A long time ago back at Eternity Road, in connection with the “McCain-Feingold Bipartisan Campaign Finance Reform Act,” I wrote:
In his fine 1967 book The American Tradition, Dr. Clarence Carson noted that liberal opinion about freedom had settled on a rather stunted view: that free speech plus a voting mechanism provided all the freedom the nation could ever require. Of course, that view leaves everything else to be legislated, regulated, and taxed to the hilt — an electorally ratified totalitarianism in which everything not compulsory is forbidden — but that’s all right because we’re still free to complain about it….
Should our legislators ever presume to pass a law criminalizing “hate speech,” and should a case under such a law reach the Supreme Court, would the Justices uphold the law, taking refuge once more in “international opinion”? Given recent developments, it’s hard to be confident that they wouldn’t.
Liberal attachment to free speech and open elections has always been shaky. Herbert Marcuse’s famous essay “Repressive Tolerance” has beckoned to them from the ideological darkness for forty years. Considering how far they’ll go to overturn an election in which they came out second best, just how much would it surprise anyone were they to use “evolving standards,” “living document” and “clear and present danger” themes to attack what remains of the right of free expression guaranteed by the First Amendment? And given the demonstrated proclivities of supposedly conservative Republican legislators, who want to retain their power and perquisites quite as much as their liberal Democratic counterparts, how much resistance to the notion could we expect the GOP to mount?
Well, concerning that final question, now we know:
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