Many of the speech harms identified by Congress and reviewed by the Supreme Court either implicitly or explicitly incorporate the notion of a reasonable person. Critique this reasonable person standard given the First Amendment’s apparent assumption that laws should not unnecessarily abridge the freedom of speech.

Question

What will be an ideal response?

Answer 1

This question does not have a single, clear correct answer. It requires critical thinking and synthesis of the first three chapters of the text and encourages students to discuss: (1) The malleability of precedent and the rule of law. (2) The harms and benefits of laws that respond to shifting social and cultural norms. (3) The theoretical notion of some “reasonable person” whose ideas are inherently clear to authorities and the judicial system. (4) The notion that humans operate based on reasonable, rational assessment and decisions. (5) The question of whether any reasonable person standard adequately protects the privileged protection granted by the freedom of speech under the Constitution. (6) The question of whether a reasonable person standard does not simply incorporate the heckler’s veto (rejected by the Supreme Court) under another name. (7) The extent to which the speech categories and speech harms discussed in Chapter 3 simply create elaborate, confusing, and unclear rationales for chipping away at the freedom of speech.