Cake, Again

A while back, I wrote about the Colorado baker being sued for refusing to bake a cake for a same-sex wedding. Since then, the Court has granted cert in the case. Very exciting, especially with the addition of Neil Gorsuch to the bench.

Today, I have a somewhat different opinion about the case, which I got from a Twitter exchange with Ole Miss lawprof Chris Green.

I’m still not convinced that the state is required to make an exemption for the baker by the Free Exercise Clause. But Green’s claim that the Privileges or Immunities Clause protects against unjustified occupational restrictions is interesting to me. Unfortunately, the Privileges or Immunities Clause is dead, at least for now (see The Slaughterhouse Cases).

What is it with Conservatives and the Police?

Conservatives are supposed to be all about keeping the government out of your business, right? Limited state power? Ambition checking ambition? If this is so, then why is the reflexive conservative response to police brutality generally to defend police officers who have killed innocent people? If we hold to Lord Acton’s dictum, that “power tends to corrupt, and absolute power corrupts absolutely,” then we should probably be a little bit more wary of the boys in blue. They’re human, just as we are, and they are just as capable of evil as anyone else.

I think the reason for the generally pro-police attitude among conservatives is that their thinking is grounded less in the principles of limited government than in a pre-existing belief that a certain subset of people are good and the rest are bad. The good people should be free from government interference, but the bad people should not. Moreover, the good people should be free from the effects of the bad people. Predisposition to such a belief would be linked to high orderliness and disgust-sensitivity, which are aspects of the big five trait conscientiousness.

We can offer a similar explanation for why radical SJW-types, who are ostensibly concerned that our institutions are tools of the white cishet patriarchy used to subjugate minorities, are often eager to use bureaucracy and courts to crush their opponents. They don’t have a problem with power per se, they just want to make sure that power is being used for their desired ends. As long as power is used against the bad people (white cishet Christian men), there is no problem.

What the radical SJWs and reflexive police-apologists have in common is a highly black-and-white moral worldview. In this worldview, there isn’t much doubt about who is good and who is bad, and therefore, there isn’t need for checks and balances against power, as long as it is exercised only by the good people. This is authoritarianism. It is bad, and it exists happily on both sides of the political spectrum.

If small-government conservatives want to be consistent with the principles they claim to uphold, then they should stop excusing police brutality, which constitutes abuse of governmental power in its purest form. The state is a monster that needs to be restrained if we are to be safe from it. It doesn’t make sense that we’d apply this to healthcare and taxation, but not to life itself.

 

On Charlie Gard

I do not often use profanity, but some situations call for it. This is fucking wrong:

Chris Gard and Connie Yates lost their final legal bid to take their son to the US for treatment.

Specialists at Great Ormond Street Hospital believe Charlie has no chance of survival.

The court agreed, concluding that further treatment would “continue to cause Charlie significant harm”.

Charlie is thought to be one of 16 children in the world to have mitochondrial depletion syndrome, a condition which causes progressive muscle weakness and brain damage.

His parents had previously seen a Supreme Court challenge to continue Charlie’s life support fail.

It’s one thing to argue that declining to offer treatments with an extremely low probability of success is permissible. It is another thing entirely to forbid such treatments as a matter of law. Charlie’s parents raised a large sum of money to pay for an experimental treatment for his condition in the U.S., but they have been legally forbidden to seek this treatment. Thus, Charlie will die. Perhaps he would have died anyway. But I guess we’ll never know, now.

Perhaps what is most chilling about Charlie’s situation is the rationale of the Court that effectively sentenced him to death. Justice Francis of the High Court writes, “The duty with which I am now charged is to decide, according to well laid down legal principles, what is in Charlie’s best interests.” According to Francis, it is in Charlie’s interest to die with dignity rather than to pursue a moonshot treatment, one that is unlikely to save his life and likely to cause him some measure of suffering. In itself, this claim, while certainly debatable, is at least reasonable. But this was not just a person arguing about medical ethics. Justice Francis’s opinion had legal force.

It is with the heaviest of hearts but with complete conviction for Charlie’s best
interests that I find that it is in Charlie’s best interests that I accede to these
applications and rule that Great Ormond Street Hospital may lawfully
withdraw all treatment, save for palliative care, to permit Charlie to die with
dignity.

At least Justice Francis is sure of himself.

There are two sides to the horror of the reasoning in the opinion. First, Francis’s opinion implies that a form of utilitarianism is the law of the UK. In Charlie’s case, the likelihood of continued suffering is so high, and the likelihood of recovery so low, that the expected utility of attempting further treatment is less than zero. Ergo, it’s better for Charlie to die. Were Charlie a legally competent adult, Francis could make the exact same argument and it would be equally valid. Would he not then defer to Charlie’s own opinion? Perhaps he would, but the reasoning in this opinion would compel him to overrule Charlie and permit the hospital to withdraw life support whenever it pleases. Is this really what we want?

The second disturbing thing about the opinion is its casual (and unequivocally wrong) assumption that the state is competent to decide objectively what is in a person’s interest. And if this assumption applies in this particular situation, there is no reason it shouldn’t apply in all of them. If the state can decide that it is better for you to die than to live, why shouldn’t it decide everything else for you? After all, most decisions we make are far less weighty than the choice between life and death. The stakes cannot possibly get higher than they were for Charlie and his parents.

The fact that this opinion was ever written is an abomination, made even more abominable by the fact that two appeals have resulted in no changes. Even if you agree with the utilitarian reasoning that Francis employs, you should be horrified by the monstrous power assumed to belong to the state by his opinion, the power to decide for you what is good for you even in matters of life and death. This is totalitarianism, pure and simple.

Faith and the Pursuit of Truth

There was an op-ed in the Daily News yesterday that had harsh things to say about Bill Cosby. Of course, he deserves it. The op-ed also referred to Cosby’s lawyers as “soulless.” What did they do to merit such criticism? They’re defending Bill Cosby.

It’s understandable that people don’t care much for criminal defense lawyers, especially those who are defending the alleged perpetrators of horrible crimes. But the criminal defense lawyer is an important part of the criminal justice system. There are certain rights that you never forfeit, even when you’ve committed a heinous crime, and it is the role of the criminal defense lawyer to protect those rights for you. And if you’re not sold on due process, then just wait until you or someone you know is accused of a crime you didn’t commit. It happens.

In the adversarial system, each side puts forward as a strong a case as possible, and then after both sides have been heard, a decision is made. If you’re an attorney for one of the parties, it is your duty to fight on behalf of your client. The system collapses if you don’t. The idea is that the stronger case should win, and that if both cases are well-argued, the truth should come out on top. Obviously, it doesn’t always work this way, but we don’t have a better alternative. The only thing worse than the system is everything else.

We need the adversarial system and criminal defense lawyers for the same reason that we need free speech. If we impose restrictions on what can and cannot be said, then we limit the ability of society as a whole to work out what is true. Discourse is a battleground for ideas. Our goal in discourse should be to find which ideas are the best. The only way we can do that is by making sure they’re all included in the ring. We have to trust that the weak ones will be killed off, and that the strong will prosper. Of course, there’s no guarantee of this. We need to accept it on faith.

But the alternative to having faith in the effectiveness of discourse is to have faith in those individuals or groups who act as censors, deciding what ideas are allowed to be shared. We would effectively be trusting people to rig the game in a way we find unobjectionable. Perhaps this round’s game-masters will be favorable to us, but the next round’s might not.

The Value of the LSAT

As someone who has yet to attend law school, I am not qualified to comment on the LSAT’s relevance to law school success. Nevertheless, I appreciated the way it made me think when I was studying for it. I can see what the creators of the test are trying to test, and why they’re trying to test it. They seem to do a good job. Studying for the test will help you to think more clearly. That was my experience, at least.

In particular, studying for the Logical Reasoning and Reading Comprehension sections helped me to read more carefully (Logic Games were fun, but I don’t think they have quite as much practical application). When you answer the questions in these sections, you are required to understand exactly what is said and what is not said in the relevant passages. This is no easy task, as you discover when you take the test. I often found that I made unwarranted assumptions about the scenarios described in problems. As a result, I made mistakes. Not only that, but I made mistakes with confidence.

In order to stop making these mistakes, I had to train myself to recognize the implicit inferences I was making. Some of these inferences were good, and they allowed me to solve problems more quickly. Others, however, were invalid inferences that led me straight to a wrong answer.

Take the following question from the June 2007 LSAT, for example:

Proponents of the electric car maintain that when the technical problems associated with its battery design are solved, such cars will be widely used and, because they are emission-free, will result in an abatement of the environmental degradation caused by auto emissions. But unless we dam more rivers, the electricity to charge these batteries will come from nuclear or coal-fired power plants. Each of these three power sources produces considerable environmental damage. Thus, the electric car _______.

Which one of the following most logically completes the argument?

(A) will have worse environmental consequences than its proponents may believe

(B) will probably remain less popular than other types of cars

(C) requires that purely technical problems be solved before it can succeed

(D) will increase the total level of emissions rather than reduce it

(E) will not produce a net reduction in environmental degradation 

As with many LSAT questions, multiple answer choices appear to be plausible. But you only get to choose one.

Let’s look at what is said in the stimulus of the question:

“Proponents of the electric car maintain that when the technical problems associated with its battery design are solved, such cars will be widely used and, because they are emission-free, will result in an abatement of the environmental degradation caused by auto emissions.”

People who support the use of electric cars hold a couple of things to be true, according to this sentence. First, they take for granted that the cars will be widely used when technical problems with the design of their batteries are solved. Second, they claim that, because electric cars are emission-free, their adoption will reduce environmental degradation caused by auto emissions.

“But unless we dam more rivers, the electricity to charge these batteries will come from nuclear or coal-fired power plants. Each of these three power sources produces considerable environmental damage.”

This is the substance of the argument, from which the conclusion is supposed to follow. There are three sources of power by which electric cars can be powered. Each of them produces environmental damage.

Next, let’s consider each answer choice, starting with the answers I regard to be the weakest:

(B) Thus, the electric car will probably remain less popular than other types of cars

This answer doesn’t work because the main part of the argument doesn’t even address whether the cars will ever be popular. It seems obvious that the argument is fundamentally about environmental damage.

(C) Thus, the electric car requires that purely technical problems be solved before it can succeed

This one fails for the same reason that answer (B) does. It just isn’t relevant to the main part of the argument. We are told early in the stimulus that proponents of electric cars regard technical problems with batteries for electric cars as one thing preventing the cars from being widely used, but there is no further comment on technical problems.

The remaining answers all address what seems to be the main topic of the argument: environmental damage. For that reason, they are better than answers (B) and (C).

(D) Thus, the electric car will increase the total level of emissions rather than reduce it

At first glance, this might appear to be a plausible answer, but it’s actually a non sequitur. The argument states that the source of power for the electric car batteries will cause environmental damage, but he does not say what kind of environmental damage. This answer choice specifies a specific sort of environmental damage: emissions. Moreover, even if the argument said that the power sources for the batteries would result in increased emissions, it still doesn’t follow that this increase would be greater than the decrease in emissions caused by the wide-spread adoption of emission-free cars.

(E) Thus, the electric car will not produce a net reduction in environmental degradation

This is the best answer so far, but it suffers from the second problem I mentioned above with regard to answer (D). The fact that the sources of power for electric car batteries cause environmental degradation does not imply that the environmental degradation caused thereby will exceed the positive environmental effects caused by wide-spread adoption of emission-free cars. We do not have sufficient information to make a claim about net effects.

Finally, we have the correct answer:

(A) Thus, the electric car will have worse environmental consequences than its proponents may believe

This answer does not make any claim about the net effects of the adoption of electric cars. What it does instead is compare the expectations of electric car proponents with reality. The stimulus notes that proponents of electric cars believe that electric cars will result in a reduction of environmental damage caused by auto emissions. This belief is not disputed by the argument. But there are some other factors which might mitigate the benefits of electric cars that its proponents may not have considered, namely, the fact that the power has to come from some other source, which will cause its own sort of environmental degradation. Thus, (A) is the only answer choice that is both on topic and true, given what is claimed in the stimulus.

After doing hundreds of problems like this, I think my brain has gotten a lot better at making the right inferences instead of the wrong ones. For that reason, I’m glad I had to take the LSAT. This is probably little comfort to people who are currently studying for it, but it’s encouraging to me.

Regressive Judicial Activism: The Slaughterhouse Cases

This ought to be relatively short. My focus for the post is going to be on the clause at issue in the cases, rather than the cases themselves, since I don’t find them particularly interesting.

Amendment XIV, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]

I have bolded the Privileges or Immunities Clause, which just happens to be my favorite clause in the Constitution, at the moment. I think I like it in part because it just sounds important. The historical context of the passage of the Fourteenth Amendment (Reconstruction) also indicates that the clause is important. Yet important cases involving individual rights have generally not had much to say about the Privileges or Immunities Clause, which is odd, given that some kinds of rights sound like the same thing as privileges and immunities.

For this, we can blame The Slaughterhouse Cases.

In 1869, the Louisiana legislature passed a law heavily regulating slaughterhouses in New Orleans. The law also chartered a private corporation, Crescent City Live-Stock Landing and Slaughter-House Company, and granted it a monopoly over slaughterhouse operations in the city for 25 years. Unsurprisingly the butchers of New Orleans were quite unhappy with this law, so they sued, partly on the grounds that the privileges or immunities secured by the Fourteenth Amendment were being abridged.

Justice Miller’s opinion for the court in favor of Crescent City effectively gutted the Privileges or Immunities Clause, holding that the clause only applied to the rights of federal citizenship, and not to those of state citizenship. As a result, the clause has been mostly toothless ever since. This frustrates me. While there are debates to be had over the original meaning of the clause, there is a strong case to be made that, had it been interpreted properly, it would have prohibited segregation and anti-miscegenation laws, while also securing the right of black Americans (and all other citizens) to have access to places of public accommodation.

Michael McConnell has relied on this understanding of the Privileges and Immunities Clause (plus the Equal Protection Clause) to defend Brown v. Board of Education (which held segregated public schools to be unconstitutional) on originalist grounds. Stephen Calabresi has done the same for Loving v. Virginia (which declared anti-miscegenation laws to be unconstitutional). Moreover, the Privileges or Immunities Clause, under this reading, is sufficient justification for Congress to pass civil rights legislation without relying on an absurdly broad reading of the Commerce Clause (i.e. Wickard v. Filburn [holding that Congress’s power under the commerce clause extends to agricultural activity for noncommercial use] is still wrong, but Katzenbach v. McClung and Heart of Atlanta Motel v. United States [upholding the constitutionality of the Civil Rights Act of 1964] are right).

Some of the highest-profile Supreme Court cases in the past few decades have raised significant questions about the extent of the states’ police powers. Roe v. Wade placed strict limitations on the states’ ability to regulate abortion. Obergefell v. Hodges made it constitutionally required for states to recognize same-sex marriages. The typical originalist in these cases tends to fall strongly on the side of states’ rights. This has created an association in my mind between originalism and states’ rights, which might turn some people away from originalism.

 

But, of course, originalism is not just about states’ rights, and the original meaning of the Privileges or Immunities Clause makes that clear. The work of scholars like McConnell, Calabresi, Randy Barnett, and others indicates that the Fourteenth Amendment, as originally understood, granted broad powers to Congress to defend individual rights, including unenumerated rights, from infringement by the states. Originalism, thus, does not require us to sacrifice the individual for the sake of the state. The rights of both are protected by the Constitution.

Now we just need to overturn The Slaughterhouse Cases.

Thoughts on Religious Freedom and Compelled Expressive Conduct

It’s the big topic of discussion, today, because Trump is expected to sign an executive order, the stated purpose of which is to defend religious liberty. This order, however, does just about nothing. The EO, in the words of David French, is “[t]otal weaksauce.”

But suppose the EO were stronger in its attempts to defend religious liberty. Suppose Trump tried to provide more protections for business owners who have religious objections to participating in gay wedding ceremonies. The internet would be ablaze with people freaking out about civil rights violations and what-not. Actually, the internet has already blown up with hysterical hot-takes. Last night, the hashtag #LicenseToDiscriminate was trending on Twitter.

In response to the hysteria, I’m going to lay out my thoughts on two topics relating to religious freedom. First, I want to say what I think the Constitution requires with regard to the right (or lack thereof) to deny service to certain groups on the basis of religious belief. Second, I want to say what policies I think are best, independently of constitutional considerations.

Some significant constitutional questions have been brought before the courts on this topic. The Supreme Court is currently sitting on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In this case, the owner of the bakery in question refused to bake a cake for a gay couple on the grounds that doing so would violate his religious beliefs. Under Colorado law, the baker was prohibited from denying service to the couple. The question before the Court is whether Colorado’s laws requiring this baker to bake cakes for gay weddings violates the free speech or free exercise clauses of the First Amendment.

I do not think such a law violates the free exercise clause. Neutral laws of general applicability that also prohibit certain kinds of religious practice are consistent with the free exercise clause, according to Employment Division v. Smith. Indeed, if states were required to carve out religious exemptions for all of their laws, we would expect to see a significant number of people claiming religious exemptions even when they’re not actually religious. Either laws would be effectively nullified, or the courts would be put in the awkward position of having to evaluate the sincerity of religious beliefs, something it is not competent to do.

I think you can make a much stronger case that the Colorado law violates the free speech rights of the baker, however. Expressive conduct is under the scope of “speech” in the First Amendment. Given the creative nature of designing, baking, and decorating a custom cake, it seems reasonable to say that the baker’s cake is, in some sense, speech. According to West Virginia Board of Education v. Barnette, the state is not permitted to compel expressive conduct.

To be clear, the gay couple in question requested the baker to create and design a cake for them. They did not merely request to purchase a generic cake. If they were just buying a cake, the free speech rights of the baker would not be implicated, and he would not have the right to refuse service. However, because they requested a custom cake, they were requesting him to engage in expressive conduct, which he has an inviolable right to refuse to engage in, even if his refusal is not grounded in a sincerely held religious belief.

So it appears, then, that the free speech clause of the First Amendment protects the right of some businesses to deny some services for any reason whatsoever, but they can deny only those services which are expressive in nature. I think it’s also worth pointing out here that the Privileges or Immunities Clause of the Fourteenth Amendment protects all classes of citizens from discrimination in places of public accommodation. In other words, there are some businesses which cannot discriminate at all, such as restaurants and hotels. A state cannot give such a business the right to discriminate on any grounds whatsoever.

It seems then, that the state’s power to regulate the ability of businesses to discriminate only extends over businesses which are not places of public accommodations when the services offered are not expressive in nature. Thus, my discussion of public policy will focus on this particular class of services.

For example, let’s return to the baker. Suppose a gay couple comes in and asks to buy some pre-made cupcakes for their fifth anniversary. I am perfectly comfortable with state laws that would require the baker to sell the couple cupcakes. I do not think such laws are required by the Constitution, but I do think that, as a matter of public policy, they make sense. The identity or class-membership of the buyer should not be relevant to the seller. State laws should reflect that.

There are some examples I can think of, though, that make the situation a bit tricky. Suppose you own a pet store and a satanist comes in to buy an animal to sacrifice to Baphomet. Can I refuse to sell him the animal, knowing that he plans to sacrifice it? I want to say yes, even though I do not think that selling the animal is itself expressive. There is no sense imputing an expressive component to general commercial activity. But if you apply the rule that seems to apply in this example, couldn’t our baker refuse to sell cupcakes to the gay couple if he didn’t want his cupcakes to be used in a celebration of a gay marriage?

It would probably be best for states to have laws requiring people to serve customers irrespective of their identity or group-membership with some exceptions relating to subsequent use of what is purchased. Perhaps the pet store owner could refuse to transact with the satanist if he had good reason to believe that the satanist planned to violate animal cruelty laws, but the baker’s objection to the celebration of gay marriage would not be sufficient to merit an exception. Perhaps. Anyhow, I’m glad that the Constitution leaves such cases up to the states.

Regressive Judicial Activism: Dred Scott v. Sandford

When you hear the term “judicial activism,” you probably think of Tea Party politicians decrying progressive Supreme Court rulings. Right-wing politicians want to use the letter of the law to oppress people, so they attempt to delegitimize the decisions of the Court by pushing forth the outrageous idea that laws should mean what they say. This seems to be the popular wisdom, at least. Originalism, adherence to the Constitution’s original meaning at the time its provisions were adopted, is taken to be a conservative judicial philosophy. Judicial activism is for progressives standing up for the rights of the marginalized.

The popular wisdom, however, is dead wrong. Judges have often imposed their personal views on the Constitutional text in order to take rights away from the little guy, not to give them to him. In particular, the Supreme Court did huge damage to the struggle for civil rights for blacks by interpreting the Fourteenth Amendment into oblivion in the late 19th century. In this series, I will explain some of the Court’s rulings that modern progressives and originalists alike can and should condemn. My point in doing this is to show that originalism is compatible with defending civil liberties, and that a living constitution is compatible with destroying them.

Dred Scott v. Sandford (1857)

Dred Scott was a Missouri slave suing for his freedom. The legal basis for his claim was that he had resided for a significant period of time in a free state, as well as in a U.S. territory in which slavery had been made illegal by Congress. Under Missouri law, slaves were emancipated after residing in a jurisdiction that outlaws slavery. As a result of heightened sectional tension following the compromise of 1850, however, the Missouri Supreme Court overruled its precedents and declared that Dred Scott was still a slave.

Scott then sued for freedom in the federal courts. In order for the federal courts to have jurisdiction over Scott’s suit, Scott had to be a citizen of the United States. Chief Justice Roger Taney ruled that Scott was not a citizen of the United States because he was black. According to Taney, blacks could not be citizens. No provision of the Constitution can be reasonably construed to support such a claim. Taney was abusing his power as a Supreme Court Justice and treating his personal opinions as if they were the supreme law of the land. The best he is able to do is give some bad historical analysis, which the dissenters in the case thoroughly refute. (Justice Curtis’s dissent in the case is particularly worth reading.)

Taney also held that Scott could not be a citizen because he was a slave, notwithstanding his residence in free jurisdictions. In order to defend this claim, Taney has to do some creative interpretation concerning the power of Congress to govern the territories. According to Taney, Congress did not have the right to prohibit slavery in the territories, because the Constitutional provision which authorizes Congress to govern the territories actually doesn’t mean what it says:

The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. (Art. IV Sec. 3)

Taney gets around the plain meaning of the clause by saying that the word “Territory” refers “to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government” (page 431 here).

In multiple instances, Taney conjures up constitutional principles out of thin air for the purpose of keeping Dred Scott and all other blacks in a state of permanent subjugation. This is judicial activism at its worst.

The decision of the Court in Dred Scott provoked a great deal of outrage in its own day, and is recognized today as one of the worst, if not the worst, Supreme Court decisions ever. You can say that the pursuit of justice is a sufficient reason to override the plain meaning of the words of the Constitution, but if you adopt that rule and apply it consistently, eventually someone who defines justice in a way you don’t like will get on the court, and you will likely be singing a different tune. The alternative to the rule of law is tyranny, and you can’t guarantee that the tyrant will be on your side.

Is Hate Speech Protected by the First Amendment?

Short answer: Yes.

Long answer: “Hate speech” isn’t a legally meaningful category of speech. Although there are exceptions to the First Amendment right to free speech, “hate speech” is not among them.

Howard Dean obviously doesn’t understand this:

Twitter is blowing up with lawyers and legally literate laypeople expressing their surprise and dismay that a former governor and presidential candidate could be so ignorant of our country’s law.

So yeah, hate speech is protected by the Constitution, and no one who knows what they’re talking about disputes this.

Besides the constitutional question, “hate speech” is such an ill-defined phrase that it doesn’t meaningfully describe any kind of speech. For example, Ball State University’s “Learning from a Legacy of Hate” project lists the following as forms of hate speech:

  • Racist cartoons
  • Anti-Semitic symbols spray painted on the side of a synagogue
  • Ethnic slurs or other derogatory labels for a group
  • Burning a cross in the yard of an ethnic minority
  • Politically incorrect jokes that target the disabled or the aged
  • Sexist statements
  • Anti-gay protest signs and chants

Obviously, this list is insane. Some would say it’s sexist to say that mothers shouldn’t have careers. Would it be hate speech for me to say that? Is it really hate speech to make fun of old people? These categories are so broad that, were we to adopt them, a huge amount of mostly unoffensive speech could be defined as hate speech and suppressed. (Note: The Supreme Court also ruled that cross-burning is a form of protected speech in R.A.V. v. City of St. Paul.)

Of course, there’s good reason to think that that’s the point. The people crying “hate speech” are trying to create a huge exception to our laws protecting speech, and then exploit that exception to suppress those whose viewpoints differ from their own. It just so happens that the spirit of our age is the spirit of radical egalitarianism, making it easy to sell the eradication of all things that we associate with the inequality of ages past.

Posted in Law