We can both agree that the criminal justice system in this country is ineffective and counterproductive. The guilty are set free to commit new crimes, while too often, the innocent are prosecuted to further somebody’s political career.

In response to your comment about ‘inactivist’ judges: This is a very complicated issue and there is no black and white answer. In general, I take the view that ‘activism’ is the prerogative of the legislature. The judiciary should not change the law based on its own initiative. Judges are not elected, and there is no balance built into the system to check a powerful supreme court justice who determines to create new law, while ignoring the original intent of the elected legislature. I prefer activist legislatures, and impartial judges.

But, please let me get back to my original point… enforcing a basic minimum standard of speech within the blogsphere is good for democracy. Our democratic civilization was not built by encouraging profane slander in the name of ‘free speech’.

Would you prefer “inactivist” judges?

I wonder if Dred Scott turnaround isn’t of the same sort. When slavery was OK was it incumbent on a judge not to be activist?

I’ve spent much time in criminal courts and the popular notion that “criminals” are “coddled” is so far from the mark, it’s off the charts. By the same token, the acceptance of clearly inequitable official police claims resulted in a huge number of death row victims who were exonerated later.

Love.

Today, children are taught that ‘free speech’ is the most important foundation of democracy, and the role of religion in forming our democratic civilization is minimized. Meanwhile, few children are taught that today’s popular definition of free speech is merely 50 years old, and contemporary with the present moral decay of society. The powerful Warren court of the 1960’s systematically redefined the meaning of the 1st amendment, largely ignoring the prior 200 years of interpretation.

Schenck v. United States is just one case from 1919 that demonstrates how much 1st amendment law has mutated after a half century of judicial activisim. In Schenck, a communist was constitutionally sent to jail for passing out flyers that challenged conscription during WWI.

http://faculty-web.at.northwestern.edu/commstud/freespeech/cont/cases/schenck/schenckframe.html

If Schenck is not enough to demonstrate the difference between ‘free speech’ today and ‘free speech’ in the past, consider that some of the original authors of the 1st amendment subsequently passed the Sedition Act of 1798. The Sedition Act made it illegal to falsely criticize the government. The Sedition Act of 1798 shows the complete disconnect between the original understanding of the 1st amendment and our understanding of the law today.

Did you know . . . ? Prior to 1925, the 1st amendment did not even apply to state governments. State and local governments had free reign to regulate speech in any way that they decided, regardless of the bill of rights. Originally, the Bill of Rights only applied to Federal government.

In closing, American democracy will not collapse if uncivilized people are excluded from the blogphere. But, society will collapse if minimum standards of civilized behaviour are systematically destroyed in the name of ‘free speech.’