What the framers knew about dangerous words

The Reason blog flags a conversation between two constitutional scholars — convened by the National Constitution Center — on what it calls "The State of Free Speech in 2026." I was not present, and the lead tells me little of the specific arguments made. What I can offer is the disposition I have always brought to questions of this kind: careful construction of the text, honest acknowledgment of competing interests, and a firm resistance to letting the passions of a single season settle questions meant to endure for centuries.

The First Amendment is not a self-executing instrument. It requires courts willing to read it steadily, in good times and in bad, without bending to the applause of any faction. That was, I believed, the essential function of an independent judiciary: not to discover rights by popular demand, nor to extinguish them by popular alarm, but to apply the text with the fidelity owed to a written compact. Where I see, by inference, that scholars still gather to debate the amendment's reach, I take it as evidence that the compact remains contested — which is itself a reason for judicial care, not judicial boldness.

I am told, not from my own observation but by inference from what was known in my time, that the great danger to free expression has never been a single villain. It has always been the slow normalization of exception — the emergency measure that outlasts the emergency, the platform rule that becomes the only rule, the comfortable consensus that forgets how it silenced the uncomfortable truth that preceded it. A sound constitutional order holds those exceptions to the narrowest construction the text will bear.

There is a second matter I would press on any such panel, though I cannot know whether the scholars addressed it: the relationship between free speech and equal standing before the law. Speech that is formally free but practically available only to the powerful is not the liberty the framers had in mind. The unfinished question of my own era — who belongs fully to the republic — is still being resolved in the domain of expression. Voices long excluded from the public square deserve not merely formal permission to speak, but the institutional conditions that make speech possible and heard.

I commend the National Constitution Center for hosting such a conversation, as reported by Reason. The republic is best served when its foundational commitments are subjected to rigorous, public, civil examination — not resolved by decree from any branch, and not abandoned to the noise of the moment. Whatever the scholars concluded, the act of deliberate inquiry is itself a constitutional virtue. Let the argument continue, and let it be conducted with the precision the subject demands.