The following was, I'm told by ADL headquarters, sent today to the Omaha World-Herald by Alan Potash, Director of the Plains States Regional Office of the Anti-Defamation League:
When I wrote to the Omaha World-Herald and said that “free speech does not extend to racist groups,” I misspoke. Free speech can and should extend to such groups. However, extremist or racist speech is not and should not be protected where it incites imminent lawless action that is likely to occur. ADL has a long history of defending free speech and we stand by our deep commitment to this fundamental principle of democracy. See e.g., Responding to Extremist Speech.
I'm pleased to hear it, and I agree that speech -- whether extremist or racist or not -- that "incites imminent lawless action that is likely to occur" is unprotected under Brandenburg v. Ohio (1969). I'm pretty sure that very little of the speech discussed in the Omaha World-Herald editorial to which Mr. Potash's initial statement referred would qualify under this narrow Brandenburg exception. But if indeed the exception is read as narrowly as the Court has read it (see, for instance, Hess v. Indiana (1973)), then I have no disagreement with Mr. Potash's corrected position.
Related Posts (on one page):
- Anti-Defamation League Plains States Regional Director Corrects Statement on Free Speech:
- Anti-Defamation League Regional Director Asserts That "Freedom of Speech Does Not Extend to Racist Groups":
Of course, the process for assigning and adjudicating "liability for injuries" operates by force of law, making that distinction elusive at best.
Is that not what "proximate cause" is all about?
There. That's clear isn't it? That would solve that T-shirt problem from yesterday too.
"Proximate cause" is but one necessary concept. If you reveal to the world that I am a liar and an idiot, I may proximately lose business and respect. That does not mean that we should use the mechanism of the state to transfer money from you to me, simply upon the theory that you must "pay the consequences" of your speech.
Also, the "mechanism of the state" is used either way, whether your are limiting speech or compensating for tort injuries. Although, I do concur in what I sense are your anti-statist sentiments
A system in which you can force me to pay if I want to say something true about you that hurts you is tyrannical. It is precisely my point that the mechanism of the state is used either way. What I'm trying to say is that the concept "Allow people to freely enter the "marketplace of ideas" at their own risk" doesn't tell us anything unless you specify whether "at their own risk" is governed by First Amendment concepts.
I think your system of tyranny mischaracterizes my position. If you are a liar and I out it, truth was once a defense to libel and defamation, no? If you are not, then I really should be held accountable for that speech, if indeed a jury finds it is the proximate cause of your injuries, should I not?
Speech remains absolutely free (from congress and the courts) and costs fall upon the speaker. win-win really.
If you shout "fire" in the theater and a man is trampled by another, who would the jury likely find to be the proximate cause of the battery or what have you? the stampeder or you?
If that's your position, then I'm not following how what you are advocating is different than what we have now.
But wait. You just said:
So you acknowledge, at least, the defamation exception to the First Amendment. It also appears that you acknowledge what is sometimes called the clear and present danger exception, based on your pay-for-the-consequences-of-shouting-fire hypothetical.
Are you simply talking about abandoning all criminal consequences in favor of civil consequences? Because that's different than saying you are changing the scheme of exceptions to the First Amendment.
As for the clear and present danger exception, I thought I disclaimed that pretty clearly as well as all the other judicially-crafted exceptions to the First Amendment. What I mean by "paying the consequences" (and this could be the source of our confusion) is not directly FOR the speech, but for the OTHER ACTIONS that are unlawful, i.e. the battery in the movie theater.
I am talking about abandoning statutory or pre-emptively designated criminal consequences for any speech, of course. Civil liability would remain, but not for the speech per se, but for any actions that cause an injury. I do not mean literally held accountable for the speech, but actions.
"The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts." (J. Douglas, Concurring in Brandenburg v. Ohio)
While he conflates ideas and actions in the "fire"-movie-theater-scenario, I think they are capable of severance even there.
gotta run, hope that helps!
No Law applies to:
Defamation
Clear and Present Danger
Obscenity
Incitement
Threats
Conspiracy Liability prior to a member's overt act
Time Place Manner restrictions
Probably missed something, but you get the idea, if you do nothing more then speak, no matter what you say, you cannot be tried or held liable.
However, I don't really know how it would apply to contracts, fraud or any other area where the speech is so important.
One problem with this is that a substantial percentage of the population is judgment-proof. You cannot get from people what they do not have. (And sometimes you cannot get what they do have.)
If La Raza is so worried about hate speech then why did they honor José Ángel Gutiérrez in 1994 by giving him their "Chicano Hero Award?" In 1969 he said:Is that not hate speech or even worse? One also has to wonder why ADL wants to partner up with such an organization particularly when ADL's own press release reveals rampart anti-Semetism in the US Hispanic community-- particularly among Hispanic immigrants. The ADL survey found:
Alan Potash's statements seem to fall right in line with La Raza's "hate speech is not free speech" meme. In short I don't believe his retraction is sincere. He said what he meant and he meant what he said.
The first one at least seems like it could be prohibited without criminalizing the speech itself, by taking the verbal threat merely as evidence of an attempted crime rather than the crime itself. My impression is that soliciting murder is treated somewhat like this already: it's the fact of arranging (or attempting to arrange) for a hitman that's illegal, not any particular conversation that happens in that process.
Bomb threats are trickier, because in the case where the bomb threat is fake, it really is the speech itself that's causing a public disruption (if there actually were a bomb, the speech would of course be irrelevant, since the crime of interest would be planting the bomb). It seems like it might be vaguely related to libel, in being a category of harmful false speech.
"Perhaps because that's a pretty ridiculous guilt-by-association? 40 years ago,..."
If Gutiérrez's 1969 statement was the end of it, I would agree with you. But the leopard really hasn't changed his spots. He has contained with his outrageous anti-American and anti-white statements. How about "Our devil has pale skin and blue eyes," or "To the gringos in the audience, I have one final message to convey, 'Up yours, baby. You've had it, from now on'" Last year I saw Gutiérrez in a TV interview and he was just as strident as ever.
As you can read in the CNN transcript La Raza is calling for the censorship of anyone who is critical of illegal immigration. The want Lou Dobbs taken off the air, and Pat Buchanan taken off the air to name but two. They want that now, not in 1969. So La Raza hasn't changed its spots either.
I also suppose you don't see anything contradictory about ADL partnering with an organization that wants to increase the number of anti-Semites in the US according to their own survey!
I guess you have some kind of statute of limitation for people who make these kind of remarks.
Is there any reason to believe they're of any more recent provenance than the "eliminate the gringo" comment?
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.