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Monday, June 24, 2019

Justice Alito takes on SJWs and foreigners

From the first paragraph of Justice Alito's concurrence in Iancu v. Brunetti:

Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

It is impossible to read that as anything other than an attack on progressives who would like hateful and discriminatory speech prohibited, especially on campus. Or an attack on Twitter and Facebook for their supposed anti-conservative bias in banning certain users. Or a potshot at European countries such as France and Germany, which maintain democracies committed to free speech while prohibiting viewpoints such as Holocaust-denial.

The idea that "free speech is under attack" has migrated from the Intellectual Dark Web to the U.S. Reports.

Posted by Howard Wasserman on June 24, 2019 at 01:14 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

Absolutely--Republicans, as well. When they take to Twitter and cable news. We don't expect that level of rhetoric from the Court.

Posted by: Howard Wasserman | Jun 25, 2019 9:39:27 AM

Howard--

Don't democrats describe the news media as "under attack" from Trump?

How is that any different than saying "free speech" is "under attack"?

Posted by: Ungainful Employment | Jun 25, 2019 9:18:29 AM

Fair point, Orin. I think I was latching on to the phrase "under attack," which sounds in a cri de coeur that is more IDW than Chemerinsky.

Posted by: Howard Wasserman | Jun 25, 2019 8:43:41 AM

Oops, sorry, some typos:

Howard, assuming you are right that Alito meant to refer to concerns about free speech being under attack on campus, isn't that an issue of concern across the political spectrum? See, e.g., Erwin Chemerinsky & Howard Gillman, Free Speech on Campus (2017). I'm assuming we agree that Erwin Chemerinsky is not part of the "Intellectual Dark Web."

Posted by: Orin Kerr | Jun 25, 2019 12:34:53 AM

Howard, assuming you are right that Alito meant to refer to concerns about free speech being under attack on campus, isn't that an issue of concern the political spectrum? See, e.g., Erwin Chemerinsky & Howard Gillman, Free Speech on Campus (2017). I'm assuming we agree that Erwin Chemerinsky is not part of the "Intellectual Dark Web.

Posted by: Orin Kerr | Jun 25, 2019 12:34:12 AM

Very interesting ruling, the issue here is not of course "viewpoints ", but rather " scandalous " expressions( related to trade marks registration, as dictated in the " Lanham Act ").Scandalous has to do with defying society's sense of decency or propriety.Although restricting free speech by prohibition of such trade marks ( registration) the court has validated the provisions as constitutionals. Very recommended for reading ( especially the concurring in part of Justice Breyer).

Thanks

Posted by: El roam | Jun 24, 2019 4:21:48 PM

“Intellectual” is a hell of a way to describe people who think the only problem with stormfront is that it’s too uncouth.

Posted by: BS | Jun 24, 2019 2:48:54 PM

"hateful and discriminatory speech prohibited"

Fighting words are already prohibited. If you're talking about emotional words, those are protected under Cohen and Tam, see the next post on this website.

Posted by: Barbie Matel | Jun 24, 2019 2:10:00 PM

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