Bombings, Surveillance, and Free Societies

[Mac Norton]

On Wed, 12 Sep 2001, Tim May wrote:
> lawyers point out to me that such prior restraints will never fly. Well,
> how has the First Amendment stopped the government from restricting 
> what I
> can say about medicine, what abortion advice I can give, the "dirty 
> words"
> I choose to use, the supposedly libelous and slanderous things I can say,
> etc.? Granted, these are not cases of prior restraint, but of actions 
> taken
> after the fact, via criminal and civil actions. Not much difference so 
> far
> as I can see.)
> 
Lotta differences here which I know you're aware of, but don't seem to 
choose to remember at the moment. In the first place, prior restraint 
does have its after-the-fact-restraint analog in the "chilling effect"
doctrine--not it's not absolute, as prior restraint law almost is, but
it usually goes to accomplish the same purpose. 

Obscenity is not protected speech, so the 1A's irrelevant there, as
far as the courts go and as far as your argument goes, because you're 
arguing about what the law might do. The same is true of libel and
slander, if you can find any such thing under today's prevailing
1a jurisprudence.  They're pretty few and far between torts in the
last thirty years. 

Your examples about drugs and abortion are not examles of prohibited
speech but of compelled speech, which is another subject altogether,
though one which I would agree has its constitutional issues as well, but
not the ones you have in mind above: Unless you advocate a right to 
commit fraud under the First Amendment, which I have not previously heard 
you do. 

There will be a repressive response by some--Trent Lott is already
trashing civil liberties, I shit you not, as of today, as having to
take a second place to security needs in ths "war"--but the thing to do
is resist this kind of chuck-headed thinking with the First Amendment.
And the Fifth, and the Fourth.  They usually work, so give them a 
chance first. 
MacN