Journal of Free Speech Law: “The Unfortunate Consequences of a Misguided Free Speech Principle,” by Robert Post
The article is here; the Introduction:
There is growing pessimism about the future of free speech in the United States. Crusaders from all sides of the political spectrum seem intent on suppressing objectionable discussion. The worry is that Americans may be losing their appetite for candid and constructive dialogue. It has become too costly to participate in public discourse. We fear that incorrect speech will be canceled by the left or bullied by the right.
This is surely a troubling state of affairs. But it can be cured only if we first correctly diagnose its causes. There is a widespread tendency to conceptualize the problem as one of free speech. We imagine that the crisis would be resolved if only we could speak more freely. But this diagnosis puts the cart before the horse. The difficulty we now face is not one of free speech, but of politics. Our capacity to speak has been disrupted because our politics has become diseased. We misconceive the problem because American culture is obsessed with what has become known as the free speech principle. It is a principle that is widely misunderstood. Our misconceptions are as deep and as they are consequential.
I shall take as my text a representative and much-discussed 2022 opinion piece by the editorial board of The New York Times entitled “America Has a Free Speech Problem.” In its first sentence, the editorial warned that Americans “are losing hold” of the “fundamental right” to “speak their minds and voice their opinions in public without fear of being shamed or shunned.” The editorial did not fo
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