June 01, 2017

“I Will Defend to the Death Your Right to Say It.” But How?

A look at First Amendment cases and how to plead them successfully.

Robert Corn-Revere

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A central tenet of the First Amendment commands that the government must remain neutral in the marketplace of ideas. The U.S. Supreme Court has applied this principle in case after case, holding that the Constitution protects firebrand priests and Vatican critics alike; it protects militant civil rights activists and white supremacists equally; it shields those who speak for or against a woman’s right to terminate a pregnancy; and it protects those who would burn American flags or crosses as a form of protest, just as it does those who display them with pride. In a system in which debate on public issues is supposed to be uninhibited, robust, and wide open, there must be protection for the freedom to offend. This has always been so, and it didn’t take the bizarre 2016 presidential campaign to show that in this polarized nation, political expression can be harsh, inane, and downright nasty.

The offensiveness of speech is not a factor—or, at least, shouldn’t be a factor—when deciding whether the First Amendment protects expression. This neutrality principle borrows from a stirring maxim often attributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” Great stuff, but it illustrates how much of what we think we know about free expression is incomplete. Voltaire didn’t even write the saying—it was written about Voltaire’s beliefs by biographer Evelyn Beatrice Hall (writing under the pseudonym S.G. Tallentyre). Its confused origins aside, this poetic pledge provides no guidance about how to defend what some would call the indefensible.

This is further complicated by the fact that the defense of freedom of speech includes far more than political speech. The likelihood of giving (or taking) offense rises exponentially once the topic touches on sex, and, as a consequence, such speech is a perennial target of government censors. Add to that the fact that sexual expression is frequently derided as unimportant, so that its offensiveness alone is said to be enough to justify its suppression. Or so the argument goes. This attitude was summed up by Justice John Paul Stevens when he expressed doubt that “Voltaire’s [sic] immortal comment” necessarily applies to the regulation of sexually oriented speech, noting “[f]ew of us would march our sons and daughters off to war to preserve the citizen’s right to see ‘Specified Sexual Activities’ exhibited in the theaters of our choice.” Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 70 (1976).

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