Free Speech Triumphant Or Free Speech In Retreat?

The First Amendment had a pretty good week.

In Matal v. Tam the United States Supreme Court unanimously held that a federal law prohibiting "disparaging" trademarks violated the First Amendment. Though the eight voting justices broke into two groups of four taking slightly different paths, their language was equally blunt. From Justice Alito:

The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

And from Justice Kennedy, reaching the same result:

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

Four of the eight justices endorsed this sound rebuke of the "hate speech is not free speech" trope:

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).

But the Supreme Court wasn't done. How committed is it to the First Amendment? So committed that it will uphold the rights of a convicted criminal — at least so long as the right in question is the right to free speech. In Packingham v. North Carolina the court unanimously held that North Carolina violated the First Amendment by prohibiting convicted sex offenders from visiting a wide variety of common websites. Though the judges used slightly different rationales to reach that result, they concurred that the state had not offered sufficient reasons to meet the applicable level of scrutiny. This — the Supreme Court rejecting a state's rationale to do things to a convict — is not a common occurrence.

But it wasn't just a good week. It's been a very good millennium for the First Amendment.

The modern Court has repeatedly and forcefully rejected attempts to narrow free speech based on new social norms or theories. In the crucial Stevens v. United States — dealing with a federal law prohibiting distribution of depictions of cruelty to animals like "crush videos" — the Court rejected 8 to 1 the notion that the government could create new ad-hoc exceptions to the First Amendment by "balancing" public interests against free speech rights. In Snyder v. Phelps, dealing with the despicable funeral protests of Westboro Baptist Church, the Court rejected 8-1 the proposition that ugly commentary can be punished through the ruse of "intentional infliction of emotional distress." In Reed v. Town of Gilbert, the Court unanimously rejected (through slightly different approaches) the argument that the government can ban entire subjects so long as it treats all viewpoints about that subject even-handedly — here, by rejecting a local law that prohibited political signs. Citizens United v. FEC is the odd man out with the bitterly divided 5-4 decision, but still came down strongly in favor of speech.

In short, the First Amendment is enjoying extremely strong support from the Supreme Court — arguably stronger and more consistent than any other constitutional right, and arguably as strong as the Court has ever been in favor of free speech. It's a golden age.

So why are so many people so pessimistic?

On the cultural side, we're mostly hearing stories of woe about free speech. Folks — and here I explicitly include myself — are emphasizing stories about intolerance, heckler's vetoes, censorship, and academic hostility to different viewpoints. Discussion of free speech is dominated not by recognition of how strongly modern courts protect it, but with stories of freakish intolerance at Evergreen State College and violent heckler's vetoes at Berkeley.

Why? Well, "everything sucks and we're doomed" is more interesting to write than "everything is swell." Portraying the academy as a hotbed of imbecilic progressive intolerance serves political ends. Pointing to young people acting like asses is viscerally satisfactory to old farts like me.

But there's substance, too. However clearly the Supreme Court recognizes free speech rights, they're no good if the government refuses to acknowledge them, as universities have effectively done by refusing to protect unpopular views from violence or hecker's vetoes. Justice Kennedy isn't there to tell Dakota McScreamyface to stop hitting me with a bike lock if I engage in crimespeak. As Judge Learned Hand said in his "Spirit of Liberty" speech more than 70 years ago:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.

The Supreme Court is upholding the black letter of liberty, but are Americans upholding its spirit? When college students, encouraged by professors and administrators, believe that they have a right to be free of offense, no. When Americans hunger to "open up" libel laws or jail flag burners, no. When our attitude towards the hecker's veto becomes "let's do it to them because they did it to us," no. Not only is speech practically impaired, but in the long term the cultural norms necessary to sustain good Supreme Court precedent are eroded.

We should all keep talking about threats to free speech. But the discussion should be seasoned with recognition of how strongly its legal underpinnings are right now.

Copyright 2016 by the named Popehat author.