The problem for me is that these concessions do not go to the heart of the matter. A judge could adhere to Brandenburg and still hold that government employees can be dismissed from a wide range of jobs because of their political beliefs. A judge could adhere to Brandenburg and still believe that foreign nationals can be denied nonresident visas on the basis of the undesirability of the ideas they proclaim. A judge could adhere to Brandenburg and still believe that Marxist writings can be excluded from high school libraries. A judge could believe as a general matter that the First Amendment extends beyond explicitly political speech and still hold that an unsettling idea such as the moral propriety of adultery can be banned from public discourse. A judge could believe that First Amendment protection extends beyond political speech and still hold that a book that contains graphic descriptions of sexual conduct such as D.H. Lawrences Lady Chatterlys Lover can be made inaccessible to teenagers. With the exception of ideological visa denial case. which he has decided as a circuit Judge. I would not pretend to know for certain that Judge Bork would rule against the First Amendment claims in these cases. But I do think that one can be certain he would approach these cases with a far greater predisposition to uphold the regulatory claims of government than would a judge who derives his understanding of the First Amendment from the premise of limited government so forcefully articulated in the opinions of Holmes and Brandeis.
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