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I think that the First Amendment might be nearing the same crossroads that engendered critical race theory. Between 1954 (ish) and 2005 (ish), we regulated racial issues with the nondiscrimination principle. This was the right move in its time, when the problem was Jim Crow, and we could turn legal formalism against it. But things have changed, and we've seen that nondiscrimination doesn't work any more. Indeed, formal nondiscrimination has been weaponized by the neo-Confederates.

I would submit that the same is true for modern First Amendment jurisprudence, born of the McCarthy Red Scare--also around 1954-ish. It was another dream of legal formalism, adapted to the problems of its time. But it relied on reasonably responsible mass media and a norm that political discourse would match legal discourse--intentionally misleading, but not intentionally false. With the erosion of norms against lying and the emergence of Murdoch's Völkischer Beobachter, this predicate is gone, and the First Amendment has been weaponized by the neo-Confederates.

(Additionally, the public-private distinction scoping the First Amendment is less applicable these days. Monopolies with shunning power are a bit too close to Leviathan for my comfort.)

Since the federal courts are now run by the neo-Confederates, there's not much that can be done about this--at least in the short run. But we might want to reexamine our notions of free expression. Legally, DeLong is correct and Thompson is wrong. But Thompson might be the future.

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Interesting. Much of the case for free speech rested on a John Stewart Mill-ian claim that the whole thing added up to a successful truth discovery process. That is much harder to maintain now. The question then becomes: how do we structure the public sphere to make it a truth discovery process?

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I think there are lessons from legislative rules: no personal insults; no monopolizing the time/space for debate. Probably from blog comment sections too: no trolls; no lies; etc.

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Yes. The problem is that we need presiding speakers to manage conversations, not rules. Rules are very gameable. ("Nobody should think of believing that the honorable member's father was a $3 hooker...")

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Agreed. But of course quis custodiet....

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