FAN 61 (First Amendment News) Past & Prologue — Ralph Young on the History of Dissent & David Skover on Free Speech in a Robotic Era
In this post I highlight two new works (one on dissent, the other on data, etc.) to emphasize the importance of history, on the one hand, and the challenge of new technologies to inform the way we think about the First Amendment, on the other hand.
Let me start with history: Take dissent out of the cultural and constitutional equation and what remains is faint-hearted freedom. Dissent gives free speech its steel. The First Amendment’s greatest virtue is the protection of those messages we fear and/or loathe — those sent our way by insufferable Anti-Federalists, abolitionists, suffragists, unionists, anarchists, Communists, atheists, civil-rights activists, anti-war pacifists, gay-rights antagonists, and even nihilists and racists.
Enter Temple University Professor Ralph F. Young and his new book, Dissent: The History of an American Idea (New York University Press, 2015). Generally speaking, this 600-page tome, which follows Young’s various volumes titled Dissent in America, does a splendid job of chronicling much of the evolution of dissent in America. His panoramic account spans much in the history of dissent from the plight of the Puritans, to the fate of Native American Indians, to the struggle of abolitionists, to the campaigns of labor activists, to the crusades of feminists, to the sit-ins of civil rights demonstrators, to the marches of war protestors, to the anti-Establishment songs of Bob Dylan, to the Stonewall riots, to the politics of the Tea Party, to the antics of the Occupy Wall Street movement, and more! It is a remarkable achievement.
Sadly missing from this otherwise impressive survey of dissent in the United States is any mention of the likes of:
- Benjamin Franklin Bache, the radical revolutionary-era journalist who published the Aurora, the Philadelphia paper openly critical of Presidents Washington and Adams. (See my “Benjamin Bache & the fight for a free press,” The First Amendment Center (July 14, 2008),
- Theodore Schroeder and the Free Speech League (the dissidents who took radical exception to America’s sexual mores) — and then there is the man who turned their utopia into a nightmare, Anthony Comstock,
- The long unpopular Jehovah’s Witnesses’s and the plight of this religious sect that dared to teach its children not to salute graven images, including the United States flag,
- The ribald comedian Lenny Bruce who was persecuted and prosecuted for poking fun at the religious and political establishments,
- The world-champion boxer Cassius Clay (Muhammad Ali) who put his career on the economic line to protest the Vietnam war, and
- Larry Flynt, the tasteless pornographer who had the nerve to mock the mother of the Reverend Jerry Falwell.
That said, there is still more than a big bundle of worthwhile and eye-opening historical reading to be found between the covers of this engaging volume.
→ For a philosophical account of what exactly constitutes dissent, see Collins & Skover, On Dissent: Its Meaning in America (Cambridge University Press, 2013).
→ Forthcoming: Stephen J. Solomon, Revolutionary Dissent (Palgrave Macmillan, January 2016)
→ Disclosure: Though an ad for Dissent: The History of an American Idea appears on this page, I had no involvement with it and was not otherwise influenced (positively or otherwise) by it.
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Venturing on into the future: On May 26th Seattle University Law Professor David Skover will speak at the Third Annual Governance of Emerging Technologies Conference in Scottsdale, Arizona. His remarks will be delivered at the outset of a panel discussion entitled “Robotics & Autonomous Systems.” The panel will be moderated by Wendell Wallach. The other panelists are Kate Darling and Greg Garvey.
Professor Skover’s remarks are based on a work-in-progress, tentatively titled “Intentionless Free Speech: Robots & Receivers” (of which I am the co-author) (NB: We chose the term “intentionless” because it conveys a meaning quite different than “unintentional.”) In brief, Skover’s remarks will examine why First Amendment coverage should be assigned to robotic expression, quite apart from whether such expression merits constitutional protection when balanced against a spectrum of potential harms. The paper argues that robotic expression puts into bold relief the view that much First Amendment speech is protected because of the experience of a user or receiver. The paper builds on, or moves beyond, or takes issue with the works of robotic free speech scholars Jane Bambauer, James Grimmelmann, Timothy Wu, and Eugene Volokh, among others. The paper began as an outgrowth of a series of conversations with Professor Ryan Calo, whose support and encouragement have been invaluable in developing our ideas in this new and largely uncharted area.
→ “Intentionless Free Speech” is the latest installment of the authors’ ongoing examination of the relationship between law and technology. This venture began with a 1990 article entitled “The First Amendment in an Age of Paratroopers,” and then continued with a 1992 article entitled “Paratexts” (expanded and reconstituted in “Paratexts as Praxis” in 2010), and ultimately developed into a book entitled The Death of Discourse (1996 & 2nd ed., 2005).
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