Counterspeech 2000: A New Look at the Old Remedy for "Bad" Speech

Justice Louis Brandeis, in his concurring opinion nearly seventyfive years ago in the criminal syndicalism case of Whitney v. California, 1 articulated the premise of what today is known as the doctrine of counterspeech. 2 When it came to expression that was perceived by some to be dangerous, threatening, or harmful, Brandeis famously wrote, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." 3 At the heart of the counterspeech doctrine is the principle, as Laurence Tribe writes, that "whenever 'more speech' could eliminate a feared injury, more speech is the constitutionally-mandated remedy." 4 Rather than censor allegedly harmful speech and thereby risk violating the First Amendment 5 protection of expression, or file a