Champions of Free Speech
Volokh, Eugene
VOLOKH at law.ucla.edu
Tue Sep 12 12:25:51 PDT 2006
The CPUSA discussion arose, unless I'm mistaken, from the question
whether certain American Communists (specifically, certain Jewish
American Communists) could qualify as champions of free speech. I can
certainly agree that some members of the Communist party might not have
shared the Party's anti-free-speech views. But it seems to me that it's
at least a workable presumption that people who had leadership positions
in the Communist Party shared the party's views, and thus probably
shouldn't be called "champions of free speech." Likewise, even
non-leadership membership in the Communist Party should alert us to the
possibility that the claimed "champion of free speech" may not have been
as much a champion of free speech as might otherwise appear. So even if
party membership isn't dispositive of "champion of free speech" status,
it should at least lead the champion-searcher to look more closely for
evidence of the championship candidate's actual views.
Eugene
________________________________
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Frank Cross
Sent: Tuesday, September 12, 2006 12:12 PM
To: Ilya Somin; DavidEBernstein at aol.com
Cc: Conlawprof at lists.ucla.edu
Subject: Re: "Communists" Versus "Loyal Members of the Communist
Party"
In general, I agree that the CPUSA as an entity was specially
anti-free speech, analogous only to the most extreme on the right, such
as Nazis. It was a party dedicated to creating a US government that did
not recognize such speech.
However, one should be cautious about stereotyping the positions
of individuals. Many party members do not agree with many of the
positions of their parties. And since the CPUSA never came anywhere
close to taking power, its members did not actually have to deal with
threatening such. And there were the no doubt numerous duped members
who believed it was an independent American political party. And I'm
not sure I see the point in taking the cheap shots at "blue in the face"
non-communist liberals.
At 01:49 PM 9/12/2006, Ilya Somin wrote:
I agree with most of what David says here. I do not deny
that Lindbergh, Coughlin, Robertson, and quite a few other American
rightists took wrong and reprehensible positions on a wide range of
issues. However, this thread started from the proposition that those
rightists who supported tactical alliances with Third World dictators
are essentially the same, from a free speech perspective as committed
longterm members of the CPUSA. I don't think my point that the former
did not hold up foreign dictators as a model for the US has been
rebutted. To the extent that a small number of rightists did take such a
view, then they really would be equivalent to CPUSA members in this
respect, as David notes. However, that is only a small subset of the
much larger number of conservatives, moderates, and even liberals who
supported tactical alliances with Third World dictators during the Cold
War.
I would note, by the way, that many prominent liberal
politicians and organizations, also supported such tactical alliances.
It was FDR, not some right-winger, who famously said that we should
support the Dominican right-wing dictator Trujillo because he was "our
son of a bitch." Liberal presidents such as Truman, JFK, and LBJ
followed in FDR's footsteps, at least to a large extent. Whatever the
merits of their policies here, it certainly doesn't prove that they were
enemies of free speech in the US in the way that committed CPUSA members
were.
DavidEBernstein at aol.com wrote:
No, I believe the argument is that with regard
to someone who was a member of the CPUSA for more than a fleeting period
of time, the strong presumption should be that during the period of that
membership, the individual was not a champion of civil liberties.
Surely it's possible that a member of the German Bund in the 1930s was
surreptitiously a big fan of the First Amendment, but I doubt the
presumption would be in his favor, even thought the Bund was far less
directly tied to Nazi Germany than the CPUSA was to the USSR.
I don't want to fill every posts with caveats
relating back to previous posts, but my original post on this issue
referenced "members of the Communist Party or other adherents of
totalitarian ideologies," who should be excluded from being considered
champions of the Firfst Amendment, which I think would cover most of the
folkss mentioned below, from Coughlin (a far-leftist, actually), to the
Aryan Nation. Since the previous threads were referring to conservative
support for dictatorships during the Cold War, I'm not sure why Coughlin
is relevant anyway, nor am I aware that, e.g., Charles Lindbergh or Pat
Robertson has ever held up a foreign totalitarian dictatorship as the
model for U.S. government, though I'm far from an admirer of either
man's views. But if they did, that would indeed exclude them from
consideration as champions of the First Amendment (not that I'm saying
either of them are/were), and I don't see that anyone, including me, has
argued otherwise. Finally, I certainly didn't say that no one on the
"American Right" believes or believed anything in particular, I said
that "there was no body of American conservatives who thought that
(e.g.) Somoza's Nicaragua or Batista's Cuba was an ideal form of
government". Unless one can come up with a counter-example, or show
that a reasonable interpretation of "body of American conservatives"
includes the Aryan Nation or the American Nazi Party, my point stills
stands.
Funny how folks who would likely turn blue in
the face if one used the phrase "American liberals" to include
Stalinists have no hesitation about turning "American conservatives"
into the "American Right" including Nazis.
In a message dated 9/12/2006 12:26:32 PM Eastern
Standard Time, schweber at polisci.wisc.edu writes:
I agree with the first proposition,
subject to Mark Graber's cautions about
the use of "champion" (I think we are
using the term somewhat loosely,
frankly.) The problem, of course, is
that the middle statement is false,
and all of Prof. Bernstein's evidence
goes to a different proposition,
which is "the CPUSA as an organization
was committed to supporting Soviet
tyranny." The very fact that the
leaders of the CPUSA never acknowledged
their ties to the Soviet Union is prima
facie a reason *not* to accept the
assumption that every member of the
organization was aware of those ties!
For the 1,000th time. No one is
defending the CPUSA, what is being
contested is the proposition that we do
not need to engage in any kind of
case-by-case review before deciding that
the fact of membership in the
CPUSA, at all points in history,
translates into the rejection of a
candidate for "champion" status. The
absolute refusal of the
counter-arguments to adress the actual
point being made verges on the
disingenuous.
I note that now Prof. Bernstein has
added a new, even more preposterous
claim: that no one on the American
Right ever advocated tyranny or the
adoption of foreign models of
anti-communism. From Father Coughlin and
Charles Lindbergh to the KKK, Aryan
Nation, and home-grown Christian
ayatollahs like Pat Robertson, the
American Right is loaded with people who
have asserted the benefits of tyranny,
often based on models imported from
elsewhere (as in "we should do what they
do in ___ with these
commies/gays/Jews, line 'em up and shoot
'em"). Prof. Bernstein is not
unaware of these and many other similar
characters, so he cannot mean what
he says literally. What Prof. Bernstein
means, I presume, is that
"respectable members of the American
Right with whom I would choose to be
associated" made only tactical alliances
with tyrants. Which I am sure is
true, but is a very different claim.
Howard Schweber
Dept. of Political Science
UW-Madison
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Ilya Somin
Assistant Professor of Law
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**********************************************************
Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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