This morning, the Supreme Court ruled that a law that outlaws promoting or advertising -- "pandering" -- child pornography is constitutional and does not interfere with First Amendment freedoms. In the case, United States v. Williams, decided 7-2, the justices declared that there is no free speech right that protects "offers to provide or requests to obtain child pornography," even if (in fact) there is no pornography to be provided. Free speech expert and blogger Eugene Volokh explains that the case is actually more interesting than a simple child pornography case, as the court has, in his reading, recognized that the First Amendment does not protect solicitations (or offers) to commit a crime. He writes: "[t]rying to buy illegal drugs, for instance, by soliciting someone to sell them to you is generally a criminal attempt even if the solicited seller was only going to deliver fake drugs rather than real ones." 

Wendy Kaminer wrote about this case on The Free For All back in November. 

            There is a common misconception that society pays a heavy price for allowing free speech – emotional harm to members of target groups, leakage of national security secrets, stuff like that. In truth, the substantial positives deriving from vigorous free speech are pretty clear, while the negatives are highly speculative and usually ideologically driven.

            An item in today’s The Boston Globe tells us an awful lot about one enormous societal advantage of allowing free speech. Globe staffer Bryan Bender reports that for over a year a “Burlington-based Internet company hosted a website that taught its members how to outfit a suicide bomber” and other ugly lessons. Some national security fanatics are screaming about this, including a fellow named Yigal Carmon, a former Israeli military intelligence officer and founder of the Middle East Media Research Institute in Washington, who decries “the damage they are causing.”

But the Department of Homeland Security and various American intelligence agencies see the web site as a blessing. They’ve determined that in most cases it’s “preferable to keep such sites operating as a way of tracking the spread of radical Islam, rather than try to quell them one by one.”  Besides, says these government agencies, if these sites are taken down – assuming it would be constitutional to do so – the radicals will “just find another host.”

            So, at least someone in the American intelligence community recognizes that one benefit of allowing free speech is that it helps us know who hates us enough to call for violence against us. It’s like a gay student leader, undergraduate Jason Shepard, said in a speech that I heard him deliver a decade ago at the University of Wisconsin, where the Faculty Senate was debating whether to repeal the campus speech code that banned, among other things, speech denigrating gay students. Shepard pointed out to the would-be censors on the faculty that while he did not particularly enjoy being called “a queer,” he found it useful to know who viewed him that way, so that he knew on whom not to turn his back. Precisely!

The Shepard speech led the Faculty Senate to repeal the faculty’s speech code, the only example of which I’m aware where a faculty repealed, rather than installed, a speech code. The full story is told by Professor Donald Alexander Downs in his fascinating 2005 book, Restoring Free Speech and Liberty on Campus (The Independent Institute).