A new Supreme Court term is upon us again, and that means another airing of some of the most contested issues of the day. Invariably among them: a First Amendment conundrum. This fall’s Exhibit A: Snyder v. Phelps–or the right of an odious religious group to picket a soldier’s funeral and taunt the family. There may be no more nuanced, more emotional, more controversial and more relevant test of a basic freedom than the right to offend.
Enough, candidly, to make one wish that when the First Amendment was ratified in 1791, the wording would have been: “Congress shall make no law…abridging the freedom of speech or of the press. Moreover, it is hereby assumed that any prospective extension of this right would be compatible with common sense based on context, the likes of which even liberty visionaries cannot conceive of at this point in time.”