Posted by Eugene Volokh:
Does My Academic's Heart Good:
http://volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1116003850
A recent article by Prof. Steven Gey briefly cites in a footnote my
[1]Crime-Facilitating Speech piece, quickly describes my proposal, and
then says:
Professor Volokh draws two exceptions to this rule [of generally
protecting speech even though it's crime-facilitating]: first, when
the information creates "extraordinarily serious harms," and
second, when the speech "seems to have virtually no noncriminal
uses." Volokh's analysis and conclusions are largely consistent
with the arguments presented in this Article, although the
protectiveness of Volokh's rule would depend on how narrowly the
courts interpret Volokh's two exceptions. Volokh is aware of this
problem, and is appropriately circumspect about the difficulties of
defining the relevant harm threshold that triggers the exceptions
to the rule.
As I read it, Prof. Gey is in some measure criticizing my approach,
though also in some measure agreeing with it, both of which are
perfectly fine. (OK, the latter is more fine than the former, but
while I like it when people agree with me, that itself is hardly
occasion for great joy, just like disagreement as such is no occasion
for great sorrow.)
What particularly pleases me, though, is the last sentence: To me, one
of the marks of sound and careful scholarship -- as opposed to, say,
effective advocacy or emotionally rewarding self-expression -- is
being aware of the problems in one's proposals, and therefore being
appropriately circumspect about the difficulties of properly crafting
the proposals. I try to always aim at this. I'm sure I often miss. But
if Prof. Gey is correct that in this instance I succeeded, I am very
glad indeed.
References
1. http://www1.law.ucla.edu/~volokh/facilitating.pdf
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