Pun Salad

It’s common, in free-speech debates, to find people arguing that America must balance free speech and safety, or free speech and the right to be free of abuse. A related rhetorical trope is “line drawing”: the idea that we must draw lines between free speech and abusive speech.

In point of fact, however, American courts don’t balance the benefits and harms of speech to decide whether it is protected—they look to whether that speech falls into the First Amendment exceptions noted above. As the Supreme Court recently explained, the “First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

A related trope is “This isn’t free speech; it’s [x],” where x is bullying, or abuse, or some other social evil. But many social evils are protected by the First Amendment. “This isn’t free speech; it’s [x]” is empty rhetoric unless x is one of the established First Amendment exceptions.

But what exactly are the Democratic presidential candidates proposing as an alternative? Their policies — as opposed to their words — don’t seem all that different. In fact, some of the Democratic plans may be even more restrictive.

For example, many experts believe that the best way to restrain China would be to join with our regional allies in some sort of block, similar to the Trans-Pacific Partnership (TPP). And there is reason to believe that our allies would be happy to have us join the pact. But with the exception of extreme long-shot Representative John Delaney, every major Democratic candidate either joins Trump in opposing the TPP or is highly critical of the current negotiation. Even former vice president Joe Biden won’t commit to the treaty his administration negotiated.

Protectionists often describe reciprocity as if it were a cover charge for admission to American markets, but that gets the issue exactly backward: The question isn’t whether Washington may properly interfere with foreign sellers but whether it ought to interfere with American buyers. The case for allowing Senator Sanders to interpose his political interests between buyers and sellers is non-obvious, on either moral or economic grounds. It takes a special kind of stupid to believe that a voluntary exchange — willing seller, willing buyer — is transmuted into a form of hideous predation simply because some of the parties to the transaction may hold different passports. To accept the premise that a voluntary exchange — which by definition is held to be beneficial by all involved parties — becomes a matter for federal police powers when the magical phrase “national interest” is uttered is to reject the intellectual basis of free enterprise per se and to accept in its place the operating assumptions of managerial progressivism: that you are to be permitted as much liberty as the bosses think useful.

Minnesota also suggests that a lesser form of scrutiny is appropriate because the Larsens can say that they disapprove of same-sex marriage in some other way. But just like New Hampshire could not "require [drivers] to display the state motto" Live Free or Die on their license plates, even if they could disavow the motto through "a conspicuous bumper sticker," so too would a disclaimer here be inadequate. The reason is that the constitutional "protection of a speaker's freedom would be empty" if "the government could require speakers to affirm in one breath that which they deny in the next." …

The compelled speech concept is the same reason that people are not forced to say the pledge of allegiance if they don’t want to. Or in New Hampshire, people have the right to not have a license plate that states “live free or die.” But statues and memorials may be a bit different. McKenna notes that the Supreme Court has upheld in the past that permanent memorials are government speech and cannot be associated with compelled speech.

“Let’s say that you are really a big believer in dictatorship and autocracy and you really resent the Statue of Liberty in New York because it’s all about that terrible idea of freedom and liberty, so by gosh, you want to have a giant statue erected as a monument of autocracy and dictatorship. And if you don’t get to do that you would argue that your First Amendment rights are being violated.

“Well, that case would go nowhere, because the Supreme Court has held that an individual’s free speech rights, or even a group’s free speech rights, are not violated when a government refuses to put up a statue in a public place.”