About Doe (Malik Speaking)
				Source		MAIN PATH: Dee
				Fred			Dee

I'm disappointed, but I really didn't expect much else. The judge made his decision based on one of the current interpretations of the First Amendment; but there are other interpretations that he could have utilized. Dee seems to be ignoring that fact.

The judge began by saying something very important. He said that "the ideals of freedom and equality are often in conflict" and that we must find a "balance" between these two constitutional values. That's a key insight. It connects with what Vera and I have been saying, and it could be the basis of a critique of the dominant interpretation of the First Amendment. Unfortunately, this judge didn't develop that critique.

He spoke of the need to "balance" these values but he didn't do so in a meaningful way. Specifically, he didn't give enough weight to the harm done by racist speech. If he used a more "contextual" analysis, he would have considered some of the values and interests at stake other than freedom of expression. Then he could have defined a new balance. He might have defined a new exception to First Amendment protection based on the need to protect African Americans and others from injuries that prevent or diminish equality. A serious attempt to balance these values could do just that.

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