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Jacqueline Stewart's avatar

I admire your plea for tolerance and respectful disagreement, Judy, but I am wondering (to quote you) why the presumption of good faith that we owe one another is unlimited. With enough evidence to the contrary, the rational conclusion is to withdraw the presumption of good faith. This is true in every day interactions, and in observations of the Supreme Court. Alito's efforts to justify his decision on Roe (because that is what he chose to decide - not the narrower case before him) referred to religious precedents before the time of the Constitution. Originalism? Thomas's ability to rule without deferring to outside pressure (one of Roberts' claims about the SC rulings) is questionable. In the case of these two men I see decisions based on predispositions rather than good faith. Each of us must decide when To withdraw the presumption of good faith. To be flippant, continuing to ascribe good faith in the face of contrary evidence is what keeps the frog from leaping out of the hot water.

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Ann Larabee's avatar

Judy, you are the soul of balance in your writing. Much appreciated. A small point: The "fire in a crowded theater" is a misconception of first amendment limitations from the 1919 Schenck decision, which used the "clear and present danger" test to uphold punishment of an anti-war protestor. It was a metaphor, although there was a case of a person shouting fire at a labor meeting causing a murderous stampede. So today, after the Brandenburg decision, we wouldn't see handing out anti-war leaflets as shouting fire in the theater, as then. The actual legal limitations on the first amendment are very, very limited and very clear: incitement (using the imminence test), defamation, fraud, child pornography, fighting words, blackmail, perjury, criminal conspiracy. All of these have substantial case law behind them that clarifies their meaning.

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