My admiration for Nico climbed as I listened to this podcast. Nonetheless, I had to force myself to finish listening. Professor Ives is among the many academics who substitute a blizzard of references for a clear, logical, and focused argument. Instead, Jacob Mchangama’s marvelous book is criticized for not defining free speech as if the observation is a magic bullet. Mchangama allows the history to reveal itself. Ives, on the other hand, fails to define his position and dances around it while tossing the confetti of irrelevant citations into the eyes and ears of the listener. Clearly, he is arguing in favor of censorship. There is nothing new here. The history he dismisses demonstrates that societies committed to freedom of expression are rare. His observation that the United States is an outlier only proves the point.
Free speech is a threat to the powerful and their hangers on everywhere and always. The belief that the world would be a better place if only we were all a little less free never goes away. If Professor Ives is representative of those who decide what we can say or believe, or worse, what we must say and believe, then I shall say a First Amendment protected prayer for Nico and FIRE.
Most constitutional scholars will agree that yelling fire in a crowded theatre is protected by the 1st Amendment. Nick Perrino should have pushed back. Especially when Ives dove into the nonsensical concept of 'speech causing emotional harm.' I stopped listening to such blatant rubbish. In fact, nothing causes more psychological harm than the notion of living in a society that limits speech. Any 'research' proclaiming otherwise is unscientific propaganda.
The discussion of John Stuart Mill here missed perhaps Mill's most profound point. In "On Liberty" Mill prominently highlighted the obvious manner in which our “liberty,” “independence” and “sovereignty” were secured by the Fourteenth Amendment (and every amendment in our Bill of Rights, and even our entire Constitution). Note the words "absolutely," "absolute," "independence" and "sovereign." Mill (a Brit in 1859) understood our Constitution and our Declaration of Independence far more clearly than most Americans since James Wilson, James Madison and Alexander Hamilton
Only "one very simple principle [must] govern absolutely the dealings of society with the individual in the way of compulsion and control . . . . The only part of the conduct of anyone for which he is amenable [answerable] to society is that which concerns [affects] others. [Regarding any action of a person] which merely concerns [affects] himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."
Mill (like Wilson, Madison and Hamilton) understood and emphasized that the source of the rights and freedoms addressed in the First Amendment is not the mere First Amendment, itself, but our sovereignty--over our own selves as well as over our public servants.
Thank you for highlighting the need to rethink how Americans have been conditioned to think too little about the freedom of speech. Far too often, discussion focuses on the limits of the First Amendment. As you addressed, judges have long conditioned Americans to focus on a red herring, i.e., that the Bill of Rights did not directly govern anyone except national government employees. But how is that even relevant? How was it ever relevant? Such discussions clearly erroneously treat our Constitution as if it actually granted the rights in the First Amendment. Clearly it did not.
The First Amendment merely “codified” multiple “pre-existing right[s],” that clearly were not “granted by the Constitution” or “in any manner dependent upon” the Constitution for their “existence.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). “Constitutional rights" such as those in the First Amendment "are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures” or “judges think that scope too broad.” Id. at 634-35. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Bruen, 597 U.S. at 34.
An “Amendment’s plain text covers” the “conduct” in the First Amendment so “the Constitution presumptively protects” it. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022). Government must “justify” any “regulation” thereof, i.e., “must demonstrate” that regulation is “consistent with this Nation’s historical tradition” of protecting First Amendment rights and freedoms. Id. Government “must affirmatively prove that” restrictions are within this Nation’s “historical tradition” of protecting First Amendment rights and freedoms within “the outer bounds” of each such “right.” Id. at 19.
“Only if” the government proves that “conduct falls outside” the “unqualified command[s]” in the First Amendment and proves that restrictions are “consistent with this Nation’s historical tradition” could any such restriction be constitutional. Id. at 17.
The reason for the foregoing is not the First Amendment, itself. The reason is far more fundamental and profound, and it was documented in our Constitution well before the First Amendment. Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution also] dispersed power” in many ways precisely because “of the people’s” extreme “distrust” of people with “power” at “all levels.” New York Times Co. v. Sullivan, 376 U.S. 254, 274 (1964) (quoting James Madison).
Clearly, “the animating principle of our Constitution” was “that the people” are sovereign and the “source of all the powers of government.” Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 813 (2015). Accord id. at 837 (Roberts, C.J., Scalia, Thomas, Alito, JJ., dissenting). “The people’s ultimate sovereignty” (id. at 819 (majority); accord id. at 837 (dissent)) was emphasized repeatedly by the text and structure of the Preamble, every article of the Constitution and every amendment in the Bill of Rights.
Our “Constitution begins with the principle that sovereignty rests with the people.” Alden v. Maine, 527 U.S. 706, 759 (1999). It begins by expressly emphasizing that “the people” did “ordain and establish the Constitution.” Id. “We the People” created the “Constitution” (and every branch of federal government) to “establish Justice” and “secure the Blessings of Liberty” by and for “ourselves.” U.S. Const. Preamble. The People expressly “retained” ALL “rights.” U.S. Const. Amend. IX. In relevant part, we merely “delegated” SOME “powers” to federal representatives, “prohibited” some powers “to the States,” and “reserved” some “powers” to “the people.” Amend. X.
We “vested in” each federal branch only parts of our own “Power[s]” Arts. I, II, III, §1. We “vested” no “Powers” whatsoever beyond those that were “necessary and proper” to the purposes in the Preamble. Art. I, §8. We vested no power in any public servant to “abridg[e] the freedom of speech” and “press” or “the right” to “petition” courts to “redress” any “grievances” regarding illegal, unconstitutional or criminal judicial misconduct. Amend. I. Accord Amend. XIV, §1.
“[T]he people are sovereign,” and we “speak” and “use information” regarding public issues for “enlightened self-government,” including “to hold officials” (public servants) “accountable to the people.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). Accord id. at 339-341, 344-350. Our “political speech must prevail against laws that would suppress it” by “design or inadvertence.” Id. at 340. “Government” must “prove that” any regulation of the rights and freedoms secured by the First Amendment actually “furthers a compelling interest and” further prove such regulation “is narrowly tailored to achieve that interest.” Id.
If speech is violence and the state is the organization which successfully establishes a monopoly on violence, you end up back where we were before Mills and Voltaire. The state choosing the truth as a matter of utility rather than accuracy and criticism persecuted with power. Countless reasons to shut down speech is violence arguments as totalitarian trash.
I would rather reverse the discussion: what are the arguments in favour of the restriction of speech?
Unfettered free speech is messy and necessary for a free society.
My admiration for Nico climbed as I listened to this podcast. Nonetheless, I had to force myself to finish listening. Professor Ives is among the many academics who substitute a blizzard of references for a clear, logical, and focused argument. Instead, Jacob Mchangama’s marvelous book is criticized for not defining free speech as if the observation is a magic bullet. Mchangama allows the history to reveal itself. Ives, on the other hand, fails to define his position and dances around it while tossing the confetti of irrelevant citations into the eyes and ears of the listener. Clearly, he is arguing in favor of censorship. There is nothing new here. The history he dismisses demonstrates that societies committed to freedom of expression are rare. His observation that the United States is an outlier only proves the point.
Free speech is a threat to the powerful and their hangers on everywhere and always. The belief that the world would be a better place if only we were all a little less free never goes away. If Professor Ives is representative of those who decide what we can say or believe, or worse, what we must say and believe, then I shall say a First Amendment protected prayer for Nico and FIRE.
Most constitutional scholars will agree that yelling fire in a crowded theatre is protected by the 1st Amendment. Nick Perrino should have pushed back. Especially when Ives dove into the nonsensical concept of 'speech causing emotional harm.' I stopped listening to such blatant rubbish. In fact, nothing causes more psychological harm than the notion of living in a society that limits speech. Any 'research' proclaiming otherwise is unscientific propaganda.
The discussion of John Stuart Mill here missed perhaps Mill's most profound point. In "On Liberty" Mill prominently highlighted the obvious manner in which our “liberty,” “independence” and “sovereignty” were secured by the Fourteenth Amendment (and every amendment in our Bill of Rights, and even our entire Constitution). Note the words "absolutely," "absolute," "independence" and "sovereign." Mill (a Brit in 1859) understood our Constitution and our Declaration of Independence far more clearly than most Americans since James Wilson, James Madison and Alexander Hamilton
Only "one very simple principle [must] govern absolutely the dealings of society with the individual in the way of compulsion and control . . . . The only part of the conduct of anyone for which he is amenable [answerable] to society is that which concerns [affects] others. [Regarding any action of a person] which merely concerns [affects] himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."
Mill (like Wilson, Madison and Hamilton) understood and emphasized that the source of the rights and freedoms addressed in the First Amendment is not the mere First Amendment, itself, but our sovereignty--over our own selves as well as over our public servants.
Thank you for highlighting the need to rethink how Americans have been conditioned to think too little about the freedom of speech. Far too often, discussion focuses on the limits of the First Amendment. As you addressed, judges have long conditioned Americans to focus on a red herring, i.e., that the Bill of Rights did not directly govern anyone except national government employees. But how is that even relevant? How was it ever relevant? Such discussions clearly erroneously treat our Constitution as if it actually granted the rights in the First Amendment. Clearly it did not.
The First Amendment merely “codified” multiple “pre-existing right[s],” that clearly were not “granted by the Constitution” or “in any manner dependent upon” the Constitution for their “existence.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). “Constitutional rights" such as those in the First Amendment "are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures” or “judges think that scope too broad.” Id. at 634-35. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Bruen, 597 U.S. at 34.
An “Amendment’s plain text covers” the “conduct” in the First Amendment so “the Constitution presumptively protects” it. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022). Government must “justify” any “regulation” thereof, i.e., “must demonstrate” that regulation is “consistent with this Nation’s historical tradition” of protecting First Amendment rights and freedoms. Id. Government “must affirmatively prove that” restrictions are within this Nation’s “historical tradition” of protecting First Amendment rights and freedoms within “the outer bounds” of each such “right.” Id. at 19.
“Only if” the government proves that “conduct falls outside” the “unqualified command[s]” in the First Amendment and proves that restrictions are “consistent with this Nation’s historical tradition” could any such restriction be constitutional. Id. at 17.
The reason for the foregoing is not the First Amendment, itself. The reason is far more fundamental and profound, and it was documented in our Constitution well before the First Amendment. Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution also] dispersed power” in many ways precisely because “of the people’s” extreme “distrust” of people with “power” at “all levels.” New York Times Co. v. Sullivan, 376 U.S. 254, 274 (1964) (quoting James Madison).
Clearly, “the animating principle of our Constitution” was “that the people” are sovereign and the “source of all the powers of government.” Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 813 (2015). Accord id. at 837 (Roberts, C.J., Scalia, Thomas, Alito, JJ., dissenting). “The people’s ultimate sovereignty” (id. at 819 (majority); accord id. at 837 (dissent)) was emphasized repeatedly by the text and structure of the Preamble, every article of the Constitution and every amendment in the Bill of Rights.
Our “Constitution begins with the principle that sovereignty rests with the people.” Alden v. Maine, 527 U.S. 706, 759 (1999). It begins by expressly emphasizing that “the people” did “ordain and establish the Constitution.” Id. “We the People” created the “Constitution” (and every branch of federal government) to “establish Justice” and “secure the Blessings of Liberty” by and for “ourselves.” U.S. Const. Preamble. The People expressly “retained” ALL “rights.” U.S. Const. Amend. IX. In relevant part, we merely “delegated” SOME “powers” to federal representatives, “prohibited” some powers “to the States,” and “reserved” some “powers” to “the people.” Amend. X.
We “vested in” each federal branch only parts of our own “Power[s]” Arts. I, II, III, §1. We “vested” no “Powers” whatsoever beyond those that were “necessary and proper” to the purposes in the Preamble. Art. I, §8. We vested no power in any public servant to “abridg[e] the freedom of speech” and “press” or “the right” to “petition” courts to “redress” any “grievances” regarding illegal, unconstitutional or criminal judicial misconduct. Amend. I. Accord Amend. XIV, §1.
“[T]he people are sovereign,” and we “speak” and “use information” regarding public issues for “enlightened self-government,” including “to hold officials” (public servants) “accountable to the people.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). Accord id. at 339-341, 344-350. Our “political speech must prevail against laws that would suppress it” by “design or inadvertence.” Id. at 340. “Government” must “prove that” any regulation of the rights and freedoms secured by the First Amendment actually “furthers a compelling interest and” further prove such regulation “is narrowly tailored to achieve that interest.” Id.
If speech is violence and the state is the organization which successfully establishes a monopoly on violence, you end up back where we were before Mills and Voltaire. The state choosing the truth as a matter of utility rather than accuracy and criticism persecuted with power. Countless reasons to shut down speech is violence arguments as totalitarian trash.