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In writing The Tolerant Society I was, and yet remain, interested in the treatment of speech behavior in this country, a treatment notably more liberal than in other Western democracies. Liberality, however, is not its only surprising or distinguishing hallmark; so too is how the world is characterized under the free speech concept.

For some time, even after I began teaching in the first amendment area, the scope and nature of protection afforded speech seemed to me obviously right. But the more I thought about it, the more it seemed to me quite extraordinary. Existing free speech theory provided less and less adequate an account for what our society actually permits under the free speech banner. Yet I also felt a intuition that free speech has powerful meaning for society, that somehow it seems to strengthen society even by protecting the most appalling speech acts. I began to think about free speech as having a social significance that extends far beyond the mere removal of legal restrictions against speech. As I studied the major theorists, such as Holmes and Meiklejohn, I discovered that they also had, in the process of thinking about cases involving censorship of speech, become preoccupied with larger questions of the human personality – what I have called the intellectual character – with matters of belief and truth, and with challenges to both of those. These issues obviously transcended any hornbook understanding of the first amendment; setting the boundary of legal restraints on speech now involved thinking about its effects on the broader social culture. My research and writing in this field have been a search for that broader meaning, and what I have seen I describe under the general rubric of tolerance."

In this Commentary I seek to respond to some of the criticism of the theory I set forth in The Tolerant Society. Part I states my view that the harms caused by speech are more like harms caused by nonspeech acts than is commonly perceived. Part II contains a summary of my thesis in The Tolerant Society. Finally, Part III addresses several questions about my thesis.


Constitutional Law | First Amendment | Law


This article originally appeared in 90 Colum. L. Rev. 979 (1990). Reprinted by permission.