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Fitzgerald: What is the “gravity of the evil” in this case?

Oct 3, 2007 2:50 pm By Hugh Fitzgerald

The development of First Amendment free-speech jurisprudence during the 20th century begins during and just after World War , with the famous dissents of the of Holmes and Brandeis in Gitlow, and in Abrams, and then the formulation of the “clear and present danger” test by Holmes, writing for the majority in Schenck.

Much later, that test, which had undergone modification in Whitney (1927), was further whittled away, and a kind of “balancing test” substituted for that etiolated “clear and present danger” doctrine. Since Dennis other tests have been proposed, and adopted by the Court, notably that of the majority opinion in Brandenburg, in which it was decided that there had to be a “threat of imminent lawless violence” from speech for it to be banned.
Since Brandenburg there have been still other modifications. But it is clear that whatever threat to the American polity might have been represented by that handful of anti-war socialists throwing a few pamphlets out of a tenement window in Abrams, or by the organized Communist Party of California in Whitney, that threat was nothing. The Communists never had a chance of “overthrowing the government.” The threat from the ideology of Islam is more widespread, durable, and persistent. It will last as long as Islam lasts. And the way in which that “overthrow of the government” is meant to be achieved is not through some kind of violent revolution, with those Muslim masses marching on Washington, but rather through a slow but systematic challenge to every single aspect of the legal and political institutions, and even social understandings, of the Infidel nation-state. These challenges will continue until little by little, guttatim, those institutions surrender by degrees to conform better to the demands of Islam.

The duty of Jihad to spread Islam is not one that need be fulfilled only, or even mainly, through violence. Where Muslims are as yet too weak, and violence would undoubtedly fail, then other means, where available, are to be employed. The Money Weapon, campaigns of Da’wa, and demographic conquest can, in the eyes of those who take the long view (not that long, by the way), steadily remove all the obstacles to Islam, so that it will inevitably take over.

Are we so sure it cannot happen? Many intelligent observers note that there were, for example, 15,000 Muslims in the Netherlands in 1970 and now there are one million. And in the Netherlands the most popular political figure, Pim Fortuyn, was assassinated a few years ago, as was a well-known public figure bearing one of the most famous Dutch names. Today it is members of the Dutch Parliament who must be protected from Muslims, and so must many of those who speak out forcefully against Islam all over Western Europe.

There are all kinds of indications that there is no way for the people of the West to preserve their own civilization, and no good reason to do so — including the recent banning of a march “against the islamization of Europe” in Brussels, and the statements of various leaders in individual countries, and among the highest levels of the E.U. bureaucracy, who apparently believe that demography is destiny, and that mere head-counting will have to decide the fate of Europe. They seem to believe that Europeans must not take any measures to defend themselves, even measures deemed perfectly appropriate when used by the government of the advanced and tolerant state of Czechoslovakia back in 1946. All this is not discussed. All this is held to be beyond the pale. It makes no sense in Europe, and it makes no sense here in the United States, with our fates, too, tied to those of the civilization and people of Western Europe.

In the Dennis case, the Supreme Court referred to an opinion of that great American jurist Learned Hand, of the Second Circuit. Learned Hand, dealing with free-speech cases in which the relevant test to be applied was that of “clear and present danger,” offered his own calculus.

From the majority opinion in Dennis:

“Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: ‘In each case [courts] must ask whether the gravity of the ”evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’ 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.”

Constitutional jurisprudence has gone beyond Dennis, of course. The “clear and present danger” test no longer exists, having been superseded by, inter alia, Brandenburg, and by later decisions.

But the new domestic threats are linked to constant replenishment from abroad of the coffers and the personnel of those who would use violence against the indigenous Infidels of this country. They are linked as well to that steady stillicide of demands and threats meant to wear away the resolve of Infidels to preserve their own institutions, and to employ against them their own solicitousness for individual liberties and for pluralism, by those who believe in neither but would do away, if they ever came to dominate, with both. This will necessarily lead to the making of new law in the area of free speech.

What form will it take? It is hard to guess. But the calculus of Learned Hand is not a bad place to start to rethink the matter. Instead of “is the threat “˜imminent– (as in Brandenburg), what should be focused on is the magnitude of the threat, multiplied by its likelihood. And in judging the likelihood, the judges will have a right and a duty to look at history, even recent history, to see what has happened elsewhere where Muslims have steadily gained the demographic upper hand, and the kinds of changes that they have managed to make as a result.

So remember that formula by bushy-eyebrowed Learned Hand: “In each case [courts] must ask whether the gravity of the “˜evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”

The gravity of the evil, discounted by its improbability.

What is the “gravity of the evil” in this case?

And what is the “improbability” of that “evil” coming to pass?

Constitutional law is going to be exciting in the next few years — alas.

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