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Why Offensive Speech Is Valuable

March 23, 2015 in Economics

By Trevor Burrus

Trevor Burrus

In the wake of a University of Oklahoma fraternity caught on camera singing an abhorrent song about African Americans, a predictable assortment of critics of free speech have argued that the First Amendment should not protect offensive and racist speech. They are wrong. Offensive speech should not only be protected by the First Amendment, it should be seen as a valuable part of a free society.

In the Atlantic, Boston College law professor Kent Greenfield offered a typical argument against protecting offensive speech: “If the First Amendment has become so bloated, so ham-fisted, that it cannot distinguish between such filth and earnest public debate about race, then it is time we rethink what it means.”

Greenfield disagrees with what he considers the main argument for protecting offensive speech: the problem of demarcation and the slippery slope. That is, “we cannot trust the government to make choices about content on our behalf,” and thus prohibiting offensive speech will lead “down the slippery slope to tyranny.”

That’s one argument against giving government the power to censor, but it is not the only one. It is difficult to define offensive speech, true, but this argument seems to imply that if such a line could be drawn then banning offensive speech would be okay.

Even if offensive speech could be easily defined, it should not be prohibited. In an ideal world, offensive speech would roam freely.

Coincidentally, today the Supreme Court is hearing oral arguments in a case about whether the government can prohibit speech on the theory that it “might be offensive to any member of the public.” That case concerns an application for a personalized license plate by the Texas Sons of Confederate Veterans. The proposed plate design would have included a Confederate flag. The Texas Department of Motor Vehicles Board voted not to issue the plate.

Just like drug laws, driving hate speech underground will do little to eliminate the habit, and could make the situation worse.”

The Court will first have to decide whether a license plate is government or private speech. In an amicus brief I co-authored in support of the Texas Sons of Confederate Veterans—joined by humorist P.J. O’Rourke, Martin Garbus (one of comedian Lenny Bruce’s lawyers), the Comic Book Legal Defense Fund, and prominent First Amendment scholars—we argue that, if a license plate is private speech, then the government should not be allowed to prohibit a design based on …read more

Source: OP-EDS

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