1st & 14th Amendments & Hate Speech

[Sean Wilson]

I am amazed at how academia appears to have turned its back upon free speech. It leads me to believe that the 60s generation and its progeny in academia never really believed in anything other than the assertion of its own political drama. I see a link between a set of attitudes that became hegemonic in academia after the 60s generation took power -- that the Court is "political" (in a non-descriptive sense), that ideology governs it, that knowledge is constructed, that morality is positional, that fundamentals only serve clientele, etc, etc, -- with the these anti-hate-speech arguments. Their goal seems to be nothing other than the establishment of a new set of generational biases.
What is nice about the speech regime that became solidly constructed in the 1960s is that it seemed to transcend ordinary politics. The Court's content restriction doctrine is really one of the only areas of law where salient political conflict is resolved with less opinion differentiation among the justices (conservative and liberal judges tend to agree more). It is also one of the only areas where the epistemology of the decision making seems more a Kantian in flavor. My favorite is the confessional offered by Kennedy and Scalia in their concurring opinion in Texas v. Johnson -- that "law" requires them to vote for something they do not like.
Isn't that the essence of what this area is all about? Why do you want to destroy it by constructing it around your favorite set of urges? If all that law in a grandiose sense amounted to was generational hegemony, we might as well not have constitution and just play like Britain does. Don't you understand that the fencing off of unpleasant things around the protection of "law" is what gives the concept its value?         
It used to be that academics looked, like philosophers, for better foundations. It used to be that buiding was better than destroying, and that encouraging the restraint of passion around cognition was still a sort of "virtue." Honestly I think that all of this talk about the politics of law over the last 30 or so years is really nothing other than a talk about a generation that has spent a lifetime wanting its cake and eating it too. 
Regards and cut me some slack for free speech, huh? 
Dr. Sean Wilson, Esq. 
Penn State University
Website: http://ludwig.squarespace.com/home/
Email discussion group:  http://groups.yahoo.com/group/TheLudwigGroup 
SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/


 
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