What Imus said ...

was inexcusable in my opinion. Nonetheless, I am concerned. For you to understand why, I need to you first to understand how Imus would be judged under constitutional jurisprudence.

What he said constituted defamation, which can be either an oral (“slander”) or written (“libel”) statement of fact that is false and damaging to a person’s reputation. While the law has features to it intended to prevent defamation claims from chilling free speech about public and private persons, alike, the first amendment does not protect defamatory speech and speakers. There is no public good in false statements of indisputable fact.

Also, generally speaking, CBS as a private broadcaster was well within its constitutional rights to fire Imus, regardless of whatever contractual consequences it may suffer as a result if it breached its contract with him.

Nonetheless, as I said, I am concerned. What if the young women actually were nappy haired hoes? What then?

The justifications for hounding Imus out of a job used by the self-righteous Imus critics focused more upon the offensive, inflammatory and controversial character of the sexist and racist speech than it’s defamatory, that is, false character. It would not matter to them if what Imus said had been dead-on, irrefutably true, and there’s the rub.

Protecting each of us from harm by reason of a tyrannical majority because of the offensive, inflammatory and/or controversial ideas we may express (unless they are defamatory) is precisely what the first amendment is suppose to do. While Imus was fired by dint of social activism, to me there’s precious little practical difference between such marshalling of overwhelming public opinion and more subtle forms of governmental chilling, suppression and censorship of free speech. Each are highly coercive and damaging to the free flow of ideas. (See the PS below.)

To the Imus critics, chastising Imus was not good enough – nothing short of firing Imus even begins to satisfy them. Similarly, chastising Moporn by Nopornorthampton is not good enough for them – nothing short of getting the Moporn blog pulled by its ISP and its founders fired from their jobs is good enough for Nopornorthampton, for example.

Nopornorthampton equates this sort of activism with people like Gandi marshalling public opinion to bring the British to their senses, etc. But, there is a difference. What the Imus critics and Nopornorthampton want to do is shut people up. However abhorrent racist points of view might have been to Gandi, Gandi was not about shutting people up.

In contrast, shutting people up is what people like Nopornorthampton, Adam Cohen and Jendi Reiter, are all about.

Yours/AC

PS – I take limited comfort in the theory that an “independent” judiciary will protect me against the excesses of any political or social activism. Almost all of our judiciary are either elected officials themselves or appointed by elected officials, who must take into account public opinion about the (potential) judge’s opinions, and after reaching the bench, judges are still subject to elections or elected officials to preserve or advance their careers. So, while we learn mostly about the judges who have from time to time been brave enough to risk their own careers and social standing to render unpopular opinions based upon principles, the reality is that, historically, judges on balance have not been and are not immune to social and political pressures. They are not as independent of the mob as one might think. (Double entendre intended.)

The distinction between social activism on the part of the public and governmental regulation of speech is more illusory than real. They are not so separate, but instead exist side by side upon a continuum of social and political regulation. So, the willingness to stand up to social pressure to suppress, chill and/or censor expression can be at times just as important as standing up for the supremacy of the first amendment, in my opinion at least.