Germany has very strict rules forbidding the display of Nazi symbols, publicly praising Hitler and the like, yet stalking-horse parties for the Nazis do fairly well in some areas of the nation. In America, where Nazis and Klansmen are permitted to publish whatever drivel they wish, when they run candidates for office, they get no votes. Most people understand that Nazism and Ku Kluxery are, for want of a better word, evil and want no part of them.

Which regime is more successful at solving the problem, ours or Germany's?

I wonder how many members of the Bundestag have seen "The Blues Brothers"? And how many of those found the Nazis-forced-off-the-bridge scene funny?

Germany. When was its last OK city?

Terrorist attacks are quite common in Germany for whatever reason.

Orrin, I'm afraid my lowly intellect can't follow your ethereal chain of logic. Are you saying that the 1st Amendment doesn't protect political speech either? If it does, than it must also protect the political speech of idiots (like the Nazis and Klansmen and yes, even moveon.org). I think it was someone in this very blog who said that the 1st Amendment makes it easy to identify the weirdos and idiots. If it doesn't (as you seem to be asserting) protect political speech, what the heck is it for? Porn?
Also, are you saying that the OKC bombing could have been prevented by tighter government regulation of freedom, even though the perpetrators of that act were fighting against the percieved government intrusuon into theirs and others lives? Sometimes, the line that you draw between security and freedom is a little to nuanced to be observed very easily.

Oops, that last post was mine. Forgot to fill in my name!

It does not protect political speech that opposes the Republic itself. Not a suicide pact and all that. Which is why it was fine to persecute commies, militias, etc.

Not being a Constitutional scholar I am not in a position to opine here on what the FFs meant. But as a matter of policy, I think it is infinitely wiser for all manner of stupidity to be out there in the public square, with the Internet serving as Speakers' Corner writ large, than it is to ban anybody because their ideas are loopy, wrongful, hurtful or for that matter hoople-headed.

99.9% of the people will reject Chiang Ching or Stalin or Hitler or Duke or Buchanan or any similar flapdoodle if they are allowed to spew their ideas in the public square and the rest of us are allowed to slice and dice them. We survived the 60s which was perhaps the high point of truly stupid ideology in American history so we can certainly survive Matt Hale and Timothy McVeigh.

Banning these clowns only serves to give them the cachet of 'forbidden fruit' for those who would shock their parents and/ or the community of 'right-thinking people', however defined.

The purpose of the First Amendment was to reserve to the states the power to regulate speech.

So, if Massachusetts wanted to outlaw, say, the G. Gordon Liddy show, that would be Constitutional? Or could they even outlaw the Republican Party altogether?

Bart:

Yet we never do. We repress them quite happily.

Gov:

If Liddy or the GOP started advocating violent overthrow of the regime, why not?

Nobody stops Buchanan from starting a magazine or Duke from having a website, do they? Or does your dictionary have some peculiar definition of the word 'repress' with which I am blissfully unaware?

You mean the David Duke we imprisoned?

Sorry, OJ, my question was for Mr. Cohen, who said that the 1st only prohibits the Federal government from regulating political speech, not the state governments. Is that about right, Mr. Cohen? Because it seems to me that interpretaion of the Constitution would also seem to say that it's only the Federal government that can't make gun laws while the states can and that it's only the Federal government that can't prevent black people from voting but the states can and on and on. I had thought that Constitutional rules restricting the Fed's powers also restricted the states' in the same way.

Gov:

It's the judicially invented Incorporation Doctrine that applies the Bill of Rights to all the states. Here's Sam Francis on it:

http://www.thenewamerican.com/tna/1997/vo13no08/vo13no08_supreme_court.htm

This argument was one of the things that deep-sixed the Bork nomination.

Tax evasion remains a crime whether or not your motivation was political. Even Nazis have to live in quaking fear of the IRS. Violating the IRC is no more a free speech issue than bank robbery.

Gov:

There are actually are texts, so we're not required to guess:

The First Amendment: Congress shall make no law ... abridging the freedom of speech.

The Second Amendment: [T]he right of the people to keep and bear arms shall not be infringed.

The Fourteenth Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.... The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

So, let's say that the Massachusetts legislature enacts a law that says that it shall be illegal to blog in support of George W. Bush. Does the First Amendment stop them? The First Amendment applies, by its terms, to Congress. As the Massachusetts legislature is not Congress, then the First Amendment obviously doesn't apply.

The Supreme Court says that such a law is blocked by the Fourteenth Amendment, because "No state shall ... deprive any person of life, liberty, or property, without due process of law." No one believes this. While pro-Bush bloggers are being deprived of liberty, what more process is due them than the act of the state legislature and a trial before conviction? The "due process clause" by its very nature presupposes that liberty can be abridged (with due process), where what we're looking for is a limit on government's very ability to abridge the freedom of speech.

But in fact this problem doesn't arise because of Article XVI of the Massachusetts state constitution: The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged. We don't need federal protection, because the state's are perfectly trustworthy here -- and if one were not, why shouldn't we trust to the regular course of politics to straighten everything out?

There is, of course, one issue on which the state's were not trustworthy: race. that's why the power of the states to discriminate on the basis of race was explicitly taken from them. That's what the Thirteenth Amendment (abolishing slavery), Fourteenth Amendment (quoted above) and Fifteenth Amendments (The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude) are all about. These amendments were adopted after the Civil War to try limit the states' power to try different races differently, but, again, because politics is more powerful than the Constitution, it took a century, more or less, for these amendments to have their full effect. That is, in the end, the most important point. The Constitution is a great document, but it is only a document. The people are the only effective limit on the power of the government. To the extent that we're teaching the people that they need not be on their guard, because the Constitution (as interpreted by the courts) will safeguard our libery, and that what is constitutional is good and what is bad is unconstitutional, then we are undermining free government and risking that government of, by and for the people will vanish from this Earth.

Bart:

Tax prosecutions are a favorite political tool. If it puts Nazis and mopbsters away, all to the good. Then you can pretend it wasn't about who the targets were.

It's not who fires the gun it's who attracts the bullet. If you are a tedious, obnoxious self-important woman like Martha Stewart, you'd better keep away from insider trading. If, like Leona Helmsley, you claim that 'only the little people pay taxes' don't be surprised when the IRS decides to do a full body cavity search for money. That is hardly a 'free speech' issue merely being rationally circumspect.

If you are a Nazi or a Klansman, make sure your taxes are OK, and the government has to leave you alone. If your taxes are clean, they can't touch you. That Duke was a racketeer put him behind bars, not his opinions, even if those opinions drew attention to him.

"The purpose of the First Amendment was to reserve to the states the power to regulate speech."

I dissent. The purpose of the Amendment was to keep the Congress out of the field.

Amendment X makes it clear that the limitation on Congress does not automatically confer power on the States:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

However, It seems clear that the Framers thought that Freedom of speech existed outside of the Constitution. "Congress shall make no law ... abridging the freedom of speech." Of course, because of Amendment X it is not a federal issue if it is a State imposed restriction and the citizens of Massachusets must rely on their constitution and their courts.

The only federal remedy would be under Art. IV Sec 4 "The United States shall guarantee to every State in this Union a Republican Form of Government" However, SCOTUS has long held that enforcement of that clause is a political question committed to the President and Congress.

Bart:

So I take it you didn't realize he'd been jailed when you brought him up? Because now you just sound absurd.

Duke trolled the fever swamps long before he went to jail. He was jailed for racketeering not for his opinions, even if his opinions made him an unsympathetic defendant, and thus easier to prosecute.

Why were they looking at his taxes? (Hint: Refer back to your own theory on tax prosecutions--"it's who attracts the bullet.")

Given the set of all possible defendants and the reality of jury trials, wouldn't you, as a prosecutor worried about your box score and eager to gather headlines, rather prosecute a Nazi like Duke or an obnoxious old crone like Leona Helmsley than an ordinary schnook?

That hardly rises to the level of 'censorship.'

Bart:

The fact that a jury will put away a Klansman or Nazi for anything you decide to charge them with regardless of the case is a sign we don't persecute people for anti-republican beliefs? Have you had a coffee yet today?

It hardly rises to the level of 'persecution,' it's more like one of those lessons we're all supposed to learn by about 3d grade,'Don't be a schmuck.'

There are little fictions that we all have to publicly endorse in order for society to function and people who flout those conventions are punished, not as a matter of governmental fiat but as a result of the offense they give to their fellow citizens across the spectrum. Regardless of whether they believe in gay marriage, I am sure that most Kansans would be happy if the IRS threw Fred Phelps of 'G-d Hates Fags' fame into the hoosegow for a long time.

If there is censorship it is 'bottom-up' not 'top-down,' making it more a matter of social graces than government diktat. When political actors whether DAs or IRS agents target such people, they are responding to our generalized disgust at those people rather than some governmental policy to squelch dissent. The vast majority of Americans would love to find a way to punish Nazis or Klansmen but understand that we have a First Amendment and understand why it is exists. So, they look for alternate means.

Bart:

Or you'll be persecuted. We're the most conformist people in the World, which is why America works.

Robert: I'm sorely tempted not to respond, as we arrive at the same conclusion, but I just can't stop myself from noting that the 9th and 10th Amendments are meaningless or, if you prefer, toothless. Of course, your argument works just as well for abortion or the right to take your neighbor's property if you need it more. Better, in fact, because I have no idea what "power" could be reserved to the states in your theory. The power not to abridge the freedom of speech?