Thread by @glukianoff

The “Bedrock Principle”: The idea that you must not ban something simply because it is offensive is one of the most fundamental elements of freedom of speech & First Amendment law. 1/20
thefire.org/the-bedrock-pr…

When I first launched this blog earlier this year, I promised that one thing I would do was create a “modular argument” for freedom of speech.

My first blog post was part of that modular argument. 2/20

thefire.org/coronavirus-an…

The "pure informational theory of #freespeech", (that it's always best to know what people really think), & my "lab in the looking glass" metaphor are two key components of my idiosyncratic view on freedom of speech. 3/20

Since then, I’ve primarily focused on other topics & “Catching Up With Coddling.”

However, recent events present a perfect opportunity to discuss one of the most important elements of my modular freedom of speech model, the “Bedrock Principle” 4/20

thefire.org/?s=%22Catching…

Here is the news hook: On Sunday, at a rally near Las Vegas, President Trump claimed that he “would love to see” a law making flag-burning punishable by up to one year in prison. 5/20

Trump has beaten this drum for some time. In 2019, he tweeted support for Montana Sen. Steve Daines’ proposed constitutional amendment to ban flag-burning. In a 2016 tweet, the President weighed loss of citizenship as another possible punishment: 6/20

https://twitter.com/realDonaldTrump/status/803567993036754944

Since SCOTUS has already decided flag burning is protected, there are only two paths to imprisoning flag-burners:
1. A constitutional amendment
2. SCOTUS changing their mind. 7/20

The former has unfortunately found some bipartisan support (see: the link below), @realDonaldTrump has expressed hope that the Court might do the latter. 8/20

en.wikipedia.org/wiki/Flag_Prot…

The irony here is that the Supreme Court opinion Trump objects to is Texas v. Johnson. The term “Bedrock Principle” derives from that opinion. 9/20

In Johnson, Justice Brennan, writing for the majority, stated: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” 10/20

Ironically, if, like other countries, we banned speech because someone finds it offensive, that legal process would immediately be used against @realDonaldTrump & his most vocal supporters. 11/20

kcur.org/government/201…

Whether the president & his supporters know it or not, they rely & sleep on the logic of the flag burning case.

Why is the Bedrock Principle such a good idea? Because what we find offensive is just too subjective. 12/20

It’s different from person-to-person; across economic classes; among genders; & it definitely is different from year-to-year, decade-to-decade, within different racial & ethnic groups, & in different countries. 13/20

What’s offensive even differs within the same person from year to year, or, as the great philosopher David Hume pointed out, even time of day. 14/20

It’s just too jiggly of a concept, & that malleability makes it a perfect tool for the majority to simply impose its idea of propriety on the entire country.

To be fair, some of the loudest advocates against the Bedrock Principle come from Pres. Trump’s opponents. 15/20

After all, the entire logic of campus speech codes — that administrators should be entrusted with the power to punish “offensive” speech — requires us to abandon the Bedrock Principle to function. 16/20

Indeed, campuses have been trying to get away with this since the 1980s. Often, they do get away with it, but many attempts have been defeated by organizations on the right & left, including the ACLU, ADF, &, of course, @TheFIREorg. 17/20

When I speak in other countries, I often explain that our laws related to free speech are often not as different as we think, but that the Bedrock Principle is one of the major things that really separates them. 18/20

But given that offense & disgust are deep human drives, there are constant attempts to overcome the Bedrock Principle — right, left, & center, throughout all of human history (for more on the history part, please do check out @JMchangama's @CAPD_freespeech!) 19/20

The thought that we (even those who make the laws) must put up with what we find offensive is decidedly historically unusual, but #freespeech is gravely threatened very quickly without it. 20/20