Published in Litigation, Volume 43, Number 4, Summer 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 40
ROBERT CORN-REVERE
The author is a partner at Davis Wright Tremaine LLP in Washington, D.C.
A central tenet of the First A mendment commands that the
government must remain neutra l in the marketplace of ideas.
The U.S. Supreme Court has applied this principle in ca se after
case, holding that the Cons titution protects firebrand priests
and Vatican critics ali ke; it protects militant civil rights ac tiv-
ists and white supremacists e qually; it shields those who speak
for or against a woman’s right to ter minate a pregnancy; and it
protects those who would burn A merican flags or crosses as a
form of protest, just as it does thos e who display them with pride.
In a system in which debate on public issues is supposed to be
uninhibited, robust , and wide open, there must be protection
for the freedom to offend. This ha s always been so, and it didn’t
take the bizarre 2016 presidential c ampaign to show that in thi s
polarized nation, polit ical expression can be harsh, inane, a nd
downright nasty.
The offensiveness of speech is not a factor—or, at least,
shouldn’t be a factor—when deciding whether the Firs t
Amendment protects expression. This neut rality principle bor-
rows from a stirri ng maxim often attr ibuted to Voltaire: “I disap -
prove of what you say, but I will defend to the death your right to
say it.” Great stuff, but it illust rates how much of what we think
we know about free expression is incomplete. Voltaire didn’t
even write the saying—it wa s written about Voltaire’s beliefs by
“I Will Defend to the Death
Your Right to Say It.”
But How?
biographer Evelyn Beatrice Hall (writ ing under the pseudonym
S.G. Tallentyre). Its confused orig ins aside, this poetic pledge
provides no guidance about how to defend what some would
call the indefensible.
This is furt her complicated by the fact that t he defense of
freedom of speech includes far more tha n political speech. The
likelihood of givi ng (or taking) offense rises exponentia lly once
the topic touches on sex, and, as a consequence, such spee ch is
a perennial ta rget of government censors. Add to that the fact
that sexual expression is f requently derided as unimporta nt, so
that its offensiveness alone is sa id to be enough to justify its sup-
pression. Or so the arg ument goes. This attitude was summed
up by Justice John Paul Stevens when he expressed doubt that
“Vo ltai re’s [ sic] immortal comment” necessarily applies to t he
regulation of sexua lly oriented speech, noting “[f ]ew of us would
march our sons and daughters of f to war to preserve the citi-
zen’s right to see ‘Specified Sexua l Activities’ exhibited in the
theaters of our choice.” Young v. Am. Mini Theatres, Inc., 427
U.S. 50, 70 (1976).
Perhaps not. But then, few of us would march our sons and
daughters off to war to defend a campa ign rally by either of
this past year ’s presidential contenders, either. That fact does
not mean they get less constit utional protection. The First
