NetNews Usenet Archive 1993 #3/NN_1993_3.iso/spool/misc/legal/23161

Internet Message Format | 1993-01-23 | 3.7 KB

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From: [e-mail] (Daniel Simon)
Newsgroups: misc.legal,alt.censorship,alt.society.civil-liberty,alt.politics.usa.constitution
Subject: Re: Shouting "Movie!" at a Fire Station (Schenck v US)
Message-ID: <[e-mail]>
Date: 23 Jan 93 04:56:05 GMT
References: <[e-mail]> <[e-mail]> <[e-mail]>
Sender: [e-mail]
Distribution: usa
Organization: Universite de Montreal, Canada
Lines: 63

In article <[e-mail]> [e-mail] (Mike Godwin) writes:
>In article <[e-mail]> [e-mail] (Daniel Simon) writes:
>
>>So?  The boundary between "legitimate" lawmaking and restriction of
>>freedom of expression is no more recognizeable, in the abstract, than
>>the boundary between judicial interpretation and judicial legislation ...
>
>I disagree. The former is more recognizable, and it's often the case that
>a statute is struck down because it is "facially" invalid as limitation on
>First Amendment prerogatives.

Recognizeable by *whom*?  I can't say I'm shocked that judges are more
adept at spotting "'facially' invalid" violations of their own
cherished magnum opus of unfettered creativity known as "modern First
Amendment jurisprudence", than at recognizing flagrant cases of
judicial legislation.  It is far less clear whether the average
intelligent, unbiased person would have any more difficulty with one
distinction than with the other.

>>...any piece of legislation can also, in principle, be characterized as a
>>form of limitation on freedom of expression.
>
>I don't see this happening.

Well, it's easy to do, if one is so inclined.  Not that it's of much
use, mind you.  The only reason for ever doing so might be to justify
weaseling out of ever having to distinguish between "acceptable" and
"unacceptable" limits on freedom of expression.  But if I wanted to
exercise unlimited power to limit speech, then that is exactly how
I'd defend myself.  It'd be the same trick that judges use to avoid
placing any restraints on their power to invent new laws virtually
out of whole cloth.

>> Yet for some reason
>>judges and legal scholars never seem to despair of navigating *that*
>>unbroken continuum.
>
>It could be that they have more common sense than those who generate
>parades of horribles on Usenet.

Then again, it could be that they have more love for the immense power
they wield than their sense of duty to democracy can withstand.

>>One would have hoped that these same judges and legal scholars, after
>>devoting such care and attention to the task of mapping out the
>>complex subdivisions of the free speech/restricted speech spectrum,
>>might also have made at least a token effort to draw a rough line
>>between judicial interpretation and judicial legislation.
>
>Why not give us your best shot? I'm all ears.

I could do so, if I wished, and no doubt Mr. Godwin would immediately
heap scorn on the results.  But then exactly the same thing would
happen if he asked me instead to define the distinction between
acceptable legislation and unacceptable restrictions on freedom of
expression.  How is Mr. Godwin's predictable distaste for my opinions
supposed to help explain the courts' suspiciously different treatment
of the restriction-of-speech and judicial-legislation continua?


"Que dites vous?  C'est inutile?  Je le sais!        Daniel R. Simon
 Mais on ne se bat pas dans l'espoir du succe`s!"    [e-mail]
                    -Rostand