Free Speech Liberty: Possession vs. Use

Daniel Henninger, deputy editor of The Wall Street Journal’s editorial page, offers his take on the Second Circuit Court’s recent ruling against the FCC in today’s Opinion Journal. The gist:

After the decision, editorialists and columnists in newspapers everywhere mocked the FCC’s “moralists” and “language police” for its provably quixotic effort to suppress the most commonly used words–today–in our language. Nevertheless, virtually none of these newspapers could bring themselves to rearrange the famous four letters–k, f, c, u and h, t, s, i–into either word, instead publishing them as f*** and s*** or resorting to euphemisms: “highly pungent,” “oft-heard vulgar words” and “celebrity cursing at awards shows.”

There is tedium following, demonstrating allegedly contradictory views about what is and isn’t acceptable. Then he arrives at this:

Still, I come back to the otherwise uninhibited newspaper industry’s reticence. Perhaps they fear that most of the public, their readers, aren’t quite there yet with this practice. Or perhaps deep in the primeval corner of the editorial soul sits the sense that somehow there really is something not quite right with promoting verbal f’ng and s’ng in public. In other words, perhaps there are defensible reasons for separating “polite society” from what we’ve got now, which is Paulie Walnuts society.

Take out the prudish last sentence and you end up with what we have where Constitutional protections are noted: a free market solution where “dirty” words don’t regularly appear. I know, it’s difficult to believe that can come about without government interference and restriction, but it happens.

Mr. Henninger offers some more prudish drivel about discipline and not giving in to the “slovenly, unrestrained ethos” of “dirty” words before arriving at this:

Judges Pooler and Hall are probably right that “they” didn’t create this F&S problem and besides, it’s everywhere now. But it’s disheartening to see a primary U.S. institution nominally associated with utilitarian rigor now throwing in the towel. And yes, it’s pathetic and hopeless to imagine that the FCC can ever get this right. But to wake up one morning to discover that of all the socially organizing institutions in American life, the only one slightly disturbed if a Nicole Ritchie speaks to the nation about her Prada handbag in terms of F&S is the Federal Communications Commission, well, that’s pathetic. And some day, it may be more than that.

That’s the issue, isn’t it. Mr. Henninger would rather have “utilitarian rigor” than Constitutional rights. He believes that “socially organizing institutions” should care enough to protect us. And, without such protections, we’re on a slippery slope to God-knows-what kind of national verbal nightmare. Ignore that the free market, devoid of government restrictions, works in print. And on cable. So, despite evidence contradicting what he fears, he laments the loss of one form of paternalism.

In related news, Supreme Court Justice Samuel Alito offered useful analysis of free speech restrictions.

“I’m a very strong believer in the First Amendment and the right of people to speak and to write,” Alito said in response to a question of “where’s the line” on what can be posted on the Internet. “I would be reluctant to support restrictions on what people could say.”

The newest justice, who was protective of speech rights as an appellate judge, added that “some restrictions have been held to be consistent with the First Amendment, but it’s very dangerous for the government to restrict speech.”

Free speech is never about what is socially acceptable in the public sphere. Despite the Constitution’s protections, every American has the option to be offended and to avoid that which offends him. He does not have the option to seek government action to stop what offends him. If Joe Reader is offended by profanity in his newspaper, he might cancel his subscription if he encounters it. Incentives matter, and work to restrain. Only the small, fearful mind thinks otherwise and demands government coercion.