No, the founders did not ‘tell you so’

H.L. Mencken believed in free speech “up to the last limits of the endurable.” Apparently, that makes him a cuck nowadays.

Mencken was a self-described “extreme libertarian” with little respect for authority. In 1926, when Boston banned an issue of his magazine, the American Mercury, over a mildly bawdy story called “Hatrack,” Mencken went to Boston, sold a copy himself, and got arrested for his trouble.

Are we still rational? Some days I have my doubts.

“Hatrack,” by Herbert Asbury — who later gave us “The Gangs of New York” — concerned a prostitute who took her Catholic customers to the Protestant cemetery and her Protestant customers to the Catholic cemetery.

Scandalous stuff, once upon a time.

Yet as absolutist as he professed to be, Mencken did not believe freedom of speech meant license to say anything to anybody under any circumstances. Although he rejected Catholic doctrine, he told an interviewer he had no right to plant himself outside a cathedral after High Mass and harangue Catholics as they emerged.

Write against Catholicism? Sure. Ridicule it? Mencken made a career of worse. But deliberately press his contempt upon people who didn’t ask for it? There he located one of “the last limits of the endurable.”

I thought about Mencken’s observation while reading responses to my column last week about Shiloh Hendrix, the Minnesota woman convicted of disorderly conduct after Sharmake Omar followed her with a camera, challenged her to repeat the N-word, and got exactly what he asked for. I say Hendrix behaved badly but Minnesota’s prosecution was needless. Whatever one thinks of the “fighting words” doctrine, her exchange with Omar did not look much like an “imminent breach of the peace.”

One reader informed me that I was “100% wrong” because “the founding fathers told you so.”

No, they didn’t. Sorry, dude. Not even close.

James Madison certainly understood that liberty carries abuses with it. In his “Report of 1800,” attacking the Sedition Act, Madison wrote that “some degree of abuse is inseparable from the proper use of every thing,” especially a free press. Better to tolerate a few “noxious branches” than prune so aggressively that you destroy the good fruit along with the bad.

RELATED: Shiloh Hendrix took the bait — prosecutors took it too far

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That is a formidable warning against political censorship. It is not an argument that nothing done with words may ever come within reach of the law.

Joseph Story was even more on point. Story was not technically a founder, but Madison appointed him to the Supreme Court in 1811. In his 1833 “Commentaries on the Constitution,” Story considered the proposition that freedom of speech and press meant an absolute right to say or publish anything “without any responsibility, public or private.” He called that “a supposition too wild to be indulged by any rational man.”

Are we still rational? Some days I have my doubts.

Nor did the Supreme Court in Chaplinsky v. New Hampshire simply declare open season on offensive words. The rule the justices upheld applied to words with a “direct tendency to cause acts of violence” by the person to whom they were addressed. The question was not whether somebody’s feelings had been hurt, but whether, in context, the words were likely to provoke an immediate breach of the peace.

You may think that rule was wrong. You may think Chaplinsky should be overruled. Fine by me. But it was not a hate-speech law in embryo.

Conservatives, of all people, should be capable of making certain distinctions. We are right to oppose political censorship, government pressure on social media companies, and “online safety” schemes — especially Trojan horse laws like Britain’s Online Safety Act and whatever American variants politicians devise — that smuggle censorship into law under the vocabulary of “harm,” “misinformation,” and “protection.”

But the answer shouldn’t be to pretend public order no longer matters.

We used to understand “ordered liberty.” The adjective was not decorative. A free society protects political dissent, unpopular opinions, vulgarity (to a point), and plenty of behavior decent people would rather not endure. It also recognizes that rights can collide and that threats, intimidation, harassment, breaches of the peace, and invasions of privacy do not become sacred merely because somebody accomplished them with his mouth.

Hadley Arkes warned conservatives about precisely this temptation in the Claremont Review of Books. In recoiling from the left’s habit of policing speech according to subjective injury, conservatives risk adopting a relativism of their own: No distinctions. No judgments. Words are words. Speech is speech. Context is irrelevant.

That posture may sound wonderfully resolute, but it merely saves us the trouble of thinking. Don’t fall for it.

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Human beings use words to persuade, deceive, threaten, provoke, comfort, command, insult, and warn. Threats are words. Extortion is words. Perjury is words. Fraud very often is words. An argument is made with words. So is an epithet. Pretending all of those acts are morally identical does not make us more devoted to liberty. It makes us less capable of judgment.

Which brings me back to Shiloh Hendrix. She is a grown woman who behaved badly. Omar followed her with a camera, confronted her, and challenged her to repeat the N-word. He also behaved badly — but she took the bait. He posted the video. She was doxxed, condemned, defended, and turned into a national cause. Then Minnesota prosecuted her.

I still think that was needless. Omar wanted a viral video, not a fistfight. He got one, and the internet delivered its judgment with its Customary Restraint and Good Sense™. I still want Hendrix to win her appeal.

Arkes emailed me after my first column appeared and put the matter more succinctly: “It’s a matter of context.” Exactly. Thanks, professor!

Madison warned against destroying freedom while pruning its noxious branches. Story warned that liberty did not mean immunity from all responsibility. Mencken believed in freedom up to “the last limits of the endurable.” Arkes warns conservatives not to answer left-wing censorship by surrendering moral judgment altogether.

Public order requires us to look squarely at what Hendrix did, what Omar did, and what the state did afterward. Making distinctions does not weaken the case for free speech. It is the case for ordered liberty — which we need now more than ever.