If you were on any Bay Area Rapid Transit (BART) trains or in any stations recently (which I certainly wasn't), you might have noticed some ads from a rather provocative campaign (via FindLaw):

The ads criticize Roe v. Wade and ask: "Abortion: Have we gone too far?" They also contain specific anti-abortion arguments, such as this one: "The Supreme Court says you can choose: after the heart starts beating, after its arms and legs appear, after all organs are present, after the sex is apparent, after it sucks its thumb, after it responds to sounds, after it could survive outside the womb."

Now, this raises quite a few interesting questions. The first one that comes to mind is, who thought this would fly in San Francisco of all places? But more importantly, what can be done about this outrage? And an outrage it is for people in the area:

Unsurprisingly, pro-abortion-rights groups are concerned about the ad campaign. Many activists have taken to defacing or destroying the posters. Indeed, the ads' backers have already exhausted their supply of replacements, and have had to order many additional prints. Some pro-Roe advocates blame BART officials for permitting the ads. As one organizer put it: "[E]very woman has noticed them. I couldn't believe BART would allow something like this. Why are they doing this?"

The author of the article (law professor Vikram David Amar) knows the right answer, of course. BART officials cannot constitutionally deny the political speech of one group just because they (or BART riders) don't agree with the opinions expressed.

This seems a pretty obvious conclusion, but I can understand why some will find it unsatisfactory. As Amar points out, the only way BART could suppress these political ads would be a remove all political ads from their trains and stations. But this is also problematic in light of the First Amendment precedent, which is used to protect generally against:

laws or policies that simply discriminate on the basis of "content" or "subject matter." A law banning political ads may be viewpoint-neutral in some sense, but it is certainly subject-matter-discriminatory, treating political speech less favorably than, say, commercial speech. And subject-matter-discriminatory laws are usually subjected to the same judicial skepticism as are viewpoint-based laws.

Amar's advice is that "the answer to what a person or community views as 'bad speech' is not 'no speech,' but rather 'more (and better) speech.'" But the course of action which this leaves open to pro-choice groups - mounting their own counter-campaign - doesn't sound so productive to me. Seeing as the current campaign served mostly to anger women and reproductive rights activists, plastering the subway with ads that anger conservative christians seems a surefire way to escalate the conflict. I would think letting the anti-abortion groups fire up the opposition is a much better strategy, but perhaps that's why I'm not in politics.

Anyway, while thinking about somewhat unpleasant consequences of the right to free speech, I also came across a piece on ALDaily, about David Irving's Austrian imprisonment. For those of you who don't remember, Irving is the British historian and Holocaust denier who famously sued an American historian, Deborah Lipstadt, for libel after she called him "one of the most dangerous spokespersons for Holocaust denial" in her book, Denying the Holocaust. Anyway, now he's in jail "in Austria for two speeches he made in 1989, during which he allegedly claimed there had been no gas chambers at Auschwitz." Interestingly, "Irving's lawyer said the historian no longer denies that gas chambers existed in Nazi death camps." What interests me about this is the seemingly implicit acceptance of speech act theory in this conviction. If you're guilty of perjury, you're under arrest for saying something, but specifically for saying something which, under those circumstances, constitutes a crime, i.e., lying under oath. Arresting Irving for making statements he now disagrees with suggests that it was the act of saying, at that time, which constitutes the crime. This view is not uncommon amongst people who talk about racist or sexist language, but it is a little surprising to see it in use in this way.

It also prompts another round of questions about how much freedom of speech is acceptable. Lipstadt herself is quoted in the article saying "I am uncomfortable with imprisoning people for speech. Let him go and let him fade from everyone's radar screens." She's willing to accept that the particular sensitivity of Germans and Austrians to claims like Irving's warrants their strict laws against Holocaust denial, but doesn't endorse them generally.

I don't find these laws efficacious. I think they turn Holocaust denial into forbidden fruit, and make it more attractive to people who want to toy with the system or challenge the system.

Which sounds reasonable to me (and similar to how I feel about the anti-abortion ads). She advises that we "let [Irving] go home and let him continue talking to six people in a basement. Let him fade into obscurity where he belongs." Maybe ignoring it won't make it go away, but trying to legislate against it is just going to create martyrs and win them supporters.

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