First Amendment Fetishism

54 Pages Posted: 3 May 2024

See all articles by John M. Kang

John M. Kang

University of New Mexico - School of Law

Date Written: April 28, 2024


The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:

• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium
• a White skinhead’s cross burning on the front lawn of a Black family’s house
• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain that he would cause Americans across political persuasions
• the commercial trafficking of videos that gleefully depict pit bulls who are fighting each other to death as they were trained by their malevolent owners to do

In protecting such remarkably offensive speech, the Court has failed to take seriously the claims of the community in wanting to regulate speech which is violative of the community’s desire to create a public culture of civility, dignity, and mutual respect.

Going against the grain of scholarship which has celebrated the victories of the individual speaker against his community, this Article argues that the community’s right to regulate speech should be afforded far more deference by courts than the right has previously received. There has been a surfeit of theorization relating to why we need a right of speech. But there has been a dearth of such theorization for why the right of speech should be restricted in order to realize the collective aspirations of the community. The Article aspires to fill that gap. Specifically, the Article draws upon the insights afforded by originalism to fashion a jurisprudence that emphasizes the rights of the community to regulate extremely offensive speech.

Keywords: extremist speech, hate speech, rights fetishism, individualism, community, communitarianism, democracy, majoritarianism, First Amendment, rigth of speech

Suggested Citation

Kang, John M., First Amendment Fetishism (April 28, 2024). Utah Law Review, Vol. 2024, No. 3, 2024, Available at SSRN:

John M. Kang (Contact Author)

University of New Mexico - School of Law ( email )

1117 Stanford, N.E.
Albuquerque, NM 87131
United States


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