Free Speech

Another Quote from Barnette, the 1943 Flag Salute Case

|The Volokh Conspiracy |

"[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

NEXT: Today in Supreme Court History: June 17, 1963

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  1. apedad update: The test of its substance is the right to differ as to things that touch the heart of the existing order – as long as there’s no violence.

    Mouth-breather update: The test of its substance is the right to differ as to things that touch the heart of the existing order – except no flag burning, no kneeing during the National Anthem, and we have to force private companies to post my garbage on their media.

    1. Isn’t there a disconnect between your obvious lament of the censure that athletes who are contracted to play ball for private companies have faced for kneeling during the National Anthem and your support of “private” and most often mega internet entities– that dominate the Internet and cyber news cycles and artificially create opinion consensus– censoring alternative views with which they do not agree?

        1. Rules for thee, not me is always an effective rejoinder to inconsistency of logic and enforcement.

          I’m all for anybody taking a knee on their private entity employer’s time and money, if not expressly forbidden by that private company, or burning a flag of any kind for protest, except for creating hazardous public conditions or being done on private property without permission.

          Bakeries and any private company serving the public should serve the public, but not be forced to make or manufacture a product or provide a service that’s not agreeable to them and which they wouldn’t provide anyone else. Photographers and other private contractors who do business with the public should be able to accept or decline commissions and certain jobs that pose logistical, personal or ethical problems for them, but not decline a client based on his race or creed, etc. which would be just plain rude and perhaps litigable.

          1. Nice but YOU are totally missing the point about the quote.

            It’s all about the “existing order” (i.e. government).

            I don’t care what private people say.

            The problem is the mouth-breathers are attempting to stifle speech, “. . . that touch the heart of the existing order” (e.g. flag burning), BY LAW – which goes totally against the sentiment of the quote.

            1. Perhaps you’re the one who’s missing the big picture. The latest proposal of an anti-flag desecration Congressional bill is a mere sop to some of this President’s base and with full knowledge the bill will go nowhere (which is a Constitutional good thing.)

              Meanwhile, you and others decry the public and private employer opprobrium when it comes to taking a knee “free speech” by contracted employees of private businesses, i.e. athletic clubs. You apparently support the censorship of free expression of alternative views on behemoth new media cyber platforms that have become, by intent and design and with the help and cooperation of our government and international countries, the new public square for the supposed exchange of information, “fact”, opinion and preferences of, by, and for the public.

              Along with most (increasingly dinosaur) TV and print news outlets, these cyber giants enjoy a monopoly on arbitrating point of view, censorship, and shaping the narrative to achieve a new “existing order” without allowing, much less encouraging, open and honest debate on their forums.

              So, what are the alternatives to wildly popular Twitter, to Facebook, others? There are obscure ones or one could choose not to partipate and be stifled by any of them. Might as well have “private” companies BP, Gulf Oil and Aramco police our politics in the new cyber town square, instead of from just behind the scenes, as all of the corps to do. The Google/FB/ Twitter juggernaut of a politically correct cyber highway, my way or no way, is working to truly stifle the only alternative speech that has potential to be heard these days. “Private” companies? Not so much, anymore, but maybe “The Company”, would do.

              1. “You apparently support the censorship of free expression of alternative views on behemoth new media cyber platforms that have become, by intent and design and with the help and cooperation of our government and international countries, the new public square for the supposed exchange of information, ‘fact’, opinion and preferences of, by, and for the public.”

                1. You could have just said FB/Google are monopolies – which they are most definitely not.
                2. That’s like saying the govt built roads so that means they support McDonalds (even though the roads are available for use by others).
                3. The internet thing is a pretty big place so – although it may seem like FB/Google, “. . . enjoy a monopoly on arbitrating point of view, censorship, and shaping the narrative to achieve [etc]” – they don’t and can’t and won’t.

                1. FB/ Google/ Twitter/ Microsoft and others have, indeed, formed a PC and huge global conglomerate with a market share near monopoly. They receive favorable treatment from our government and other countries, the least of which is a big seat at the political-social-economic and even medical policy table for local, national and global politics. Any tiffs over violations and monies they might owe, whether in the US or abroad, are good theater in which governments appear as honest actors and the behemoths humbled; or, sometimes it’s a local shake-down, as well.

                  These cyber giants are akin to ATT and its spawn, but worse, since they can and obviously do rig search algorithms (think phone books with names listed in PC compliance and descending income and not in alphabetical order). They silence those convos taking place on their forums that don’t comport with their political-social agenda (think dial tone in the middle of an important point).

                  They represent themselves as mere tech platforms for the public and private sectors to use and become dependent on, and yet don’t honestly represent themselves to the public, the IRS, or to other regulating agencies as major partisan actors with strong political biases that inform their censorship policies and aid, in a non-declared way, the campaigns of candidates they support.
                  And this, not because they’d be seriously hampered by complicit government, but the optics would look bad to the public when it doesn’t.

                  You consider them still mere private business entities, and I don’t. The scope and scale of their global commerce, the near essential nature of their cyber communication platforms, and the fact that government has favored them as winners clearly shows it’s a rigged game to get to a pre-determined new social order in which speech is severely restricted and thought crime considered a punishable offense, one day soon.

                  How can we not be looking at these super big cyber companies as public utilities similar to phone companies that should sincerely welcome all comers and not only those who toe an Orwellian NewSpeak line? They have a product to sell, but we can’t use their widely accepted and utilized platforms they offer, if they don’t like our politics.

                  Are their only “clients” their paying advertisers and government and the public considered to be their “guests,” and only upon approval? Perhaps, but their platforms have become key and essential to most news and opinion in the country. It’s as if there were only four gas stations in a town and three of them require their public customers, before pumping gas, to never blame oil companies for environmental damage, else they can never avail themselves of their gasoline, again, and the fourth has the wrong octane gas and is only open a few hours a day, because the other stations bullied that owner and his gasoline provider.

    2. I suggest you take a look at what Google attempted to do to The Federalist — and the backlash, and I don’t think that’s going away.

      1. Turns out Google gives demonetization warnings to lots of websites. It’s not an attempt to do anything.

        You don’t think any backlash is going away. It must be a life of continual disappointment for you.

      2. And as to kneeling during the National Anthem being protected speech, how about fans chanting racial slurs in response? Would that be considered protected speech as well?

        Why not?

        Or could we all agree that neither is appropriate for that venue?

        1. Yes, fans being racist asshats is protected speech.

          Appropriate has nothing to do with it. Speech that needs protecting is never appropriate.

  2. Careful . . . Josh Blackman is going to get the idea that you agreed with me about whether the Barnette decision was a better choice for “This Day In Supreme Court History” than Blackman’s pick (the anniversary of which future justice was potty-trained on a June 14).

    Still working on your Bolton post? . . . or maybe Trump got your tongue?

  3. But they managed to kill Aunt Jemima.
    This is progress?

  4. Don’t try to stop a mob from illegally ripping down and vandalizing a statute or anything else. You will be arrested and charged with a hate crime.

    1. Once the mob is finished tearing down all the statues, what’ll it do next? Go home and lead productive, peaceful lives? Or look for more targets to vent their righteous anger?
      The authorities are letting them get away with tearing down statues. Will they stop them down the road? I bet the mob doesn’t think so. And it’s probably right…

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