Posted by Eugene Volokh:
Punishment for Anti-Gay Speech:
The remarkable thing about attempts to outlaw anti-gay speech (see the
post about [1]Sweden) is that only a few decades ago the orthodox
belief throughout much of the West was that homosexuality was so awful
that it needed to be outlawed. On this basis, governments (at least in
the U.S.) tried to enforce the then-existing orthodoxy by suppressing
pro-homosexuality speech. Now, the dominant view, which I share, is
that the past perspective was mistaken. And now some governments are
trying to enforce the now-existing orthodoxy by suppressing
anti-homosexuality speech.
Yet shouldn't our experience of throwing away the formerly
unchallenged verities of the past lead us to a bit more skepticism?
What if today's elite majority view is wrong: What if it turns out
that homosexuality is indeed morally reprehensible, bad for society,
or both? I realize that there are good reasons to protect speech even
if one is sure that it's mistaken. But if experience suggests that
certainties are oftenmistaken, isn't that all the more reason to let
speech be protected? And shouldn't the vast changes in formerly
orthodox social attitudes over the past half century -- attitudes
towards non-whites, towards women, towards gays, and so on -- remind
us that a lot less is morally certain than the majority might think?
All this brings us back to Justice Holmes' words in Abrams v. United
States (1919), which strike me as right even today:
Persecution for the expression of opinions seems to me perfectly
logical. If you have no doubt of your premises or your power and
want a certain result with all your heart you naturally express
your wishes in law and sweep away all opposition. To allow
opposition by speech seems to indicate that you think the speech
impotent, as when a man says that he has squared the circle, or
that you do not care whole heartedly for the result, or that you
doubt either your power or your premises.
But when men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe the
very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas -- that the best
test of truth is the power of the thought to get itself accepted in
the competition of the market, and that truth is the only ground
upon which their wishes safely can be carried out.
That at any rate is the theory of our Constitution. It is an
experiment, as all life is an experiment. Every year if not every
day we have to wager our salvation upon some prophecy based upon
imperfect knowledge. While that experiment is part of our system I
think that we should be eternally vigilant against attempts to
check the expression of opinions that we loathe and believe to be
fraught with death, unless they so imminently threaten immediate
interference with the lawful and pressing purposes of the law that
an immediate check is required to save the country...
Naturally, the Swedes have their own Constitution; but the principle
that Holmes articulated is suitable, I think, ought to be adopted in
constitutions more generally.
References
1. http://volokh.com/archives/archive_2005_02_07.shtml#1108272873
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