… we value free speech a bit much. Personally, this article greatly offends me. Perhaps if we showed our displeasure by rioting and violence, we’d have grounds to ban it by the Professor’s own standard? What good is free speech if you can ban any speech which might offend deeply enough to cause disorder? Under that standard, wouldn’t it have been in the interest of public order to silence Martin Luther King? Malcolm X?
Despite its 18th-century constitutional provenance, the First Amendment did not play a significant role in U.S. law until the second half of the 20th century. The First Amendment did not protect anarchists, socialists, Communists, pacifists, and various other dissenters when the U.S. government cracked down on them, as it regularly did during times of war and stress.
I do not care to repeat the mistakes of the 18th and 19th centuries. One problem I’ve always had with originalism is that perhaps free speech always meant what it’s come to mean in this century, but that the Courts just didn’t take it seriously enough before. There are a lot of things in that old document that judges have been saying “Surely they couldn’t have meant that,” to through the whole history of the republic.