The Happy Lover of Liberty …

... is the one who doesn't expect too much.

|The Volokh Conspiracy |

A commenter writes, in response to the court decision upholding the right to display a sign depicting an aborted fetus,

What a sad day when you need a court to tell you what is clearly free speech.

I thought this was funny, because I thought it was a happy day because the court correctly protected free speech. Now I appreciate the commenter's point, because the government officials should have realized that the sign was constitutionally protected at the outset; instead, they did suppress speech, and the decision won't undo that past suppression.

But I think we have to calibrate our expectations properly. We live in a nation of 300 million people, and over 20,000 municipal governments. Many are small. (Center Line, Michigan, where the case arose, has 8,000 residents.) Many, small or large, don't have lawyers who are especially knowledgeable on First Amendment law. Mistakes happen.

Moreover, before we are anything else—judges, lawyers, government officials—we're people. It's a natural human reaction to want to suppress material that we find disgusting, either to ourselves or to the people we are hired to serve. First Amendment law tries to block that reaction when it comes to speech, at least in most instances. But it's never going to do a perfect job, and you're setting yourself up for a lot of unhappiness if you expect government officials to follow the law all the time. (You should demand consistently law-abiding behavior, but that doesn't mean you should expect it.)

Sometimes you should be really sad about government failings, even ones that have been declared to be failings, for instance because the failings have lethal effects, or because they come from government organizations that are big enough and experienced enough in the field that they really ought to know better. But here, I just think this is ordinary human error of the sort that even otherwise passably-functioning human systems fall prey to.

Most people who know me, I think, will tell me that I'm a pretty cheerful guy. I stay that way by calibrating my expectations.

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  1. I was listening to an NPR segment this morning regarding online hate speech and other objectionable content. The general gist of the host and the guest was that this was a problem and that regulation of some sort was needed to address it.

    The thought occurred to me that whenever you’re proposing any sort of restriction on speech you should imagine that you’re George Orwell and you’ve been teleported to the present day. Then listen to what you’re saying from that perspective. If you think Orwell would have been disturbed, maybe you should rethink your position.

    1. Or just pretend for a moment that Hillary, or Romney, Or McCain, or any other opponent, had won, and was going to be the one controlling the new legal precedent you want set.

      Imagine your worst enemy was in control. That’s all it takes. It’s incredibly easy. Takes 5 seconds.

  2. Are you trying to defend Sergeant Dempsey and Center Line, Michigan against a ?1983 suit?

  3. I’ve often found it useful to think of the past as having been predetermined, and the future is open to change. We only ever existed in the present, after all. The past has always be written in stone. Accept the past, and hope for a better future. There are still drawbacks to considering the past as pre-determined. Personal regrets are an important motivator to avoid future regrets. You’ve just got to try and help yourself and those within your reach. In summary, I agree lowering expectations, in the right circumstances, can be great help in keeping positive, living joyfully, and spreading that attitude to others.

  4. “It’s a natural human reaction to want to suppress material that we find disgusting”

    Is it?

    To me, the natural reaction is to look away. Maybe warn others so they are prepared before they see it. Maybe post reaction clips on youtube. But, to suppress? Not sure I’d call that natural. Then again, maybe i’m a weirdo.

    1. It can be a natural reaction even if it is not a universal reaction.

    2. I don’t think it’s a crazy instinct to want to create an “opt in” paradigm. You mentioned warning people before you see it. The problem with public banners is it’s often seen without warning or possibility of warning. In fact, it’s done that way purposes to shock people so they can’t avoid it.

      It doesn’t mean it’s not protected speech, I agree. But just creating a situation where you can warn someone before they accidentally see it would involve suppressing their speech to some degree.

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