Introduction

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.”[1]

Freedom of speech is a fundamental aspect of American society and an important classical liberal ideal, but it is a right which is not always convenient, convivial, or comity-inducing. In fact, allowing the full flourishing of the freedom of expression and speech often includes permitting speech that much of society will find despicable, evil, offensive, or harmful. Unfortunately, there is a strong cultural – and outside of the United States, legal – movement to restrict speech freedoms and police the public discourse, sometimes with actual police officers.[2] This trend is only accelerating with the mass adoption of social media and Internet communications more broadly, as well as the perpetually searchable online past of nearly everyone in society. So-called ‘cancel culture’ is commonplace in certain circles of political and social activism, and virtually every potentially controversial opinion (and many that are not) is met with the metaphorical gnashing of teeth and rending of garments.[3] There are increasing levels of pushback against this trend, but the idea of ‘de-platforming’, stifling, or censoring speech which the vast majority of society considers beyond the pale – support for terrorism and blatant white supremacy, to give two examples – is quite popular, especially among younger people. According to a poll conducted by the Campaign for Free Speech, “61 percent of Americans agree that free speech should be restricted, and 51 percent believe that the First Amendment, ratified in 1791, should be rewritten to reflect the new cultural norms of today. Millennials feel a greater sense of negativity from free speech, with 57 percent agreeing that the First Amendment should be rewritten, and 54 percent believing that possible jail time would be an appropriate consequence for ‘hate speech.’”[4] Despite the strong American constitutional protections for free speech, as seen in the First Amendment quoted above, without a strong cultural presumption and acceptance of the values around free speech, the right itself can be chipped away.