Maggie's Farm

I'd be willing to evaluate a proposed hate speech law on its merit...

Or we could actually take the classically-liberal definition of the classically-liberal Amendment into consideration and just allow all speech that doesn't lead directly to willful harm. Of willful harm cases, naturally they prosecute before peer juries on and by the degree of harm, never the speech because speech is protected.

In other words, the First means what the First says.

Since malice and hurt feelings and RACISM! are arbitrary and their determinations call for swaying juries and politics and intentionalism and mobs - which are as chaotic as defining the Constitution with these contemporary projections of ours that limit speech by the weather or fashion or Party - they're not covered.

Post hoc "merits" must never come into play because they're just that arbitrary.

...no one is childish enough to believe that all speech is protected by the first amendment

Apparently a majority of childish Democrats and nearly 40% of childish Republicans find themselves in a position to agree. For now. This year. Until something decidedly unconstitutional changes. Like the weather or fashion.

We'll have to continually poll our way to whatever arbitrary new interpretation of 200-plus years of clearly defined unlawfulness comes along. The Living Constitution.

Meanwhile, what a novel concept textualism is, or was. And reliable courts. And adult constituents possessing both hindsight and forethought.

Or we could reevaluate all constitutional law on subjective merits, such as they may be construed to be, and descend further into the tyranny of the majority.

Each of the offenses you list can be prosecuted as such, on the harms of speech and speech alone. "Speech" as you've use it is therefore what the First has already been molded to be, contemporaneous with flushing it altogether, and not applying to its intent and function.

It either is what it is or it is void. Your choice.

Further, the First is a restraint on govt, a originalist legal construct roughly half the nation now seems happy to deep six. Whether it applies to personal criminality - not thought, intent, projection, or in this clear case, a presumption of merely potential and largely political, variable, undefined, trendy moral wrong in a world where harm is as common as breathing - is entirely another matter.

But that wasn't the argument you made. You argued that a breach of the First could be made on such variable merits ... thereby nullifying the First.

As I'd alluded; or should I say, predicted - yours is a post hoc rationalization. It's akin to the conditionalism inherent in what would be the Amazing Progressive Living Constitution, which is to say, a tyranny of the political majority.

What things have become is not what what things were originally composed to be.

I don't miss the argument, Don, no matter how outlandish and rhetorical you make the pragmatics. The problem is defining your merits within the text.

And reliably defining any subjective need that criminalizes whatever folks just don't like to hear. Hopefully we'll still find opposition to that built on simply preventing abuses of constitutional text and stemming 200 years of plain mission creep to obliterate that text.

But you may be determined to miss my point, which goes back to the immediate question: how to find moralist hate speech legislation that's maliciously projected, presumptive, and partisan, just another scourge we could find ourselves enjoying into its dystopian future and ours. Citing "how constitutional law works" isn't that finding.

I'm aware how constitutional law works. I remember the time I was told by a judge in casual conversation that prior guaranteed rights simply didn't factor when other more contemporary issues could be brought to bear.

Interpreted hate speech is just such an issue, no matter how handily it passes constitutional review and how finely tuned we generously pledge to make it.

I didn't doubt her. For example, I also remember Roe. And I've seen unconstitutional procedure as well as law being made. It always passes review.

The concern is how the Constitution worked textually versus how innumerable exceptions to its text can become a simple matter for partisans and voters centuries later.

you people

There could be a law one day, passed by popular acclaim of course, against You People. It happens.

I'm reminded of the other thread when someone couldn't handle where his assertions led. He talk to the wall there too, then lobbed a final insult over his shoulder and declared it a win.

A productive discussion, as you now frame it, would be not hiding behind feigned ignorance of the issue.

Which is that the 1st Amendment has been rewritten. Now how, when, or why; it has. And it shall be again.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of You People - and maybe some Protestants and various subjects eventually deemed without proper bearing of legalese - peaceably to assemble, and to petition the Government for a redress of grievances except for all the times when by "the merits" of instantaneous popular whim it like totally may, having taken up a political and/or secular religion, and abridge any speech by subsequent law and ruling any may bring.

That's the Roberts version. There are others or we wouldn't call it Living.

Pro tip: There's your productive discussion. Deal with it.

Double-down all summer if you like, Donnie, but frantically throwing dust in the air is for a reason: Probably because while you believe an amendment is defined by what it can be ruled to be at any point in its future, apparently you'd like to deemphasize that fact.

Who wouldn't, and how better than with legalese. But you're still upside down with at least a few fallacies, moving goalposts being one. You're on your own, sorry.

It's how you started out, after all. Having consistently conflated procedure and pragmatism with prior principle, you advocate for a Living Constitution in all but profession. This means no Constitution at all ... which you'll deny while imperceptibly defending and promoting original intent and textualism.

I suppose I'd deflect and reframe too.

So back we go to that Living Constitution. Which, somehow, makes millions of detractors of such rot as intentionalism or years of just bad jurisprudence, you feel, simply unsuited to make any subsequent claims on that original text, it having originally been intended to defend them, but today they not being members of some elitist, detached, and self-preserving bar or something.

So much for a nation of laws.

Today detractors to the rule of men and his institutions don't factor - which we know - with their inadequate complaints against losing free speech in matters of partisan, ginned up RACISM! and SEXISM!, say you, because procedure and damn the text. Because of somebody's opportunistic formulation of latter day merit.

That's because we'd killed textualism. Which my first comment much more than alluded.

So am I wrong saying conservatives helped when nearly 40% of Republicans join a majority of presumably progressively-influenced Democrats to deny the same textualism you are?