Noah David Simon: Monday, June 28, 2010

While Kagan appears to be focusing more on conduct based regulation when it comes to hate speech, one has to be concerned when we start talking about a categorical balancing of the costs and “value” inherent in certain speech. This takes us into a legal form of “social engineering” that has no place on the court.

If speech leads to imminent lawless action or fits a few other very narrow categories we already can regulate it and we do. Even these types of laws, however, have been subject to subjective moral flexibility. The use of child pornography laws to prosecute sexting is an example. What about hate speech? Who sets the bar? Are we going to criminalize Holocaust Denial? That’s low value speech to me. Why not? If she gets hers, I want mine. It’s ad hoc right? What about inflammatory political speech? We tried that once. It was called Sedition. Didn’t work out well.
I am not contending that Kagan is going to go off the “free speech deep end” but to even consider any type of “value balancing” approach to hate speech even with the best intentions could take us down a free speech rabbit hole that will be hard to climb out of, setting the 1st Amendment back decades.
Is there low value speech? I agree with Kagan that there is. That does not mean the court should start adding ad hoc categories designed to tell me what it is. I can decide for myself and make my personal decision if I want to view it, engage in it or debate it. There is already enough subjectivity to go around without opening up a Pandora’s Box of moral interpretation.

Read Brian's entire post at briancuban.com
The key quotes from Kagan are there.

Any idea in pure form is dangerous. Obviously there are limits to how far speech can go before it threatens the individual. The key to this issue is more complex then just weighing the values, variables and attributes of cause and effect.   Of course there is no math to this.  What scares me is not that Kagan sees limitations to what can be said... what scares me is that she (and this is an assumption based on her other loyalties) will assume that violent speech can be policed in a centralized manner by the Federal government or worse... the U.N.

Quoted by email using noahdavidsimon's posterous

( By Cliff Kincaid June 28, 2010 ) Unfortunately for acolytes of Chavez, the Stone film has proven to be too slanted even for the New York Times to accept as a “documentary.” As Hollywood director Oliver Stone releases his pro-Hugo Chavez film, “South of the Border,” the Socialist International (SI) reports that the oil-rich Venezuelan ruler is suppressing dissent, interfering with freedom of the press, mismanaging the economy, and threatening peace in the region.
The SI report includes a description of the Chavez regime as a “democradura”—a democratic dictatorship.
The SI is an international alliance of 170 left-of-center political parties and organizations that might be expected to defend the Chavez regime. But its report (PDF) confirms all of the charges that critics have been making about the would-be dictator. What’s more, it says that Chavez’s policies are hurting the very people he claims to represent—the poor—through schemes that are undermining economic growth and costing jobs.
In other words, Chavez is demonstrating, once again, that socialism doesn’t work.
Following the release of the report, the Socialist International Committee for Latin America and the Caribbean issued a statement expressing “concern with regard to the respect for human rights and democratic freedoms” in Venezuela and calling for the release of political prisoners there.
Chavez is a hero of “progressives” who support Obama and staff his administration. For example, Mark Lloyd, the Associate General Counsel and Chief Diversity Officer at the Federal Communications Commission (FCC), has publicly praised Hugo Chavez and the Marxist revolution in Venezuela.
Other supporters of the regime include Mark Weisbrot of the George Soros-supported Center for Economic and Policy Research in Washington, D.C., and Tariq Ali, a British Pakistani associated with the Institute for Policy Studies, also based in Washington, D.C.
Weisbrot and Ali wrote the screenplay for the Oliver Stone film about Chavez.
In a previous report, I had identified Weisbrot as a leading member of a Chavista Terror Support Network in the U.S. that operates with funding and direction from the Chavez regime.
Robert McChesney, the Marxist co-founder of the Free Press, another George Soros-funded group that has supplied personnel to the Obama Administration, praised the film, saying, “I enjoyed it a great deal.” McChesney’s Free Press has argued for transforming the media in the U.S. in much the same way that Chavez has done so in Venezuela.
Unfortunately for acolytes of Chavez, the Stone film has proven to be too slanted even for the New York Times to accept as a “documentary.” Larry Rohter’s Times article, “Oliver Stone’s Latin America,” points out several factual inaccuracies and other “discrepancies” in the film, as well as Stone’s inability to correctly pronounce Chavez’s last name.
One of Stone’s sources, the article points out, is the husband of a Chavez government employee who misrepresents the facts about a coup attempt against Chavez in 2002 and helps run an “information” service paid for by the Chavez government.
The report of the SI mission, which has just been released, is based on a trip to the country in January and finds that Chavez produced an inflation rate of 30 percent in 2009, “the highest on the continent.” The result of Chavez’s policies, the SI report adds, is “an arbitrary and often incompetent centralized management [that] has had disastrous results on an economic level, with serious social repercussions, in particular for the poorest individuals.”
Since the end of 2008, the country is in a “deepening recession” and the industrial sector has lost 36 percent of its companies, “with a corresponding reduction in jobs,” the report says.
But the regime has been more competent in suppressing dissent. “Violence, threats, intimidation, insecurity, uncertainty and instability of laws and procedures constitute the framework of society” under Chavez, it asserts.
The Socialist International report was based on the findings of Chilean Luis Ayala, Secretary General of the Socialist International; Peggy Cabral of the Dominican Revolutionary Party, Dominican Republic; Renée Fregosi of the Socialist Party of France; Paulina Lampsa of the Panhellenic Socialist Movement of Greece; Emilio Menéndez del Valle of the Spanish Socialist Workers’ Party and Jesús Rodríguez of the Radical Civic Union of Argentina.
In Caracas, Venezuela, members of the mission met over a three-day period with representatives of political parties; trade unions; student organizations; university, industry and Church institutions; media and communications; human rights organizations; and other civil society institutions.
But Chavez’s ruling party, the United Socialist Party of Venezuela, refused to meet with the SI delegation.
The SI mission found “a climate of insecurity and fear” in the country that is specifically focused on the college and university campuses, where “a spirit of critical thought amongst younger generations” is being actively discouraged and suppressed by the regime.
Students have been helping lead the domestic opposition to the Chavez government.
The SI is publicly committed to “democratic socialism” and clearly finds the Chavez style of socialism to be at variance with democratic processes of free and fair elections, freedom of expression, and even “social justice.”
All of this directly contradicts the theme of the Oliver Stone movie about Chavez and his Latin American supporters.
The SI was particularly concerned that an “official trade union” manual for “workers’ education” in Venezuela openly endorses violence by quoting Marx as saying that “violence is the means for the implementation of modern societies.”
Although the SI is a global socialist movement, it finds that the Chavez regime has moved too far and too fast in the socialist direction, subverting democratic procedures while seizing a “whole series of strategic products and services, such as oil, electricity, steel, construction, agro-industry, telecommunications and the banking sector.”
The results have also been terrible for human rights and freedom.
Members of the SI mission to Venezuela report that the Chavez regime is regarded domestically as “an authoritarian mechanism of a new type,” a government with a “democratic origin” which has become “in reality authoritarian.” Another word for it is “democradura,” democratic dictatorship.
Venezuelans told the SI commission that the regime uses the elements of governmental power to impose its will on the populace and intimidate and silence those who resist. They used terms like “criminalization of dissent,” “revolutionary constitutionalism,” and “terror and corruption.”
Chavez is is accomplishing this through the use of government power to stage new takeovers of private businesses, new governmental entities answerable to Chavez, and manipulation of election laws to disadvantage opposition political parties and groups.
Nevertheless, the SI expressed the hope that there is a “possibility” that legislative elections scheduled for September 2010 might be held under fair and honest circumstances.
While the Venezuelan authorities tolerate “certain areas of freedom,” the report says, these are “reduced in number and reach” and “limited to sectors that do not affect the public at large, the popular masses, or the poorest sectors of society.” The areas of freedom are limited to intellectuals “and a limited section of the middle class,” but even here the major newspapers are “closely monitored and threatened with disruption of its paper supply” if they criticize the regime too much, the report discloses.
In foreign policy, the SI report accuses Chavez of “a policy of confrontation” with neighboring Colombia, under assault by the Revolutionary Armed Forces of Colombia (FARC), and “the importation of the Middle East conflict,” an obvious reference to his dealings with Iran and willingness to act on behalf of the interests of the fanatical anti-Israeli and anti-American regime. All of this presents “serious risks to regional stability and a threat to peace” in Latin America, the report says.
(Hosting Syrian President Bashar al-Assad, Associated Press reports that Chavez has denounced Israel as a genocidal government, saying, “We have common enemies,” describing them as “the Yankee empire, the genocidal state of Israel.” He went on, “Someday the genocidal state of Israel will be put in its place, in the proper place and hopefully a real democratic state will be born. But it has become the murderous arm of the Yankee empire—who can doubt it?—which threatens all of us.”)
It is a known fact that the Chavez regime has also been active collaborating with the communist narco-terrorists known as FARC. The U.S. Treasury Department on September 12, 2008, designated two senior Venezuelan officials, Rangel Silva and Hugo Armando Carvajal Barrios, and one former official, Ramon Rodriguez Chacin, as materially assisting the narcotics trafficking activities of the FARC.
But Oliver Stone’s collaborator, Mark Weisbrot, who co-wrote the screenplay for “South of the Border” with Tariq Ali, appeared on Robert McChesney’s public radio show to insist that all of these charges against Chavez are nonsense.
McChesney interviewed Weisbrot on his “Media Matters” radio show on WILL AM 580 in Urbana, Illinois, and they agreed that the U.S. media have given Chavez a “horrible press” by unfairly depicting him as a dictator, oligarch and friend of terrorists. Chavez’s policies “have benefitted the vast majority of the country,” Weisbrot claimed.
The other “South of the Border” screenwriter, Tariq Ali, is the British Pakistani author of Bush in Babylon: The Recolonization of Iraq, whose cover depicts a boy in Iraq urinating on the head of an American soldier. An earlier book was titled, Pirates of the Caribbean: Axis of Hope, about Evo Morales of Bolivia, Fidel Castro of Cuba and Chavez.
During a recent protest of the Israeli military action that was taken against the Gaza flotilla, Ali urged economic sanctions on the “killer state” of Israel and the prosecution of Israeli leaders for “war crimes.”
Blogger and researcher Trevor Loudon notes that, in addition to having a long-time affiliation with the Institute for Policy Studies, Ali was elected in 2007 to the board of the U.S. based Movement for a Democratic Society with former Weather Underground terrorists Bernardine Dohrn, Mark Rudd and Jeff Jones.
Dohrn and her husband, Obama associate and former Weather Underground leader Bill Ayers, have direct connections to Chavez through their son, Chesa Boudin, who actually worked in the presidential palace in Venezuela. Ayers and Dohrn traveled to Venezuela in 2005 and Ayers, now a University of Illinois education professor, went in 2006 to speak at a government-sanctioned “World Educational Forum.”
Asked by the New York Times to explain the factual problems in the film and the failure to acknowledge honest criticism of the Chavez regime’s human rights record, Ali told the Times that “It’s hardly a secret that we support the other side. It’s an opinionated documentary.”
But it’s opinion with no basis in fact.

Cliff Kincaid is the Editor of the AIM Report and can be reached at cliff.kincaid@aim.org