Old Wine in New Bottles: the Constitutional Status of Unconstitutional Speech

This Article explores whether contemporary advocates of restrictions on bigoted expression have more in common with contemporary advocates of broad First Amendment rights or with past censors. The critical theorists who would ban some hate speech rely heavily on the equal citizenship principles that radical civil libertarians believe justify almost absolute speech rights. Past censors, however, also relied heavily on principles that libertarians in their generation thought justified almost absolute speech rights. The First Amendment, past and present censors argue, does not fully protect speech in- consistent with what they believe are basic constitutional values.

This claim repudiates a basic principle of American constitutionalism, the faith that "self- evident" constitutional values will triumph in the constitutional marketplace of ideas. The ideological marketplace is dysfunctional in communities that do not honor constitutional rights, but such communities do not restrict speech that silences or harms traditionally subordinated groups.