Why Free Speech Cases Are as Hard (and as Easy) as They Are

Abstract

Some cases are hard, others easy. A moment's thought confirms that free speech cases follow this familiar pattern. But it is sensible and important to ask why any given free speech case is as hard, or as easy, as it is. The same question might be asked about any particular kind of free speech case, as well as about free speech cases in general. The answers to these questions are not themselves easy. Why, for example, are interesting free speech cases not thought of as beyond any rational, principled resolution because of their sheer difficulty? Why are some free speech cases hard, and others easy, and not all roughly equally difficult? Finally, why, given all our efforts and accumulated experiences, are most free speech cases not uncontroversially easy? Answering these questions will take the form of providing an unusual perspective on what is really at stake in free speech cases.