NRO and the First Amendment
posted by Dave Hoffman
Andy McCarthy has an interesting comment on the First Amendment on the National Review’s blog. He argues in part:
[Some argue that] “The remedy for bad speech is more speech.” This, effectively, is the Holmesian “marketplace of ideas” trope that is just an excuse for not thinking. If someone’s bad speech is a fatwa that sets a WMD attack in motion, my ability to speak out against the fatwa will be cold comfort to the dead. The First Amendment does not countenance commands to murder, and Speaker Gingrich is entirely correct to challenge us to think through these principles.
I’ve said many times that I’m no con law maven. But I don’t get this point. As McCarthy admits, Brandenberg would seem to allow regulation of “commands to murder”: they are “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Moreover, McCarthy seems to believe that an “original understanding of the First Amendment” would lead to a different understanding of the text. What can he mean by that? Reversing the incorporation of the Bill of Rights?