ANALYSIS/OPINION: Once upon a time we could count on lawyers and law school professors to defend the First Amendment, the most important 46 words in the Constitution. Those 46 words make everything else possible. Shut up the people and the government can shut down every other freedom.
The genius of the Founding Fathers was their ability to write the Constitution in the plain English that everybody could understand. Lawyers, who can employ entire boring paragraphs to say "good morning" (many young women have dozed off while their lawyer swains were on their knees with a proposal of marriage) would inflict damage later.
A good lawyer, or even a bad one, can put loopholes in any proposal. To wit, Elena Kagans explanation of the First Amendment. It's perfectly OK, she wrote in the University of Chicago Law Review, for the government to restrict free speech as long as it means well and calls it something else. The word "restrictions" sounds bad, like a leather restraint, but Mzz Kagan's "redistribution of speech" can sound benign, like free cheese. Who doesn't like cheese? She argued that the government can employ Orwellian restrictions on speech if it thinks such speech might "harm" others, either by direct action or inciting someone else to take direct action. Who gets to decide when such restrictions are imposed for the greater good? Why, the government, of course.
Here's how the Founding Fathers, ever suspicious of ambitious Lilliputians, wrote the guarantee of free speech: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Note that the First Amendment does not say that Congress "should" make no law abridging the freedom of speech, or that it would be nice if it didn't. The operative words are "shall make no law."