The surprising faith of the group-libel restrictors inprosecutors, judges, and juries

[Malla Pollack]

I'm a little confused about why Eugene things anyone suggested CRMINAL
punishment.  I suggested "goup libel" and "libel" is a civil matter-- if I
had wanted to suggest a criminal law I would have said so.  As for Bush etc
being empowered, that group is doing a wonderful job chilling speech without
group libel. 

Malla Pollack
Professor, American Justice School of Law
mpollack at ajsl.us
270-744-3300 x 28
articles http://works.bepress.com/malla_pollack/
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, March 06, 2007 8:18 PM
To: Volokh, Eugene
Cc: conlawprof at lists.ucla.edu
Subject: Re: The surprising faith of the group-libel restrictors
inprosecutors, judges, and juries

It surprises me that one could favor hate speech so much despite its
demonstrated harm.
Of course it is a little dangerous to give any power to anyone.  And
the government of Nixon, Reagan, and Bush certainly demonstrate an
abuse of power in big ways.  As does Johnson.

Any power can be abused.  And no doubt is.

But the absolutist position is not the only way to curb abuses of power.

And even under the most favorable circumstances those abuses will
happen -- again -- McCarthy and Cheney/Bush/Rummy demogagory stand out
as demonizing, successfully, those who disagree.  One need not have
courts to accomplish such abuses of power.

I doubt such abuses would be common or particularly harmful in most
instances covered by the narrow proposals made.

Yes, Eugene, I understand you are an absolutist on this.  But nothing
is truly that absolute as to preclude narrow strictures.  We limit
freedom of speech in other ways.  Including by property rights,
defamation law, time place and manner, fighting words, obscenity, and
more.  The world has not collapsed as a result.

Steve


On 3/6/07, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
>         Here's one thing that puzzles me about the recent exchange on
> group libel.  My sense is that the defenders of group libel punishment
> -- or, more broadly, punishment of people for historical statements that
> a factfinder finds to be false and said with (I suppose) gross
> negligence -- are largely people whose attitude towards the current
> Administration ranges from hostility to contempt.  (Larry Rosenthal
> might be an exception.)  I'd guess that they would likewise have been
> disapproving, hostile, or even contemptuous of the Reagan Administration
> and the Nixon Administration, as well as of many conservative
> administrations in many states.
>
>         Yet they seem quite willing to offer President George W. Bush,
> or a future Reagan, Nixon, or whoever else the ability to prosecute
> people for making historical assertions that *the Administration* sees
> as false and grossly negligent, and that it can persuade a judge (who
> may have been appointed by this very sort of administration) and a jury
> are false and grossly negligent.  And even if an administration they
> like better is in power in Washington, the same speech can still be
> prosecuted in Alabama or Wyoming or some other state where the governor,
> the judges, and the juries may likewise be pretty deeply Red-state.
>
>         Lots of speech restrictions sound mighty appealing when you
> think they'll be enforced by prosecutors, judges, and juries who you
> think will think just like you.  But given that much of the time the
> prosecutors, judges, and juries will not think just like us --
> especially if we see ourselves as very far removed from at least one set
> of likely Administrations -- isn't it a little dangerous to give this
> sort of weapon to them?
>
>         Eugene
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-- 
Prof. Steven Jamar
Howard University School of Law
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