Is Free Speech Too Sacred? – Tal Fortgang

While the Supreme Court has developed various analytical tests to answer those questions in different contexts, it is fair to say that it has erred on the side of expression. That is most clearly seen in its general doctrine of applying “strict scrutiny” to restrictions on expression based on their content. Any government effort to enforce content-based limitations will fail unless it can show that it is advancing a compelling interest, in a way that is “narrowly tailored” to achieve that interest and in a way that could not be accomplished with a less speech restrictive policy. Some of our most controversial (and celebrated) Supreme Court decisions—think neo-Nazis marching in Skokie and Westboro Baptist Church members demonstrating outside military funerals—have followed. 

The court thus helped set the tone for free speech maximalism, or the idea that “the transcendent value of expression guarantees that it trumps the costs” of regulating it, in the phrase of political philosopher Joshua Cohen. But there is now ample evidence that culturally, we have transcended even free speech maximalism, which only concerned expression prevailing over competing interests. 

We are now in the era of free speech supramaximalism. Not only must speech prevail over regulation, but nearly everything is sooner or later described and defended as speech. It appears that many Americans subscribe to the belief that certain actions are unimpeachable as long as they have an expressive element to them. Or at least, they lack the vocabulary to defend those behaviors as worthwhile on other grounds. Two centuries ago, Alexis de Tocqueville remarked that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Perhaps his observation may be updated—that is, “into a free speech question.” 

Examples of this phenomenon are everywhere. On the right, for example, January 6 rioters recast themselves as mere protesters, and sympathetic media followed suit. The Republican National Committee censured Republican representatives for “participating in a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse”—that is, for supporting investigations into the riot at the Capitol. (The RNC did not distinguish between those who trespassed at the Capitol—and even destroyed or stole property—and those who remained outside the building and within their legal right to protest.) In the same vein, Donald Trump’s lawyers argued that he had a right to use his words to try to stop the 2020 election from being certified. “There’s nothing that’s more protected under the First Amendment than political speech,” said one of the president’s attorneys just after that indictment (which was dropped after Trump won reelection in 2024) was unsealed. 

The left did much the same during the summer of 2020, defending mass rioting and violence by laundering it through the language and logic of expression. Many public figures and elected officials described unrest as “the language of the unheard,” echoing Martin Luther King Jr.’s famous quote. Then-CNN anchor Don Lemon described the cities in flames as “torched by people who couldn’t find another way to express themselves.” A glowing New York Times profile of the demonstrators used one protester’s description of a burning police station as its headline: “a glorious poetic rage.” Even if all that expression and poetry made Americans uneasy, they were meant to focus on its expressive content, its underlying message. “The whole point of protesting is to make [people] uncomfortable,” explained Rep. Alexandria Ocasio-Cortez. Lots of actions make people uncomfortable, though, and some are illegal and immoral; AOC’s statement only makes sense because if you interpret rioting as protesting—as mere expression. 

To the extent anyone bought these arguments—and between left and right, plenty of people seem to—they accepted free speech supramaximalism’s premise. Anything undertaken for an expressive purpose is quickly reframed as expression in its essence, swept under the protective wing of the First Amendment and our proud national policy of free speech. Those actions are sacrosanct. They are good.

These characterizations are fair game for lawyers, who are expected to put forward every non-frivolous argument they can think of in zealous defense of their clients. But it should be striking that leading media and elected officials across the political spectrum have latched onto them. 

Supramaximalism reached its apex late this winter, though. Former Columbia graduate student Mahmoud Khalil has been detained and faces deportation for his role as a leader of Columbia University Apartheid Divest, an umbrella organization of campus anti-Israel outfits. Conventional wisdom quickly crystallized: Khalil was a protest leader who was being targeted for his anti-Israel speech, and possibly his organization’s anti-American stances. Commentators across the political spectrum quickly slotted the Khalil case into that analytical framework. “To put it mildly, I have little sympathy for recent anti-Israel campus protests,” wrote Ilya Somin, a leading classical-liberal legal scholar. “Nonetheless, deporting people for engaging in anti-Israel, pro-terrorist, or pro-Hamas speech is both unconstitutional and unjust.”

It’s not obvious that Khalil would avoid deportation even if courts determined he were indeed being targeted for the content of his speech. But it’s also not obvious that speech is the best framework for assessing his behavior and his right to stay in this country. Khalil has a documented past of expressing his anti-Israel views through action, including unlawful action. He is on camera trespassing in a Columbia building as part of a demonstration. The group he was associated with has claimed credit for vandalisms, including painting Hamas triangles on Columbia buildings and pouring a “cement-like substance” down university toilets. 

Yes, his actions were expressive. But only a free speech supramaximalist would say that those actions should purely be treated as speech. 

Yet that is precisely the kind of argument that proliferated in the media frenzy following Khalil’s detention. (Aside from the argument that he was being denied due process of law, which was proved wrong by Khalil’s late May hearing before an immigration judge.) Dozens of good-faith articles by thoughtful authors, even conservative authors and those who proclaimed their resentment for Khalil, contemplated the possibility that his case would turn on a court’s understanding of the limits to free speech. But most breezed past the question of whether the actions that landed Khalil in hot water were even speech—and assumed that the issue ought to be analyzed through the lens of speech. Yet that is not obviously true, whether as a legal matter or a cultural one. 

Americans across the political spectrum now share the impulse to frame every dispute that involves expression as a matter of speech. Why?

Certainly the Supreme Court has played a role, blurring the lines between speech and action in controversial cases about flag burning, campaign finance, pornography, and more. Americans are more or less free to engage in all those activities as they please. And since those are understood in the court’s abstract analysis as speech, certainly actions that more obviously revolve around their expressive component should be too. 

But the court is more of an accelerant than a catalyst. It has itself noted that speech is central to American self-conception, and that the First Amendment’s protections are what distinguish us from somewhat-but-not-quite-as-free peer nations like the U.K. or Canada. In other words, that point of national pride, assumed to operate in the background of constitutional analysis, has compounded and self-reinforced. Our First Amendment jurisprudence is built on the idea that robust speech rights make us who we are. Americans receive the message, then, that among the highest forms of patriotism is defending those rights and expanding the application of free-speech principles to new frontiers. That is how we display our commitment to being the freest and most tolerant nation in the world; it is a form of American exceptionalism easily articulated and without obvious political valence. 

Our national self-conception encourages free speech supramaximalism in another way. Perhaps the most popular story we tell ourselves about why we ought to be proud Americans is that we have protested for, and increasingly realized, our founding ideal of the equality of all people. Protest itself has thus taken on a venerated place in our national imagination. Civil disobedience has become an amulet; college students and professional activists who can claim to be engaging in it think they have proved the righteousness of their actions regardless of the worthiness of their cause. But even assuming all else is equal, there is still a moral difference between trespassing to advance civil rights and trespassing to advance “the total eradication of Western civilization”—and those moral differences are obscured, often intentionally, by a hyper-focus on means and methods. There is a reason January 6 rioters and Columbia building-occupiers alike fashion themselves as “protesters.” In a culture that makes freedom, self-expression, authenticity, and protest the highest goods, alignment with an abhorrent cause can be laundered into something not just legally protected but even noble. 

The cause and effect of free speech supramaximalism, then, is our inability to make other kinds of arguments. As our free speech muscles get a hypertrophic workout, our ability to incorporate other social goods—such as fairness, social peace, or even the basic preservation of our constitutional republic—into our reasoning atrophies. 

Unless we want to reduce our entire Western tradition of civic debate to one giant fight over free speech, in which everyone constantly alternates between condemning and celebrating speech qua speech (but unable to admit it or explain why), we need a kind of physical therapy to fix this imbalance.

One intuitive way to begin that therapy is by drawing a hard line between speech and conduct. But even that is not as simple as it looks. We did not consider burning flags, burning crosses, or pornography protected speech until someone argued, in court, that each was essentially expressive and therefore deserving of constitutional protection rather than being punishable by law. Indeed, our intuitions, even widely shared ones, that certain actions are legitimately prohibited despite being expressive is tenuous and contingent on what we are used to—and what we consider fair and valuable. 

This only highlights that the line between maximalism and supramaximalism depends on your conception of legitimate state interests. Seeing that haziness clearly, alongside the observation that supramaximalism subordinates all other considerations to free expression, might counsel rethinking free speech maximalism as a cultural impulse. If maximalism has no limit beyond the consensus view of legitimate state interests—and that consensus is unstable—that could be a good reason to reconsider venerating speech as we historically have. Judges who understand that the Constitution cannot be interpreted to create provisions destined to invalidate an ever-increasing list of state actions may even reconsider their jurisprudence. The Constitution doesn’t establish a First Amendment construction of maximalism as embodied in strict scrutiny for content-based restrictions on speech—the Supreme Court did that. The court would have to reverse decades of precedent to undo its own work, but it has in recent years shown a willingness to overhaul legal doctrines that rely on abstract tests about means and ends. Reviving less abstract tests that privilege specific traditional limitations on speech would be hugely controversial, but might be necessary to put the freedom of speech in balance with other state interests in a way that will not invariably lead to speech’s eventual domination. 

But even if free speech maximalism is toothpaste out of the tube, there is an important lesson here about learning to think, speak, and argue in terms of constitutional and cultural trade-offs. In a sense, the emergence of free speech supramaximalism is part of a larger story about the political philosophy embedded in our national imagination. Supramaximalism, the view that all is permitted as long as it is expressive, is a kind of caricature of liberalism, with its emphasis on the individual and rights—especially the right to dissent and protest. Civic republicanism, with its lexicon of the public welfare and even the common good (not set by a dictator or cleric but emerging from the moral sense of the people) can only play its necessary role of counterbalancing liberalism if the people’s moral sense transcends wanting only more freedom. But liberalism’s language of rights and freedoms has grown so large and so ubiquitous—dwarfing any discourse about the public good—that we have entered a one-way ratchet. 

Justice Holmes was right, even if he’s often cited inaccurately and that case was overturned: There are legitimate state interests that must counterbalance rights if we are going to sustain a self-governing republic. Some, like prohibitions against overt violence, are easy to identify, though even expressive violence seems to be welcome in some quarters if it is directed against disfavored individuals like health insurance CEOs. But most public welfare questions are the difficult ones that divide reasonable people. Do we have a shared interest in pristine monuments? In streets free from impediments and harassment? In the kind of social trust that speech has the power to erode? 

Perhaps we avoid answering these questions because they are so difficult, and prefer to talk about the solemn protection of sacred rights because that is comparatively easy. One man’s common-sense order—cleanliness, quiet, moral consensus—is another man’s stifling tyranny. Federalism helps diffuse the question so that more Americans can get what they want, and that is good. But even within each state there are bound to be further divisions, which are rarely if ever resolved. Instead, they are in constant negotiation by citizens who try to persuade others, and rule as they see fit when elected. That negotiation cannot happen, though, when we only know how to talk about inviolable rights. We need to have the moral sense to argue both sides of the equation, rights and public interests alike, recognizing that rights can be both sacred and limited in ways that ultimately make their preservation possible. Our laws depend on it, and our public discourse is impoverished by our inability to think about the many competing interests that make a society function. A republic does not run on freedoms alone. 

Free speech supramaximalism may not be the cause of our discontent, but it is a reflection of our emaciated public discourse, and how far we have drifted from the assumptions and understandings that made democratic politics possible in the first place. It is an understandable impulse, but it is no more conducive to our flourishing than falsely shouting fire in a theater.