No big deal

[Michael McConnell]

If I understand him correctly, Marty Lederman concedes that public
accommodations law may violate the Free Speech Clause in some
contexts, but this is no big deal. It won't happen very often, and
what is lost is not very important. I have been puzzling over what
kind of claim this is: Is it an empirical claim? If so, how can it be
tested? Also: what free speech issue of the past several decades
would Marty say really *is* a big deal? Flag burning? Cohen v.
California? Hustler v. Falwell? The CDA? Hurley? (Widmar v. Vincent
and its progeny are probably the best candidates, in my opinion.)

It can be argued that ours in a nation with a strong and healthy free
speech tradition; that freedom of speech is rarely invaded; and that
when it is invaded, there usually are good reasons for it. Does that
mean that our vigilant constitutional protection for freedom of
speech is a mistake? Or am I misunderstanding Marty's point?

-- Michael McConnell (U of Utah)