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Ken White Meets Silence Dogood.

You probably haven’t heard of “Silence Dogood,” who allegedly was a widowed pastors wife from the 1700’s. Her opinion pieces appeared in the The New-England Courant. Sixteen times her essays appeared in the paper but there was one problem: Silence Dogood was not a real person. It was a pseudonym of the then teenager Benjamin Franklin.

Yes, that Benjamin Franklin.

The quote above is from an essay printed in The New England Courant on July 9, 1722.

Ken White, on the other hand is a former federal prosecutor, attorney and successful blogger over at Popehat.com. Sadly, White’s writings aren’t as common as they used to be as his real life has curtailed his writings. However, White does have an article in The Atlantic entitled “Don’t Use These Free-Speech Arguments Ever Again – Most speech, hateful or not, is protected by the Constitution. To pretend otherwise is foolhardy.

In discussing the article, Walter Olson over at Overlawyered.com writes:

Watch and (if you’re like me) cheer as Ken dispatches them all.

White’s destruction of speech tropes include:

* “Not all speech is protected; there are exceptions to the First Amendment.” [true but usually not helpful]

* “This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.” [see above; also, an empty rhetorical device deployed in a case that’s no longer good law]

* “Incitement and threats are not free speech.” [true, but regularly misapplied to speech that does not meet the law’s narrow definitions of these terms]

* “Fighting words are not free speech.” [same, even assuming that Chaplinsky v. New Hampshire (1942) is still good law]

* “Hate speech is not free speech.” [no, it mostly is]

* “Stochastic terrorism is not free speech.” [same]

* “We must balance free speech with [social good].” / “There is a line between free speech and [social evil].”

* “They do it in Europe!”

* “We talked to a professor and a litigator who said this is not protected speech.”

* “This speech may be protected right now, but the law is always changing.”

Take the time to read White’s article. It is worth the couple of minutes and you will walk away wiser, more educated and better able to confront those who want to restrict the rights of people. Heck, you may even find yourself cheering too.

America has a long history of the idea of “free speech.” Even in 1722 – nearly three hundred years ago – a teenager could not only see and understand the validity of free speech, but that same teen was able to articulate the reason for it.

In many ways, we are glad to see that people like White still are as passionate on speech as 16 year old Ben Franklin. Franklin and White are “bookends” of sorts while people like Olson and dare we say our merry band of writers, are books on that same bookshelf.

Please, do yourself a favor and go read the article.

You can thank White, Olson and us later.



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