Congress shall make no law … abridging the freedom of speech….
Constitution of the United States, Amendment I
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[T]he sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others….
If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.
John Stuart Mill, On Liberty (1869), Chapter I and Chapter II
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[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
Oliver Wendell Holmes Jr., Schenck v. United States (1919)
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To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.
Louis D. Brandeis, Whitney v. People of State of California (1927),
joined by Holmes
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The First Amendment has been systematically misapplied for the past 100 years, thanks mainly to Holmes and Brandeis. Mill’s generalizations are fatuous nonsense. Here is a palate-cleanser:
[O]nly where advocacy of and organization for an overthrow of government is deemed to be a “clear and present danger” can such advocacy or organization be curbed. Which is somewhat like waiting to shoot at an enemy armed with a long-range rifle until you are able to see the whites of his eyes. Or, perhaps more aptly in the 21st century, waiting until a terrorist strikes before acting against him. Which is too late, of course, and impossible in the usual case of suicide-cum-terror.
And therein lies the dangerous folly of free-speech absolutism….
The First Amendment, in the hands of the Supreme Court, has become inimical to the civil and state institutions that enable liberty….
[Mill’s harm principle] is empty rhetoric….
Harm must be defined. And its definition must arise from voluntarily evolved social norms. Such norms evince and sustain the mutual trust, respect, forbearance, and voluntary aid that — taken together — foster willing, peaceful coexistence and beneficially cooperative behavior. And what is liberty but willing, peaceful coexistence and beneficially cooperative behavior?
Behavior is shaped by social norms. Those norms once were rooted in the Ten Commandments and time-tested codes of behavior. They weren’t nullified willy-nilly in accordance with the wishes of “activists,” as amplified through the megaphone of the mass media, and made law by the Supreme Court. What were those norms? Here are some of the most important ones:
Marriage is a union of one man and one woman. Nothing else is marriage, despite legislative, executive, and judicial decrees that substitute brute force for the wisdom of the ages.
Marriage comes before children. This is not because people are pure at heart, but because it is the responsible way to start life together and to ensure that one’s children enjoy a stable, nurturing home life.
Marriage is until “death do us part.” Divorce is a recourse of last resort, not an easy way out of marital and familial responsibilities or the first recourse when one spouse disappoints or angers the other.
Children are disciplined — sometimes spanked — when they do wrong. They aren’t given long, boring, incomprehensible lectures about why they’re doing wrong. Why not? Because they usually know they’re doing wrong and are just trying to see what they can get away with.
Drugs are taken for the treatment of actual illnesses, not for recreational purposes.
Income is earned, not “distributed.” Persons who earn a lot of money are to be respected. If you envy them to the point of wanting to take their money, you’re a pinko-commie-socialist (no joke).
People should work, save, and pay for their own housing. The prospect of owning one’s own home, by dint of one’s own labor, is an incentive to work hard and to advance oneself through the acquisition of marketable skills.
Welfare is a gift that one accepts as a last resort, it is not a right or an entitlement, and it is not bestowed on persons with convenient disabilities….
A mother who devotes time and effort to the making of a good home and the proper rearing of her children is a pillar of civilized society. Her life is to be celebrated, not condemned as “a waste.”
Homosexuality is a rare, aberrant kind of behavior. (And that was before AIDS proved it to be aberrant.) It’s certainly not a “lifestyle” to be celebrated and shoved down the throats of all who object to it.
Privacy is a constrained right. It doesn’t trump moral obligations, among which are the obligations to refrain from spreading a deadly disease and to preserve innocent life.
Addiction isn’t a disease; it’s a surmountable failing….
Justice is a dish best served hot, so that would-be criminals can connect the dots between crime and punishment. Swift and sure punishment is the best deterrent of crime. Capital punishment is the ultimate deterrent because an executed killer can’t kill again.
Peace is the result of preparedness for war; lack of preparedness invites war.
The list isn’t exhaustive, but it’s certainly representative. The themes are few and simple: respect others, respect tradition, restrict government to the defense of society from predators foreign and domestic. The result is liberty: A regime of mutually beneficial coexistence based on mutual trust and respect. That’s all it takes — not big government bent on dictating new norms just because it can.
But by pecking away at social norms that underlie mutual trust and respect, “liberals” have sundered the fabric of civilization….
The right “peaceably to assemble, and to petition the Government for a redress of grievances” has become the right to assemble a mob, disrupt the lives of others, destroy the property of others, injure and kill others, and (usually) suffer no consequences for doing so — if you are a leftist or a member of one of the groups patronized by the left, that is.
But that’s not the end of it. There’s a reverse slippery-slope effect when it comes to ideas opposed by the left. There are, for example, speech codes at government-run universities; hate-crime laws, which effectively punish speech that offends a patronized group; and penalties in some States for opposing same-sex “marriage”….
In sum, there is no longer such a thing as the kind of freedom of speech intended by the Framers of the Constitution. There is on the one hand license for “speech” that subverts and flouts civilizing social norms — the norms that underlie liberty. There is on the other hand a growing tendency to suppress speech that supports civilizing social norms.
“Freedom of Speech and the Long War for Constitutional Governance“,
Politics and Prosperity
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See also:
Rethinking the Constitution: “Freedom of Speech, and of the Press”
Abortion and the Fourteenth Amendment
Privacy Is Not Sacred
The Contemporary Meaning of the Bill of Rights: First Amendment
How to Protect Property Rights and Freedom of Association and Expression
The Beginning of the End of Liberty in America
There’s More to It Than Religious Liberty
Equal Protection in Principle and Practice
Academic Freedom, Freedom of Speech, and the Demise of Civility
Preemptive (Cold) Civil War
The Framers, Mob Rule, and a Fatal Error
The Constitution: Myths and Realities
Politics and Prosperity 
The problem with the First Amendment is that it took so much 18th century cultural context for granted that was not spelled out, but probably should have been. No one in the Founding generation would have called obscenity or abusive behavior “free speech,” nor would they have known what “freedom of expression” even meant! Likely the amendment needs an amendment!
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