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What if the Founding Fathers had free speech wrong?

first_imgBut what did the founders understand those words to mean?A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation.In a November article in the Yale Law Journal, Campbell argues that the founders meant to protect a lot less speech than most of us think.It’s a jarring claim.For decades some influential readers, including Supreme Court Justice Hugo Black, have said that the First Amendment is an “absolute,” meaning that it forbids any restrictions on speech.Most others, including members of the current Supreme Court, insist that it doesn’t go quite that far.For example, government can regulate bribery, obscenity, perjury and false commercial advertisements – not to mention false cries of “fire!” in a crowded theater. At the same time, engagement with the historical materials raises hard questions for free-speech enthusiasts.Campbell contends that on the original understanding, Citizens United (the Supreme Court’s decision protecting the right of corporations to spend money on political campaigns) “would likely have to go.”His analysis also suggests that the First Amendment was probably not meant to protect hate speech, flag-burning or efforts to promote terrorism.On these issues, it makes sense to grapple with 18th-century understandings, and to do so with humility and respect.Campbell’s elaboration of those understandings shows that in expanding protection of freedom of speech, the United States has made a ton of progress – but that in some areas, we may have lost a sense of balance along the way.Cass Sunstein is a Bloomberg View columnist. He is the author of “#Republic: Divided Democracy in the Age of Social Media” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”More from The Daily Gazette:EDITORIAL: Beware of voter intimidationEDITORIAL: Find a way to get family members into nursing homesEDITORIAL: Urgent: Today is the last day to complete the censusFoss: Should main downtown branch of the Schenectady County Public Library reopen?EDITORIAL: Thruway tax unfair to working motorists But almost everyone agrees that, with well-defined exceptions, freedom of speech is the general rule, and that it is the Supreme Court’s business is to protect it.Campbell contends that the founding generation did not see things this way.In his account, theirs was an altogether different political world, and their concepts and principles were not at all like ours.Campbell starts with the claim that much of the founders’ thinking was organized around the idea of “natural rights” — rights that people could have without any government at all. Unlike the rights to a jury trial and to due process of law, the right to speak counted as a natural right.But this didn’t mean that free speech was an absolute, or even that courts should protect it.Far more modestly, it meant that speech could be restricted only to protect the public good, and only when the people’s representatives voted in favor of the restriction.For the most part, it was up to the legislature to decide whether speech needed to be regulated to protect the public good – understood, in James Madison’s terms, as the “safety and happiness of society.” It would also allow the government to punish efforts to deceive others (and deception is a pretty large category).Campbell illustrates these points by noting that in the founding period, there was vigorous debate about the Sedition Act of 1798, under which people could be fined or imprisoned for writing, printing, uttering or publishing “any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States.”From the standpoint of law in the 21st century, that’s plainly unconstitutional.But in the founding era, most people seemed to think that it was fine.One commentator insisted that “[t]he freedom of the press and opinions was never understood to give the right of publishing falsehoods and slanders, nor of exciting sedition, insurrection, and slaughter, with impunity.”Campbell’s research raises serious questions for “originalists” – those who believe, with Justices Clarence Thomas and Neil Gorsuch, that the meaning of the Constitution is settled by the original understanding of its terms.Do we really want to go back to the 18th-century view of freedom of speech?center_img As one writer explained, “Political liberty consists in a freedom of speech and action, so far as the laws of a community will permit, and no farther.”Campbell offers two important qualifications. First, the founding generation opposed licensing of the press.In that way, they sought to forbid prior restraints on what members of the press could say (without necessarily forbidding subsequent punishment through criminal trials).Second, they thought that (in Campbell’s words) “well-intentioned statements of one’s views were immune from regulation.”That means that so long as your speech was not meant to mislead or harm others, you were protected.These qualifications would afford considerable protection to free speech — but from the point of view of current law, not nearly enough. It would allow the government to enforce norms of civility – as with laws punishing blasphemy and profanity.It would allow punishment of falsehoods – as through expansive use of libel law to extract big damage awards from newspapers and broadcasters (as favored by President Donald Trump). Categories: Editorial, OpinionAccording to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.”last_img read more

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How Syracuse’s inconsistent running backs still contribute

first_img Facebook Twitter Google+ Growing up, Dontae Strickland took the baseball field at any position except second base, which he said was too boring. He went from bat boy on his older brother’s team to striking out batters and hitting cleanup in high school. But, after his sophomore year, he put his bat and glove away to focus on football because he liked the physicality of playing on the gridiron.“People still to this day say, ‘Yo, you should’ve stuck with it,’” Strickland, now a junior, said. “But I’m just like, football is my thing now.”Strickland’s positional group at SU is veering from expectations, too. Syracuse’s (4-5, 2-3 Atlantic Coast) running backs were supposed to catch up with the rest of Dino Babers’ speedy offense in the head coach’s second season leading the Orange. In its matchup Saturday with Wake Forest (5-4, 2-3 ACC), SU faces a rushing defense that ranks outside the top 100 in the FBS. The Demon Deacons allow 205.6 rushing yards per game, so SU should have opportunities to run.“I think when everyone talks about Syracuse, the first thing that comes up is the offense and the speed of it,” Wake Forest head coach Dave Clawson said Wednesday on the ACC teleconference. “But they’re running the ball a lot better. I think their offensive line is improved. I think the backs are improved.”Strickland himself had goals to be SU’s first 1,000-yard rusher since Jerome Smith in 2012. The sophomore one slot beneath Strickland on the depth chart, Moe Neal, had a chance to contend for a chunk of the carries after a promising freshman campaign.AdvertisementThis is placeholder textYet while SU has eclipsed 260 rushing yards twice this season, the running game has been plagued by inconsistency. Last week, it finished with 40 rushing yards attributed to players not named Eric Dungey. With three games to go, Strickland has amassed 423 yards, making 1,000 nearly impossible. Five times in nine games, Neal has seen five or fewer carries. He’s reached double-digits once.“We’re not that far off with our tailbacks,” Babers said in September.Not much has changed, but in an offense where short passes dominate the playbook, running backs can contribute by executing other tasks, especially blocking. Picking up an otherwise free blitzer can be the difference in Dungey getting a pass off or not.There is preparation that readies Strickland to block effectively. In the film room, he learns what moves a defender usually makes. On the field, a low base is essential, he said. But for him, blocking a larger pass-rusher is a mental job, and that’s where Strickland’s baseball background comes into play. For him, it’s like stepping into the batter’s box and seeing a kid who could throw heat 60 feet, six inches away.“You gotta have confidence saying that this kid is not going to strike you out,” Strickland said. “That kind of carries over to football. In the passing game, me blocking a 6-5 guy, 240 or 250 (pounds), and just being confident I can get the job done.”At 5-foot-11, 182 pounds, Neal is listed at the same height as Strickland but 25 pounds lighter. That weight difference presents a challenge when Neal pass blocks. Plus, cut blocking, a technique common in the more advanced levels of the sport in which a blocker aims for a defender’s knees, is illegal in high school, when Neal had the ball most of the time anyway. So, there was a learning curve in college.“It was tough,” Neal said. “It’s more than just diving at somebody’s legs. You gotta have the technique. What to do and when to do it…I still gotta get better at it.”Although Neal has big-play ability — he broke a 71-yard run against Central Michigan and caught a 52-yard touchdown against Central Connecticut— he’s averaged just over five carries per game and is on pace to fall short of his freshman total of 68 carries. After a strong showing at then-No. 8 Miami late last month in which Neal carried 14 times and scored a touchdown, Babers was asked if Neal had a chance to see similar amounts of action moving forward.“It’s hard to predict that stuff,” Babers said. “I think the thing about Moe, I’ve always said this, he’s so unselfish. He’s good at a lot of things. He’s kind of like our fire. … I wish I had a team full of Moes. If you have a team full of Moes, you don’t worry about who gets the credit, you normally end up with bowl seasons, everything normally works out.”Neal said this week that he knows there will be times when his number is not called as often. For someone who was self-labeled as “the man” in high school, as most players at this level were, sharing responsibilities took an adjustment.But Strickland has encouraged Neal to stay positive. Even though they’re competing for the same carries, the two have developed a bond since Neal first visited SU. Now, when Neal doesn’t get many reps, Strickland is the one telling him to keep his head up until he’s able to get that one touch that sparks a change.“I’m going to give 110 percent,” Neal said, “and wait my turn and know my time is coming.” Comments Published on November 11, 2017 at 11:21 am Contact: [email protected] | @jtblosslast_img read more

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