Last week I wrote about Professor Eric Posner's latest proposal for new First Amendment exceptions, placing it in the context of his history of advocacy for expanded free speech restrictions. Many others criticized Posner, usually more articulately than I did.
In a more recent post addressing (sort of) his critics, Posner offers this rebuttal:
The third generic argument is that once one makes an exception to broad protections for freedom of speech, the camel’s nose is under the tent, we have stepped onto a slippery slope, etc. These clichés are as dry as dust and not even true. Courts have constructed countless exceptions to the First Amendment’s apparent unconditional protection for speech, including exceptions for defamation, child pornography, copying, fraud, and more—and yet none of these exceptions have expanded to swallow up the rule.
I recognize that "countless" is a figure of speech, and difficult to prove or disprove. But offered to the end of censorship by a law professor, I am comfortable calling it a lie. At a minimum it is dishonest and misleading, part of pro-censorship movement's attempt to make Americans more ignorant about their civil rights.
Posner's argument — that there are "countless" exceptions to the First Amendment and it's perfectly natural to make more — is exactly the government's we-should-have-power-to-censor argument that the Supreme Court flatly rejected in United States v. Stevens in 2010. In Stevens — which I've written about before — the Supreme Court rejected the federal government's attempt to create the first of many new "balancing" based ad-hoc exceptions to the First Amendment. Faced with loathsome speech — so-called "crush videos" depicting animals being killed for pleasure — the court unequivocally reaffirmed that the set of First Amendment exceptions is historically based and finite and cannot be expanded based on the of-the-moment application of "balancing tests":
“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)—including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254–255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447–449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572 (1942).
. . .
The Government contends that “historical evidence” about the reach of the First Amendment is not “a necessary prerequisite for regulation today,” Reply Brief 12, n. 8, and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Congress’s “ ‘legislative judgment that … depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection,’ ” Brief for United States 23 (quoting 533 F. 3d, at 243 (Cowen, J., dissenting)), and asks the Court to uphold the ban on the same basis. The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).
Saying that courts have created "countless" exceptions to the First Amendment is not true. The opposite is true: courts have made those exceptions expressly limited and enumerated. They have done so in the course of rejecting Posner's exact argument.
There are foes of the First Amendment. And they lie. Watch them. Call them out. Fight them.
Edited to add: Just remembered that in my post about anti-free-speech media tropes, I said this:
Trope Eight: "[Professor] explained . . . ."
Example: "The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said."
The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.
Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts.
Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.
Ahem.
Last 5 posts by Ken White
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I think we should take Posner's advice, and jail him for actively working on undermining our values and freedoms. I think we can make a clear case that he was radicalized.
So his counter-arguments are:
1) Tired trope that if you say "this law won't work", you must want to repeal laws against murder, since there are still murders.
2) Tired trop that since we must draw lines in some areas of law, we can easily draw them in all areas of law.
3) Incorrectly citing SCOTUS precedent.
Doesn't surprise me that Posner is a college prof. It takes years of higher education to get that dumb.
That last paragraph in Posner's rebuttal post is arguably worse than his Slate piece. First, he claims the "slippery slope" has resulted in greater speech protections (which is a bad thing in Posner's view) and that we should just do away with the "slippery slope" argument altogether, for the good of public debate.
I'm glad he's a law prof rather than a legislator.
And we could always rebrand "slippery slope" as "mission creep," if that would make him feel better.
Dry as dust? To mean dull or boring? I've heard "slippery slope", but "camel's nose is under the tent" is a new one to me. Perhaps he used the camel cliche because he lives near a desert. The desert he has apparently been wandering for some time looking for his honesty.
"When the law is against you, argue the facts. When the facts are against you, argue the law. When the law and the facts are against you, you are Eric Posner."
Is "5" the Supreme Court's definition of "countless?"
This doesn't appear to be Posner's argument at all. His conclusion is not "It's perfectly natural to make more." His conclusion is "The slippery slope concerns at issue have historically not been vindicated." So this is a strawman, or, since we aren't doing that assumption-of-good-faith thing, a lie.
Yikes.
On top of everything else, his entire argument is based on the premise that if you can prevent people from being exposed to radical doctrine, they won't become radicalized, which, one can only assume, seems like sound idea to him because he knows nothing at all about what it's like to be a living human being who thinks and is exposed to thought.
Has anyone else been having problems with the Popehat RSS feed recently? I hadn't gotten anything on it from Tuesday until a few hours hour ago, when the 7 most recently published articles all arrived together. I had a similar problem happen a week or two ago; but that was only a 1 or 2 day stall and I'd initially wrote it off as a one off.
@Ken
It's not difficult to prove or disprove. It's impossible. The meaning of "countless" is subjective, so saying "there are countless 'X'" is an opinion. I think it's fair to say one of your pet peeves is calling opinions defamatory. One of mine is calling opinions lies. Lies are knowing falsehoods. Opinions can't be knowingly false.
Ken, you're one of the smartest commentators around (i.e., your opinions usually match my own, which are infallible, including your objection to Posner's views on speech). But no more than you'd let someone get away with stretching the definition of defamation should you let yourself get away with calling an opinion a lie. If you're comfortable doing so, I'd urge you to reconsider what makes you comfortable.
@Leo Marvin
"Lie" is certainly a strong word. But the issue here isn't simply the meaning of the word, "countless" but the context it is placed in. The limits on free speech in the USA are finite and in fact easily counted. This makes Posner's use of the word a rather dubious rhetorical flourish at best. What should we call the term here? "A Deliberate mis-representation of the facts to further an agenda"? That's some rhetorical flourish for you. But it's a more honest one than Posner's.
Let me see if I can follow his basic premise:
* The slippery slope argument is not valid, because we have other laws that are exceptions to speech. Those exceptions haven't yet lead to us greatly expanding exceptions in 1A.
* Because the slippery slope argument is not valid, it's totally reasonable to expand the number of exceptions in 1A.
By suggesting we expand the number of exceptions to 1A based on previous exceptions to 1A Eric Posner is just showing us that the reason the slippery slope argument isn't dominating the 1A expansions is because he isn't in charge.
@Leo Marvin:
Per dictionary.com, the definition of "countless" is "too numerous to count; innumerable".
Stevens cites exactly five restrictions on the First Amendment: obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. I know there are five because I counted them.
No reasonable person would define the word "countless" to include the number five; to do so would logically imply that there are only four countable numbers. That's some Gully Dwarf shit.
(Similarly, while the definition of "a couple" is flexible (at least connotatively), it definitely does not include the number one or the number ten billion. Even if a word has some wiggle-room in the precise quantities it may define, there can still be some numbers that are definitely, unambiguously outside its range.)
I submit that, whatever Posner's subjective opinion of what "countless" means, it is more than five. Ergo, when he claims to believe that a number is "countless" when it is actually five, he is lying.
A stated opinion can be a lie if it is not your actual opinion.
Leo:
As far as 'countless' goes, I think aleph-0 is the largest countable number (infinite cardinality of N), and continuum (infinite cardinality of R) is the smallest example of something that's 'countless'… and let's just skip the whole CH thing. I mention this only because I'm too dumb to contribute anything useful to the Posner discussion, but I'm pretty good at Six Degrees of Georg Cantor.
What is the root cause of Posners deep-seated fear of ISIS? Was he not heartened by the DODs counter-propaganda initiative? (https://fas.org/blogs/secrecy/2015/11/dod-counter-is/) Russias bombing of ISIS groups in Syria? Certainly, ISIS is very effective in ensuring instability in the ME, which is part of the US/Israel master plan. (I left out the NATO lapdogs..er..countries)
.
Too bad he couldn't be more like his dad, i.e., an enlightened (real) conservative. It must be a disappointment to have a douchebag son.
. .. . .. _ _ _ ….
I don't see the internet as a game-changer any more than printing presses, mail service, telephones, radio or television were when they were new. If we did not scrap the First Amendment then, why should we now?
Levi Roth wrote,
Sort of, but I'd argue not quite. Posner is clearly arguing that we've had lots of exceptions and not slide down the slippery slope, so there's no reasons to think this exception will make us slide down that slippery slope, either. E.g., it's ok–if not "perfectly natural" to make more exceptions.
The irony, though, is that he's invoking prior exceptions to justify another exception, which is precisely the logic of slippery slope. So he's tacitly employing the very thing he denies exists.
@Grandy,
It may be a "deliberate mis-representation of the facts to further an agenda," but I wouldn't call it that. Before alleging bad-faith, I'd ask myself if I've made the effort to interpret generously. Is it implausible, for example, that Posner's "countless exceptions" refers to distinct examples within the finite categories, not the categories themselves? I'd call that a rhetorical flourish which, intentionally or not, gives an inaccurate impression of the relevant facts.
But that's just one hypothetical, and it may not even be a good one. I'm not all that imaginative. More to the point, I don't see how, without at least hearing Posner answer how he thinks his argument squares with Stevens, it's responsible to accuse him of dishonesty. What purpose does it serve to accuse those we disagree with of bad faith by any less rigorous standard than we'd accept against ourselves?
__________________________________
@Thad,
The dictionary definition is irrelevant when, as Ken mentioned, "countless" is used as a figure of speech. Re: the rest of your comment, please see my reply to Grandy.
__________________________________
@rowsdower,
???
JHanley:
The thrust of your argument seems to be that, once a slippery slope argument is made, it would be futile to examine whether the slippery slope actually exists, since appealing to history would actually be an example of a slippery slope. The slippery slope becomes the One Weird Trick that you can't even try to refute, on pain of contradiction ("Law professors hate him!").
Without going further into the details of the argument, I hope it's clear why I find this premise implausibly broad.
Leo Marvin says December 20, 2015 at 1:07 pm
I'm not Grandy, and I don't play him on TV. I'm also not a law professor.
I think the answer to your question is yes, it is implausible. Read carefully what Posner wrote (emphasis mine):
The examples are some of the few and very countable exceptions. They are, from Posnter's syntax and grammar, obviously not "distinct examples within the finite categories".
If I were a law professor, and I wrote such brazen falsehoods as claiming that there are "countless exceptions" to the First Amendment guarantee of free speech, I would expect that anybody who knew my statement was false to consider me either stupid and incompetent at First Amendment law, or simply lying to fool those who might believe it true just because "a law professor" wrote it.
I agree with Ken. When offered by a law professor arguing to the public to support "an anti-propaganda law", it is a lie. I would state it more strongly than Ken did. It is a palpable, damnable lie.
The purpose served is to warn emphatically those who are ignorant of First Amendment law, that Posner is trying to persuade them by stating falsehoods about the law.
@En Passant,
That's one way to read it, and if I had to guess, probably the correct way. But it's not the only way. It's also possible, and IMO plausible that
was intended to mean
which would be consistent with my hypo. But as I said, my objection doesn't depend on the plausibility of that or any other hypo. I believe the burden of proof in alleging dishonesty is on the accuser. And if you strip away the bias, which I share, I don't think Ken has come close to meeting that burden. IMO he makes a reasonably persuasive argument based on plausible inferences, but it should take more than plausibility to accuse somebody of lying. Frankly I think Ken is better than that.
Don't get me wrong. I could hardly be a fan of this site if I didn't find the often conclusory takedowns of Ken's villains du jour immensely entertaining. But it's one thing to enjoy an over the top excoriation when the target is Revenge Porn Guy or Brett Kimberlin, people there's more than ample evidence to believe are, and I use this word advisedly, evil. It's another thing entirely when the target is Eric Posner, about whom the worst thing I can say for certain is that he has views on speech with which I strongly disagree. Maybe he is in fact a bad guy, and if there's evidence to that effect apart from his take on Constitutional jurisprudence, I'm all ears. I'm just not prepared to treat him as such based only on beliefs that could qualify most of the free world (not to mention the un-free world) as bad people.
@rowsdower:
I'm not certain whether "countless" is closer to synonymous with "uncountable" or "uncounted". While the cardinality of natural numbers is theoretically countable, nobody could, as a practical matter, actually sit down and count them all. We just don't have that kind of time.
@Leo Marvin:
Aleph Null is the smallest mathematical "infinity", the number of "natural numbers" (a.k.a. N, a.k.a. "counting numbers", e.g. 1, 2, 3, etc). It is also the number of integers (natural numbers, plus their negatives, plus zero if you don't consider it to be natural) and the number of rational numbers (the ratio of any two integers, e.g. 1/2, -3/4) and probably a few other sets I don't know about, don't care to list, or can't think of right now. Any set that is no more than this infinite is considered "countable" because you can set it up with a one-to-one correspondence with some subset of the natural numbers (that is, you can create a function such that for each input from the set you are describing, the function outputs a unique member of the set of natural numbers; for an equally infinite input set, I'm pretty sure you can also define an inverse function such that using each natural number as input outputs a unique member of the other set). Any finite set (such as previously identified exceptions to the First Amendment– whether you mean categories or individual cases) is countable.
If you include all real numbers (a.k.a. R– rational numbers, plus irrational numbers like pi and e that can't be expressed as a ratio of two integers) you get a somewhat larger infinity. It's been proven impossible to set up a one-to-one correspondence between real numbers and natural numbers, so the set of real numbers (as well as any other set that is at least that infinite) is considered "uncountable".
And now I'm sure some mathematician is grinding his or her teeth and furiously typing out corrections and clarifications to everything I just said, because I've pretty much exhausted my knowledge of mathematical infinity just now.
I think you guys need to remember that there are clear limits to free speech. For example, the First Amendment does not let you use profanity to cyber-bully a crowded theater that is on fire.
@Leo Marvin:
> The meaning of "countless" is subjective,
That's the stupidest thing I've read today, and that's saying a lot. This wasn't the hyperbole of some drunk at a bar. It was somebody who knows how to use language — using it to lie.
Yes. Yes. Yes.
However I think that in the long run the Posners of this world will win.
@Leo Marvin
Would the follow up argument be, then, that Posner is confused? Doesn't understand the law (I'll grant you, at this is possible but let's set that aside)?
Because he inarguably has an agenda (this is not a bad thing in and of itself, though I find his agenda decidedly lacking myself) and the term "countless" is inarguably a misrepresentation. I argue that it is moreso true because he's used the term as a figure of speech. And this is specifically because he is a law professor. A lot of people don't know this stuff. There are reasons for that. Not everybody can know everything (no matter how long they spend hanging out at wikipedia). A lot of information we get comes from what the media says and as you well know from this blog if nowhere else the media's coverage on first amendment issues has been, ah, lacking. So a lot of people probably think there is a "fire in a crowded theater" exception, even though they both do not know the source of that one ("it's really about dissident speech") nor the outcome (precedent first shamefully walked backwards and them later punted into the phantom zone, where it belongs).
Let me state, here, that the fact that Posner is shaping his agenda is also not itself a bad thing even though I'm against it. I cannot think he doesn't understand the law. I can believe that he's writing conversationally, in an attempt to further what he sees as a truth to an audience he does not believe are subject matter experts (that is also true).
We must, in interpretation, consider his agenda. I don't think we're being ungenerous. The lie here is not Posner, twirling his mustache, saying "I've fooled those no good plebs!", it's worth pointing out. He sees pre-Brandenburg speech restrictions as "better", but this is also sort of dishonest. Because it isn't like the period from 1919 to Brandenburg in 1969 was marked by Speech being restricted in a way that Posner desires. Schenck was such bad case law that the Supreme Court sort of avoided it for awhile, while things largely continued as is.
Were this not a law professor I could buy that interpretation. But I cannot in this case. Poser controls that. He cannot control the media's awful. . . well let's be honest universal awfulness but specifically how its covers legal matters is so lacking. It is precisely because he's a law professor and because the media sucks balls covering law that he should be on his best behavior here. Even if – especially if, I think – he wants to argue against our current free speech norms. The thing is, history is decidedly not on his side. I can't imagine he does not understand that.
"Yes I know all about the 1st Amendment and it's historical significance. I also know it's an AMENDMENT and like everything able to be changed to suit the times"
@Chaon:
That's amazing! I just assumed that what everybody has been saying — the laws are behind the times — is true, so I never realized it was illegal to cuss out a dying smart building.
It seems that Posner's name only comes up when he's being an asshole
@Grandy:
> Poser controls that.
Awesome slip.
@Leo Marvin:
In this context the interpretation that "Posner lied." is actually one of the more generous possibilities. And if it's wrong, then Posner himself can easily correct it.
I can't believe you've become such a jerk to argue that a professor at UC can't count to five.
BadRoad:
I'm pretty sure that quite a few mathematicians are cranking up their woodchippers for us at this very moment, just because we've used 'infinite' in places where we should've used 'transfinite'.
I should probably apologize for my annoying digression into sophomoric and irrelevant pop-math, but set theory and symbolic logic (and, yes, Kurt Godel) unavoidably pop into my head almost every time I read Popehat or other law-explainers. Why? Because no matter how confused The Law may make me, I know that I can always return to a world of simple, sensible, and obvious ideas… like the fact that if we count the positive integers {1, 2, 3, …}, and then we count the even positive integers {2, 4, 6, …}, it turns out that there are just as many evens as there are evens & odds put together. Despite there being only half as many evens as evens & odds put together. Or something. My head hurts, and it's coffee-time.
@Patrick Maupin – ouch! I totally did no mean to do that.
@Careless – I think it's reasonable to argue for Posner having some other intention/whatever. I won't agree with it for reasons I have now enunciated, but I don't think it makes someone a jerk for trying. I don't think @Leo Marvin is engaged in apologia. Dissent is welcome when it's honest dissent.
Fine. Get 3/4ths of the state legislatures to support the change, or 3/4s of the states to hold ratifying conventions adopting the change. Until then, the 1st Amendment is not able to "change" in the manner being proposed, whether to "suit the times" or otherwise.
My personal test for whether speech should be restricted is "Does the speech do actual, demonstrable harm to a specific person which cannot be avoided by simply not listening."
I need to hear that Shelly is harmed by having photos of her body circulating on the internet, as opposed to 'the children' being hurt by too many profanities on Sesame Street. And I need to hear that there is nothing at all Shelly can do to fix the problem, as opposed to how 'the children' COULD just watch Teletubbies instead, but happen to really like Elmo. The former will convince me that the speech is wrong, and should be illegal, while the latter will convince me that the listener should get up and change the channel.
I believe my test would be a bad legal test, as it would probably end up banning things that shouldn't be banned. But I find, for me, that it's a good 'gut feeling' test for whether somebody is reasonable in being upset about speech, vs. whether somebody would just find life a bit more pleasant if they didn't have to know that X was being said on the internet somewhere. This is also why I tend to support restriction on location of speech much more so than on content of speech. I don't think it harms you to have something said SOMEWHERE… but that same speech may do exceptional harm to have it said 5 feet from your face, when you are effectively a captive audience and cannot escape.
I emailed Eric Posner to ask him how he reconciles his use of the word "countless" with U.S. v. Stevens. Here's what he said:
That seems to corroborate my conjecture above "that Posner's 'countless exceptions' refers to distinct examples within the finite categories, not the categories themselves." Unless you believe he stole his answer from me, whatever else you may think of it, I believe it confirms he wasn't lying.
As a comment to both Eric Posner, and others in this chat, the "slippery slope" argument is actually incredibly apt here.
I generally hate whenever someone rants about slippery slopes. Most of the existing exceptions to free speech (as affirmed by the US Supreme Court) are very well defined and not prone to much slippage (I would say that obscenity is the exception).
But what Eric Posner is proposing is inherently prone to slippage, as with a lot of laws aimed at combating terrorism. Posner wants the government to have special powers to stop "terrorist" "propaganda" during "war". Our government has already proven it will bend and brake definitions of those terms to do what it wants, when it wants. A terrorist could be anyone the government doesn't like, and wars now last forever.
That slope is very slippery.
When you say that something is "countless", then list a few "examples" of that thing, and those examples cover nearly the entire universe of examples of the thing you said was "countless", you are lying. The only reason to do that is to create the false impression that there's a vast, uncountable number of such things while in reality, you've put nearly all of them on a short list.
And he's actually validating the slippery slope argument in an attempt to refute it. He's saying that we've made all these other exceptions, why not make one more? That's the very argument the slippery slope argument says people will make. Each "one more" increases the justification for the next "one more". If we limit speech about X, why not limit speech about Y? Speech about Y is as bad as speech about X.
@Leo Marvin:
WTF? C'mon, if you lie about specific facts and it damages someone, it's seldom protected, and that has nothing to do with religion, which is pretty fact-free.
What fucking fiction? For example, you and Posner and any other moron can keep spouting this insane bullshit, and it's all perfectly legal. Nobody's going to come for you in the middle of the night, although, as other commenters have pointed out, under Posner's interpretation, the government could come for you in the middle of the night.
No it confirms that he and you both came up with the best answer for plausible deniability. Not only are the circumstances countable; the actual cases where the defendant lost are almost certainly numerable, as well.
Re whether Eric Posner was guilty of a lie:
It's not just that the U.S. Supreme Court listed five exceptions to free speech protection in one of its opinions. It's that the entire tenor of a few recent U.S. Supreme Court opinions is that it will not create or recognize new exceptions on top of the limited exceptions long well-established in the law. Posner's entire piece is a lie, not merely his use of "countless."
Posner has succumbed to the hysteria that has swept the country in the wake of the Paris and San Bernardino mass shootings. He ought to be reminded of Franklin Delano Roosevelt's famous proclamation in his first inaugural address: "The only thing we have to fear is fear itself." We need strong men and women to stand up and tell Americans that curtailing our most precious civil liberties as a response will hand the terrorists a huge victory.
Re whether Eric Posner was guilty of a lie:
It's not just that the U.S. Supreme Court listed five exceptions to free speech protection in one of its opinions. It's that the entire tenor of a few recent U.S. Supreme Court opinions is that it will not create or recognize new exceptions on top of the limited exceptions long well-established in the law. Posner's entire piece is a lie, not merely his use of "countless."
Posner has succumbed to the hysteria that has swept the country in the wake of the Paris and San Bernardino mass shootings. He ought to be reminded of Franklin Delano Roosevelt's famous proclamation in his first inaugural address: "The only thing we have to fear is fear itself." We need strong men and women, people who are not cowards, to stand up and tell Americans that curtailing our most precious civil liberties as a response will hand the terrorists a huge victory.
@David Schwartz,
I know you to be a thoughtful commenter, so please clarify this for me:
Where did he do that? And how does his explanation quoted in my comment above confirm that his use of "countless" is a lie, not a disagreement over taxonomy.
@Leo Marvin:
And he's already given you much more thought than any of this deserves.
I realize that I am not a thoughtful commenter in this instance, because this stuff just doesn't require much nearly as much thought as Posner and your apologies have given it. There is a reason that "sophistry" and "sophisticated" share the same word root.
For example, the email that Posner sent you is simply more of the same specious causistry:
Yes, people can recover monetary damages for lies that materially affect them, whether of the "This works great!", "I won't tell anybody how it works", or "The cheap bastard only uses one dollar bills when he snorts Ken's taint" variety.
Using this as a paradigm for why it'll be OK to throw people in jail when they say something that the powers-that-be find objectionable is beneath contemptible.
In any case, if he's not lying, the obvious alternative is that he's an idiot.
@Patrick Maupin,
Figured that out, did you? Great. Now you can work on what it is you think I'm apologizing for. Is it the proposed speech-restriction I said more than once here, as well as directly to Posner, that I strongly oppose? No, it can't be that. I have a feeling it's more like the "anyone who won't pile on to the indiscriminate vilification of my declared enemy is also my enemy" type of apology.
At a slightly higher level of abstraction than my complaint about too-casual allegations of lying, your knee-jerk tribalism is exactly what I'm talking about. So please do go on. You display it far more eloquently than I can describe it.
So are you now going to try to claim that you haven't been defending Posner's use of "countless" as not a lie? WTF, over?
No, believe it or not, I hate when people lie, whether they're on "my side" or not.
Yes, I will certainly own up to being in the tribe that calls deliberate mis-representation lies where-ever I see them.
At an even higher level of abstraction, you'd obviously prefer to discuss my obvious animosity, rather than the further misdirection in the missive from Posner to you glossing over differences between lawsuits and jail. Your silence is equally as eloquent as my outrage.
Keep begging those questions. You're doing the Lord (of question begging)'s work.
What I'd prefer is a discussion without someone personalizing every disagreement. Then again, people in Hell would prefer ice water. So no, it's not my preference, but call me a moron for disagreeing with you and I may point out your animosity.
Not at all. Taken together, both Posner's articles are one long misrepresentation of the world as we know it. He managed this very skillfully, recouching everything as opinion, until he fucked up with "countless." Ken pounced on this — rightfully IMO, because if you get people thinking about countless, they might actually read and think harder about the rest of the stuff there, and it's all nasty.
When everything Posner writes is bad facts artfully couched as opinion, it's nice of him to slip up so he can be called out on "that's a lie" rather than "what the heck do those two things have to do with each other" or "how do you think that could possibly work?"
According to you, yeah, it could possibly be construed as a lie, but we should give the benefit of the doubt, but Hey! I wrote to the guy and he says it's not a lie, so it's all OK.
You have this backward. It's not that there are a bunch of opinions and one of them could look like a lie — it's that there are a bunch of lies, and all of them except one have been gussied up to make it plausible that they might be opinions.
What I would prefer is a discussion where people don't start out with misrepresentation and terrible analogies, with others then defending them, and even taking others to task, because Miss Jenkins in the third grade said it's not nice to call people liars.
Your way is to engage with Posner as if there is a serious debate and he's a rational element in it, and that's… bullshit.
I don't actually think you or Posner are "any other moron", but I do think that Posner is, at best, more than willing to dissemble to spread his extremely misguided views, and that you are far too accommodating of such behavior.
@Leo Marvin
There simply aren't "countless" exceptions. I think most people would have to struggle mightily hard to find one that he didn't list. In addition to the direct falsehood, there's the utterly false implication that courts are quite willing to add a few more to the "countless" list. This argument is so bad that honestly I have a hard time believing he really means it. It seems like the kind of straw man people on the other side would construct because it's so obviously at odds with undisputable facts.
@Patrick Maupin,
Wait, so you mean "you and Posner and any other moron" can be read generously to mean other than what I thought it meant? I accept your explanation.
Your way is to keep changing and enlarging the subject. The only question I'm engaging is whether there's a plausible non-lie reading of "countless."
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@David Schwartz,
I don't see how that addresses Posner's taxonomy argument, but we're obviously at an impasse so I give up. I'm sure Ken will find a way to move past the pain of having disappointed me, as will I with my disappointment.
@Leo Marvin:
It seems likely that most commenters here who have engaged you on this issue agree with Ken's assessment that the word was misleading at best, and feel that it's not a question that can be answered absent context, and further feel that the context makes the answer "no."
As far as the taxonomy argument goes, I personally find it interesting that you don't mention that Posner apologized for his contribution to any confusion, and find it even more interesting that he pivots and tries to use subcategories of civil speech laws as justification for his proposal to add criminal laws.
Anyway, Merry Christmas.
And to you.
[I]t turns out that there are just as many evens as there are evens & odds put together. Despite there being only half as many evens as evens & odds put together. Or something.
It gets so much worse. For instance, the segment [0,1] of the real line has the same cardinality (the intuitive version of this is "number of elements") as the set of reals, as does the segments [1,2]. And the cardinality of the interval [0,1] is equal to the cardinality of the segment [0,r], where r is any real number not equal to 0. So, yeah, worse. (And it gets so, so much worse when we start talking about the hyperreals.)
Honestly, the notion of "size" is really the wrong one to be using. Cardinality of un/countable sets is much easier to grasp as just a certain sort of relation that can hold between two sets — namely, that of there existing a bijection or isomorphism between them — rather than trying to use our intuitive notions of number or quantity.
Quote of the millennium, "Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts."
@Thad
I'd have gone with Watership Down:
But to each his own.
There are countless weapons of mass destruction in Iraq.
I think this these non-content-based restrictions are not of the same kind as restrictions on the supremes' five categories recounted in Stevens. I will not defend those exceptions, but they are of a different type.
Allow me an analogy. We have a generally recognized (pre-9/11) right to travel. The government is not generally allowed to tell me that I may not go in to town to visit my friends, or even to go in to the office.
When my horses and carriage run over your child, you will probably seek damages. Almost no one would expect me to defend on the theory that your damages are precluded by my right to travel.
Likewise, my right to say mean things about Governor S- is generally well recognized. Yet if I say something untruthful about him, damaging his credit and increasing his cost of capital, I am probably liable unless I am a large enough corporation to be excused from damages. And my saying something untruthful about the creditworthiness of a person who is not a public figure is probably remediable in money damages.
Like I said, I will not defend the supremes' five exceptions. But the general commercial exceptions for defamation and misappropriation seem at least plausible under a theory that it is not government action. Yes, Shelley v. Kramer, and all that; full exposition would not fit in this margin.