The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

The Happy Lover of Liberty …

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

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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.