We periodically test and retest the limits of free speech.
Recently, free speech has been winning, even when it hurts, as surely it sometimes does.
Just a few days ago, the U.S. Supreme Court said a Seattle rock band called "The Slants" had a right to register its name over the objections of the Patent and Trademark Office.
The government's contention was that the name also is a derogatory term for Asian Americans, and as such violated a federal act prohibiting trademarks that "disparage...or bring...into contempt or disrepute." But Justice Samuel Alito's opinion in Matal v. Tam said denying the trademark "offends a bedrock First Amendment principle: Speech may not be banned on the grounds that it expresses ideas that offend."
Alito also rejected the idea that the government's role should include efforts to stamp out ideas that offend large groups of people.
In a concurring opinion, Justice Anthony Kennedy said protecting offensive speech also protects all speakers who hold views not shared by the majority of citizens.
Granted, we've decided as a nation that some speech is outside the First Amendment's purview; true threats and fighting words, blackmail, child pornography and attempts to immediately incite violence among them. But we must continue to narrowly define in law what is not protected, even if it means standing in defense of the rights of those who would provoke, challenge or even disgust most of us.
We need to know the depth and manner in which all kinds of ideas exist, if only at times to understand how to effectively oppose or refute some of them.
None of us have to passively accept that which we do not like or abhor. We may bring our complaint in the court of public opinion rather than in its legal counterpart. Effective? You bet.
Just ask comedian Kathy Griffin, who quickly found out she crossed a line into unacceptable — though still legally protected — speech, when she posed with the faux severed head of President Donald Trump. Faced with a deluge of online criticism and cancellation of public appearances and a network TV deal, she apologized profusely.
And turning to late-night host Stephen Colbert: The FCC properly refused to act against Colbert for a crude on-air reference to oral sex in a joke about Trump and Russia's Vladimir Putin. But after wide public outcry over both the words and the tenor of the joke, Colbert responded, "While I would do it again, I would change a few words that were cruder than they needed to be."
We do at times find instances in which speech begets conduct that is not protected. In Massachusetts, a teenager will appeal a June 15 verdict in a "suicide by text" case. She was convicted of involuntary manslaughter as a result of her text messages to a suicidal boyfriend that the court found showed "wanton and reckless disregard for the life of the victim."
This current list of contentious free speech issues also includes proposals in some state legislatures to limit public protests, debates over campus speech codes and speakers and even wider arguments over how to deal with free speech on the Internet that is considered "fake news."
No one solution fits, or fixes, all. We must have the courage to defend against those who would take a shortcut through the First Amendment in the name of preserving good taste, protecting public sensibilities or even in defense of "truth."