IN SEARCH OF A CONFINABLE PRINCIPLE
So far I have considered the possible direct costs of hate speech and pornography bans. I now turn to a potentially significant indirect cost of modifying current doctrine to permit such bans--a general weakening of the constitutional protection afforded debate on matters of public issues. Even radical critics do not favor totally abandoning judicially enforceable First Amendment limitations on governmental regulation of expression. Rather, they urge that free speech doctrine be modified to accommodate hate speech and pornography bans. But such proposed modification presents the difficulty of finding a principle that permits the suppression of hate speech and pornography but at the same time protects expression that must be allowed in a democracy--or, to personalize the inquiry somewhat, still protects speech that radicals like.
Of course, there is always the possibility of adopting an ad hoc, unprincipled rationale for suppressing hate speech and pornography, some much- hedged "exception" that has the appearance of principle but that does not bear up to analysis. An example of such an unprincipled approach is Chief Justice Rehnquist's dissent in the flag-burning case calling for an exception to the principle that government may not forbid offensive words or symbols used in public discourse.1 To be sure, unprincipled decisions by the Supreme Court are not unheard of. But each unprincipled decision undermines respect for the Court and hence the popular acceptance of judicially enforceable constitutional limitations. It is especially important that free speech decisions be principled, lest free speech doctrine degenerate, as some radical critics wrongly allege it already has, into a crudely political exercise in which free speech protection is bestowed only on those speakers whose views advance the "substantive agendas" the justices favor.2