The messiness of free speech

Check out Bob Cox writing the first in a series on American values last Sunday in the Fort Worth Star-Telegram. (Disclosure: I am a member of Media Bloggers Association.)

Nowhere is free speech messier than in the blogosphere, where self-published authors -- some writing anonymously or pseudonymously -- have pushed the bounds of taste, ethics and the First Amendment. My organization, the Media Bloggers Association, has attorneys who defend the free speech rights of bloggers, and I have to admit that we rarely take on a case in which the blogger has not grossly offended someone's sensibilities.

Therein lies (Supreme Court Justice Oliver Wendell) Holmes' caveat about the "experimental" nature of our Constitution. It is the constant struggle of our democracy to balance free speech with direct and immediate threats to the general welfare. I would hope that if we shared Holmes with the world, those who hold a jaundiced view of America might come to see that although our nation is imperfect, our permitting the expression of unpopular ideas is the best hope for arriving at understanding and, through that understanding, peace.

Holmes' dissent is here.

He writes: "But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same."

Here's his bit on marketplace of ideas:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations 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 is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

And so the courts have already interpreted the limitations of free speech in a time of imminent danger. Yet another reason we don't need a Federal Shield Law to grant that exception to reporters. Certainly nowhere in this interpretation are reporters singled out as an exception. The First Amendment is for everyone. Reporters get no special privilege under its protection.