Truth or Consequences: Putting Limits on Limits

Originally published in the January–February 1994 Academe as the third article in a series on "Academic Freedom and the Future of the University."

It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them. 
—Mark Twain

These are challenging times for First Amendment sentimentalists. After decades in which the limits of expression were steadily pushed back, the pendulum, to switch metaphors, is beginning to swing the other way. Legal scholars on the left are busily proposing tort approaches toward hate speech. Senator Jesse Helms attaches a rider to a bill funding the National Endowment for the Arts that would prevent it from supporting offensive art—the terms of offense being largely imported from a Wisconsin hate speech ordinance. What Robin West calls the feminist–conservative alliance has made significant inroads in municipalities across the country, while the Canadian Supreme Court has promulgated Catherine MacKinnon's approach toward pornography as law of the land. And the currently fashionable communitarian movement has given the impression that it believes that excessive deference has been given to the creed of free speech. In short, over the past few years, a new suppressionist alliance seemed to betoken the declining significance of liberalism.

First Amendment absolutism has never entailed absolute devotion to free expression; the question has always been where to draw the line. The salient exceptions to First Amendment protection do, however, all involve the concrete prospect of significant—and involuntary—exposure to harm. For example: speech posing imminent and irreparable threat to public order or the nation; libel and the invasion of privacy, and the regulated domain of "commercial speech," encompassing, for instance, "blue sky” laws governing truth in advertising. (Obscenity is the notable deviation from this norm.) I like to describe myself as a First Amendment sentimentalist, because I believe that the First Amendment should be given a generous benefit of the doubt in contested cases; but I also know that there are no absolutes in our fallen state.

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