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43 Loy. U. Chi. L.J. 395 (2011-2012)
When Bad Speech Does Good

handle is hein.journals/luclj43 and id is 415 raw text is: Essay
When Bad Speech Does Good
Mary Anne Franks*
Defenses of offensive speech typically include a distancing
disclaimer, highlighting the separation between the person offering the
defense and the offensive content itself.' Consider, for example, the
well-worn quotation widely misattributed to Voltaire: I disagree with
what you say, but I will defend to the death your right to say it.2            In
this view, it is the principle, not the substance, of the speech that
deserves respect. This view may be grounded in the belief, or some
combination of beliefs, that one person's bad speech is another
person's good speech;3 that even avowedly bad speech helps produce,
or at least sharpen, good speech;4 that because the line between bad and
good speech is a difficult one to draw, censorship is likely to stifle or
chill good speech as well as bad speech;5 and/or that even if lines
* Associate Professor of Law, University of Miami Law School; J.D.. Harvard Law School;
D. Phil., Oxford University. I am grateful to Michael Froomkin and Arden Rowell for helpful
feedback.
1. See generally ANTHONY LEWIS, FREEDOM FOR THE THOUGHT WE HATE: A BIOGRAPHY OF
THE FIRST AMENDMENT (2007) (discussing First Amendment protections of offensive speech).
See also Justice Scalia's denouncement of the expressive act protected by the First Amendment in
R.A V. v. City of St. Paul: Let there be no mistake about our belief that burning a cross in
someone's front yard is reprehensible. R.A.V. v. City of St. Paul, 505 U.S. 377. 396 (1992).
2. The phrase was in fact authored by Evelyn Beatrice Hall. who wrote under the pseudonym
Stephen G. Tallentyre, summarizing Voltaire's views in her own words. EVELYN BEATRICE
HALL, THE FRIENDS OF VOLTAIRE 199 (1906).
3. Or, as Justice Harlan put it in Cohen v. California: [O]ne man's vulgarity is another man's
lyric. Cohen v. California, 403 U.S. 15, 25 (1971).
4. See JOHN STUART MILL, ON LIBERTY 37-38 (2d ed. 1859) (Complete liberty of
contradicting and disproving our opinion is the very condition which justifies us in assuming its
truth for purposes of action; and on no other terms can a being with human faculties have any
rational assurance of being right.).
5. [L]ow value speech may itself have no First Amendment value, but regulations of such
speech may have spillover or chilling effects on speech with important First Amendment value.
The threat of liability for false statements of fact, for example, may chill speakers from making
even true statements. Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lessons
from the Twentieth Century. 36 PEPP. L. REV. 273, 285 (2009).

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