The American Spectator

NONETHELESS, in 1969, a shouting contest had already commenced: the forces of “relevance” against the blinkered defenders of institutions and ideas too long (as the protesters saw it) established. A sit-in, a love-in, a shout-in against “an immoral war” or “fascist pig Amerika” was the way to go now. All right, it wasn’t Areopagitica, and so what? It was real, it was authentic, and the Constitution had to make room for it — all right? Louder and louder grew the volume of “discourse.” Not in conspiracy with the federal courts, which hadn’t gone completely nuts, but rather in consequence of growing indifference to older beliefs; e.g., that manners matter and that conquest by force isn’t conquest at all.

Not every social restraint collapsed under the battering. The debasement of free speech continued apace, even so. In 1989, 20 years after Tinker v. Des Moines, the high court affirmed (Texas v. Johnson) the free speech right to pour kerosene on an American flag, then ignite it, in violation of state law. This was because the government “cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol…” Mr. Gregory Lee Johnson had something to tell us, and we, the people, had to let him tell it, just as we now have to allow the clamorous Baptists of Westboro their say in more or less their chosen manner.

The striking feature of the Westboro decision was the acquiescence of all the court conservatives — Sam Alito excepted — in the new understandings of “speech.” That very acquiescence might be taken as showing the depth to which the modes of the 1960s have penetrated current understandings of what it takes to live together.

Commonsense objections to crudity and indecency as forms of expression no longer hold sway. The too-famous “f’ word has become pretty much an entertainment industry staple — allowed because some (too many?) think for now it’s cool. Public nudity is defended on free speech grounds. Columbia University students earlier this year booed and heckled a nine-times wounded Iraq war veteran appearing in behalf of reopening the university to the Reserve Officers Training program. Way to go, guys — show your love of freedom by smothering someone else’s right to it. It seems to happen regularly on campuses these days.

The point isn’t — hear me — that the federal courts nowadays rubber-stamp every conceivable species of “expression.” The point is that you can’t count on the courts anymore for generous deference to ideals that held pretty much together prior to the Great Disintegration of the 1960s. It’s a shame. We did pretty well with the norms of intelligence and civility that for the most part guided discourse. The meaner, uglier mood of modern America — deny its reality who will — can get only meaner and uglier with the kind of encouragement the court gives in the Westboro case. Makes you want to burn a flag or something.