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I’m not linking to the original post, because this was said in the course of a different conversation that I don’t want to derail, but I see people say this all the time and it’s wrong. Moreover, it’s wrong in a way that I think devalues the First Amendment.
First, it’s wrong factually: We are surrounded by laws that regulate speech that no one could deem disrespectful. There are states where it is illegal to offer dietary advice without permission from the state. Thousands of municipalities have unconstitutional sign codes.
Even core politics speech is pervasively regulated in ways that have nothing to do with that speech’s offensiveness.
So what’s going on here? Why do people keep saying only offensive speech needs First Amendment protection?
So what’s going on here? Why do people keep saying only offensive speech needs First Amendment protection?
Part of it is that offensive speech DOES need First Amendment protection. But as a matter of law, that fight is largely won. The Supreme Court has struck down laws regulating animal “crush” videos, violent video games, and the Westboro Baptist Church. These are not close cases.
The hotly contested cases in First Amendment law today are not about offensive speech, but effective speech. That’s why the same people who will champion the rights of the Westboro Baptist Church will demand the reinstatement and expansion of the Fairness Doctrine.
But here’s the thing: It’s easy to tolerate the Westboro Baptist Church, because we know they’ll never have a major impact on society. It’s harder to tolerate Fox News, because they actually persuade people to think and do things you may disagree with.
And that’s the beauty of the First Amendment: Not that it compels us to tolerate the Fred Phelpses of the world, but that it commits us to resolving even our most consequential disagreements with words, not force.
