Ken White

Okay, Elie Mestel, strong beginning.

Ken, what do you think?

Well, I don't know what absolutist Elie is talking about.

The last one I know is Hugo Black, and he died in 1971.

We have well-established narrow exceptions to the First Amendment, and they are narrow for a reason.

We got them narrowed on the backs of the powerless being suppressed by the powerful.

All of the types of restrictions that Elie would like are ones that have historically been used against communists, against labor protesters, against war protesters, against minorities, and everyone else.

The Nazis aren't the ones in danger from the types of restrictions that Elie is suggesting he'd like.

I don't want the government deciding what's a lie and what's true.

May I remind you we are currently led by a president who thinks that global warming is a Chinese hoax to corner the tungsten market.

And that's why I don't want the government deciding what to suppress based on its decision about what is true or not.

Now...

Ellie refers to the fire in the crowded theater, just as Holmes' famous quote.

Let's remember what he was talking about.

He was using that quote, you can't shout fire in a crowded theater, to justify jailing a man who was protesting World War II by handing out flyers suggesting that people resist the draft.

That was the clear danger that the government saw.

Now, if you don't think

that it's plausible that the government would be suppressing the same type of speech now if you gave it the power, if you handed it to them out of fear of Nazis, then just look at what happened after the protests this last year.

The alt-right and neo-Nazis rose, there were massive protests in response, and our largely Republican-dominated state legislatures leaped into action, and in 17 places,

They proposed heavily punitive anti-protest bills, including four charming examples, making it easier for you to get off if you run over a protester in your car.

That's what the government does with the power to suppress speech, when you let the government decide what's true.

But you see, Eli, you know that that's not the right case.

That's the one that's best for your argument.

The right case is 12 years... I didn't think that means this.

The right case is 12 years earlier, Yates versus United States.

People convicted for becoming members of the Communist Party under the theory that some ideas can be punished as clear and present danger, even when there is no imminent advocacy of wrongdoing.

Yates built the wall that eventually Brandenburg completed.

Brandenburg's the outlier.

Yates is the one that shows how the power is consistently used by the government.

I think a lot of the comments sent to her were true threats.

That is, a reasonable person would see them as statements of actual intent to do her harm.

I think that some of the speech about her meets the incitement standard, that it's intended to and likely cause imminent lawless action against her.

But ideas, however hateful, can't be true or false.

and it's not for the government to regulate whether ideas or opinions are true or false, no matter how despicable they are.

I want them to stop, too.

But here's the problem.

With the history of America being what it is, with the power having been used in the past being what it is, what possesses you to think that if you give this broader power to attack speech to the government, it's going to be used the way you want it to be?