Pun Salad

I've been on an unlucky streak with fiction lately, finding four recently-read novels mediocre or worse, and I'm struggling with a fifth. But I thought this book by Jonathan Turley (lawyer, pundit, lawprof at George Washington U.) was excellent. He makes a powerful argument for a broad, natural-rights interpretation of freedom of speech.

This more or less corresponded to my own view when I started reading the book. But Turley managed to deepen my understanding, and alter my opinions slightly, not just confirm my priors.

It's commonplace to observe that today is not a great time for free speech. But guess what: Turley's history (detailed and interesting) shows that it never has been a time when the right to speak your mind has been without peril, legal and otherwise. There's a quick overview of ancient abuses (too bad, Socrates), an examination of English jurisprudence (also spotty at best), and then we are on to the American experience. He relates various instances of how "rage" has driven harsh words and actions from the citizenry, followed by, all too often, rage-driven overreaction from governmental officials.

Every American schoolkid learns about John Adams' Alien and Sedition Acts. But Turley goes deeper, revealing (for instance) that Thomas Jefferson sometimes succumbed to the temptations of prosecuting and persecuting free-speakers.

Turley shows the problem over the centuries (and continuing today) is the "functionalist" view of free speech, which views it as a tool, just one tool, in producing desirable outcomes. Those who hold to this position unfortunately see it not as an absolute bright red line prohibiting government intrusion, but subject to trade-offs and compromise.

The most common tradeoff is seen in the concept of sedition, when speech challenges the authority of the state. It's one of the classic gotchas: the people whose authority you are calling into question are the same people who get to decide whether to punish your uppityness. James Madison, one of Turley's heroes, called Adams' anti-sedition legislation "a monster that must forever disgrace its parents."

Turley is in favor of "slaying Madison's monster" by putting seditious words on the "protected" side of the First Amendment. This is a bold stand, as the government finds it useful for prosecution even today. PBS story from 2022: Oath Keepers founder guilty of seditious conspiracy in Jan. 6 case.

Speaking of January 6, Turley makes a compelling case that what happened that day was a riot, not an "insurrection". There was plenty of legal room to prosecute the participants for their violent and obstructive acts, without regard to their speech. He's equally horrified by the abortive efforts to prosecute Donald Trump for "incitement", and to disqualify his 2024 candidacy on 14th Amendment grounds. That's an uncommon argument, and he moved my own view quite a ways toward his own.