Source: theatlantic.com

America is awash in ugly, hateful speech. White nationalists march defiantly, and their slogans are echoed in murderous rampages. Government officials revel in disparaging the very people they patrol. Many people—and I’m one of them—argue that the president’s rhetoric encourages this grotesque and shameful state of affairs even as he nominally condemns it. This has all led to more discussion about free speech and its limits.

What speech should be protected by the First Amendment is open to debate. Americans can, and should, argue about what the law ought to be. That’s what free people do. But while we’re all entitled to our own opinions, we’re not entitled to our own facts, even in 2019. In fact, the First Amendment is broad, robust, aggressively and consistently protected by the Supreme Court, and not subject to the many exceptions and qualifications that commentators seek to graft upon it. The majority of contemptible, bigoted speech is protected.    

If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment. Those tired tropes are barriers to serious discussions about free speech. Any useful discussion of what the law should be must be informed by an accurate view of what the law is.

Lee C. Bollinger: Free speech on campus is doing just fine, thank you 

I’ve been trying for years to point out these tropes, with mixed success. Because hope prevails over experience, I’m trying again. Here are some misstatements, misconceptions, and bad arguments about the First Amendment you will encounter regularly in American media. Watch for them, and recognize how they distort the debate over speech.

“Not all speech is protected; there are exceptions to the First Amendment.”

It’s true that the First Amendment has exceptions and doesn’t protect all speech. That’s an apt rebuttal if someone says “All speech is protected by the First Amendment.” But it’s not helpful in deciding whether particular speech is outside of First Amendment protection.

First Amendment exceptions are few and well established. In a 2010 case about videos depicting animal cruelty, the United States Supreme Court reaffirmed the “historic and traditional categories long familiar to the bar” of speech outside First Amendment protection, including obscenity, defamation, fraud, and incitement. Each of those categories, in turn, is narrowly and carefully defined through half a century of precedent.

Garrett Epps: John Roberts strikes a blow against free speech 

In that same 2010 case, the Court unambiguously refused to create new exceptions on demand. “Our decisions in [a child pornography case] and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.”  

That’s why “The First Amendment is not absolute” is usually empty rhetoric, and not a helpful response to the question “Can the government punish thisspeech?”  The relevant question is “Does this speech fall into an established exception to the First Amendment, and if not, what does that mean?”

If I’m bitten by a snake on a hike and seek medical attention, and ask the doctor if the snake is venomous, I’m not looking for the doctor to assure me that “not all snakes are venomous.” I want the doctor to use her medical expertise to analyze whether the snake that bit me is venomous.    

“This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.”

This line, though ubiquitous, is just another way to convey that “not all speech is protected by the First Amendment.” As an argument, it is just as useless.  

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