No clause in the Constitution draws more judicial encomia to liberty than the Free Speech Clause. But as Justice Robert Jackson warned, extending freedom of speech to unworthy expression can actually “belittle great principles of liberty.” Courts today regularly confront opportunities to expand free speech protection--for example, whether there is a speech right to flash one’s headlights to warn oncoming drivers of police speed traps or whether law enforcers can restrict the social-media posts of their own officers. The Ninth Circuit has already confirmed the right to view executions, but current litigation seeks to expand the scope of that right.
On the other hand, our law also recognizes many categories of unprotected expression--libel, fraud, perjury, intimidation, mislabeled drugs, and exposure of military secrets, to name a few. What these categories have in common is a conclusion that speech’s harm can--and often does--outweigh its supposed entitlement to protection. The panel will explore the intersection of criminal law and procedure with First Amendment jurisprudence with a particular focus on evaluating the advantages and disadvantages of further expanding free speech protections.

Dominic Draye, Solicitor General, Arizona
Professor Thane Rosenbaum, NYU Law School
Steve Simpson, Ayn Rand Institute
Joseph Tartakovsky, Deputy Solicitor General, Nevada
Moderator: Hon. Tim Tymkovich, U.S. Court of Appeals, Tenth Circuit
Introduction: Joe Peters, Assistant Attorney General, Colorado Attorney General's Office