Legal Commentary

The Times ran today this interesting essay, "Speech and Harm", by Ernie Lepore, in which the author reflects on the fact that "there are certain words that can not be uttered without causing shock or offense."  It's worth reading for the author's own points but, for me, it was a reminder of something that (I think) it is important to remember about the freedom of speech and First Amendment doctrine: 

It is a mistake (I think) to allow our thinking and doctrine to be shaped by a perhaps comforting but still mistaken assumption either that "speech" does not cause "harm", or that the "harms" speech does cause are, somehow, necessarily caused.  Instead, we choose to tolerate certain harms -- or, more precisely, we choose to tolerate the infliction of harms on some actual people by some other actual people -- because we think those harms are "worth it", given the benefits that (we think) a harm-tolerating speech regime delivers.  But, I try to suggest to my own students that we should (a) avoid treating as an un-examinable premise that they are "worth it" and (b) we ought to always be asking ourselves what account we could give -- and whether it would be good enough for them -- to those who are harmed by speech that the harms are "worth it."