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First Amendment Symposium Part IV: The First Amendment is Properly Rated (But Perhaps for the Wrong Reasons)


“What he [John S.] says may be irrational, incoherent, unfounded, and foolish, but I defend to the death his right to say it.”

-Josh*

*I have as much claim to this phrase as Voltaire.

This response will proceed in three steps. First, I will respond to misguided presumptions that underlie John’s critique of the First Amendment: 1) that the goal of the First Amendment is not to suppress any speech and 2) that free speech absolutism is the only interpretive option for the First Amendment. Second, I will refute John’s two main claims: 1) The First Amendment is only aimed towards preventing government suppression of speech, but the coercive non-governmental forces and differential access to forums are problems just as serious that the First Amendment promotes or, at least, does nothing to prevent. 2) There is nothing inherent about the First Amendment that promotes the Millian benefits that flow from free speech. Third, I will discuss the Citizens United issue separately since it’s sufficiently distinct from the other issues in this response.

Citing Mill, John fallaciously argues that “the general principles that underlie actual liberty of thought and discussion” are primarily grounded in opposition to the “suppression of opinion, whether it be by government or any entity….” [emphasis added].

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First Amendment Symposium, Part II: In Defense of Rights

This is the first part of a two-part reply to John’s critique of the First Amendment. The second part will run tomorrow.

John has two main arguments to support his proposition that the First Amendment is vastly overrated. First, he argues that the concept of a “right” is meaningless, and insofar as the First Amendment protects rights, it too lacks meaning. Second, John groups a bunch of arguments specific to the First Amendment together under the general proposition that the First Amendment is only about government neutrality towards speech, which can be deleterious. I will respond to these two arguments in two separate posts, addressing the rights argument in this first one.

John claims that the concept of a right is “an outdated modality,” “an autocratic fiat,” and “tremendously unhelpful” among other things.* John doesn’t formally define what a right is up front, and the closest he comes is when he calls rights “protections which you are entitled no matter what the consequences are.” This may be one effect of one having a right, but it is not a definition.  A more precise definition would be helpful to prevent us from speaking past each other. Wesley Hohfeld, somewhat like John, was bothered by meaningless invocations of “rights” and sought to clarify exactly what a right actually was; he argued that rights and duties were correlative. If X has a right to do something, he is legally protected from interference by Y.** In other words Y has a correlative duty not to interfere with X’s right. So, if X has a right to speak freely, then Y has a correlative duty not to interfere with X’s speaking freely.

*If I were a right, I would be very offended. I would likely cry.

**Y being any other individual or the government.

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On Travel

A former professor of mine once exclaimed that he did not like travel. Student reaction was quite negative. The students who liked this professor then felt a need to defend him; interestingly, their defense wasn’t that it is okay to dislike travel, but that he misspoke, that he didn’t really mean that he disliked travel. This is reflective of a larger and unfair stigma against disliking travel. I say unfair since while most people love the idea of travel, traveling itself is much less pleasant for them for a variety of reasons I’ll explore in this post.

People tend to “fake” traits that are socially desirable if the cost of faking is relatively low. Travel encourages this faking more than most characteristics. It’s easy to see why travel is socially desirable. First, it signals activity, and activity is preferable to inactivity. Travelers backpack, hike, climb, and explore. Second, it signals openness and curiosity. The traveler is interested in cultures other than his own. Third, a love of travel indicates a love of novelty. The traveler has eaten exotic foods or seen exotic animals. Fourth, travel perpetuates the feelings of being in an elite in-group, which is nauseatingly manifested in tired conversations about cities that both travelers have visited*: “Wasn’t Prague beautiful?!” “It was!” and then there is the obligatory listing of the mutual places that each of the travelers visited in said city.** This conversation generally will give both participants a lot of pleasure, sometimes even generating a sort of insular arrogance. People who don’t engage in this self-congratulatory ritual—like my former professor—will be greeted with condescension, the result being that these anti-travel individuals are hesitant to express their preferences in public settings.

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Intentionality and Apologism (or In Defense of Apologism)

I intend to make a simple point: Apologism isn’t bad. In fact, it’s necessary to correct for the human tendency to ascribe intentionality when it’s not there.

Psychological research has demonstrated that when there are morally bad* “side-effects” to a particular purposive (i.e. goal-directed) action taken by Person A, individuals ascribe those side-effects as being intended by Person A. When those side-effects are morally good, meanwhile, individuals generally believe that Person A did not intend the side effect.

*Morally bad in a very generic “murder = bad” sense.

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Ranking the Bill of Rights, Number 1: The First Amendment

It’s been nearly eight months since we started our journey by placing the Second Amendment in its rightful place: last. The problems that plagued the Second Amendment—lack of clarity and dubious public policy justifications—are perhaps the greatest strengths of our first-place finisher,* the Fightin’ First! I present to you the First Amendment:

*Of course, its clarity and phenomenal public policy justifications are its strengths.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment is wide-reaching: It protects freedom of speech and of the press, freedom of assembly, and the right to petition. It also has the Establishment and Free Exercise clauses, which manage the relationship between religion and state. All these components have contributed to the First’s first-place finish, but what propels the First Amendment to the top of these rankings is its first and deservedly foremost freedoms of speech and press.

Freedom of speech and the press

The U.S. is unique among most countries in its seemingly unqualified* protection of freedom of speech and the press.** The European Convention on Human Rights provides for Freedom of Speech except when restrictions are necessary “for the protection of health or morals,” “for the protection of the reputation and rights of others,” and for other concerns like national security. In France, free speech may be limited “[if it is necessary] to respond to the abuse of this liberty, in the cases determined by the law.” Accordingly, in France, publicly denying the Holocaust and inciting racial hatred are not protected by free speech. In Germany, free speech may be limited “to protect personal honor” or “young persons.” England abides by the European Convention but has additional limitations, including the criminalization of the incitement of racial and religious hatred and ridiculously strict defamation laws. In India, freedom of speech may be limited “to protect the integrity of India” and for “decency and morality.” Some countries, like China, claim to protect freedom of speech but ignore their constitutions so blatantly that the words have little meaning.

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Against the Cupcake

The Cupcake: An Abomination to the Dessert Genre

When I started writing for NPI, I knew I was going to take some unpopular positions. But, never did I anticipate taking a position as unpopular as this one is going to be. I am against the cupcake. Cupcakes are a poor man’s cake and an even poorer man’s muffin.* Cupcakes are to desserts as The Marriage Ref is to Jerry Seinfeld or what Derek Bell is to the 2000 Mets. Cupcakes are an embarrassment to the dessert genre.

*Occassionally, they attempt to be an impoverished-man-on-the-brink-of-bankruptcy-and-death’s brownie, but these cupcakes make up such a minority of the cupcake population that I’ll leave them out of the equation.

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Oscarpalooza: Not So Up in the Air

In honor of Oscar weekend, NPI is rerunning its reviews of the Best Picture nominees. Here, Josh shares his disappointment with Up in the Air:

I was very excited to see Up in the Air. I like George Clooney. As a reader of View From the Wing and a (quite inactive) member of FlyerTalk, I’m intrigued by the whole frequent-flier culture: I’m almost on my second free flight through Southwest Rapid Rewards, although I’m a little irked that they terminated their very lucrative double credit College Rapid Rewards Program. And, I thought writer/director Jason Reitman’s two previous films, Juno and Thank You For Smoking, were both excellent. Plus, 91 percent of the top critics at Rotten Tomatoes approve of Up in the Air and it’s been nominated for six Golden Globes, including Best Picture.


In his review, Roger Ebert explains: “This isn’t a comedy. If it were, it would be hard to laugh in these last days of 2009. Nor is it a tragedy. It’s an observant look at how a man does a job.” Ebert’s mostly right: Everything gets called a comedy, but this certainly isn’t one: Even Zach Galifianakis’s scene isn’t really that funny. However, I think it’s a little more than a look at how Ryan Bingham (George Clooney), a “career transition” counselor (in other words, a professional firer) and frequent-flier, does his job. There’s significant focus on the character development of Alex Goran (Vera Farmiga), a fellow frequent-flier and lady-of-the-sky for Ryan, and Natalie Keener (Anna Kendrick), a brainy and super-organized Cornell grad who moves to Omaha (where Ryan’s company is centered) with her boyfriend and brings new ideas with her to the company. Continue reading

Oscarpalooza: Why is “Up” getting such good reviews?

In honor of Oscar weekend, NPI will be rerunning our reviews of the Best Picture nominees. Here, Josh wonders what all the fuss over Up is about:

I like Pixar movies as much as anyone else, but Up simply isn’t that good. It’s not that witty, the storyline is pretty basic, and the characters are fairly simple. Much of the interaction between characters—especially in the middle of the movie—is dull. Up is a decent adventure movie with very good animation and cute-looking characters. I could see how this is appealing for children, but I don’t understand the logic behind the reviews praising this movie as excellent for people of all ages: It has a 98 percent rating on Rotten Tomatoes and is currently number 16 (of all time!) on IMDB.  (Admittedly, new movies tend to get a boost, but this movie shouldn’t even be in the top 200.)

After the movie, I was a bit confused about what elicited the rave reviews. Stephanie Zacharek of Salon (one of the very few critics who wrote a negative review) helped me understand what sparked them in her claim: Continue reading

A Continuation of My Praise of the Oscars’ New “Best Picture” Voting Process

The 2010 Oscar Nominees were announced today and I seek to defend my previous praise of the expansion of the “Best Picture” category to include ten nominees instead of the usual five. Without further ado, the ten nominees are:
Academy Awards Best Picture
Avatar
The Blind Side
District 9
An Education
The Hurt Locker
Inglourious Basterds
Precious
A Serious Man
Up
Up in the Air

Based on Golden Globe and Screen Actors Guild nominees/winners and general Oscar “buzz,” Avatar, Up in the Air, and The Hurt Locker were shoo-ins to be nominated and Precious was pretty close to one. If we’re in the five-nominee system that leaves one more nomination and two NPI favorites: Inglourious Basterds and A Serious Man. One of those movies would most likely not have been nominated and would have no chance at winning “Best Picture.” Yes, with the expansion to ten nominees we get the inclusion of the undeserving The Blind Side and the filth known as Up*.
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Some Suggestions for the Jets

The following are all quotes from Tim about the Jets this season:

“But [Mark Sanchez is] still a rookie quarterback that’s going to have to win games on his own (that’s a shot at you, Mr. Flacco) without a 1,600-yard running back (and you, Mr. Ryan). Those guys don’t often succeed. The defense will be good, but it’s unreasonable to expect Rex Ryan to turn it into the Ravens’ D in one season.”

“Hey Jet fans, give me a call when you play a team with two healthy wideouts.”

“Smart play by Maurice Jones-Drew, and now the Jets have virtually no chance to make the playoffs.”

“The Jets are 1-6 since I instituted the Jets Bash of the Week. I win.”
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