A New Free Speech Absolutism?
49 Pages Posted: 18 Sep 2023
Date Written: September 4, 2023
Abstract
Governments often seek to restrict speech on the basis of the speech’s content. A currently powerful judicial response to the problem of such restrictions on speech is, surprisingly, to attempt to bypass questions of tradeoffs by embracing a form of free speech absolutism. On this approach, judicial tributes are first paid to the substantial constitutional value of freedom of speech. And from this largely uncontested initial proposition, the Supreme Court, along with other courts, may then proceed, remarkably, to decline any use of any level of judicial scrutiny, or of any balancing, and rule in favor of the speech-claimant on absolutist grounds. This speech absolutism amounts to an exceptionless judicial embrace of free speech. There is no meaningful judicial comparison with any potentially competing constitutional values. Any and all such values, including equality, equal protection, and non-discrimination are, startlingly, set aside. Below, this Article documents, critiques, and improves upon the very recent authoritative adoption by the Supreme Court of this dubious speech absolutist approach.
Keywords: free speech, absolutism, prioritarianism, equality, balancing, proportionalism
JEL Classification: K10, K30, K41
Suggested Citation: Suggested Citation