In Praise of Hostility: Antiauthoritarianism as Free Speech Principle

By Kang, John M. | Harvard Journal of Law & Public Policy, Winter 2012 | Go to article overview

In Praise of Hostility: Antiauthoritarianism as Free Speech Principle


Kang, John M., Harvard Journal of Law & Public Policy


   I. CIVILITY MATTERS
  II. THE UNPERSUASIVE RATIONALE IN
      HUSTLER MAGAZINE V. FALWELL
 III. ANTIAUTHORITARIANISM DEFINED
  IV. THE HAZARDS OF DISRESPECTING
      THE MONARCH
   V. AUTHORITARIANISM'S SOLEMN
      EXPECTATIONS
  VI. THE EMERGENCE OF THE
      ANTIAUTHORITARIAN CONSTITUTION
      A. Popular Sovereignty in
         the Constitution
      B. Skepticism Regarding Leaders
 VII. ANTIAUTHORITARIANISM IN
      PUBLIC DISCOURSE
      A. The Declaration of Independence
      B. Paine's Common Sense
      C. A Parade of Upward Contempt
VIII. DEVELOPING AN ADJUDICATIVE
      PRINCIPLE
      A. Those Circumstances Where
         Antiauthoritarianism Would
         Justify Speech
         1. Subversive Speech
         2. Profane Political Speech
      B. When Antiauthoritarian Speech
         Would be Prohibited in the
         Name of Authoritarianism
      C. Uncertain Situations: Grade,
         Middle, and High Schools
IX. DEAR MR. BURNS, GET LOST!

Kudos.

Eight years after graduating as valedictorian of your law school, and having toiled as editor-in-chief of the law review, you have finally made it Big. A familiar name in The New York Times, you have helped establish a string of major precedents by winning one federal appeal after another for your venerable white shoe law firm, and for your fabulous accomplishments, the firm has made you the youngest partner in its one-hundred-year history. But complacent gratification was never your style. Eager to embrace challenges, you left the firm to work as a law professor and, within ten years, became an eminent constitutional law scholar at a name-brand school on the East Coast. Now, twenty-five years after graduating from law school, you find yourself in the most enviable position in the legal profession: Chief Justice of the United States.

You look outside the windows in your corner office at the Supreme Court onto a sparkling spring afternoon in Washington, D.C., resplendent with cherry blossoms. You feel blessed, and without being smug, you marvel at your status as the most prominent judge in America; your every word recorded for posterity and studied by legions of law students, professors, lawyers, and judges.

Your moment of serene reflection is about to be interrupted, however. Your secretary, with manifest dismay, quietly knocks on your door. She says, "Chief Justice, there's something that you should see, if you haven't already." She hands you a copy of Hustler magazine, a magazine so smutty that purveyors of Playboy and Penthouse would have primly, and at least publicly, abjured subscribing to it. (1) "Look at page 15," your secretary dolefully instructs you. You nervously thumb through the magazine's pages of filth and flesh, and on page 15, you see an ad parody featuring you--or, rather, a fictitious "you" that has been brazenly concocted by Hustler's editors--casually recounting with bemused satisfaction your first time having sex. In the parody, "you" tell the interviewer that your first time took place in an outhouse ... while you were drunk ... with your mother. (2)

Two minutes after reading the Hustler parody, you are mortified to realize the inevitable: numerous people at the Supreme Court building--your colleagues, the staff, and, perhaps worst of all, the nameless throng of visitors from mannerly provincial locales like Bowling Green, Kentucky, who populate the audience during oral arguments--have no doubt seen this parody. You soon discover from your distraught clerks that the parody has gone viral in cyberspace, and it is relentlessly surfacing on countless websites. Your friends, everyone from appellate court judges to your high school prom date, have emailed you, shocked and empathetic. You hear snickering from some teenage students, impudently attired in backwards baseball caps, who are touring the Court building as you walk past them in the hall. And, after a day consumed by silent angst, your eighty-one-year-old mother has called you from her home in a suburb of Milwaukee, her voice choked by sobs of torment. …

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