Minor Thoughts from me to you

Charles C. W. Cooke offers a quick primer on America's expansive free speech tradition. When I think of American exceptionalism, this is one of the areas that comes to mind.

As the Supreme Court has repeatedly ruled, under American constitutional law there is simply no such thing as “hate speech.” In Texas v. Johnson, the Court confirmed that “the government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable,” thereby echoing the insistence of a lower court that “the First Amendment does not recognize exceptions for bigotry, racism, and religious intolerance or ideas or matters some may deem trivial, vulgar or profane.” Indeed, as FIRE’s Sean Clark noted in 2006, the government may not prohibit much at all:

The First Amendment allows you to wear a jacket that says “Fuck the Draft” in a public building (see Cohen v. California, 403 U.S. 15), yell “We’ll take the fucking street later!” during a protest (see Hess v. Indiana, 414 U.S. 105), burn the American flag in protest (Texas v. Johnson, 491 U.S. 397 and United States v. Eichman, 496 U.S. 310), and even give a racially charged speech to a restless crowd (see Terminello v. Chicago, 337 U.S. 1). You can even, consistent with the First Amendment, call for the overthrow of the United States government (see Brandenburg v. Ohio, 395 U.S. 444). This is not a recent development in constitutional law—these cases date back to 1949.

It is worth remembering that Madison did not believe that his Bill of Rights was necessary to protect speech at all. Because the Constitution is a charter of enumerated powers, he argued in Federalist No. 10, Congress enjoys no capacity to censor the press in the first instance and does not therefore need to be prevented from doing so:

Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.

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