have lost their way on free speech. They’re caught between two conflicting visions. In one, the First Amendment applies in the same way, all the time, regardless of context: speech is speech, period. In the other, speech should be treated differently in different contexts. It’s not just a matter of politics, he says. “There’s a genuine uncertainty about how to think about the regulation of speech that afflicts both the right and the left,” Post told me recently. “It’s not a liberal or conservative mess. It’s a conceptual mess.” [snip]Robert Post believes that free speech should be afforded the highest protection in the realm of public discourse; free speech is essential to the decision-making process in a democratic system. In other contexts (e.g., a trial judge forbidding certain questions, science teachers saying the earth is flat) where self-governance is not at stake, speech may be restricted. Most people are absolutists about speech in principle until they think about specific examples, like lying about a medicine's curative properties, a CEO talking about his company's prospects, or a military reporter revealing troop movements.
The basic problem, he argues, is that the court sometimes acts as if the phrase “freedom of speech” applies every time someone uses words. It doesn’t. In many cases of communication, it would seem absurd to say the First Amendment is even relevant: a bomb threat, a consumer product manual, insider trading. The First Amendment only comes into play when certain values are at stake. Post’s work is an attempt to deduce those values from the pattern of Supreme Court decisions. Like a mathematician plotting a best-fit line over scattered data points, he is building a theory that explains the law better than the stated doctrine does.
Looking at the context, of course, raises other questions like "How, for instance, are judges supposed to decide what counts as public discourse?", but it's a way of thinking about the issue that, for now, seems to be independent of a political point of view.