Wednesday, August 23, 2017
Free speech - judicial approaches
ÓBasis of free speech
1. Possibility of being wrong - rebuttal men will never be sure but that cannot prevent action including silencing others. But reason free speech should be allowed is that if there is challenge and eventually one will prevail then it will be believed more feverently.
2. Govt justified in curtailing free speech to prevent harm to others. But that depends on context. Not in an academic journal. Only if free speech is incidinary.
3. Attempt vs intent in criminal law - near intended completion. So it is with point 2.
4. Do you persecute basis the words of the speaker (intent - words are triggers for action) or the likely action (reasonable consequence)? The test of 'consequence' is vague and puts too much power in the state/govt?
5. Free speech protected in all cases except active incitement. Speech to be limited has to be imminent to threaten immediate interference in lawful programs. Not 'clear and present' danger.
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6. Acts of private vs state discrimination. Caste discrimination can happen 'privately'.
7. Does state violate the 'liberty to contract' ? Or should the 'police power' of the state prevail?
8. US has a history of Right to property directly coming from their slave-owning past.
9. Should judiciary subscribe to the 'felt nececities of it's times'. I agree.
