Writing at Public Discourse (of which I am the managing editor), Hadley Arkes criticizes conservatives and liberals and defends the notion that communities can define standards of speech. Balancing individual rights and communal interest is always difficult (see Russell Arben Fox), but Professor Arkes makes a convincing case that the conservatives on the Supreme Court are striking the wrong balance:

The editors of the Wall Street Journal pronounced Phelps and his band “scoundrels,” their message “despicable.” And yet the translation was made again: The editors seem inclined to think Phelps nevertheless had a “right” to engage in despicable performative acts because there are no grounds on which the law can really discriminate between the “despicable” and the “unlikable.”

But the law was not always thought to be so wanting in the standards of judgment, and the judges expounding the law were not compelled to absorb, ever more deeply with each case, the premises of moral relativism…

The rest is here.


  1. Prof. Arkes uses extremes to illustrate the difference between “fighting words” and legitimate political speech. Fine, as far as it goes, but once we (re)establish those two categories we are forced to try to draw the line between them. Anyone got an idea how to do that, in the large grey area between them? Or are we going to have the old “I know it when I see it” standard that can so easily shift to barring offensive ideas along with offensive words? To use a pop media example – anyone remember the WKRP episode where the activist group first threatened a boycott to get the radio station to stop playing lyrics with offensive words…but then added Lennon’s “Imagine” to the list because the ideas within it were “obscene?”

  2. How would Professor Arkes distinguish his view from the Modern Liberal endorsement of “speech codes” and speech categorized as “hate crimes”?

Comments are closed.