Althouse: "Sometimes conduct is speech (think of burning a flag) and sometimes speech is not 'speech,' as strange as that sounds."

December 16, 2012

"Sometimes conduct is speech (think of burning a flag) and sometimes speech is not 'speech,' as strange as that sounds."

"In this instance, for example, the speech involved in talk therapy is, for all practical purposes, analogous to electric-shock therapy. It is a method of therapy, and it is the method, not the speech as such, that is being regulated. This is a common phenomenon. The state can regulate bribery, threats, conspiracy, and many other forms of 'speech' because, in context, what is being regulated is not the speech as such, but the underlying course of conduct, of which the speech is but a part."

Says lawprof Geoffrey R. Stone, cautioning against a "too literal... understanding of the constitutional guarantee of 'the freedom of speech."

42 comments:

edutcher said...: Baloney.

The First Amendment takes care of conduct with "Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances".

But, if we construe conduct as speech, we can make it mean anything we want anytime we want.; 12/16/12, 11:09 AM
ricpic said...: Be literal or be enslaved.; 12/16/12, 11:10 AM
Shouting Thomas said...: Sorry, but the abridged version of this article is...

"Homosexuality is of such extraordinary importance to the left that it supersedes everything else."

The prof's list of all the issues that should not be used to abridge free speech, followed by this bowing before the left's sanctification of homosexuality is the tipoff.

Really, I don't have anything against homosexuality. Really, I don't. But, the left's reflexive sanctification of homosexuality is both mind boggling and hilarious.

I've often wondered why this is true. Mostly, I think it has to do with an unspoken belief that the farther removed sex is from procreation, the more sophisticated and clever it is.

I really wonder where we're headed with this. The Weatherman forced their members to engage in homosexual acts in order to rid them of whatever it was they were trying to eradicate.; 12/16/12, 11:10 AM
Shouting Thomas said...: You bitch about it constantly!

Palladian, you are mistaken.

What I am bitching about constantly is the attempt of the left to pin the blame for the AIDS epidemic on hetero men. And, the propaganda that insists that hetero men have traditionally been involved in a systematic attempt to bully, kill and mistreat gays.

I can understand how you might cop that attitude. I'm looking at this shit from the standpoint of hetero men, who stand (mostly) falsely accused.; 12/16/12, 11:16 AM
Wince said...: This line is not always easy to draw, but it is easy in Welch. What the state is regulating in the context of SOCE is not the speech of the therapist as such but the use of a method of therapy. Whether that method involves words or pills or electric shock is of no moment. The speech is incidental to the regulation of the method of therapy, and It is no more a regulation of speech for First Amendment purposes for the government to regulate talk therapy than it is for it to regulate drug or electric shock therapy.

Bullshit, especially on the "easy" part.

This is no EST primal scream therapy, where "speech" might be viewed as conduct having viewpoint- neutral content.

In that way, SOCE "talk therapy" is different than "electric shock or nausea inducing drugs administered simultaneously with the presentation of homoerotic stimuli" and "psychoanalytic therapy".

Rather than method, the curtailment of speech addressed in Welch seems more akin to regulating the purpose rather than method, and specifically the viewpoint embodied in that purpose.; 12/16/12, 11:17 AM
DADvocate said...: the speech involved in talk therapy is, for all practical purposes, analogous to electric-shock therapy.

Really? Is Stone's secondary purpose to show how stupid and uninformed he is? As someone who has witnessed both, a better analogy would be the difference between taking an aspirin for a headache and brain surgery.

I wonder if Stone believes therapy that convinces someone they are not straight, but gay should be outlawed. A guy I know from high school, who never showed any homosexual proclivities, became convinced via "therapy" that he really wanted to be a woman. This is a guy who played minor league hockey, had been married to a real hottie, was 6' 4" and, as I said, never showed any homosexual tendencies.

Indeed, he became a woman and still doesn't want to be with men. She's now a 6' 4" transexual lesbian. We live in a society where being normal is sneered at, but being a freak is great.; 12/16/12, 11:22 AM
bagoh20 said...: The purpose of speech in bribery, threats, or conspiracy is to accomplish a crime, that's why it can be regulated. The same with fire in a theater. If the intent is to get people out of a burning building, it's not regulated.

His analogy does not hold, because the therapy intent is to heal.; 12/16/12, 11:25 AM
jungatheart said...: "But, if we construe conduct as speech, we can make it mean anything we want anytime we want."

Mom, she's looking at me!; 12/16/12, 11:25 AM
Shouting Thomas said...: All my life, there's been a general consensus that there is a "gay problem" that everybody has to focus on and solve. The problem is never something that gay people own. It's always something imposed on them.

The nature of the purported problem keeps shifting, but it never goes away.

Why the continual effort to manufacture a new gay problem that is caused by hetero men?; 12/16/12, 11:28 AM
Bob Boyd said...: "If you give me six lines written by the most honest man, I will find something in them to hang him." — Cardinal Richelieu; 12/16/12, 11:30 AM
jungatheart said...: Palladian, dear, I think the world of you. You at times flaunt your sexuality, often to tweak others. Others that accept you. Homosexual is what you are, not who you are. Let Palladian be Palladian.; 12/16/12, 11:31 AM
glenn said...: What the good professor really means is "When I have enough people on my side I'll shut you up if you disagree with me".; 12/16/12, 11:42 AM
Hagar said...: The law does aim at preventing minors being messed with by adults rather than at preventing discussion about such treatment.

As for why homosexuality is such a priority with the left, that is simple: Just find an issue that is deeply offensive to some people - it does not matter much what or the whom - and if you can puh that through, it proves that you and your "side" have the longest and stiffest and can pee the farthest.; 12/16/12, 11:43 AM
Scott said...: Thank God we have law professors to tell us what speech is.; 12/16/12, 11:45 AM
Automatic_Wing said...: Yeah, talk therapy is just like electro-shock therapy, except in one case they're talking to you and in the other they're shocking you with electricity. Otherwise, exactly the same.; 12/16/12, 11:46 AM
virgil xenophon said...: The end AND INEVITABLE result of all these "progressive" attempts at societal "improvement" is the inevitable totalitarian temptation to "march us all to virtue at bayonet-point." Always has been, always will be..; 12/16/12, 12:08 PM
rhhardin said...: Abridged too far.; 12/16/12, 12:10 PM
David said...: So if we really, really disapprove of an idea, it's not a violation of the First Amendment to limit the means of dissemination of the idea.

That's his position.; 12/16/12, 12:13 PM
mesquito said...: Gender is a social construct but sexual preference is as hard-wired as the need for oxygen. Get it? Okay. Now shut up.; 12/16/12, 12:17 PM
kentuckyliz said...: Our ethical code as QMHP's is to give our primary allegiance to the client/patient and his or her agenda.

If someone is being dragged to counseling to fix them against their will, for whatever problem, that is not going to happen nor will it work.

However, there are some people who because of exposure to sexual molestation, incest, fondling, and/or pornography, have experiences or ideation that they find disturbing and not part of their chosen identity.

Many people seem to forget the distinctions between gender identity, sexual behavior, and sexual orientation, and wish to rush to fix a gay identity and behavior pattern on someone if it supports their political and social agenda.

Regardless of that person's own integrity, self-direction, autonomy, and wishes.

Our ethical code would not allow us to ethically refuse treatment or referral of distressing undesired homosexual ideation if someone wanted that. To abandon them and judge them for asking is unprofessional and uncompassionate.

I hate how activists are trying to interfere with other people's lives and professional practices, because of a political agenda. In the name of sexual freedom, they deny other people sexual freedom and self-determination.

DESPICABLE!; 12/16/12, 12:35 PM
Shouting Thomas said...: I would argue that the "unnatural advantages" of slavery and segregation are, in fact, what a truthful person would call "natural advantages."

White men triumphed in that most natural of things, the battle of natural selection... you know that facet of the theory of evolution that says that the stronger and smarter triumph?

Creating a legal and constitutional system that overrides that triumph of natural selection with a system of abstract justice is the unique contribution of white men to humanity.; 12/16/12, 12:35 PM
Saint Croix said...: In this instance, for example, the speech involved in talk therapy is, for all practical purposes, analogous to electric-shock therapy.

That has to be the worst free speech analogy I've ever heard in my life.; 12/16/12, 12:38 PM
Saint Croix said...: Your speech is like shooting people in a crowded theater.; 12/16/12, 12:39 PM
Kchiker said...: "What I am bitching about constantly is the attempt of the left to pin the blame for the AIDS epidemic on hetero men."

I have no idea what you might have been subjected to that would make you feel this way. I am certainly not "the left" but I am sorry for the incidents that brought you this pain.; 12/16/12, 12:40 PM
bagoh20 said...: Mother Nature doesn't care about the abstract. She'll kill us all if we don't kiss her ass.; 12/16/12, 12:41 PM
Hagar said...: ST,

"Nature, red in tooth and claw ..." is Longfellow, not Darwin.; 12/16/12, 12:42 PM
Saint Croix said...: I run around naked in the street, and flash my genitalia to Professor Stone. He's like, symbolic speech!

Professor Stone, upset that my awesome nudity has excited him, goes to a psychiatrist. The psychiatrist says, "you're not gay."

Professor Stone says, "AHHHHHHHHHHHHH! Electricity!"

And sues the shit out of him.; 12/16/12, 12:46 PM
Kchiker said...: This comment has been removed by the author.; 12/16/12, 12:47 PM
Kchiker said...: ' I would argue that the "unnatural advantages" of slavery and segregation are, in fact, what a truthful person would call "natural advantages." '

Surely you don't mean this.; 12/16/12, 12:48 PM
bgates said...: except in one case they're talking to you and in the other they're shocking you with electricity

Oh yeah? Well, talking to somebody causes a mechanical disturbance in his ears that gets transmitted to the brain as an electric current. That's Science. You don't want to argue against Science, do you?

This comment was not intended to give offense to the deaf - or midgets.; 12/16/12, 12:51 PM
Amartel said...: Wot ricpic said.; 12/16/12, 12:51 PM
Dante said...: Next the left will ban tanning, and if there were a way to turn skin color light, that too.; 12/16/12, 1:09 PM
kentuckyliz said...: Perhaps this is more of a cafe comment:

Damn you Althouse. I bought a spendy super spiffy wifi router just to try and speed up these damn page loads.

Also...why I love this place...I post my NARTH-friendly comment and it barely makes a ripple. No death threats! Wheee!; 12/16/12, 1:12 PM
Anonymous said...: Stone is no fool, but a coward for not admitting he is a Marxist.; 12/16/12, 1:26 PM
Leo said...: Well if the court doesn't think Locke vs Shore(http://ij.org/locke-v-shore) was worth reviewing even though the law in question was restricting speech just as much but for a hundreds of times less worthy cause it would be be surprising if it thought this was different.; 12/16/12, 1:44 PM
Unknown said...: It's actually Tennyson, but you are right it isn't Darwin.; 12/16/12, 2:13 PM
Alex said...: Anyone would would cut off their man-parts has to be mentally ill.; 12/16/12, 2:59 PM
Strelnikov said...: How about I hook up a car battery to your sack and turn it up? Feel like speech to you, Prof? See, there is a difference between electricity and speech.; 12/16/12, 3:36 PM
n.n said...: The First Amendment does not guarantee freedom of speech or anything else. It only restricts the authority granted to Congress. It does not, however, restrict the authority taken, which is why we have the Second Amendment.; 12/16/12, 3:41 PM
Paddy O said...: "analogous to electric-shock therapy"

Yes, because talk therapy can leave someone in a catatonic state for the rest of their lives, like electric-shock therapy did to my great-aunt, who was treated for depression.

Talking at a depressed person is the same thing?; 12/16/12, 3:57 PM
Francisco D said...: It may interest people to know that Stone's wife (possibly ex by now) is/was Joan Falk. She is a Freudian psychologist, known by her students as both dreadfully arrogant, ignorant and narcissistic.; 12/16/12, 6:00 PM
Anonymous said...: Lol. If you're surprised by the left claiming the First Amendment should be extremely limited...you haven't been paying attention.

Prediction: in ten years, those who engage in this kind of therapy will have mandatory minimum sentences awaiting them in a fed prison, right next to those who engage in "hate speech."

The Constitution's already dead, people. Now it's just time to pick up the pieces.; 12/17/12, 3:33 AM