Outrageous Speech and the Constitution: Thoughts on Hustler Magazine v. Falwell

Democracy, as everyone knows, requires freedom of speech so that public opinion, which is sovereign, may freely be formed to direct its servant, which is the government. As a matter of constitutional history, the First Amendment began effectively to safeguard freedom of speech only in the second third of the twentieth century. From the perspective of democratic theory, this rapid unfolding of First Amendment doctrine reads like an unabashedly Whiggish triumph of liberty and enlightenment. But from other, equally important, perspectives, the story appears darker and more complex.

Take, for example, the recent United States Supreme Court decision in Hustler Magazine v. Falwell. The case concerned the attempt of Larry Flynt, t...