But altering free-speech protections out of concern for Obama could have devastating implications for our collective right to criticize political authority. Think back to 2004: even though the nation was engaged in multiple wars and guarding against another 9/11 — and even though President George W. Bush was genuinely despised by a healthy segment of the populace — author Nicholson Baker was still free to write and publish Checkpoint, a novel in which two men debate taking Bush's life. And two years later, the British mockumentary Death of a President— in which Bush's (simulated) assassination is followed by a third Patriot Act and a massive crackdown on civil liberties — was allowed to open in the United States, despite public condemnation and the unwillingness of some theater chains to screen it.
The ancillary effects of such a hypothetical expansion also need to be considered. New restrictions on anti-Obama speech could legitimize paranoid conservative fears that Obama plans to silence his opponents, for example — thereby exacerbating anti-Obama animus. Consider, too, that by making hateful attitudes known, the First Amendment allows society to respond in kind. "The theory of the First Amendment actually makes a lot of social sense," notes Silverglate. "It's very useful to know who wants to hang the Jews and the blacks." Penalize the ugliest anti-Obama speech, and this benefit vanishes.
If you're an Obama booster who thinks concern for his safety might justify even an incremental erosion of free speech, ask yourself: did Checkpoint and Death of a President bother you at the time? Do they bother you now? (Be honest.) And how would you feel if — four or eight years from now — expanded limits on speech that originated during an Obama administration led to the censorship of texts deemed too threatening to, say, President Sarah Palin?
"We need to have historical humility," says Nadine Strossen, the former president of the American Civil Liberties Union and a professor at New York Law School. "Each era tends to have historical hubris — 'This is the greatest danger ever posed to the values we hold most dear.' We tend always to exaggerate the danger — and to unnecessarily cut off civil liberties."
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