -- "Without security, there is no liberty at all," "(Learned) Hand did not figure on militant Islam," etc. -- if you take pleasure in that sort of thing.

One may wonder why so many pages were needed to explicate what at first blush looks like a reiteration of the "provocation to unlawful action" of which Hand spoke as exempt from First Amendment protection. Maybe McCarthy was counting on an incantatory effect; his lengthy diatribe does not convince so much as lull. Conservatives of a certain stripe may introduce it to ennervate free-speech discussions, much as The Riddler used sleeping gas against Batman.

And the ideas will challenge even some conservatives. McCarthy offers several examples from American history of government limitations on free speech, and none of them trouble him much; he seems capable of accepting any number of extra restraints in the interest of national security. No First Amendment worship for him -- If the damn old thing gets in the way, kick it out.

I wonder how many conservatives will go along. We keep hearing about the alleged libertarian component of modern conservatism -- well, there sure ain't a place for that in McCarthy's vision. Cleverly, he lays some bait for the less hardcore but still red-blooded conservatives, including invocations of the Communist menace (and William O. Douglas and others' alleged underestimation of same, followed of course by the challenge, "One also wonders what Douglas would have made of militant Islam"), "moral clarity," and Michael Moore. Thus wavering types might be lured near enough to snatch: I hate Michael Moore! My heroes say "moral clarity" a lot! Maybe I've got this free-speech thing all wrong!

I cannot find anything McCarthy has written about the Second Amendment, but considering how easy it is for him to regulate mere words on security grounds, I would be very interested to know if he is more or less tolerant of instruments that can actually blow one's head off.
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