The Volokh Conspiracy - Oh What a Horribly Speech-Restrictive Jurisprudence We Now Have:

A commentator on the criminal harassment thread writes something that I've often heard from others as well:

Blah blah blah. In a word in which campus speech codes and 'hate speech' are widely accepted jurisprudence, who cares? Freedom of Speech as you want to define it hasn't existed for decades.

Before we say that free speech talk is pointless because free speech law is so badly busted, let's make sure that we accurately describe current "jurisprudence":

1. There is no "hate speech" exception to the First Amendment. Some people have argued for such an exception, but it has not been accepted by the courts.

2. Campus speech codes (which generally means codes restricting university student speech) have been struck down by every court that has considered them, and there have been several. I agree that where they exist they can still have an improper deterrent effect, even if they're almost never enforced, and routinely struck down. But "widely accepted jurisprudence" treats them as unconstitutional. That's pretty much the best the courts can do now, given our current sensible standing rules that don't allow courts to strike down a speech code until a proper lawsuit is brought to throw it out.

3. I do think that hostile environment harassment law poses serious First Amendment problems. I think I've written more about this subject than anyone else. But for all its flaws, the jurisprudence in this area neither endorses campus speech codes nor a broad "hate speech" exception.

4. The phrase "Freedom of Speech as you want to define it" -- which I take it means broad free speech protection -- "hasn't existed for decades" suggests that there once were the Good Old Days of free speech, and now they're gone. But that's just not so. Speech today is probably on balance as broadly protected in the U.S. as ever, and more so than at nearly other time in the past. I've discussed this before as to speech on campus, but it's also true as to other kinds of speech. (For instance, I agree that limits on corporate speech around elections should be unconstitutional, and that cases upholding them are mistaken. But such limits have been around in one form or another since the early 1900s.)

So it's certainly perfectly proper to condemn speech restrictions that one sees as unconstitutional, or constitutional doctrines that one sees as unsound. But let's not despair of free speech protection based on an unsound description of what speech is actually protected by current legal rules.

	[Eugene Volokh, October 14, 2008 at 6:44pm] Trackbacks Oh What a Horribly Speech-Restrictive Jurisprudence We Now Have: A commentator on the criminal harassment thread writes something that I've often heard from others as well: Blah blah blah. In a word in which campus speech codes and 'hate speech' are widely accepted jurisprudence, who cares? Freedom of Speech as you want to define it hasn't existed for decades. Before we say that free speech talk is pointless because free speech law is so badly busted, let's make sure that we accurately describe current "jurisprudence": 1. There is no "hate speech" exception to the First Amendment. Some people have argued for such an exception, but it has not been accepted by the courts. 2. Campus speech codes (which generally means codes restricting university student speech) have been struck down by every court that has considered them, and there have been several. I agree that where they exist they can still have an improper deterrent effect, even if they're almost never enforced, and routinely struck down. But "widely accepted jurisprudence" treats them as unconstitutional. That's pretty much the best the courts can do now, given our current sensible standing rules that don't allow courts to strike down a speech code until a proper lawsuit is brought to throw it out. 3. I do think that hostile environment harassment law poses serious First Amendment problems. I think I've written more about this subject than anyone else. But for all its flaws, the jurisprudence in this area neither endorses campus speech codes nor a broad "hate speech" exception. 4. The phrase "Freedom of Speech as you want to define it" -- which I take it means broad free speech protection -- "hasn't existed for decades" suggests that there once were the Good Old Days of free speech, and now they're gone. But that's just not so. Speech today is probably on balance as broadly protected in the U.S. as ever, and more so than at nearly other time in the past. I've discussed this before as to speech on campus, but it's also true as to other kinds of speech. (For instance, I agree that limits on corporate speech around elections should be unconstitutional, and that cases upholding them are mistaken. But such limits have been around in one form or another since the early 1900s.) So it's certainly perfectly proper to condemn speech restrictions that one sees as unconstitutional, or constitutional doctrines that one sees as unsound. But let's not despair of free speech protection based on an unsound description of what speech is actually protected by current legal rules.