There are few areas where I think common sense is more sorely lacking than in our public debates over free speech, and there's no better proof than two recent Supreme Court decisions.
But before we go there, let me state plainly where I'm coming from. First and foremost: The more overtly political the speech is, the more protected it must be. The First Amendment was not intended to protect pornographers, strippers or the subsidies of avant-garde artistes who think the state should help defray the costs of homoerotica and sacrilegious art. This isn't to say that "artistic" expression doesn't deserve some protection, but come on. Our free-speech rights were enshrined in the Constitution to guarantee private citizens rich and poor alike the right to criticize government without fear of retribution.
Now, there are commonsense exceptions to this principle. Not only can the state ban screaming "fire!" in a crowded movie theater, it can ban screaming "Vote for Cheney in '08!" in a theater, too (or, more properly, it can help theater owners enforce their bans on such behavior).
A better example of an exception would be schools. Students can't say whatever they want in school, whenever they want to say it, because schools are special institutions designed to create citizens out of the malleable clay of youth. Children aren't grown-ups, which is one of the reasons why we call them "children."
Making citizens requires a little benign tyranny, as any teacher (or parent) will tell you. If this weren't obvious, after-school detention would be treated like imprisonment and homework like involuntary servitude.
For a long time, we concluded the best way to protect political speech was to defend other forms of expression commercial, artistic and just plain wacky so as to make sure that our core right to political speech was kept safe. Like establishing outposts in hostile territory, we safeguarded the outer boundaries of acceptable expression to keep the more important home fire of political speech burning freely. That's why in the 1960s and 1970s, all sorts of stuff pornography, strip clubs, etc, was deregulated by the Supreme Court on the grounds that this was not legitimate "expression" of some sort.
Also, in 1969, the Supreme Court ruled in Tinker v. Des Moines, that students don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
This always struck me as preposterous. Of course students shed some of their rights at the schoolhouse gate. That's the whole idea behind the concept of in loco parentis. Teachers and administrators get to act like your parents while you're at school. And parents are not required to respect the constitutional rights of their kids. Tell me, do hall-pass requirements restrict the First Amendment right of free assembly? Don't many of the same people who claim that you have free-speech rights in public schools also insist that you don't have the right to pray in them?
Still, such buffoonery would be pardonable if the grand bargain of defending marginal speech so as to better fortify the protective cocoon around sacrosanct political speech were still in effect. But that bargain fell apart almost from the get-go. At the same moment we were letting our freak flags fly when it came to unimportant speech, we started turning the screws on political speech. After Watergate, campaign finance laws started restricting what independent political groups could say and when they could say it, culminating in the McCain-Feingold law that barred "outside" criticism of politicians when it would matter most i.e., around an election.
And that's why we live in a world where cutting NEA grants is called censorship, a student's "Bong Hits 4 Jesus" sign is hailed as vital political speech, and a group of citizens asking fellow citizens to petition their elected representatives to change their minds is supposedly guilty of illegal speech.
That is until this week. In one case, the Supreme Court ruled that a student attending a mandatory school event can be disciplined by the school's principal for holding up a sign saying "Bong Hits 4 Jesus," and in another it ruled that a pro-life group can, in fact, urge citizens to contact their senators even if one of the senators happens to be running for re-election. Staggeringly, these were close and controversial calls.
Many self-described liberals and reformers think it should be the other way around. Teenage students should have unfettered free-speech rights, while grown-up citizens should stay quiet, like good little boys and girls. Thank goodness at least five Supreme Court justices disagreed.