First Amendment

Originally published in The Wall Street Journal. The more certain you are, the more you should resist the temptation to silence those who disagree. If you are absolutely certain that President Trump is or is not an idiot, that climate change is or is not the most pressing problem of our age, that abortion is or is not murder, that football players should or should not be allowed to kneel during the national anthem, that our nation needs more or fewer gun laws, welcome! Most of us feel the same way. Absolute certainty is common, as is the suspicion that anybody who is absolutely certain of the opposite view must be evil, ignorant or a gullible consumer of fake news. Along with absolute certainty comes the understandable impulse to regulate or ban the speech of your opponent. Why allow evil and ignorant people to infect others with falsehoods and dangerous ideas? Why not take away the licenses of broadcasters whose news departments have the wrong slant? Why not make hate speech illegal?  Almost a century ago, Justice Oliver Wendell Holmes Jr. , wrestled with similar questions in a pair of Espionage Act cases. Holmes was absolutely certain that in most […]

Law students spend the better part of three years beetling their brows over the study of constitutional law—a mercurial, opaque, highly theoretical system of textual exegesis, which nobody but the tenured and long-winded professor pretends to understand. And the capsheaf of con-law contwistification is First Amendment law. The First Amendment protects “the freedom of speech” and has spawned an absorbing delusional system of case law, because the harder you work to understand it, the more complex and inscrutable it becomes, until its tracts and tiers and modes of analyses, its time, place, and manner restrictions, its public and private figures and forums, its symbolic expressions and invasions of privacy–all evanesce into vaporous metaphysics. The average citizen knows only that the First Amendment does not mean what it says (i.e., “Congress shall make NO law . . .”), because Congress in fact makes laws abridging the freedom of speech (laws against child pornography, obscenity, fraud, so-called “fighting words,” and so on). To the layperson, the First Amendment must mean whatever nine robed Platonic Guardians say it means: “This political speech is good, we’ll protect it. This obscene speech is bad, we’ll call it ‘unprotected speech’ and let governments ban it.” Voila! […]