Techdirt Podcast Episode 279: How Rights Went Wrong
from the book-club dept
After a few cross-post episodes, we're back with a brand new conversation, and it's all about a big subject that intersects with the majority of what we cover here at Techdirt: rights. In his book How Rights Went Wrong, Columbia Law professor and Constitutional scholar Jamal Greene proposes a new way of thinking about rights and how they interact, and he joins this week's episode to discuss this paradigm-shifting idea that challenges many preconceptions about the subject.
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Filed Under: civil rights, constitution, jamal greene, law, podcast
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These platforms can't hinder speech.. It's more a matter of forced service than speech
You wouldn't have the moral high ground trying to force the government to include porn is because he government effort is a communal effort that we all have a stake in and more or less everyone else will disagree with you about spending the communal effort in that way. It's different from a private entity putting up entirely their own effort since now we are talking about forcing others into service for yourself. The result might be the same for a porn filter, but switch it to something most people would consider a legit function of the government in context and it will be legit to force it on the government and not on the private entity
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I strongly agree with what Jamal Greene discusses. The examples he put forth demonstrate that we have a lot of work ahead of us. We have to seriously engage with the idea that the courts and our systems of rights should make decisions based around “Which outcome would be the better to actually benefit society?” rather than “Which outcome fits more closely to the letter of the law?”
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Re:
The more subjective the decisions by the courts are the more they are susceptible to discrimination and other corruption. We already have plenty of examples of this sort of "use your discretion in each particular case type laws", but it just ends up giving powerful people a way to manipulate the results. This is how the fair use laws "work".
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If we eventually get the ball rolling on a system that cares more about good outcomes than the strict letter of the law being followed, then the courts being "susceptible to discrimination and other corruption" may not wind up being as rampant as you believe they would.
And also, in terms of discrimination, I'd be fine with courts discriminating against white supremacists like Richard Spencer in the future. Like, if a court makes the decision that public colleges don't have to give bigots a microphone, and it was based on the courts looking at what the bigots want to do versus what the colleges want to do and the courts said "The rights of public colleges and their students to stop racists from spewing racist crap on campus, those rights outweigh the value of racist speech", are you gonna lose sleep over that? Is any normal person gonna lose sleep over some nazi being unable to go to a public college to spew their horseshit?
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Yeah, you would be fine with the courts discriminating against supremacists, and white supremacists are fine with the courts discriminating against anyone who isn't white, at various points in history and future the majority of people in your country will be fine with discriminating against muslims, transgenders, you name it but you can't just set the system up to enable discrimination and hope the people doing the discriminating will always agree with you
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