It has become familiar among conservatives, on and off campus, to cast up the warnings about “moral relativism” as they gnash their teeth about the state of the culture. And yet we often find conservatives with a libertarian bent backing into a soft version of relativism. That tendency has been especially pronounced among conservatives who bear the title of judicial office–and with effects far more palpable on our lives. For their judgments have worked to sweep away those local laws that used to upheld codes of decency and moral restraint for people who encounter one another in public places.
Judges vs. Ordinary Folk
There is no more visible arena where the theories that summon the sentiments of judges run counter to the common sense held by ordinary folk. That common sense was expressed in the classic case of New Hampshire v. Chaplinsky in 1942, where Justice Murphy noted that there were certain well-defined and narrowly focused classes of speech have never been given protection under the Constitution:
These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace (my italics).
That sense of things reflected the understanding long settled in the law that an “assault” did not strictly require the laying on of hands: one could hold an unloaded gun near someone’s head and pull the trigger. There were expressive gestures, accomplished with words and acts, that would be understood instantly as menacing: phone calls or letters meant simply to scare or terrorize, or the burning of a cross outside the home of a black family. That is why a “verbal assault” could be understood very much as an assault as any act that involved physical injuries.
Ordinary people, used to living with ordinary language, had no trouble recognizing those words and gestures that were established in our conventions as terms of “insult” or attack. Truck drivers and construction workers may have as keen a sense as lawyers about the gestures and words that insult or show disrespect. They know the difference between the N-word, or F***, as opposed to words such as “urologist” or “dentist,” which may also set off tremors for some people.
It was Justice Murphy’s insight also that words and gestures of this kind could be banned without interfering with the freedom of people to pursue all of the legitimate uses of speech. And so, Mr. Rosenfeld, arguing at a PTA meeting in New Jersey, was asked to restrain himself because his only adjective, freely used, was “motherf****ing. Asking Rosenfeld to restrain himself from the use of that word would not have diminished his freedom to make the most substantive critique of the school board.
“F*** the Draft”
But in 1971, the conservative Justice John Harlan took the telling turn to relativism in Cohen v California, where he famously declared that “one man’s vulgarity was another’s lyric”—that the meaning of words was so subjective that it was no longer possible to make any principled distinction between the words that were fit or unfit for public places. The case involved a jacket saying “F*** the Draft” worn in a courthouse. But Harlan thought the meaning of words, even these words, was too slippery for judgments to be made. In this respect, the law would declare itself incapable of judging what any man of sense could plainly understand. Several years ago, the Supreme Court struck down the attempt of the FCC to ban the use of the words F*** and sh*** from television, and yet it was telling that the lawyer arguing that case, did not speak in the courtroom those words he was seeking to defend. His delicacy confirmed the point he had been trying to resist—that certain words were indeed not respectable to use in public without degrading the very climate of discourse.
Ordinary people, even today, have no trouble in decoding the difference between a burning shoe box and a burning cross. And yet, no less a figure than Justice Scalia wrote the opinion to strike down an ordinance in St. Paul that banned the burning of crosses. But this past spring, in Matal v. Tam, even the conservative judges took the Court to the decisive point of making relativism the default position on matters of speech.
The case involved the question of whether the Federal Trademark Commission could deny, to an Asian rock band, the freedom to call itself “The Slants.” The Commission held that the “Slants” was a derogatory term, inspired by the slanted eyes imputed to Asians. The Commission reached that judgment even though the name was chosen by the band itself as a way of removing the sting of the term through self-mocking. By the test of Chaplinsky, the judgment of the Commission could have been overturned for the simple reason that the term just wasn’t widely known in the country as a term of mockery.
Instead of settling the case in that way, the judges took the doctrine of free speech to another level by drawing on an older case and declaring that the decision “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” Forty years ago, when a group of Nazis sought to parade through a Jewish neighborhood, David Hamlin of the ACLU declared that “the First Amendment protects all ideas–popular or despised, good or bad.” To be “despised” meant: to be unpopular. What was ruled out was the possibility that certain kinds of speech could be in principle despicable.
Now the conservatives on the Court have embraced the ACLU position, for they have ruled out the notion that certain kinds of expressions may be “offensive” in point of principle. Since that decision by the Court we have indeed had applicants seeking the trademark of “Nigga” for products as varied as clothing, bags and drinks. The law has long banned the advertising of discrimination based on race, and yet it is possible now to have a business with the title “For Whites Only.”
David Hamlin went on to say that we must be free to hear the Nazis because we must be free to choose the Nazis. But to choose the Nazis was to choose to install a government that rejected at the root the moral premises of a free regime and the principles that encompassed the freedom of speech. To say that we are free to reject a regime of freedom is to say that there is nothing in principle good or right about a government of that kind, for if there were, we could not be free to reject it.
Step by step, then the conservatives on the Court have moved down the path of relativism marked by the liberal justices that came before them. And the result: They have proclaimed new, sweeping freedoms of speech, while they insist that there is nothing morally better, nothing more defensible in principle about those rights, or the regime that contains them, than a regime that would dismiss these “rights” with contempt.
A longer version of this piece was published February 6, 2018, in Claremont Review.