I've got a new piece up at The Week imploring progressives to think about what they're really risking when they rush to criminalize free expression. Some of the social justice left seem to believe that people "hide behind the First Amendment" because they love gay slurs and upskirt photos. Even more astonishingly, they think that broad laws criminalizing speech and expression could never be used in ways they don't intend.
The shortsightedness with which the social-justice left embraces hate speech laws and other restrictions on free expression can only be chalked up to an extreme hubris, a belief that not only are they on the right side of history culturally and morally but that politically, things will never change either. Which seems unlikely. Ten years ago Karl Rove envisioned — and people (my young self included) legitimately feared — a "permanent Republican majority" built largely on socially-conservative concerns like opposition to same-sex marriage. LOL. Now even Michele Bachmann finds fighting marriage equality "boring" and the most compelling conservative candidate is the one calling for criminal justice reform instead of "traditional marriage."
Some see the takeaway here as progressivism having "won." But I think it's more realistically illustrative of the fickle nature of public opinion and party platforms. No, I don't see U.S. society going backward on things like gay rights. But look at the anti-abortion movement. Feminists thought they had abortion access locked in — and in fact, the country continues to trend in favor of abortion rights — but a loud, persistent, and passionate anti-abortion minority has managed to get more laws restricting abortion passed in the past few years than in the decades before.
When you're winning the culture wars, it tends to radicalize and mobilize the opposition. Even if U.S. society as a whole continues to become more liberal or libertarian, we'll still face folks who believe in the need for more authoritarianism, less gender equality, and less tolerance. Some of them will inevitably go into politics, law enforcement, and education. Some will become legislators. Prosecutors. Judges. City council members. School administrators. Police officers. Professors. And some will inevitably have wildly different conceptions of what constitutes "hate" or "obscenity" or "civility" than you or I may.
(…) It's not just a formal deference or fetishistic attachment to the Constitution that leads libertarians to push for very narrowly-written and interpreted speech restrictions. It's because this framework provides a means for free speech to be meaningful without regard to fickle cultural norms or prevailing political power.
Read the whole thing here. But might I suggest not reading the comments?