Eric Posner, the University of Chicago law professor, torture apologist, due-process enemy, and Slate columnist has again assailed us with his bile filled thoughts. In an article on Slate about free speech and the anti-muslim hate film being used as an excuse for violence across the muslim world[i] he argues that the First Amendment is taken much too seriously in America. The rest of the world does not agree with this Bill of Rights principle.
Her proudly recalls the days when the First Amendment was just a tiny zit on the backside of power. Of its history he says,
The First Amendment did not protect anarchists, socialists, Communists, pacifists, and various other dissenters when the U.S. government cracked down on them, as it regularly did during times of war and stress.
Notice how he is cheering the good ‘ole days when government “cracked down” on speech from solely left leaning groups, or as he called them “dissenters.” To Posner this is an ideal to be restored.
He goes on to create a wonderful bouillabaisse of word salad saying,
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.
Let’s break that down a bit. The USSR used the brutal crackdown on civil rights protestors to criticize America. According to Posner this is the work of “Soviet Propagandists” even though the criticism is entirely valid. This pressure led to the “foreign policy establishment” demanding civil rights reform instead of declaring our “sacred” “states rights” as a core principle of America (if I recall my history correctly we once fought a war linked to this “sacred” principle)[ii]. Posner’s conclusion is that our defense of free speech even when it is hate filled is “similar” to our historic “indifference to racial discrimination.” Yet, the “Bull” Conor Birmingham fire-hoses were turned against high school students in 1963. That was not a time of “indifference,” but instead was the very height of civil unrest. His examples are from the middle of the civil rights era, yet his conclusion is about the pre-civil rights era.
Posner is comparing the policy shift away from states-rights (and towards civil-rights) in 1963 to what he believes should be a policy shift away from First Amendment rights in 2012. It takes some hutzpah to support the restriction of liberty in 2012 by invoking the fight against such restrictions fifty years ago.
Further, in what way are Jim Crowe laws, segregation, corrupt and racist judges, governors, mayors and sheriffs analogous to a principle of free speech, even when it is full of hate? The first are horrific debasements of specific human beings that deny them the most basic rights of life (travel, work, legal equality, and more) while the second is solely about the beliefs of an individual. Certainly words can hurt and they can lead to violence. Hateful ideas should be countered, ridiculed and marginalized by those with opposing views.
Posner believes differently. He does not believe in principles (except state rights of course, and our strong principle in support of torture and indefinite detention, and probably drones).
In arguing for indefinite detention at GITMO in a 2006 New York Times piece he shared his wisdom about calls for due-process from those crazy civil liberty lovers with with this gem of deep thought: “This argument rests on the principle that people should be punished only for committing a crime.” He defends this line with stirring examples, such as “Mentally ill people who are dangerous to themselves and others may be institutionalized for as long as they remain dangerous.”
To defend his support for indefinite due-process free detention he invoked the historic criminalization of speech in the past.
Throughout American history, states and the federal government have criminalized speech that advocates the violent overthrow of the United States government and other subversive activities. These laws, which long survived judicial scrutiny, authorized criminal punishment of people who were dangerous but hadn’t actually caused harm.
Although in 1969 the Supreme Court held that under the First Amendment governments can ban only speech that would cause “imminent” harm — like incitement to riot — it remains an open question whether this standard is workable in an age of global terrorism exemplified by the Sept. 11 attacks. Less restrictive tests applied in earlier cases could be resurrected if the United States created a similar statute to counter the modern wave of terrorism.
To Eric Posner, the pre-1969 world is one to be marveled at. It was a time when men were men (white men that is) and they didn’t stand for any of that pansy civil liberties crap. We just arrested the commies and pacifists and threw them into cages. Its no different than interning Japanese Americans. Hey, they didn’t commit any crimes either, but that shouldn’t be any barrier to Eric Posner’s authoritarian America. As long as it is done in the name of security its all perfectly just.
As he closes his 2006 article, Eric Posner brings together the indefinite detention and the criminalization of free-speech (emphasis mine):
the United States government can, without offending American legal traditions, lock up suspected Qaeda [sic] members without the protections afforded by a full- blown criminal trial. Whether doing so is wise policy depends on the extent to which Al Qaeda continues to pose a threat to American security, the extent to which traditional criminal law protections hinder necessary security measures, the moral harm that occurs when the government erroneously detains people who are harmless, and the diplomatic constraints imposed by allies. It does not depend on an appeal to general principles.
As Abraham Lincoln said in his final speech on April 11, 1865:
Important principles may and must be inflexible.
I suppose Eric Posner would disagree.
[i] The film may be an excuse for violence but that does not mean we cannot understand where this violence comes from. Hate is not relegated to disgusting films made by people nobody knows, nor by religious extremists. It is perpetrated daily by U.S. congressmen and pundits across America who continually beat the wardrum of anti-muslim hate. Meanwhile, the people living in the muslim world are bombed from above by drones that kill innocent women, children and first responders.
[ii] Who are these brave people from the “foreign policy establishment”? Did they march? Did they stand on the bridge? Did they write letters from a jail? Perhaps they were focussed on the “propaganda” part, extolling our virtuous desires to the evil Reds. I suppose the history books will have to sort out their critically important role in the civil rights movement when those books come out.