Dr. Eugene Volokh (nice name!) has a very well put piece regarding a case of French speech restrictions applied to a prominent historian who, in the words of the French judge, didn't present a balanced statement regarding the massacre of Armenians in Turkey while being interviewed for a short news piece. Dr. Volokh makes his case clearly on the reasons that we Americans should avoid the desire of some in the legal establishment to chart a legal course closer to European systems.
The point I think he makes in closing, but doesn't spell out in so many words, is that one of the chief strengths of the U.S. legal system is its desire to find "bright white lines" that can be applied in all cases and that take the practical reality of human behavior into consideration. Our legal and judicial history has been built by giving the benefit of the doubt to all American behavior, even if that means tolerating more bad behavior. It is always refreshing to see how the doctrine of "innocent until proven guilty" generally holds forth in America. I think this is reflected in many citizen's disdain of "Zero Tolerance Policies". In point of fact, the abridgement of this concept is one of the things that most steams me regarding the DMCA and the CBPDTA proposal. Europe had best remember that we were the rouges, and in some cases the prisoners, that didn't want to be in Europe or that Europe didn't want.
I think much is lost when individual victims of crime hold forth that their injury deserves special attention at the cost of the many when in actuality this special attention often comes at the direct cost of another individual. It has always seemed to me that letting a few more criminals go so that we can have certainty that no innocent is executed or incarcerated in our (my!) name is a very small price to pay. What is the point of any government if, in an attempt to over protect the masses, it fails any number of the innocent people it is sworn to protect?
I also find interesting parallels in this post by Dr. Volokh and his earlier post on the comment by a Washington Post Editorialist that the only thing anti-gunners wish to ban is handguns.
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