Free Speech and Guns

Legal superstar Eugene Volokh on the Bill of Rights in 2010

Eugene Volokh & Ted Balaker
Reason Magazine
July 2010

Few scholars have led a life as varied as Eugene Volokh’s. Born in the Soviet Union in 1968, Volokh immigrated with his family to the United States at age 7. A prodigy, he entered the University of California at Los Angeles at 12 and graduated at 15 with a degree in math and computer science. At the same time he contributed to the family software business, which became very successful thanks in large part to Eugene’s programming skills.

In his 20s, interested in new challenges, Volokh went to law school, starting on a path that would eventually lead to clerkships with U.S. Supreme Court Justice Sandra Day O’Connor and the libertarian-leaning 9th Circuit Judge Alex Kozinski. Since 1994 he has taught law at UCLA. As a professor he has achieved not just a strong reputation among his peers, thanks to his scholarship on subjects ranging from cyberspace law to the Second Amendment, but a considerable following outside the legal profession as well, thanks to The Volokh Conspiracy, a consistently interesting website he launched in 2002… producer Ted Balaker sat down with Volokh in December for a wide-ranging discussion about the state of civil liberties in the United States today. For a video version of the interview, go to

reason: As Americans, we fancy ourselves defenders of free speech, regardless of whether we personally find it offensive. It sounds like we’re not quite living up to that standard. How well are we doing?

Volokh: I think most Americans support free speech. They just have different visions of what speech should be free. I think even libertarians recognize certain kinds of speech ought to be restrictable—death threats, for example. And one can support free speech but take a narrower view or a broader view. If you look at the views of American citizens to the extent that they’re polled on these subjects, it turns out that there’s pretty broad support for protecting even speech that is seen as extremist, racist, or harshly anti-religious. There’s broad support for protecting it. There’s also broad support for restricting it…

reason: If you had to choose one or two of the biggest threats to free speech these days, what would they be?

Volokh: One is the notion of hostile environment harassment: that people expressing their views, people making jokes, sometimes people posting sexually themed material, sometimes people making political statements or religious proselytizing, can become legally punishable discrimination simply because it is—and I’m quoting here the very vague language of the law—“severe or pervasive enough to create a hostile, abusive, or offensive environment” based on race, religion, sex, sexual orientation, and the like. This could be in employment, in education, in public accommodations. There is the limitation that it can support a lawsuit only if it creates a hostile environment for a reasonable person, but it’s obviously a very vague and very broad standard.

This rule has become essentially a nationwide speech code for America’s workplaces. The code is not just imposed by the private property owners who run the workplaces, who of course are entitled to restrict speech on their property and by their employees. Rather, it is imposed by the government; employers are being coerced into suppressing certain kinds of speech by fear of massive liability. And once that theory is recognized in the workplace, it becomes applicable in other places as well. The latest generation of campus speech codes is based on the theory that if students or professors say things that in the aggregate are offensive enough to people based on certain attributes that speech stops being constitutionally protected speech and magically becomes the conduct of discrimination, which is legally punishable..

…Volokh: Media coverage of guns is skewed in various ways. At many media outlets, the people who write about the subject are somewhat anti-gun, and as a result the coverage ends up being anti-gun. Sometimes they are just ignorant of basic distinctions. You occasionally hear talk about assault weapons that implies they are fully automatic weapons, which they are not. So there are institutional biases. There is also a news bias: It’s not news if a gun is used the way most guns are used, which is somebody breaks into somebody else’s home, the homeowner takes out a shotgun and pumps it, and the burglar hears that familiar sound and runs away. That’s a very common and beneficial use of a gun, but it’s not going to make the news.

At the same time, entertainment is biased, whether intentionally or not, in favor of guns. Guns are glamorous things in television programs and in movies…

Read the complete interview at

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