Academic journal article Brigham Young University Law Review

Free Trade in Ideas Is (or Ought to Be) Absolute for Adults

Academic journal article Brigham Young University Law Review

Free Trade in Ideas Is (or Ought to Be) Absolute for Adults

Article excerpt

Free trade in ideas is tough medicine. It includes all sorts of things that we would rather not hear. In fact, it is typically only relevant when the government seeks to punish unusually bad speech. Let us examine why that is. No government would ever punish what it considers good speech. The most virulent dictatorship imaginable would not punish a speaker that says: "My government and its leaders are wonderful." Neither would it punish neutral speech such as "blue is prettier than red." The most dictatorial governments, however, would punish what it considers bad speech, e.g., "our president is doing a bad job and should be thrown out of office." But no country that purports to call itself a democracy would even consider punishment for such speech.

The only time it is necessary to add free speech principles to general democratic principles is when the speech is very bad. Hate speech is certainly an example. Not uncommonly, when a speaker spews hatred, some contend that he is abusing speech and that his free speech rights should not be protected. The irony of this contention should be apparent. The only time that free speech, as a separate principle from democracy, may be needed to protect the speech is when many will say: "This is an abuse of free speech and should not be protected at all."

Candidly, it is counterintuitive to protect very bad speech. If within the democratic process, society thinks that the idea is so bad that we would be better off without it, why do we tolerate it? I think that the core principle is our lack of trust in government to separate good ideas from bad ideas for us. That is, just as we do not allow government to decide religious truth for us, we do not allow it to decide any form of philosophic truth. Instead, we leave the search for philosophic truth in the realm of individual decision making. This concept is encapsulated in such well-known Supreme Court utterances as: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,"1 or just simply: "There is no such thing as a false idea."2 First, this Article will briefly show the costs of tolerating bad speech, but it will also show why society should bear this cost and why other models of speech regulation fall short. Second, it will address obscenity regulation and demonstrate that the Supreme Court has created a philosophically flawed exception to its First Amendment jurisprudence. Finally, this Article will address the effects of obscenity and how it intersects with children's rights and the need to protect minors against obscenity.


Let us examine some of the costs of this approach. First, it means that we all have to tolerate speech that many of us find intolerable. I, for example, as a citizen of German/Jewish ancestry have to tolerate Nazi marches in Skokie, Illinois, a suburb of Chicago, which is populated by a substantial number of Holocaust survivors.3 Many of us have to feel "awful" and "terrible" that people like Barry Black and his friends are saying bad things about African-Americans at a Klan meeting.4 Similarly, we can do nothing to prevent women from being portrayed as enjoying humiliation and hurt.5

An important corollary to this principle is that any harm that comes from the expression of a hateful idea cannot count as harm for constitutional purposes. As the Court put it: "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."6 So, the fact that speech frightens or angers people is a reason for its very existence, not a harm that can be weighed against the value of speech.

Yet Professor Kende argues that hate speech should be treated as lower value speech than commercial speech because it has a greater capacity for harm. …

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