Fenster writes:

It is a good thing we have free speech embedded in the Constitution since it is damn near impossible to amend the thing. Further, hypocrisy being the tribute vice pays to virtue, there is as of yet no real support to get rid of the idea, as there is with the Second Amendment. Even those who oppose free speech . . . er . . . support it.

In some ways it is better to force fights to the surface. We all know what we are talking about when it is matter of eliminating the right to own a gun. The problem with fights imbued with excess hypocrisy is that evasion and subterfuge make it harder to allow for necessary conflict between the real issues at stake.

But for now we will have “free speech”. But will we have “free speech” without the scare quotes? Will we have, if you will, free speech? That is not so clear.

I have argued often here that since I don’t believe in absolutes I am not a free speech absolutist. No idea occupies Platonic space since the that space does not exist. But I am as close to absolutism on this issue as pragmatism allows. I recognize that speech cannot be, in the words of Frank Zappa, absolutely free.

Prevailing interpretation of the First Amendment allows for very robust speech. That’s a good thing. But of course there a limits and caveats. Mostly this means that the categories of speech that are in the domain of the Amendment do not enjoy protection in the utterance of “fighting words”, narrowly understood to mean just what those two words suggest.

Beyond interpretation of intent, I will also acknowledge that free speech under real not simulated conditions may not have its much vaunted cleansing efffect if it is allowed to roam too freely under conditions of chaos, or intense factional disagreement. Free speech is alleged to help work through disagreements. Most of the time yes. Sometimes no.

Factional disagreement may get so hot that it will be tough to manage even with a fighting words doctrine. But things get even more complicated when a great many of those subject to the Amendment’s reach simply do not agree with the current interpretation, or when cultural differences result in too little consensus on what is reasonable and what not.

If reasonable men cannot agree on what “reasonbleness” means, reasonably speaking, then the “reasonable man” function, central to the law’s operations, will short-circuit. Or worse, get hacked. All the more reason to support an order that encourages free speech to flourish, and to be mindful that culture matters.

There are of course no fixed boundaries where interpetation is concerned, and whether the Court will remain a firm supporter of the current view is uncertain.

For one, someone has to sue, the Court has to take the case and then resolve it in a way the makes things at least temporarily clearer going foward, until the next case bollixes everything up again.

In the meantime, meaning right now, there are a lot of things happening–actual actions by people and institutions– that appear at odds with the Constitution. They are free to continue unless the Court makes it clear they cannot. At present: come and get me copper!

When and if a nice, ripe case makes its way to the Court how will the Court handle it? The law is often rightly accused of relating itself too directly to public opinion — but what is public opinion on this issue at present? Where is the deep shift that might prompt a Justice to take account of it, and to treat it as a troublesome yet worthy consideration in a Constitutional review?

No, if rollbacks gain traction it won’t be on the basis of clearly evolving standards, as was the case with certain matters involving race and sex. The pressure will come from the assertion of one faction about the need for another faction to shape up. In this case that means that well before we get to a court of law the leading institutions will articulate new standards as a fact, well before any cultural consensus will have taken shape on its own. This is what we call leadership.

These new standards will suddenly show up everywhere. This will be described as evidence, of course–evidence of the deep cultural consensus the new standards reflect. Effect before cause, probably–but we will get there in due time.

So the next time “fighting words” comes up at the Supeme Court we will have legal briefs asserting words are a form of violence. Scholars like George Lakoff will present the science backing up the notion that actual harm can be caused by an offensive comment.

It will be argued that “fighting words” must be adapted for our new 21st century scientific understandings of vioence and harm, and that if, Your Honor, you do not find the science argument persuasive we have a whole stack of justifications in here in this briefcase.

And then we will have the commentariat, too, free of the need to cloak their views in legalese, and taking the issue into the political square. Ta-Nehisi Coates will assert that that only a white man could imagine words cannot do harm. He will be lionized for his bravery.

Those things will come in time. Now, the battlefield must be prepared.

A lot has changed since January 6. I’m not a conspiracy addict but I must say it is as though someone flipped a switch on that date.

On this issue, as on many others it seems, there is before January 6 and after January 6.

Take Inside Higher Education. It is the accessible, shorter-form and digital counterpart to The Chronicle of Higher Education.

A brief journey through the archives since 2005 reveals pretty much what you’d expect. Free speech is generally the good guy, sometime sharing the stage with a worthy challenger but always with its eloquent defenders.

But now comes the post-January 6 world, where everything is fraught. It’s fraught I tell you! Fraught! The lead article in the current Inside Higher Ed even puts it just that way: handing free speech is A Fraught Balancing Act.

You remember balancing acts, right? They are often used in formal legal review, with the Justices balancing one set of arguments against another, often rendering their opinion on the basis of a balance test analysis.

Yet the Supreme Court’s current views on free speech already incorporate balance. The result is what is called the law, which is supposed to be obeyed, not made subject to another amateur hour balancing test at Bennington College.

But let us not question the folk process. All the right folk are in favor of change and we little folk will be expected to dance to the music by-and-by. Take that balancing act, prole!

Here is the opening to the article. Keep in mind this is not in the journal’s opinion section but appears to be news.

In the aftermath of the attacks on the United States Capitol by supporters of President Trump, college leaders are being asked to confront dangerous and offensive speech by students and faculty and staff members that promote false claims about the 2020 election and support the violence that occurred last week as a result of the spread of such claims.

The calls for administrators to rid their colleges of those who hold such views, and to examine how their institutions combat misinformation, is often complicated by First Amendment protections. Colleges and universities, after all, are meant to be forums for students to voice, debate and defend arguments founded in truth, experts on political expression said.

I submit you would not have found the blithe but dangerous assumptions on display here in an article at ICE from ten years ago, and probably not even in an article a few months ago. The new baseline assumptions embedded in this article are breathtaking in scope and sudden in appearance.

I am not going to parse the assumptions in those short paragraphs. The paradigm shift ought to be blazingly apparent.

I think it all reprehensible. But there it is, in all the innocence of its infancy. The New Mandatory Consensus.

In the moment so pure and tender. The rhetoric so caring and deep. But the dang thing cries a lot, and I worry that as they gets older the crying will continue, in deeper registers.