Wednesday, December 10, 2003

Common sense and the First Amendment 

This interview with David Bernstein and this book forum are worth your time. He says many reasonable things, such as this:
In the normal course of things if there's a conflict between a particular law and the First Amendment, the First Amendment wins out. However there is a narrow exception, when the government has a compelling interest that the statute is trying to fulfill. What the courts started doing in the '70s and '80s was to say that eradicating discrimination is a compelling interest sufficient to overcome the First Amendment in many contexts. This compelling interest standard really needs to be limited to things that are not just important but so crucial to society that society can't really function unless the government can regulate. Remember it's not just discrimination against blacks or women or Jews we're talking about nowadays, but in many jurisdictions discrimination against overweight people, or people who have piercings, or even if they say they are part of a motorcycle gang, discrimination based on sexual orientation, age, disability, and on and on. And if the government has a compelling interest in eradicating every possible type of discrimination you could think of, then there would be very little left of the First Amendment.
UPDATE: He's a first among equals, even if he isn't egalitarian.