Can there be too much free speech?

Today, the Supreme Court will hear arguments in the Free Speech Coalition v. Paxton case. Without any idea who the parties are, many Americans would probably reflexively side with the Free Speech Coalition. After all, isn’t free speech what we are all about as Americans?

If told, however, that in this case, the plaintiffs are a lobbying group representing hardcore pornography websites known to profit from child sex trafficking and rape, we might rethink our reflexive sympathies. Can there be such a thing as too much free speech protection?

In recent years, many Christian conservatives would have been tempted to answer “no,” seeing censorship as a major threat to our freedom to argue our viewpoints and practice our beliefs. And yet, as George Will once famously said, “The most important four words in politics are ‘up to a point.’” Even free speech, it turns out, can be taken too far, and the current case before the high court is Exhibit A of why and where we must be prepared to draw some lines in the sand.

Let’s first consider why we generally think it’s important to protect free speech. After all, we don’t give the same carte blanche to other actions. If Luigi Mangione had merely published a manifesto on why healthcare CEOs were as good as murderers and would be better off dead, we would have been justly appalled, but he would not be tried for murder.

We distinguish between the indirect harm that words can do and the very direct harm that other bodily actions can inflict. Moreover, because words are used to make public truth claims, we see a value in permitting even speech that we consider reprehensible because it can at least spur a fruitful public debate that will enable truth to shine more brightly.

Thus, the form of speech that most deserves protection is political speech, speech in which we as citizens offer a substantive viewpoint on what our society ought to do or how our rulers ought to govern. Indeed, this is what our founders seemed chiefly to have in mind with the First Amendment: “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Not only does the text situate free speech within the context of a political petition, but note the crucial article “the freedom of speech.” What does that article mean?

It tells us that the founders were not making a sweeping philosophical declaration out of thin air but were seeking to ensure that our Constitution maintained an already-understood sphere of freedom, an existing body of legal rights around speech. This body was found in English common law, which was taken up into American law, but it was always recognized that there were some kinds of speech—obscenity, incitement, sedition, or libel—that did not enjoy automatic protection.

In recent decades, our courts have dramatically broadened “free speech” protections. We have ceased to worry about whether the speech was contributing to public debate or even whether it was making truth claims at all. “Speech” was expanded to include all forms of “expression,” including images or performances. A nude dancer at a strip club can now claim First Amendment rights for her “self-expression.” With the line between speech and action blurred, we might ask why outright prostitution is still illegal—why can’t sex workers be free to “express themselves”?

At the same time, in keeping with a general cultural trend to treat any inconvenience as an oppressive burden, plaintiffs have routinely succeeded in arguing that any regulations that might make speech even just a bit more difficult are a “restriction” on speech. For instance, in the case going before the court today, the requirement that adults undergo anonymous age verification before accessing hardcore pornography, we are told, “burdens adults’ access to protected speech” and is therefore unconstitutional.

The great irony is that this grave constitutional concern about “burdening access” has emerged at exactly the same time that it is easier to access pornography—and indeed, all kinds of offensive speech—than ever before. As recently as three decades ago, one often had to go to considerable effort to access pornography. Today, it takes at least as much effort to avoid encountering it.

The founders imagined a world where, even when offensive or immoral speech was permitted, you could always avoid it by staying home. Today, it invades the home through a dozen digital portals so that parents are reduced to playing whack-a-mole in a futile effort to protect their children from the most obscene content imaginable.

Who exactly is being “burdened” in this scenario? Pornographers, or the most vulnerable amongst us?