RE: Germans Prohibited From Thinking

[Volokh, Eugene]

        I appreciate Prof. Idleman's point, and I certainly agree that it's 
worth thinking about the reasons for speech restrictions in the U.S.  It seems 
to me that the reasons for exclusion of speech from government-operated 
institutions would generally end up being quite different from the reasons for 
criminal prohibition of speech; but of course at that level of abstraction it's 
not easy to tell.

        Eugene

> -----Original Message-----
> From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-
> boun...@lists.ucla.edu] On Behalf Of Scott Idleman
> Sent: Friday, February 05, 2010 9:15 PM
> To: 'CONLAWPROFS professors'
> Subject: RE: Germans Prohibited From Thinking
> 
> I agree entirely that there are differences and that some of these
> differences, such as the legal mode or form of the government's censorship,
> can be considered significant.
> 
> But Robert Sheridan's post asked "[w]hy . . . we in the U.S. allow pretty
> much unfettered expression on life and death subjects while Germany
> doesn't."
> 
> I first questioned the extent to which we truly do allow "pretty much
> unfettered expression," citing examples of government censorship of certain
> symbols or literary works that have racial or racist components.  I then
> suggested that the contours or limits of our doctrine of expression might,
> like Germany's in Professor Sheridan's theory, be shaped by forces such as
> fear.  (I must confess to not knowing what Professor Sheridan means by "life
> and death subjects," and thus I don't know how that phrase's intended
> meaning might affect my assessment.)
> 
> There is no doubt that the forms and degrees of government action in the
> German and U.S. examples are different when broadly viewed, which is why I
> did not suggest that they were the same or equivalent.  Yet I thought it
> equally problematic to imply or believe that "the regulation or toleration
> of expression in the United States is always, categorically, and clearly
> distinguishable from the German situation."
> 
> My focus, quite simply, was on the existence of and reasons for the
> government censorship in the first place, looking at both countries, not
> just Germany.  Once that assessment has been made, in fact, I suspect that
> the reasons for the differences in mode and degree of legal sanction may
> also become clearer.
> 
> Scott
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