Brad Littlejohn: A case for limiting speech

NICK EICHER, HOST: Today is Wednesday, January 15th. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Nick Eicher.

LINDSAY MAST, HOST: And I’m Lindsay Mast. Up next, WORLD Opinions contributor Brad Littlejohn wonders about limits to free speech.

BRAD LITTLEJOHN, COMMENTATOR: Today, the Supreme Court will hear arguments in the case Free Speech Coalition v. Paxton. 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 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 Court is Exhibit A of why and where we must be prepared to draw some lines in the sand.

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 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 in 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 the English common law which was taken up into American law, and which 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. An adult entertainer can now claim First Amendment rights for “self-expression.” With the line between speech and action so far blurred, we might ask why outright prostitution is still illegal—why can’t they 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. So, for instance, in the present case, 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. 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?

I’m Brad Littlejohn.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.