The First Amendment: Rarely Popular, Always Necessary

They don’t send out the DEA to bust people for eating deadly poisonous toadstools. That behavior is, ahem, self-limiting. But the federal government does forbid the sale of mushrooms that make people feel like they’re at a rainbow jamboree with the Care Bears, because lawmakers know lots of people would gobble them up.

We have little trouble understanding why we have and enforce laws: The forbidden conduct would otherwise be too attractive. We punish people for everything from toxic waste dumping to breaking the speed limit precisely because lawmakers think too many people otherwise would engage in conduct that’s harmful to society as a whole.

While we understand why we have prohibitions against certain conduct by citizens, we tend to forget that our system forbids certain conduct by the government for precisely the same reason: The harmful misconduct is too attractive to otherwise resist.

Many Americans claim to revere the First Amendment and its hard line against government limitations on the beliefs of our citizens and the expression of those beliefs. Yet very often the same souls who rhapsodize over free speech are eager to limit it.

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