Banned in Boston" is something we look on with amusement, a relic from an earlier age of prudery. But recent events suggest we are not too far from the impulses that prompted Mayor James Michael Curley to forbid speech that offended him.
During the last few months, Boston has lost in court three times over free speech issues. The first was over the city's ban of a march by self-proclaimed racist Richard Barrett. The second was over Boston's effort to stop dancing at the Paradise nightclub. The third was an order that the city allow Hempfest — a pro-marijuana event — to proceed forward on the Boston Common.
These three events all come on the heels of a Supreme Court decision that sharply rebuked Boston for trying to stop South Boston's St. Patrick's Day parade. The city had refused to allow the parade to proceed forward because gays and lesbians were not allowed to march. The Court, arguing parades are a form of speech, upheld the rights of the parade organizers to include or exclude anyone they chose.
Has Boston gone too far? In our zeal for a safe and well-controlled city, are we trampling on First Amendment rights?
I think the answer is yes. I say this as someone who plainly is not in sympathy with the kind of speech the city has been trying to suppress. I was a leader, for example, in pushing to open up the St. Patrick's Day parade to participation by gay groups.
But the First Amendment's purpose isn't to protect speech I happen to like. It's purpose is to protect speech I don't like.
In each of the cases cited above, the city had some sound arguments relating to public safety and crowd management that it tried to advance to defend its position. Those are good arguments and courts will generally honor so-called "time, place or manner" restrictions. The problem is that such restrictions still place an obligation on the city to accommodate the speech itself, and for the most part Boston wasn't trying to do that.
The courts involved understood clearly that what was motivating Boston in the Barrett case wasn't only a concern for public safety, it was also Barrett's hateful speech.
Similarly, what was motivating Boston in the Hempfest situation wasn't only crowd control or noise, it was the event's advocacy of marijuana. Indeed, the city's true motivation was made obvious when it argued it would permit the event if the Hempfest organizers tried to urge attendees not to use marijuana. That's like allowing a swim meet so long as the sponsors urge everyone to keep dry.
One of the problems with all of this is that by focusing on speech itself, the city has to an extent lost an opportunity to put in place reasonable restrictions. Indeed, suspicion of the city's motivation is now so high that courts are buying arguments, such as those made by the Paradise nightclub, that efforts to pull an entertainment license now impinge on free-speech concerns.
The city and the First Amendment would be better off if we were to recognize that hateful, troubling and pernicious speech cannot be banned by government. Our obligation is to let it proceed and to recognize that the solution to bad speech is simply more speech.