Free Speech at a Cocktail Party

Yesterday, Dan posted a commenting policy for Concurring Opinions. Such things frequently bring forth muttered imprecations of speech control and the demise of the First Amendment. Of course the mutterers understand that Concurring Opinions, despite its obvious power and influence, is not a state actor, but still it seems like a public space. Shouldn’t we encourage the marketplace of ideas to let a thousand flowers bloom (to paraphrase Holmes and Mao)? Well no, not really.

Implicit in this line of muttering is the notion that our blog ought to be thought of as a public space. It is certainly public in the sense of being widely visible. When I started blogging in 2002, I tended to think of controlling comments in terms of free speech. I did a lot of libertarian hand-wringing and soul-searching the first time I zapped a comment. I now feel no guilt. I’ve become convinced that the best blogs are not like a public forum. Rather, they are like a really good cocktail party in public. A cocktail party is not a public space, even when the cocktail party is held in public. Everyone realizes that you have the right to kick boors and party crashers out of your cocktail party. Likewise, everyone realizes that a cocktail party isn’t meant as a general invitation for the world to step up with a megaphone and spout off their opinions in your living room. This doesn’t mean that you necessarily want to actively exclude people from your cocktail party. If someone brings a friend you didn’t invite, there’s no problem so long as the friend isn’t a jerk or a dolt. Of course, Concurring Opinions is more open than most cocktail parties. You don’t need an invitation. We do, however, reserve the right to throw our drink in your face and ask you to leave if you actively disrupt the festivities.

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6 Responses

  1. Well … yes and no …

    Certainly, the specific language of using “First Amendment” can be wrong. But can we not fixate on terminology? And yes, I’m-being-censored is the last refuge of the troll.

    Can we all take the loyalty oath of there-is-a-legal-right-to-do-this, so we can think about the difficult problem? Which is how to have honest disagreement and not disruption?

    The recent symposium had this problem intensely, since it was such an inflammatory topic. It risked being crashed by a mob. But … I also had a strong sense that the presenter got a free pass on many inaccurate statements, and those giving harsh but accurate intellectual criticism of those statements were on very thin ice simply because the presenter was part of the in-crowd and the critics weren’t. That’s a negative of being “at a Cocktail Party”

  2. Anon says:


    Like many of its participants, I read every post of the symposium along with every comment. It is simply false to say that those critical of the allegedly “inaccurate statements” were on thin ice. Were any commenters banned? Were any comments deleted?

    Stop crying wolf when all that happened was a couple of commenters (including yourself) who shunned serious analysis in favor of pat summaries (e.g., “[w]hat tends to happen is that the Old-Boy’s-Network cuts a deal with the Mackinnon-Dworkinites. None of the real Old-Boy’s-Network abusers gets touched, since they have power within the institution. But the Mackinnon-Dworkinites get to make powerless people’s lives miserable about very minor matters”) were not taken that seriously. Sorry, Seth.

  3. Umm, that was my interpretation, OK? 1/2 🙂

    I believe the sentences you quote are a very serious analysis – see the problem?

    I know it’s ultimately philosophically unsolvable – but I often wonder if there’s some way we (collectively) can do better overall. At least, I wish we could get beyond the cliches.

  4. Orin Kerr says:

    That’s just the kind of fascism I would expect from you law professors. You just can’t handle the truth, so you make sure you delete any comment that disagrees with you and exposes your corruption.

  5. Orin Kerr says:


    I deleted one of the comments that was absurdly uncivil, actually.


  6. MJR says:

    Main point: Even though I’m a dissenter here, the fact is it is your blog, your rules. If you want to ban commenters who disagree (which doesn’t seem to be the policy) — that’s your right. You have ZERO obligation to allow anything you want to disallow.

    Anyone who says that a failure to leave the party open to any and all comers is some kind of “censorship” doesn’t understand what the word means.

    It seems to me that the blog has allowed even sharply critical comments (including my own). Accordingly, I don’t see the policy as being abused or as being unfair.

    Nevertheless, one does risk being criticized for creating a false impression of consensus when implementing a comment deletion policy. You also risk that someone will take the critique to another blog, where you’ll have less right to reply. On my own blog, I allow all but the worst comments — and I even allow those that profanely attack me. I don’t, however, allow such attacks on others. I figure that if I own the blog, I have a bigger pulpit than my detractors anyhow, so allowing them their say is neither threatening nor does it diminish me in the least. Thus far, it has worked for me.

    Secondary point: Seth has a good point. I think that he was quite accurate with his analysis. If you deleted that kind of thing just because you disagree, it is 100% your right to do so — but that greatly diminishes the credibility of anything else on this blog, and it increases the appearance that the “circle jerk” analogy is accurate.