Every hero needs a villain.
Not only that, ever hero needs a suitable villain, a villain that somehow complements the hero's attributes. If your hero is a very large collection of Dalmatians, you need a villain who craves a Dalmatian-skin suit. If your hero is Aquaman, you need either a seafood-themed villain or perhaps a desert-themed villain, depending on your mood. If your hero is The Flash, you need a gigantic gorilla, because — well, okay. There are exceptions.
The First Amendment is not an exception. The First Amendment is a hero, of a sort: a tireless defender of expression from angry mobs and fickle tastes, a sentinel against the sort of annoy-me-and-I-kill-you rule that has prevailed for most of humanity's history. So of course it has a villain, a foe, cackling and scheming and plotting to tie it up and lower it into a bubbling vat of stinking, unprincipled lit-crit twaddle.
That villain is Eric Posner, professor at the University of Chicago. I would not go as far as to call him super-, but he is certainly the First Amendment's archvillain.
Professor Posner is in the news again with his latest call to restrict free speech. But you can't just leap in and read that cold. No! That would be like jumping into late-season Daredevil and not understanding why that nice gentleman from Law & Order seems so morose. You have to know the backstory: before you watch this week's battle, you have to see at least some of the battles that have gone before.
In that spirit, I offer you a sort of episode guide. Careful — there are spoilers!
Episode One: Wrath of the Blasphemed. In this episode, Posner plots to overturn the First Amendment in favor of international anti-blasphemy norms, and allow government punishment of speech he believes has "no value whatsoever." Little do his victims know the real nature of the international anti-blasphemy norms he touts: they are tools for religious majorities to oppress minorities, cruel whips that the powerful use to lash the powerless. Is that end this fiend's aim, or is he merely indifferent to it in his quest for the power to control speech? Tune in to find out.
Episode Two: Eric's Army of Darkness. In this episode, temporarily thwarted in America by the First Amendment, Posner seeks to overthrow free speech in Europe through clever reliance on violent terrorists. Faced with the Charlie Hebdo massacre, Posner sees fear and violence as the path to power over what people can say: he proposes that speech should be limited based upon what his motley league terms "low value," and based on the threat that if he is not given free reign to censor, fanatics will shed blood:
Me: if hate-speech laws had been enforced against Charlie Hebdo, then this attack would not have happened. So at a minimum, there is some evidence that they reduce violence. Rauch is right that hate-speech laws cannot be applied “neutrally.” But they can be enforced sensibly, to censor low-value speech that offends groups to the extent that violence may result.
Will the Europeans realize that this theory cedes control over speech to the subjective reactions of (1) foes of speech like Posner, and (2) the sort of fanatics who kill over cartoons? Find out next week! (Spoiler: no.)
Episode Three: Attack of the Zombie Children.> In this episode, Posner realizes that college students have underdeveloped brains ripe for control, control that can be exercised through more muscular speech codes and expression limitations. In what will become an ongoing theme this season, Posner harkens wistfully harkens back to an era will less freedom:
Yet college students have not always enjoyed so much autonomy. The modern freedoms of college students date back only to the 1960s, when a wave of anti-authoritarianism, inspired by the Vietnam War and the civil rights movement, swept away strict campus codes in an era of single-sex dorms.
Episode Four: The Listener. The First Amendment is on vacation so a disconsolate Eric Posner skulks around throwing rocks at the Fourth Amendment's windows.
Episode Five: In Which Posner Seeks To Sell Our Birthright Of Liberty for a mess of pottage that is security theater. You're caught up to the current episode! This time, Eric Posner proposes a law that "makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions." This will help prevent ISIS from recruiting American teenagers, just as laws against copyright infringement have effectively held them back from music and video piracy. Posner wants to invent a sinister time machine to take us back to the early 20th century, before modern speech protections:
However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a fifth column with recruits.* The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated.
In other words, Posner is enthusiastically encouraging a return to the time when you could be jailed for questioning whether a war was just or expressing opposition to the draft.
Eric Posner is well-cast as the First Amendment's nemesis: he represents everything it stands against. He represents obeisance to passing tastes about what is couth, clenched fists of power disguised as helping hands, suppression dressed up as order. He is the Foe.
A villain has to be a little scary — there has to be at least some possibility that he'll prevail and overthrow the hero.
But the First Amendment has a lot of friends. I like its chances in this fight.
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