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As always, an interesting read from Eugene Volokh. 

Via Washington Post:

Likewise, there is no “sophistry” in either Hawes’s response or the response about felons having the right to own a gun after serving their time. Hawes’s response is simply that we should prevent misconduct by the threat of punishment, not by prescreening — of course, a controversial position, but hardly a sophistic one. The other response is a legitimate, and not at all sophistic, challenge to the premise of the question.

Consider a simple analogy. Say that, in an anti-illegal-immigration documentary, the host asks some activists:

Let me ask you another question: If we don’t build a wall on the border with Mexico, how do you prevent aliens from entering the country illegally?

One activist responds, “Well, one — if you want to come to America, you should have the right to do that.” Another says, “The fact is we do have statutes that prohibit people from entering the country illegally, or that impose liability on employers for hiring people who are in the country illegally. These things are already illegal.” Yet instead of quoting this material, the documentary makers just replace it with eight seconds of blank stares and silence.

Would we think that this “is not false,” because the activists “did not answer [the interviewer’s] query about how to stop [people from coming into the country illegally]”? Would we say that the activists “did not answer the question posed by [the interviewer]”? Would we think that the responses are just “sophistry,” so that replacing the responses with silencing was legitimate editing that “simply dramatizes the sophistry”?

I would think not — I would think that, though the editing may not be libelous (again, because it merely falsely portrays people as unprepared or lacking a good argument, not as contemptible or deserving of hatred), it would be dishonest. The resulting interview scene would indeed be false; to be true, it would have had to show the answers, and let the viewers decide for themselves whether the answers were adequate.

But here, the trial judge — who routinely enforces the laws that are precisely intended to “prevent” misconduct by making the misconduct illegal or punishable — concludes that a prevent-by-threat-of-punishment answer is somehow unresponsive and sophistic. Not the right way, I think, to deal with this libel case.

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