Eric Posner

That Inconvenient First Amendment

Eric Posner, a University of Chicago law professor, and son of Judge Richard Posner of the Seventh Circuit Court of Appeals, one of President Reagan’s less wise judicial appointments, writing in Slate thinks that perhaps it is time that Americans stop making a fetish of freedom of speech as embodied in the First Amendment.  Christopher Johnson, a Protestant who has taken up the cudgels so frequently in defense of the Church that I have designated him Defender of the Faith, gives Posner a fisking to remember:

University of Chicago law professor Eric Posner thinks that this country really needs to dial down its obsession with free speech:

The universal response in the United States to the uproar over the anti-Muslim video is that the Muslim world will just have to get used to freedom of expression. President Obama said so himself in a speech at the United Nations today, which included both a strong defense of the First Amendment and (“in the alternative,” as lawyers say) and a plea that the United States is helpless anyway when it comes to controlling information. In a world linked by YouTube, Twitter, and Facebook, countless videos attacking people’s religions, produced by provocateurs, rabble-rousers, and lunatics, will spread to every corner of the world, as fast as the Internet can blast them, and beyond the power of governments to stop them. Muslims need to grow a thick skin, the thinking goes, as believers in the West have done over the centuries. Perhaps they will even learn what it means to live in a free society, and adopt something like the First Amendment in their own countries.

Maybe that’s right.  But actually, America needs to get with the international program.

But there is another possible response. This is that Americans need to learn that the rest of the world—and not just Muslims—see no sense in the First Amendment. Even other Western nations take a more circumspect position on freedom of expression than we do, realizing that often free speech must yield to other values and the need for order. Our own history suggests that they might have a point.

Look at it this way.  At least the trains will run on time and everyone will be able to read the “No Food Today” signs.  Posner points out that it was the left which first turned the First Amendment into an weapon.

The First Amendment earned its sacred status only in the 1960s, and then only among liberals and the left, who cheered when the courts ruled that government could not suppress the speech of dissenters, critics, scandalous artistic types, and even pornographers. Conservatives objected that these rulings helped America’s enemies while undermining public order and morality at home, but their complaints fell on deaf ears.

Shogi, the Japanese version of chess, has a unique characteristic.  Because of the way the pieces are shaped, no piece is ever completely out of the game.  Any of your pieces that I happen to take can be turned around and employed by my army.

A totem that is sacred to one religion can become an object of devotion in another, even as the two theologies vest it with different meanings. That is what happened with the First Amendment. In the last few decades, conservatives have discovered in its uncompromising text— “Congress shall make no law … abridging the freedom of speech”—support for their own causes. These include unregulated campaign speech, unregulated commercial speech, and limited government. Most of all, conservatives have invoked the First Amendment to oppose efforts to make everyone, in universities and elsewhere, speak “civilly” about women and minorities. I’m talking of course about the “political correctness” movement beginning in the 1980s, which often merged into attempts to enforce a leftist position on race relations and gender politics.

Posner wants Americans to remember two things.  The First Amendment is strictly an American idea whose inspiration is not shared by anybody else in the world and which cannot force people stop thinking bad thoughts.

We have to remember that our First Amendment values are not universal; they emerged contingently from our own political history, a set of cobbled-together compromises among political and ideological factions responding to localized events. As often happens, what starts out as a grudging political settlement has become, when challenged from abroad, a dogmatic principle to be imposed universally. Suddenly, the disparagement of other people and their beliefs is not an unfortunate fact but a positive good. It contributes to the “marketplace of ideas,” as though we would seriously admit that Nazis or terrorist fanatics might turn out to be right after all. Salman Rushdie recently claimed that bad ideas, “like vampires … die in the sunlight” rather than persist in a glamorized underground existence. But bad ideas never die: They are zombies, not vampires. Bad ideas like fascism, Communism, and white supremacy have roamed the countryside of many an open society.

In the past, American “values” have made this country look bad to the rest of the world.

Americans have not always been so paralyzed by constitutional symbolism. During the Cold War, the U.S. foreign policy establishment urged civil rights reform in order to counter Soviet propagandists’ gleeful reports that Americans fire-hosed black protesters and state police arrested African diplomats who violated Jim Crow laws. Rather than tell the rest of the world to respect states’ rights—an ideal as sacred in its day as free speech is now—the national government assured foreigners that it sought to correct a serious but deeply entrenched problem. It is useful if discomfiting to consider that many people around the world may see America’s official indifference to Muslim (or any religious) sensibilities as similar to its indifference to racial discrimination before the civil rights era.

It says in another part of the First Amendment that the US government is supposed to be indifferent to the sensibilities of all religions.  That’s what we were always told whenever some governmental entity allowed the display of the Cross or the Ten Commandments anyway.  So it’s unclear why the United States government should care one way or the other about the feelings of Muslims.

But according to Eric Posner, they apparently should care deeply whenever Islamic feelings are hurt.  Not only that, this American law professor thinks that the fact that Washington was unable to legally force Google to take that film down is a scandal.

The final irony is that while the White House did no more than timidly plead with Google to check if the anti-Muslim video violates its policies (appeasement! shout the critics), Google itself approached the controversy in the spirit of prudence. The company declined to remove the video from YouTube because the video did not attack a group (Muslims) but only attacked a religion (Islam). Yet it also cut off access to the video in countries such as Libya and Egypt where it caused violence or violated domestic law. This may have been a sensible middle ground, or perhaps Google should have done more. What is peculiar it that while reasonable people can disagree about whether a government should be able to curtail speech in order to safeguard its relations with foreign countries, the Google compromise is not one that the U.S. government could have directed. That’s because the First Amendment protects verbal attacks on groups as well as speech that causes violence (except direct incitement: the old cry of “Fire!” in a crowded theater). And so combining the liberal view that government should not interfere with political discourse, and the conservative view that government should not interfere with commerce, we end up with the bizarre principle that U.S. foreign policy interests cannot justify any restrictions on speech whatsoever. Instead, only the profit-maximizing interests of a private American corporation can. Try explaining that to the protesters in Cairo or Islamabad.

I’ve got a better idea, Professor.  Try explaining to the protestors in Cairo and Islamabad that ANYTHING that happens inside this country is none of their damned business.

The mendacity and dishonesty of this piece is easily ascertained by asking yourself a simple question.  If some form of artistic expression had insulted Jesus or villified Christianity, would Posner still have written it?

If some museum displays an egregiously blasphemous painting of Jesus or Mary, if a particularly blasphemous movie was made, if another TV show or play debuted which ridiculed Christians or if Bill Maher opened his pie hole, would Posner think it regrettable that the US government was unable to legally prevent these things from happening?

Of course  he wouldn’t.  The question wouldn’t even come up.  And the reason why the question wouldn’t come up is simple.  Christians don’t kill people and destroy property when they are insulted and villified or their Lord is blasphemed.

A faculty sinecure at the University of Chicago Law School would seem to suggest a certain level of intelligence.  So it’s hard for me to figure out why Eric Posner thinks that restricting American rights simply to avoid offending Muslims is a good idea. Continue reading

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