And how's that working out for them? But to return to Posner's supporting argument, it seems to be this: the First Amendment must not be that important, because until the 1960s it didn't stop the government from cracking down on seditious speech by Communists, etc. Also, freedom of speech is not a legitimate concern for conservatives, because in the past they've argued that some kinds of obscenity undermine the public order; conservatives took interest only when political correctness got out of control in the 1980s. When liberals figured out that freedom of speech is just another way of letting people "disparage" the ideas of others, conservatives countered that the "marketplace of ideas" would sort out the good ideas from the bad. But we all know that some ideas are irretrievably bad, so there's no point in permitting their expression, especially since we also all know from sad experience that they won't go away even when exposed to sunlight. What's more, America during the Cold War failed to uphold the Constitutional principle of state's rights under pressure from enemies who exploited our civil rights abuses for their own purposes of propaganda, so why should we now uphold the Constitutional principle of free speech in the face of worldwide animosity? After all,
It is useful if discomfiting to consider that many people around the world may see America’s official indifference to Muslim (or any religious) sensibilities as similar to its indifference to racial discrimination before the civil rights era.In the technical terms employed by those of us, like myself, who benefited from formal Constitutional training, this is balderdash. Posner seems unable to think through some critical distinctions. One is the difference between private curbs on behavior, on the one hand, and official government mandates, on the other. There are many things I'm quite free to say legally that I have no intention of saying, for my own private reasons, including kindness, respect, or discretion. The point is that someone has to decide when those reasons are good enough, and I insist that that person be myself, not my local speech-control bureaucrat.
There also is a critical difference between words and action. Even supposing I felt a need to explain my Constitutional consistency to skeptical residents of other countries, I'd have little difficulty explaining why I might feel more qualms about pre-civil-rights-era racial discrimination than about my country's official indifference to anyone's religious sensibilities. One involved violence and active injustice that deprived people of employment, education, and sometimes life and limb. The other involves words and thoughts that hurt someone's feelings.
I'll add one more distinction that is fuzzier than it should be in Posnerland: the difference between what we decide for ourselves and what the Muslim world abroad may think about it. If Muslim leaders are willing and able to filter out our messages at their borders, that's up to them. We don't need to become their agents in that censorship project.
We've had some form of freedom of speech so long in this country that coddled professors can forget the lessons of what it was like before the American War of Independence. There was a reason our forefathers didn't trust the government to decide who should be locked up for expressing unacceptable ideas. For one thing, they didn't much like the idea of life under a government that looked and acted very much like an Islamocracy. Leaders naturally dislike being criticized. Leaders also have to have some power, or they can't lead. That's a dangerous combination, just the kind of thing the Constitution is there to keep a lid on.