Comments on: Justice Holmes awakens http://blog.aynrandcenter.org/justice-holmes-awakens/ Wed, 18 Aug 2010 16:26:24 +0000 hourly 1 By: Ted Harlson http://blog.aynrandcenter.org/justice-holmes-awakens/comment-page-1/#comment-2683 Ted Harlson Fri, 05 Mar 2010 05:44:45 +0000 http://blog.aynrandcenter.org/?p=5749#comment-2683 The last two sentences are an excellent and proper summary of Holmes. I read Justice Holmes and the empty constitution and that essay clearly, "clears the rubble" that has buried America for too long. Thank you, Ted Harlson. The last two sentences are an excellent and proper summary of Holmes. I read Justice Holmes and the empty constitution and that essay clearly, “clears the rubble” that has buried America for too long. Thank you, Ted Harlson.

]]> By: Vern Swick http://blog.aynrandcenter.org/justice-holmes-awakens/comment-page-1/#comment-2682 Vern Swick Thu, 04 Mar 2010 22:44:54 +0000 http://blog.aynrandcenter.org/?p=5749#comment-2682 Made my day! Thanks, Vern Made my day!
Thanks, Vern

]]> By: Steve Simpson http://blog.aynrandcenter.org/justice-holmes-awakens/comment-page-1/#comment-2681 Steve Simpson Thu, 04 Mar 2010 21:12:46 +0000 http://blog.aynrandcenter.org/?p=5749#comment-2681 Great post, Tom. On one level, though, the article you criticize is based on a valid point: how can we protect free speech if Holmes's dissent in Lochner is the rule? The answer, of course, is we can't. There's an unresolvable tension between protecting free speech and not protecting property rights and economic liberty. You can actually see that in the law. For example, occupational licensing laws necessarily regulate a certain amount of speech. When we challenge them on First Amendment grounds, the courts don't know what to do. Is it speech that is protected or "mere" economic liberty that is not? Justice Breyer exploits this tension in his book, Active Liberty, in arguing in favor of an instrumentalist view of the First Amendment, which would allow regulations that serve the "public good." And that's what campaign finance laws are. In fact, I would call campaign finance laws a sort of antitrust laws for the marketplace of ideas. They regulate speech to make sure that marketplace functions "fairly" by not allowing some voices too much influence over politics. One of these days I'm going to write about that issue. Anyway, great post. Steve Great post, Tom. On one level, though, the article you criticize is based on a valid point: how can we protect free speech if Holmes’s dissent in Lochner is the rule? The answer, of course, is we can’t. There’s an unresolvable tension between protecting free speech and not protecting property rights and economic liberty. You can actually see that in the law. For example, occupational licensing laws necessarily regulate a certain amount of speech. When we challenge them on First Amendment grounds, the courts don’t know what to do. Is it speech that is protected or “mere” economic liberty that is not? Justice Breyer exploits this tension in his book, Active Liberty, in arguing in favor of an instrumentalist view of the First Amendment, which would allow regulations that serve the “public good.” And that’s what campaign finance laws are. In fact, I would call campaign finance laws a sort of antitrust laws for the marketplace of ideas. They regulate speech to make sure that marketplace functions “fairly” by not allowing some voices too much influence over politics.

One of these days I’m going to write about that issue. Anyway, great post.

Steve

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