Freedom of Speech

Sobre este curso

welcome to this year's Tamil lectures before we actually begin can I just make the usual important housekeeping announcement please switch off your

phones with the word off their meaning off rather than silent because the the lecture is recorded as always and there is always the risk that simply the phone trying to pick up the signal even if

it's silent will suddenly blast out on the recording so the Tamil lectures were founded 40 years ago in 1978 the trust deed for the Tamil lectures were signed in Clare Hall Clare Hall is in many ways

the father of the Tanners lake tana lectures the true father of course is the man who made them possible Oh Burt Tanner founder of the Tanner corporation which still funds these lectures it

funds lectures in nine major universities seven in the US and two in the UK Oxford and Cambridge if you look at the Tanner lectures website on Wikipedia it will say what does say like

being invited to give the Tanner lecture is basically a sign that you're at the top of the tree the Tanner lecturers are the top of the tree in thinking about human values so we are both for the

origins but also continuously in the debt of the Tanner corporation of Salt Lake City for funding these lectures around the United States from the UK funding them generously so that we can

get the top rate speakers and in our case respondents that we want now today's speaker is Lee Bollinger Lee started out life just as a law student as many of us did he then became after

time the law clerk to Chief Justice Warren burger chief justice an American Supreme Court he became professor at Michigan Dean of the Michigan law school president of

Michigan law about Michigan University 1996 and has been president of Columbia University since 2002 I would call soon to blush by saying he is possibly the most successful president in the United

States but I will not cause him to blush by saying he is probably the most long-serving president in the United States so let's leave it at that as well we have two of

our commentators here professor ray Langston who is home from Newnham College the Knightsbridge professor I've got that professor John Powell who arrived at about 3:30 this afternoon

from Berkeley so thank you both very much for coming they will be giving comments on the lecture tomorrow and we also have a third commentator who will appear over the cyber waves in front of

us all Fred shower from Virginia and Harvard who is teaching a class at this very moment worked out he couldn't in fact arrive in Cambridge in time to both to see the lecture and to do the

response to it tomorrow but he will be watching the recording of this lecture and preparing his remarks for tomorrow when he will be on the big screen now Lee as president / Michigan and at

Columbia has to show the toughness of a CEO of a multinational company it's a very very big business he also needs the intelligence and sharp witted nurse to be able to deal with faculty students

local politicians all of whom have got different views there is no point just telling them what to do you have to argue with them what to do and he has those those skills in spades

he is very good at that he knows perfectly well because he's been in my position of having to find Tana lecturers he knows that this doesn't qualify to be a Tana lecturer at all

there are many presidents of CEO of multinational corporations who we certainly wouldn't want to have as kind of lecturers on human values his qualifications at an a lecturer Center

in the work that he's done on free speech and access to universities within the United States university system he is I think probably the second most famous defendant in lawsuits before the

Supreme Court after wait whoever Wade was Wade but they Supreme Court cases of Grutter and Bollinger and grat symbology on the legitimacy the constitutional legitimacy of the admissions policies in

the Michigan law school when he was Dean there are absolutely seminal leading cases on diversity and equality in terms of admissions to universities Michigan's push for diversity reflects a great deal

of what is going on in UK universities today and as happens in UK universities today there are two sides to this question through our those who want to have a more diverse group of people and

those who are very happy to have a more diverse group of people as long as it doesn't disadvantage their own particular group of people so Lee will be very familiar with our world with

what goes on in our universities this very day but it's not just in equality and diversity in universities that he's known for it's also for his on free speech of freedom of the press

he's written several books on this and he will be equally familiar with the discourse that goes in are goes on both in our public space and in our universities in particular of the

friction between freedom of speech on the one hand and a desire to suppress hate speech on the other hand or in some universities but I hope not this one the desire to know platform certain

speakers whose views are unpopular so Lee is one of the experts on this area it's one of the most contested areas in our world at the moment so it's wholly fitting that we should have him giving

our Tanner lecture this year and his title is the free speech century a retrospective and a guide thank you very much David we really

appreciate the introduction appreciate knowing you and the association with Clare Hall Cambridge let me begin by acknowledging my wife Jeanne manana Bollinger who was right here after 50

some years of marriage and you know she is an audience of one for me I just don't every time I think about saying something it's with Jean and mine I also really appreciate the other

people who are here and in particular ray length and John Palin and Fred shower it is a deep and meaningful honor for me to deliver these Tanner lectures especially under the auspices of Clare

Hall and Cambridge University it is unlikely anyone here today except Jean would know the layers of association for me that make this particular moment much more significant than the usual lecture

I might deliver in 1983 Jean and I brought our two young children ages 5 and 9 here to live and work at Claire Hall during a sabbatical from the University of Michigan Law School we

discovered what so many others have as well this gem of an intellectual and personal home set in this magnificent University and charming town which altogether provides its visitors with

the magical out of time experience that stays with one for life this special bond was made still more special when I was subsequently honored in 1999 1999 by Clare Hall as an honorary fellow it is

also personally important to me that when I was president the University of Michigan which is also one of the sites as David said of the tenor lectures I too oversaw the lectures

and Jean and I always enjoyed our annual meeting with the other presidents and spouses of host universities in that moveable feast of companionship we became good friends and admirers of Dame

Gillian beer and her late husband John so even though I know firsthand from experience just how difficult it can be to find Tanner lectures nevertheless to be asked actually to deliver one and for

it to be with Clare Hall and Cambridge University makes me feel the pleasures that a former cast member of Saturday Night Live feels upon being asked to return as the host finally adding

further to the layers of special meaning underlying this moment is the subject of these lectures namely freedom of speech and press if anything defines my life scholarly work this is it trying always

to understand this extraordinary human and social development through the prism of the First Amendment to the United States Constitution but it also defines my life in a deeper sense

my grandmother began working as the librarian in a small town daily newspaper in the 1930s to support herself and my father a young boy then when her husband died prematurely my

father then followed her and began working at the same newspaper first as a paperboy and from there working his way up the ladder this was in Santa Rosa California and the paper was the Press

Democrat much later becoming for a while a property of the New York Times I was born in Santa Rosa and spent many hours at the PD as it was called absorbing the distinctive smells and whirling

activities of producing a daily newspaper later when I was a teenager my father became the editor and publisher of an even smaller small-town newspaper and

Baker Oregon I worked there as the janitor and the developer of films among other jobs breathing as can only happen in that coming-of-age period the atmosphere of journalism and the press

when I began my career as a young law professor at age 27 at the University of Michigan I turned almost instinctively to the First Amendment as my first field of focus was my field of focused

interestingly in the strange ways of developing scholarly expertise the year before as a law clerk to Chief Justice Warren burger I had worked on one of the major First Amendment cases involving

broadcast regulation so of course I wrote my first article on what I saw as the puzzle of differential treatment under the First Amendment of newspapers and the new media of television and

radio the former protected against regulation and the latter subject to an approved regime of regulation following that I undertook a more ambitious goal of

understanding the theoretical meanings of the First Amendment especially in the context of protecting extremists speech which is what I pursued here in 1983 while at Clare Hall and which became a

book the tolerance society all my subsequent writings and scholarship and the teaching I do every year seem solidly rooted in and based on these glorious settings in which I was

afforded the gift of pursuing my curiosity throughout my career I have also been fortunate to have many other associations with the areas of freedom of speech and press I have served on the

board of the Washington Post Company including the during the time in which the newspaper was sold to Jeff Bezos as president of Columbia I'm a voting member of the board that selects the

Pulitzer Prizes a process I admire greatly as an academic leader in the odd way in which life works I have had far more of my share

free speech controversies and issues than is fair and I have been involved in more litigation about the First Amendment that I care to recount especially as a defendant all this

brings me to the subject of my lectures this afternoon and to another layer of meaning these lectures happen to correspond almost perfectly with the publication of a book my good friend and

longtime First Amendment colleague Jeff stone the University of Chicago Law School that we and he and I have been working on for the past two years and when in which Fred shower has a

wonderful essay it is titled the free speech century and is published by Oxford and I will draw on it for these lectures we invited 16 scholars and practitioners to reflect on the first

100 years of First Amendment jurisprudence and to begin to grapple with some of the most significant questions we face now and will continue to face in this next century framed by a

dialogue and epilogue between Jeff and me the essays offer reflections and were critiques of the first 100 years of cases addressed some specific areas of controversy like campaign finance campus

speech national security and publication of state secrets assess the international implications of First Amendment jurisprudence and try to come to terms with issues raised by the

newest communications technology namely the internet and its various platforms and search engines few people realize that all that we take today as constituting the rights of freedom of

speech and press in the United States is really only a century in the making not until 1919 in that period beset with fears and found feelings of insecurity arising out

of the First World War the Communist revolution in Russia supposed international conspiracies to subvert democracy's labor movements and immigration and foreigners did the

Supreme Court begin to decide what the 14 words of the first amendment quote Congress shall make no law abridging the freedom of speech or of the press actually should mean in practice from

our perspective today one has to say it began rather badly well the great justice Oliver Wendell Holmes jr. wrote for an unanimous court in the opening three cases that speech could only be

prohibited when the state could establish a quote clear and present danger of some evil within the legitimate powers of the government to do something about which seemed much

more protective than the prevailing quote bad tendency test of the time the actual application of the new test to the cases before it was shockingly casual when looked at with modern free

speech sensibilities as Holmes said famously and of course correctly free speech does not protect the person who yells falsely fire falsely in a crowded theatre but that's not a very positive

way to approach the task of trying to locate the outer boundaries of political discourse the most egregious of the three decisions involved the prosecution and of the leader of the Socialist Party

of the time and its candidate for president of the United States Eugene Debs he delivered a speech in Ohio in which he praised individuals who had illegally

resisted conscription the government claimed that this violated the Espionage Act of 1917 which made it a crime willfully to quote obstruct the recruiting or enlistment service

the United States his conviction was upheld by the court Deb's was sentenced to 10 years in prison during which he received over 1 million votes in the presidential election of 1920 it would

be as if Hillary Clinton were jailed for her speeches within a matter of months however Holmes began to have second thoughts and to reverse his position in a case involving five Russian immigrants

and always involved Russians involves Russians who circulated a pamphlet in New York City calling on workers in ammunition factories to strike in solidarity with the Communist revolution

in Russia Holmes dissented from the decision finding a clear and present danger and wrote these famous and eloquent words persecution he said for the expression of opinion seems to me he

said perfectly logical if you have no doubt of your premises or your power and you want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition to

allow opposition by speech seems to indicate that you think the speech impotent as when a man or a person says that he or she has squared squared the circle or that you do not care

wholeheartedly for the result or that you doubt either your power or your premises but when people have realized that time has upset many fighting faiths they come to believe even more than they

believe the very foundation of their own conduct that the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in

the competition of the market and that truth is the only ground upon which their wishes safely can be carried out that at any rate he closed is the theory of our Constitution it is an experiment

as all life is an experiment within the decade justice Louis Brandeis had joined Holmes as one of the most eloquent free speech advocates most notably in the 1927 case of Whitney versus California

Anita Whitney had attended meetings of the Socialist Party and was part of the group that advocated a moderate nonviolent platform well a more radical wing advocated overthrow of the

government through revolution addressing the question of how to conceive of freedom of speech Brandeis wrote in equally famous language about how quote it is hazardous to discourage thought

hope and imagination fear breathes for oppression that repression breeds hate that hate menaces stable government that the path of safety lies in the opportunity to discuss freely supposed

grievances and proposed remedies and that the fitting remedy for evil councils is good ones he went on fear of serious injury cannot alone justify suppression of speech to free people it

is he said then he closed by saying men people feared witches and burned women it is the function of speech to free people from the bondage of irrational fears he went on those who won our

independence by revolution were not cowards they did not fear political change they did not exalt order at the cost of liberty to courageous self-reliant people with confidence in

the powers of free and fair less reasoning applied through the processes of popular government no danger flowing from speech can be deemed clear and present and less

the incidence of evil apprehended is so imminent that it made the fall before there is opportunity for full discussion these words and thoughts of Holmes and Brandeis ultimately won the day in the

United States but also in many nations around the world over the course of the 20th century after another low point in repression and censorship in the 1950s when the McCarthy era and the then

pervasive fear of the Russian threat to undermine American and Western democracies the Supreme Court again succumbed to national panic in Dennis versus United States a majority the

court upheld the convictions of the leadership of the American Communist Party the crowning achievement of the Holmes Brandeis perspective occurred in the transformative environment of the

Civil Rights an anti-vietnam war period of the 1960s and 70s in this epic crucible of national transformation the Supreme Court decided a series of cases that together composed the modern idea

of free speech and free press the decisions led by New York Times versus Sullivan protecting the New York Times against civil liability for running a civil rights advertisement that made

false statements about the actions of the police in Montgomery Alabama and supported by Cohen versus California protecting an individual wearing a jacket in a public place with the words

the draft written across the back Brandenburg versus Ohio protecting a meeting of the Ku Klux Klan Pentagon Papers protecting the New York Times and The Washington Post in publishing stolen

government classified documents Red Lion broadcasting versus FCC upholding regulations broadcasting designed to expand viewpoints and Miami Herald versus

Tornillo rejecting regulations designed to expand viewpoints in the context of newspapers all these decisions and many others created the most elaborate and speech protective jurisprudence of any

nation in history with as I have indicated positive influences around the world a centenary always seems like a natural time in which to step back and consider what has happened over that

period and what it all means and should mean in the future this is certainly true with free speech and press we also live in a moment of enormous social and political change in the United States

and across nations which makes taking stock a necessity more than simply a convenient moment on the historical calendar that is the genesis of the free speech century the

book and the topic of these lectures in this first lecture I want to continue with the summary of the First Amendment experience and more importantly offer some observations on how to interpret

and understand what has happened then in the second lecture I want to turn to the present and future and consider three of the most important questions of this century one should the legacy of the

last century be continued and what are its prospects given current political and global trends towards authoritarian regimes second what should be the general approach to dealing with the

rising importance of the Internet and its component elements which are now widely perceived as increasingly dominating in shaping the public forum and third and lastly what are we to make

of the fact that the modern world is increasingly interconnected and inner pendant yielding problems and issues that can only be resolved effectively through collective international action

with a new truly global communications technology to serve as the global public forum but with vastly different competing conceptions of free speech and free press in contention in other words

how should we think about free speech in a globalized world understanding the last hundred years of free speech and press in the United States is very much about understanding how we should deal

with people who advocate illegal or bad acts whether they be major such as overthrowing the government or minor such as taking over or occupying public or private property context can shape

everything and this is the context that has shaped our thinking about the First Amendment there have been many proposed tests for drawing that line besides clear and present danger there is the

bad tendency test the Express incitement test the idea that abstract ideas are protected but not stealing people for action the gravity of the evil discounted by its in probability and

finally speeches protected until it is directed at producing imminent lawless action and likely to produce such action this last formulation being the one we live under today as I have indicated the

last 100 year history is one of a being and flowing of protection with the courts following the national mood since the 1960s however the scope of protection has generally been very

strong from this let me fill in the First Amendment map the court has drawn up for our world now of freedom of speech and press as the court expanded the protection for

speech advocating illegality it also recognized the number of exceptions to freedom of speech and steadily narrowed them over time and so we have laws protected by the allowed by the

Constitution the First Amendment we have laws banning obscenity fighting words libel threats invasions of privacy and speech about risks of violence and disruption caused by hostile audiences

the jurisprudence now has many cases permitting and delimiting these exceptions any notion of free speech must also figure out it's what I call horizontal dimensions not only what

words and language will be protected but also what nonverbal communications once you realize that all human behavior is or can be communicative or expressive you face the dilemma of how far to push

the First Amendment interest analyzing government regulation of all conduct this problem bedeviled the court and analysts for decades producing all kinds of analytically problematic solutions

the government cannot regulate the can cannot regulate pure speech but it can regulate action or conduct not confronting the fact that all speech is action or conduct and all action or

conduct is expressive eventually the court settled on an approach that focused on the government's motive behind the regulations so if the purpose is to stop messages or viewpoints no

matter what the conduct was then the First Amendment would be fully deployed if on the other hand the government's motive or purpose has nothing to do with the communicative impact of the behavior

then the government will be afforded broad though not unfettered leeway to regulate in practical terms this means that free speech encompasses far more than words

or language written or spoken and therefore virtually all human behavior is at least in theory protected against state prohibition to the extent that the states motive is in prohibiting the

ideas expressed through that behavior the implementation of this approach has required extensive intellectual refinements adding to the intricacy of the First Amendment jurisprudence

similarly and also on the horizontal plane the court has faced the question whether to extend the reach of the First Amendment into realms of speech activity beyond the traditional political public

forum namely to those realms like Commerce and finance labor and management the workplace the home and personal areas of life and so on in general the decision has been to

permit much greater discretion of the government to regulate in these areas while not withdrawing entirely and keeping a First Amendment foot in the door there's also a vertical dimension

in First Amendment analysis how should we think about everything that might be relevant to speech this can range from having a right of access to information under the control of the government to a

right of access to government controlled spaces public streets and parks for speech purposes can range to a right of access to a good education in order to be able to speak and discuss issues more

intelligently here the court has been less forceful in pressing free speech interest against other societal interests streets and parks for example must be available the so called public

forum doctrine but not many other venues there are only limited rights of access to information those involving judicial proceedings notably there are three other dimensions of First Amendment

jurisprudence worth special note the first is especially important once you have secured the scope of free speech and press against censorship you then face the question whether you

will leave things at that or whether you will permit or even require the government to intervene in the public forum or the marketplace of ideas to improve the quality of public discussion

there are many things that affect how freedom of speech and press actually function the allocation and distribution of wealth through the economic system the nature and distribution of

educational opportunities infamy or fame discrimination against minorities and certain groups and the effect of control over the institutions that disseminate information and opinion this is a very

very rich and complex subject but the key thing I want to note is that the experience of the last century includes a major public effort of this kind involving the public regulation of

broadcast media beginning in 1927 and then being formulated reformulated in 1934 at the very origins of the new technology of communication broadcasting Congress established a federal agency

empowered to license and regulate the medium consistent with the most general mission statement to regulate according to the quote public interest convenience and necessity out of this system came

many public regulations most notably the so called Fairness Doctrine which required broadcasters to cover public issues and to do so fairly with respect to competing viewpoints in 1969 over

three decades from the inception of this regulatory regime in red lion broadcasting versus FCC the Supreme Court unanimously upheld the Fairness Doctrine and the general system saying

that the public's right to be fully informed outweighed the interests of the privileged few who happened to control the outlets of broadcasting and that the government had a proper maybe

even constitutionally required role in helping to secure the public's right to know in one of the most fascinating developments in the jurisprudence some five years later without ever mentioning

its decision in Red Lion the court precluded any such involvement with newspapers and print media that was in Miami Herald versus Tornillo the ostensible distinction between these two

outcomes focused primarily on the physical limitations of the electromagnetic spectrum the so-called scarcity rationale which claimed that the extremely limited number of

broadcasters physically possible due to the nature of the spectrum justified government intervention but this ignored the fact that the economic realities in newspaper business also produced an even

more monopolistic outcome in cities across the nation in the 1960s over 90 percent of American cities had only one daily newspaper but they would have three VHF television stations and a

dozen radio stations in my view the scarcity rationale was a fiction that covered the desire to permit public intervention in a limited portion of the new highly monopolized mass media in

order to ensure and enhance the quality of public discourse well this system remains in place to this day the rising political antipathy to any form of public regulation of any kind beginning

with the Reagan era and continuing through in American politics to this day has reduced the significance and scope of broadcast regulation for example the Fairness Doctrine was eliminated by the

FCC in the late 1980s but not by any means eliminating the regulatory regime a second area I would like to highlight is that raised by the Pentagon Papers case

which is illustrative of the willingness of the court to check government power and to be highly inventive in doing so every nation needs to figure out how to strike the balance between allowing the

government to operate with appropriate secrecy and how to ensure that the citizens have the appropriate information they need about their government which will always be too

inclined to act in secret to exercise their sovereign responsibilities Pentagon Papers and a few accompanying decisions established a completely unique so far and so far as one can

judge such things entirely successful solution to this problem like the dual system of the press and media created by redline and Miami Herald this one was based on systemic and institutional

judgments of a highly pragmatic variety not one wedded to simple notions of logic or an insistence that everything alike must be treated alike without opportunities for experimentation or for

taking account of how people in institutions actually function in the world the question asked is this how will the system work in practice not what system is logical apart from the

practice without going into this in detail the solution was this the government will have full control over its information with virtually no formal right of access by the press to that

information leakers if pursued and apprehended which in practice rarely happened may be subject to criminal penalties without any First Amendment protections the press finally even when

it knows that it is receiving purloined information from leakers will have virtually full detection to publish what it chooses it's all the more interestingly

ambiguous than this actually suggests creating subtle calculations each player has to make in this very serious game of national security and the public's right to know up until recently at least it is

fair to conclude that this method of balancing interest has worked without on reasonable disclosures of classified information and with reasonable publication of classified information

important for the public to know the third and last general observation is about the range of methods the court has followed in inserting the First Amendment into areas of government

regulation sometimes the court has weighed in in a given case in a given area of controversy nor in given areas of controversy in essence just the signal of the presence of free speech

interests the hostile audience cases are an example of this but sometimes the complexities and doctrinal refinements resulting from the court having taken extensive number of cases and issued a

number of holdings is remarkable this is notably true with respect to the areas of libel and campaign finance which are labyrinthine in their doctrinal complexity it is in other words worth

bearing in mind how there are very different strategies reflected in the jurisprudence to close this first lecture I want to make a few final observations that will be important to

the subjects of the next lecture lecture it is a vital element of the history of free speech and free press in the United States but it has fallen to our been taken up by the judicial branch of

government context is always important and here the context includes the very special characteristics of the judiciary lifetime tenure decisions limited to cases and controversies the

self-restraint and self-education of star a decisis or precedent the mandatory norm of principled decision-making supported by reason and the necessity of explanation in detailed

opinions all of these things are critically important of course we know that standing somewhat apart from the political fray permits at least in theory a greater awareness of and

resistance to the misleading passions of the moment given all of these qualities and other virtues it is easy to reach the conclusion that lodging the development of the rights of free speech

and press in the judicial branch gives you the greatest chance of having the kind of social and political life you seek despite the risk that this will make other branches perhaps less

attentive than they might otherwise be if they bore the primary responsibility for securing those rights I share this conclusion about the importance of the judicial branch and it is clear to me

that if you seek the most effective law of freedom of speech and press you should first seek an independent judiciary but I also think that we need periodically to look at what the judges

have come up with and ask for more when we think that is needed I feel that way about how we have defined and articulated the core purposes of the First Amendment homes as we have seen

began the whole venture by linking free speech to the search for truth but it was Alexander Michael John in the late 1940s who dismissed that relationship and argued instead for what he portrayed

as a much more practical relationship between freedom of speech and the responsibilities of self-government and democracy this democracy rationale took solid control of the jurisprudence in

the seminal decision in 1964 of New York Times versus Sullivan and as a remain so ever since for judges and justices who may always naturally feel a little sensitive about introducing broad quote

values into constitutional interpretation saying that enforcing free speech against government regulation is simply fulfilling the more fundamental

constitutional commitment the democratic self-government can be appealing but it is far too limited the role and meanings of the First Amendment are really multifaceted and they should be

recognized as such there is much more at stake and much more to protect in particular while the political area is critically important for free speech so too is the system for the generation and

preservation of truth and knowledge this system composed primarily of colleges and universities but also of journalistic enterprises which seek understanding far beyond the political

sphere and other institutions like museums has yielded more benefits in contributions to modern life than any other and it's autonomy from the violations of improper government

interventions is just as important as that of citizens engaged in the activities of self-government seeking truth is not some abstract idea but rather one with highly practical

operations and consequences nor is it just some individual interest we have an elaborate system of institutions with all of the corresponding norms and cultures developed over time

specifically designed to perform this social need and public good and even though there may not have been as many cases rising raising threats to this system there have been some and they're

likely to be more and it is time to recognize this system as both fragile and in need of the shelter of the First Amendment Michael John ironically because he was a lifelong academic was

too narrow in his conception of freedom of speech we should not let those notions to limit the scope of the First Amendment and finally another area where I believe we have allowed ourselves to

be too one-dimensional in thinking about the significance of free speech is with the protections afforded extremist speech these cases often have arisen in the

context of spiraling social fear and panic leading to grave acts of injustice committed against Ana scapegoating of people and groups who are often marginal individuals and relatively harmless

dissenters this is what both Holmes and Brandeis were trying to address Holmes saw Holmes saw how quote logical it is for us to persecute people we believe wrong especially in times of war and

national stress Brandeis has comment that quote people or men feared witches and burnt women graphically graphically captures the breath of this impulse to unjust intolerance none of these

feelings that lead us to persecute or to be excessively punitive towards others is limited just the speakers and speech women were burned because of irrational fears of what they might do namely

casting spells something that if it actually existed would have nothing to do with free speech but men feared bad behavior where there was none and committed crimes out of intolerant minds

it is that mind we are trying to change at least when it rears its head in the zone of free speech and is the very generality of our bad impulses that makes insisting that we refrain from

giving in to them in the realm of speech perhaps exhibiting extraordinary self-restraint all the more significant and powerful the stopping of censorship in these cases therefore is more about

our concern about the reactions to speech than it is with our wanting to protect speech as such and to say this is the speak about our character our self understanding and

not about protecting bad speech as some unfortunate byproduct of our wish for good speech I have called this the tolerance theory of the First Amendment and it is one of the many facets of this

amazing principle of freedom of speech and press that has taken on such extraordinary significance in the first century of his jurisprudential life in so many ways through this process of

creating an elaborate set of doctrines and reactions to the on-the-ground facts of multiple controversies the value of freedom of speech and press has become far more than a legal rule more even

than a constitutional law it has become part of the very identity of what it means to be American