On Facebook, Paul said, “It’s easy to support free speech when you agree with the speaker. The real test is whether you support free speech even when you find the speaker’s views truly offensive (Holocaust deniers, Confederate flag displays, etc.)” He linked to Wikipedia on Laws against Holocaust denial.
Paul Sherman of the Institute for Justice replied as follows, and I think it bears repeating:
I am, of course, a strong believer that even offensive speech is entitled to First Amendment protection. But at least here in America we should not be fooled into thinking that that is the biggest free speech fight. It tends to get a lot of press but, as a matter of First Amendment law, that battle has largely been won.
In just the last five years the Supreme Court has upheld the right to sell violent video games to minors, the right to stage offensive protests at funerals, the right to sell depictions of animal cruelty, and the right to lie about having received military honors. None of these were 5-4 decisions. So from a constitutional standpoint, whether to protect offensive speech is increasingly seen as an easy issue.
If you want to see close, bitterly divided opinions from the Court and widespread opposition to free speech from the media and the public, don’t look for cases involving offensive speech, look for cases where the speech is simply persuasive and effective. Tons of people who are happy to let Nazis march through a community of Holocaust survivors (where they are unlikely to persuade anyone to join the Nazi party) are also happy to prohibit corporations from running political ads (which may persuade lots of people).
As it happens, I interviewed Paul Sherman on this very topic of free speech in elections on the 9 January 2013 episode of Philosophy in Action Radio. If you’ve not yet heard it, you can listen to or download the podcast here:
- Duration: 59:19
- Download: Standard MP3 File (20.4 MB)
For more details, check out the episode’s archive page.