There’s a difference between calling someone a filthy Jew and suggesting you want to throw them in an oven, and arguing in favor of the worldview that underlies those feelings.
People can defend capitalism, but they can’t jump in to unrelated threads and call people they’ve had disagreements with pinko scum and suggest that they should starve in a gutter. People can defend the death penalty for abortion, but they can’t harass other users calling them murderers in unrelated threads. People can discuss ideas, but when they take disagreements personal, and follow users into unrelated threads to present their ideas in the most offensive way they can, they’re being disruptive. It doesn’t matter what views motivate that behavior, the behavior is unwelcome.
And the reason it’s unwelcome is that it prevents actual discussion of ideas. By banning that behavior, more philosophy becomes possible. That’s why the bans are speech-maximizing.
For what it’s worth, the Google Memo is a good example of how to make arguments for offensive beliefs. It’s tone is respectful and dispassionate, even if the ideas it contains offend people. It presents arguments, whether or not they are successful. It cites to evidence. While reasonable people can disagree about whether the evidence and arguments entail the conclusions it reaches, it is clearly a good faith effort to make a reasoned argument in defense of a set of beliefs. Autsider was not doing anything like that.
The difference between policy arguments and legal arguments are that policy arguments are about what the law should be, and legal arguments are about what the law is. Policy arguments are not inherently wrong and they are often useful, but in the context of making a case about how a law applies to a situation, they should be a last resort. Policy arguments are appropriate when the law is ambiguous or silent; if the law is clear, a policy argument is most often an argument that the court should find in your favor despite the law, rather than because of it.
The full quote makes this a little clearer:
As I read it, the penalty is in two “phases”:
- The imposition of the material costs of printing a reply (i.e. paper, ink, etc, I don’t think this is meant to include e.g. reputational costs).
- The chilling of speech that would require the newspaper to assume those costs.
I don’t think this is the part of the rationale that applies here. The marginal material cost is roughly zero, and (dead horse) no one’s being banned for the views they express (though it’s noteworthy that, under Tornillo, it would protected first amendment activity if we were).
I’m using the meaning of broadcast that the court in Red Lion uses, i.e. transmitting audio on the radio portion of the electromagnetic spectrum (and the argument probably extends to transmission on any part of the EM spectrum). ILP is hosted on a server that uses a broadband wireline connection. There may be services that broadcast access to ILP, but ILP isn’t involved with them, and it is likely that most users receive communications from ILP without them ever being transmitted in the radio spectrum.
It is this difference that Red Lion turns on. There’s a limited amount of radio spectrum, and to my knowledge the government owns all of it. That scarcity is what makes the Fairness Doctrine permissible there in ways that it isn’t in the newspaper industry or the internet.