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Volokh on the History of Free Speech

Sorry for the lack of blogging lately. Yes, I’m still playing around with the new iBook and iTunes, and I’ve also been feeling a bit under the weather the past few days. I’ll actually be blogging even less this next week because me and the missus will be flying to Houston (and — shudder — Arkansas) to visit her folks. I’ll try to post at least once or twice, depending on the Internet access situation, but in case I don’t, check back here on the 15th (next Thursday).

In the meantime, Eugene Volokh has some interesting background on the First Amendment, mainly shattering the myth that liberals are eroding away free speech protections from where they were historically. Start with his National Review Online piece, where he recounts historical examples countering the myth:

In the late 1700s and early 1800s, courts routinely held that some antigovernment speech — even speech that wasn’t directly inciting crime — was constitutionally unprotected.
…
In the first half of the 1800s, courts held that blasphemy could be outlawed, and blasphemy covered not just swearing but the offensive public denial of the truth of Christianity. Until the mid-1900s, judges routinely sent people to jail for publishing newspaper articles that criticized the judge’s decisions. Until the mid-1900s, obscenity laws punished not just hard-core pornography, but serious literature as well as discussion of contraceptives.

I also like his point about campaign finance:

Likewise, restricting campaign contributions is not literally “abridging the freedom of speech.” People are still free to speak. The law only limits their ability to give money to officeholders, candidates, and groups that are closely connected to them — just as federal rules have long limited people’s ability to give gifts to officeholders, for fear that such gifts might be implicit bribes.

Naturally, such restrictions can still be assailed. …while I think limits on campaign contributions are constitutional, I think that limits on expenditures by corporations and unions should have been struck down. My point is simply that the argument against these restrictions must rely on more than the constitutional text.

I’ve often heard claims that campaign contribution limits violate the First Amendment despite the obvious fact that money is not speech (or else bribery would be legal), including this non sequitur from Samizdata:

…it is perfectly consistent with freedom of speech to outlaw bribery and other permutations of the quid pro quo that may crop up in connection with campaign finance activities. Outlawing bribery in such circumstances is no more a restriction on freedom of speech than outlawing the fencing of stolen property is a restriction on freedom of contract.

Which to me kinda misses the point. You don’t need laws against the fencing of stolen property any more than you need laws against having a tea party with stolen property. Stealing the property is already illegal, so anything else you do with the property afterwards is immaterial. It’s not a good analogy anyway. How is bribery like fencing stolen property? Bribery itself is the crime. You don’t have to ask the politician to do something illegal for the bribe to be illegal, just something they might not have done without the extra persuasion.

Anyway, the entire National Review Online piece is definitely well worth reading, as well as his related blogging at The Volokh Conspiracy. His original post (just citing the National Review Online link above) is here. Apparently, the piece sparked quite a response, as might be expected when debunking a widely held myth. He responds to the argument “that whatever might have been done by the government in the late 1700s and 1800s, the Framers of the First Amendment understood the right as being broadly speech-protective” in this post here. Then he covers the issue of federal vs. state laws regarding free speech here. And finally, he discusses corporate and union speech here.

And while we’re on the topic of free speech, here’s a frightening tidbit from Ealasaid, who links a story from the SF Chronicle (which appears to be excerpted from this more complete version).

…the gist of the article is this: if you want to hold up an anti-Bush sign (even ones without profanity, such as “The Bush family must surely love the poor, they made so many of us.”) along a motorcade route or at a speech Bush is giving, you will be directed to a “free speech zone” which is out of view of the event. If you refuse to go to the area (even if you refuse politely and are non-violent), you will be arrested, taken to jail, and face (depending on the area) up to six months in prison and a $5,000 fine.

If you are carrying a pro-Bush sign, you can stand wherever you want.

Hopefully, that’ll be plenty enough to hold your attention while I’m gone. If not, amuse yourself with the pissing war between Brad DeLong and Dan Drezner. Well hey, I may disagree with pissing wars, but I will defend, to the death, their right to have them.

Well, maybe not to the death, but at least to the pain.