Content area
Full Text
I. Introduction
Free speech has historically been viewed as a special and preferred democratic value in the United States, by the public as well as by the legislatures and courts. In 1937, Justice Benjamin Cardozo wrote in Palko v. Connecticut that protection of speech is a "fundamental" liberty due to America's history, political and legal, and he recognized its importance, saying, "[F]reedom of thought and speech" is "the matrix, the indispensable condition, of nearly every other form of freedom." It is likely notable that in the Bill of Rights free speech is protected in the First Amendment rather than later.
Although the terms 'free speech' and 'freedom of expression' may be used differently, I will use them synonymously in this essay. Thus, 'free speech' will be taken to cover not only the spoken word, but also the written word as well as conduct conveying a message and expression through symbols, demonstrations, and so on.
A difficult legal, moral, and public policy problem is determining how to protect freedom of speech vigorously while also recognizing a community's concern to maintain a type of environment that its members can tolerate. Speech or conduct that is offensive, and even outrageously so, is usually still worthy of protection under the First Amendment. There is no easy answer to the question about how to deal with expression that causes great pain and is possibly even dangerous because it is degrading, or racist, or anti-Semitic, or sexist, or homophobic, or pornographic, or in other ways offensive. A review of the major philosophical justifications for freedom of expression, and many of the arguments in U.S. Supreme Court cases on offensive expression over the past thirty years, can help assess ways to confront difficult decisions concerning offensive speech. In this essay, I shall narrow my focus: I shall not address racist, homophobic, or other expression called 'hate speech', but shall focus instead on material that is 'sexually offensive', that is, material that is erotic or sexually explicit but that does not meet the definition of obscene.
II. Philosophical Arguments Defending Maximal Free Speech
Despite language about free speech as a right, and its articulation in the Bill of Rights, the most common defenses of free speech are consequentialist, citing the good effects of...