“Conservatives And Freedom Of Speech” – Prof. Hadley Arkes in the Claremont Review of Books

by James Wilson Institute on March 5, 2018

Writing in the Claremont Review of Books, Prof. Hadley Arkes details the intellectual poverty of defending a notion of “free of speech” that denies any limiting principles on speech. The piece,  “Conservatives and Freedom of Speech: Backing into Relativism?” is nicely described by Scott Johnson of PowerlineBlog: “Professor Arkes focuses on the philosophical ground on which speech can rightly be defended and, indeed, limited. He is Concerned that the absolutist defense of free speech has led to a relativism that cannot provide solid ground on which to stand. Professor Arkes’s essay elevates the discussion while revisiting an old debate.”


Whether the Trademark Office got that call right or wrong is a question readily answered under the formula of the classic case of Chaplinsky. New Hampshire (1942). Justice Frank Murphy observed in that case that certain well-defined and narrowly focused classes of speech have never been given protection under the Constitution: These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [Italics added.]That case had guided judges and police quite sensibly for many years, for it was built upon the common sense of ordinary people and the clearest lessons taught in linguistics: It is the most distinctive mark of human nature that humans alone, among animals, have the gift of language… It stands to reason, then, that any language will bring forth the words that bear the moral function of commending and condemning, approving and disapproving. But within that class there is a cluster of words with a sharper edge, words that deride, insult, assault.

In any event, it was the common sense of the Chaplinsky case that had to remain the key even now, as the Patent and Trademark Office had to consider whether the term “slants” would be recognized instantly by most people today as a term of insult or belittling. But the decision handed down by the Supreme Court in Matal v. Tam moved the matter onto another plane entirely. For the decisive sentences, cited widely now in media, were these: We now hold that this provision [on derogatory names of companies] violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend. The shift was simple, but unsettling. For the implication here was that “offense” is entirely subjective—that there is nothing in fact, in principle, offensive and wrong. From these premises, any hurt or damage depends entirely on the feelings of the people who hear the words. The argument, then, is that people could take offense over all manner of things, and that is no basis for barring speech to those who are not offended by it. And yet what is ruled out here, quite decisively, is that there is indeed a class of acts and expressions, as Justice Murphy knew, that “by their very utterance inflict injury.” They may be harassing, threatening phone calls; letters of extortion; the burning of crosses; and yes, the calling of names, with the precise intention of assaulting and intimidating.

If the judges had fallen back on Chaplinsky, there would have been no need even to take up Matal for argument. The Justices could have reminded themselves that the standards used in Chaplinsky were by and large the right ones, but that the Trademark Office had simply made a factual mistake in assuming that most people in the country would understand “slants” as a term of insult and ridicule. The matter could have been left, then, to be challenged in protests to the agency, in editorials, or even in legislation to change the law on trademarks. And all of this could have been done without the intervention of the judges. The only rationale for taking up this case in the Supreme Court was to move the issue to another plane and articulate a new principle. But that principle happens also to be the principle that the American Civil Liberties Union was floating, and ever floats, in a slogan nearly put to song: that freedom of speech is “even for the speech we hate” and for the people who may truly be hateful.

And the danger even deeper now is that a corps of gifted conservative judges, backing into a stylish relativism, show little awareness that they are serenely putting in place now the premises that deny the moral ground of this regime and their own authority. What may be said then of the current state of conservative jurisprudence is this: that some of our best minds have talked themselves into moral relativism as a key component of their jurisprudence, and the conservative lawyers who have been tutored over the years by our best judges have been tutored now, in turn, not to notice.

Read the Full Essay Here