JWI Affiliated Attorney Gunnar Gundersen takes on rioters, Nazis, and Antifa looters in an article attacking the relativistic view of free speech advanced by the American Civil Liberties Union and other free speech fundamentalists. Gundersen argues that by holding as equally valid the speech of neo-Nazis marching through a Jewish neighborhood and the speech of civil rights protestors, we have weakened our ability as a society to exclude views that are reprehensible. In this way, expanded free speech protections have actually made Americans less free by insulating extremists from institutional censure. In other areas of American law, Gundersen points out, we have not been willing to abdicate responsibility for judging the quality of an action, such as in lawful versus unlawful assembly, defamation, or false advertising. Even assault laws draw a line between permissible and harmful physical contact. There is no reason that speech should not be subject to the same prudential judgment. Additionally, rather than doubling down on “cancel culture,” including a moral consideration in our speech cases would take that prerogative out of the hands of Twitter and place it in that hands of a jury. Unlike Twitter, juries are bound by unanimity, the rigorous testing of evidence, and the hearing of arguments by both sides. Pushing the moral question to the courts serves to protect moral speech and personal reputations in a way radical free speech doctrines and Twitter simply cannot.
Some quotes from the article:
“The ACLU pushes the narrative that it is advocating for a neutral free association and speech right. But “neutral” in these cases means relativism. It cannot distinguish between Nazis marching among Holocaust survivors and the NAACP marching for racial equality.”
“Another activity protected on the list is the right to ‘peaceably assemble.’ In other words, these rights need to be understood in the context of activity that is rightful and does not disturb the peace. They are to be understood within a moral framework—or, to quote Lincoln, one ‘cannot say people have a right to do wrong.'”
“But of more immediate concern is how the current regime diminishes other rights. Because the people cannot secure their safety by regulating these illegitimate forms of association and advocacy, we are left with over-broad measures to secure the nation.”
Check out the whole article here.