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If Learned Hand Had Spent Time in the Blogosphere:
If Learned Hand were alive today and spent a lot of time reading blog comment threads, I think his famous address "The Spirit of Liberty" probably would have gone something like this:
What then is the spirit of liberty? Only a complete and utter moron would pretend they can't define it. The spirit of liberty is the spirit that recognizes I am obviously right. The spirit of liberty is the spirit that sees I know so much more than other men and women; the spirit of liberty is the spirit which recognizes that only people who agree with me are without bias; the spirit of liberty sees that a sparrow falls to earth because some idiot killed it. Duh.
For the original, see here.
DJR:
You have it all wrong. The spirit of liberty is in your heart, obvs, and if it's not there then it's not anywhere. FTW!
4.11.2008 12:17am
M (mail):
It would probably also have some sort of internet lingo like "pwend" or "teh". He'd be right about the sparrow, though.
4.11.2008 1:02am
Michael J.Z. Mannheimer (mail):
Excellent!

Thanks for reminding us of these wonderful words, spoken only about two weeks before D-Day.

One thing he said raises an eyebrow, though. "Some of us have chosen America as the land of our adoption; the rest have come from those who did the same." Am I to understand that there were no descendents of African-American slaves present?
4.11.2008 1:24am
Dave Hardy (mail) (www):
"Learned Hand"? What a dumb name for what is plainly a sock puppet. Felix Frankfurter, I'm calling you out!
4.11.2008 1:27am
Vivictius:
More likely, considering when it was said, no one even considered former slaves.
4.11.2008 1:32am
Jagermeister:
It hard these days to imagine anyone making a reference to "Him" without igniting a flame war.
4.11.2008 1:49am
BGates:
A bunch of white people once gathered here to affirm an oppressive patriarchal faith, a faith in a common purpose, a common conviction, a common devotion. Some of them had chosen Amerikkka as the easiest place to get rich by robbing the natives and the land; the rest came from those who did the same. But we have some right to consider ourselves a picked group, a group of those who had the courage to break from the past and brave the dangers and the loneliness of a strange land full of mouth-breathing Christianists. What was the object that nerved us to this choice? We sought equality; freedom from oppression by white people, freedom from want, freedom to be ourselves and have others provide for us. This we then sought; this we now believe that we are by way of winning. What do we mean when we say that first of all we seek equality? I often wonder whether we do not rest our hopes too much upon constitutions. These are false hopes; believe me, these are false hopes. Equality lies in the hearts of men and women of color and other Democrats; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, for it has the Court to save it. And what is this equality which must lie in the hearts of men and women of color and other Democrats? It is not the ruthless, the unbridled will, like Republicans want; it is not freedom to do as one likes (unless one is in charge). That is the denial of equality, and leads straight to some people becoming much better off than others. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few, and not the good smart people like us; as we have learned to our sorrow as voices of protest like mine have been silenced for the past seven years.
4.11.2008 2:14am
NicholasV (mail) (www):
(Bush) All your liberty are belong to us!
4.11.2008 2:33am
Redlands (mail):
BGates, bummer of a life for the past seven years, eh? Solely to stave off an impending suicide, I pray for your side in the upcoming general election.
4.11.2008 2:51am
neurodoc:
Wasn't poor Learned regularly cuckolded under his own roof for many years? Or am I thinking of some other renowned jurist? (Yeah, irrelevant, unless it somehow affected his outlook on life.)
4.11.2008 3:18am
Chris Smith (mail):
@NicholasV:
Have a glance at "Liberal Fascism" for a review of other threats.
4.11.2008 8:09am
titus32:
I don't see any crude sarcasm--he must have used it elsewhere in his hypothetical address.
4.11.2008 9:57am
NicholasV (mail) (www):
Chris - I was doing my best imitation of an internet troll, I guess I did a reasonable job of it ;)
4.11.2008 10:30am
JosephSlater (mail):
Nicely done, although the lack of labeling one's perceived opponents as either communist, fascist, or ideally both makes it somewhat less realistic.
4.11.2008 11:42am
Guest101:
Your post is amusing, but I wonder to what extent our experience with the Internet refutes the "marketplace of ideas" model that underlies much First Amendment jurisprudence. From what I've seen online, reasonable and informed speech rarely wins out; it's usually shouted down in a deluge of capital letters and misspelled words and everyone goes away without having really evaluated their own assumptions or considered opposing views at all. Does the First Amendment leave room in the marketplace of ideas for "banning" the real-life "trolls"? If not, should it?
4.11.2008 11:59am
OrinKerr:
Guest 101,

Yes, it does: The First Amendment only applies to the government, and editorial decisions are generally made by private actors.
4.11.2008 12:01pm
Guest101:
Neurodoc,

Gerald Gunther's biography of Hand strongly implies that Hand's wife had a long-term affair, but (if I recall correctly), stops just short of stating that as an assertion of fact. Essentially his wife spent a lot of time with a male "friend," including trips to Europe while Hand stayed in New York, but Gunther leaves open the possibility that it was platonic.
4.11.2008 12:01pm
Guest101:
Orin,

I'm aware of that. I thought it would have been assumed but my comments were made with the context of state action in mind; particularly, for example, speech in public forums. I'm not ready to take the position that the state should stop the Nazis from marching through Skokie, but I do think, as I stated above, that the experience of the Internet rebuts a lot of the assumptions regarding the marketplace model that underlie First Amendment doctrine.
4.11.2008 12:05pm
alias:
the assumptions regarding the marketplace model that underlie First Amendment doctrine

No they don't! LMFAO!!!!11!1!onE! Oh noes! U can't handle the Frist Amendment which our fourfathers died for then u don't deserve to be American! Ur just upset no one wants to buy ur stuff in the marketplace.

The marketplace is for all of us and secures our liberty. U and ur jackbooted thugs will come 4 us then we'll be ready. LOL. It all starts with academic talk like the 1st Amendment's no good NEmore. Then the opression beginz.
4.11.2008 12:37pm
Guest101:
alias,

I have nothing to add except that that was brilliant :)
4.11.2008 12:53pm
John Burgess (mail) (www):
alias: dood!
4.11.2008 12:56pm
mga (mail):
Learned Hand had a great name for a judge. At least based on his Alcoa opinion, that was all he had. That is as economically illiterate an opinion as I've ever read.
4.11.2008 1:26pm
OrinKerr:
MGA,

I think Hand was probably the greatest judge in the 20th century. Let me know what you think when you read more than one of his opinions.
4.11.2008 1:28pm
mga (mail):
Orin, I notice you haven't even tried to defend Alcoa.
4.11.2008 1:52pm
Pub Editor:
mga wrote:

That [Alcoa] is as economically illiterate an opinion as I've ever read.

I won't try to defend Alcoa (because I don't remember ever reading it), but before you knock Hand's economic creds, read United States v. Carroll Towing Co., 159 F.2d 169 (2d. Cir. 1947):

"Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL."
4.11.2008 2:26pm
LM (mail):
What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.

Sounds like the sort of anti-American moral equivocating I'd expect from Barack Obama. Glad you cleaned it up. I'd like to think if Hand knew as much as we do today, he'd have done likewise. But I guess that was your point, so I apologize for repeating yourself.
4.11.2008 3:22pm
PersonFromPorlock:
BGates:

Your plaint is 346 words long. Out of curiousity, how long would it have been if you hadn't been 'silenced'? And would it have had paragraphs?
4.11.2008 3:45pm
eddiehaskel (mail):
Pot meet kettle.
4.11.2008 4:05pm
alias:
It's starting to get to the point where I can't tell which comments are satire.
4.11.2008 4:36pm
markm (mail):
"From what I've seen online, reasonable and informed speech rarely wins out; it's usually shouted down in a deluge of capital letters and misspelled words and everyone goes away without having really evaluated their own assumptions or considered opposing views at all." You've no idea of how public debates proceeded before the internet, do you? Very few people ever let evidence and valid arguments change their political positions, and "professionals" such as journalists and politicians have often been just as nasty as anything on the web. Look up some 19th century newspapers sometime. Look up the "debate" in congress over banning marijuana in the 1930's - the pro-ban side was successful although their only arguments were crude racism (marijuana was used by Mexicans and black musicians) and blatant lies (the AMA did not support the ban, as Anslinger claimed, and anyone who attended an American college since 1965 should be quite aware that, unlike a substance that had been recently made legal again, the effect of MJ is quite the opposite of sending the user on a murderous rampage). I myself remember quite well that public debate in the 1960's may have sometimes been a bit politer, but it was no saner - and I have seen very few postings that match the foulness of Nixon's private conversations.

"Does the First Amendment leave room in the marketplace of ideas for "banning" the real-life "trolls"? If not, should it?" Who would make the decision as to whom to ban?
4.11.2008 8:05pm
neurodoc:
Learned Hand had a great name for a judge.
Yes, he did, but not as great a name for a judge I think as had Minor Wisdom of the Fifth Circuit Court of Appeals. Learned Hand was referred to by some as the Tenth Justice in recognition of his legal mind, but imagine Justice Minor Wisdom, no matter how brilliant a jurist he might have been.

Oh, and I recently read a Canadian case that was really messed up because the judge who decided it went off with logically indefensible dicta. That was Judge Twaddle. (And no, he wasn't one of Dickens' characters.
4.11.2008 8:16pm
neurodoc:
Guest101, it seems you actually read the Gunther biography; I only read the NYT review and picked out the salacious details. (Wasn't the other fellow a Dartmouth professor or lived with the Hands?)
4.11.2008 8:18pm
Hoosier:
neurodoc: Wasn't poor Learned regularly cuckolded under his own roof for many years? Or am I thinking of some other renowned jurist? (Yeah, irrelevant, unless it somehow affected his outlook on life.)

In flame wars, NOTHING is irrelevant.

ORRIN: Excellent. But can you now compose "SoL" in the form of an IM message?

I'll get the ball rolling:

NYHandy-Man72:

Liber-T? :-S IANAL (SCNR! ;-P )!!!!!
AFAICS Liber-T noze not all GMTA.
Whos spirit? STFW!
4.11.2008 11:24pm
Hoosier:
"Orin"

Ugh! Sorry--PEBKAC
4.11.2008 11:27pm
Dave Hardy (mail) (www):
"Wasn't poor Learned regularly cuckolded under his own roof for many years? "

That's the only way to do it. Otherwise, a perfect stranger might barge in and find them.
4.12.2008 12:20am
Dave Hardy (mail) (www):
If we just elect Dr. Ron Paul, there will be no more federal judges with names like Learned Hand, and their wives will not be allowed to cuckhold them under any circumstances.
4.12.2008 12:23am
OrinKerr:
Orin, I notice you haven't even tried to defend Alcoa.

As far as I know, I have never heard of this opinion and have never read it; it would be weird to try to defend it without knowing what there is to defend or not defend.
4.12.2008 12:46am