What Speech To Restrict

A perennial question in First Amendment Law is what speech is appropriate to restrict. The First Amendment reads, in part:

Congress shall make no law . . . abridging the freedom of speech, or of the press . . .

There are some judges who think that "no law" means "no law." The vast majority of judges fall somewhere on the more reasonable side. Now, let it be said that I have taken no classes, nor read many cases on this topic, so this is more my pontificating than giving reasoned legal analysis.

First, criminal speech. Some criminal speech is flatly outlawed. If I say to David Lu!!, "Hey, do you want to rob a bank?" and he says, "Yes!" then in some states we have engaged in conspiracy to commit grand larceny, despite no overt act being committed. In that case, criminal speech is clearly being outlawed. It's a bit of a stretch, but they'd also have to prove actual intent to rob the bank, which I clearly lacked. Anyway, some criminal speech may be similar, but protected. If I were a religious leader urging my followers to rebel against the government, to rise up against them in a violent protest, and they all screamed back "Yeah!" it would, arguably, be protected speech, despite the fact that we all could share the intent to actually want to rebel in violent protest. There is an argument that the distinction between the two is likelihood of immediate criminal action (in the first case, planning the robbery, in the second case, none). The other argument is that the later statement is protected because it is religious and/or political in nature. But, if "Congress shall make no law..." what does the nature of the speech matter? How does a political message somehow make it subject to greater protection?

Perhaps the most interesting recent application of this was in the Bong Hits 4 Jesus case. (This case has a real name, but it will forever be known as Bong Hits 4 Jesus. Plus, I don't know the real name.) Anyway, the majority argued that the school had a vital interest in keeping kids off drugs, and could punish students for drug-related speech in or around school. Justice Stevens, on the other hand, defended the student by saying, first, that the sign was nonsensical. The student was not actually advocating that Jesus use marijuana. It just doesn't make any sense. Secondly, though, he argued that there is a vital and lively debate going on to this day in communities around the nation as to whether marijuana use should be a punishable offense (see Denver for a recent example). Therefore, the poster could have been construed as political speech, which deserves protection.

The most immediate conclusion I can come to is that we want to encourage political and religious debate and speech, and therefore offer it a sort of utilitarian-based greater leeway. But if that is the explanation, how does that fit with the language of the Constitution?

Please Note: This is all just a thought experiment. Please do not take from this (1) that I think political speech doesn't deserve any special protection, or (2) that all speech regardless how harmful or criminal should be allowed. I'm just musing about the law.