John M. Kang (University of New Mexico – School of Law) has posted First Amendment Fetishism (Utah Law Review, Vol. 2024, No. 3, 2024) (54 pages) on SSRN. Here is the abstract:
The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:
• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium
• a White skinhead’s cross burning on the front lawn of a Black family’s house
• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain that he would cause Americans across political persuasions
• the commercial trafficking of videos that gleefully depict pit bulls who are fighting each other to death as they were trained by their malevolent owners to do
In protecting such remarkably offensive speech, the Court has failed to take seriously the claims of the community in wanting to regulate speech which is violative of the community’s desire to create a public culture of civility, dignity, and mutual respect.
Going against the grain of scholarship which has celebrated the victories of the individual speaker against his community, this Article argues that the community’s right to regulate speech should be afforded far more deference by courts than the right has previously received. There has been a surfeit of theorization relating to why we need a right of speech. But there has been a dearth of such theorization for why the right of speech should be restricted in order to realize the collective aspirations of the community. The Article aspires to fill that gap. Specifically, the Article draws upon the insights afforded by originalism to fashion a jurisprudence that emphasizes the rights of the community to regulate extremely offensive speech.
Via Larry Solum at Legal Theory Blog, who says "Recommended" but has some skeptical methodological thoughts. I too am puzzled by what it means (as the abstract says) to "draw[ ] upon the insights afforded by originalism" as opposed to just doing originalism.
But I also think originalists need to take the project seriously. Modern free speech doctrine is likely far afield from the original meaning in a number of respects, including in the area Professor Kang identifies.
Posted at 6:21 AM