Key Concept — The “Bedrock Principle”: The idea that you must not ban something simply because it is offensive is one of the most fundamental elements of freedom of speech and First Amendment law.
When I first launched this blog earlier this year, I promised that one thing I would do was create a “modular argument” for freedom of speech. Without highlighting it, one of my first blog posts was part of that modular argument. My “pure informational theory of freedom of speech” (simply: It’s ALWAYS important to know what people really think) and my point about “the lab in the looking glass” are two of the most important concepts in my idiosyncratic view on freedom of speech.
Since then, I’ve primarily been focusing on other topics and the series “Catching Up With Coddling.” However, recent events present a perfect opportunity to discuss one of the most important elements of my modular freedom of speech model, the “Bedrock Principle”: The idea that you must not ban something simply because it is offensive. It is one of the most fundamental elements of freedom of speech and First Amendment law.
And here is the news hook: On Sunday, at a rally near Las Vegas, President Trump claimed that he “would love to see” a law making flag-burning punishable by up to one year in prison.
Trump has beaten this drum for some time. He made a similar call for a year’s imprisonment at a Tulsa rally in June. In 2019, he tweeted support for Montana Sen. Steve Daines’ proposed constitutional amendment to ban flag-burning. And in a 2016 tweet, the President weighed loss of citizenship as another possible punishment:
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
The constitutional amendment would be one of only two paths that would lead to imprisoning flag-burners, because the Supreme Court already decided that flag-burning is constitutionally protected. The other way, of course, would be for the Supreme Court to reverse itself. During a conference call with state governors in June, President Trump expressed hope that the court might do just that (audio here at 43:40).
It passed last time, as you know, against what a lot of people want, it passed five to four. We have a different court and I think that it’s time that we review that again. Because when I see flags being burned—they wanted to crawl up flag poles in Washington and try and burn flags but we stopped them. They weren’t able to do it. They would’ve done it if we didn’t stop them. I think it’s time to relook at that issue, hopefully the Supreme Court will accept that….
The irony here is that the Supreme Court opinion Trump objects to is Texas v. Johnson. The term “Bedrock Principle” derives from that opinion. In Johnson, Justice Brennan, writing for the majority, stated: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Why is this ironic? Because if, like other countries, we banned speech merely because someone finds it offensive, that legal process would almost immediately be used against President Trump and some of his vocal supporters. Whether the president and his supporters know it or not, they rely and sleep on the logic of the flag burning case.
Why is the Bedrock Principle (we’re going to stop using quotes for it now, let’s all just make Bedrock Principle happen) such a good idea? Because what we find offensive is just too subjective.
It’s different from person-to-person; it’s different across economic classes; it’s somewhat different among genders; and it definitely is different from year-to-year, decade-to-decade, within different racial and ethnic groups, and in different countries. What’s offensive even differs within the same person from year to year, or, as the great philosopher David Hume pointed out, even time of day. It’s just too jiggly of a concept, and that malleability makes it a perfect tool for the majority to simply impose its idea of propriety on the entire country.
To be fair, some of the loudest advocates for repealing the Bedrock Principle come from people who are President Trump’s opponents. After all, the entire logic of campus speech codes — that administrators should be entrusted with the power to punish “offensive” speech — requires us to abandon the Bedrock Principle to function. Indeed, campuses have been trying to get away with this since the 1980s. Often, they do get away with it, but many attempts have been defeated by organizations on the right and left, including the ACLU, ADF, and, of course, FIRE.
When I speak in other countries, I often explain that our laws related to free speech are often not as different as we think, but that the Bedrock Principle is one of the major things that really separates them. But given that offense and disgust are deep human drives, there are constant attempts to overcome the Bedrock Principle — right, left, and center, throughout all of American history. The thought that we (even those who make the laws) must put up with what we find offensive is decidedly historically unusual, but free speech is gravely threatened very quickly without it.