I think the jury was right to decide in Hogan’s favor, but I think the award is at least an order of magnitude too high, and I’m concerned by his lawyer’s use of the word “balance”. While there are certainly exceptions to the First Amendment, those exceptions have been specifically enumerated in case law. The suggestion that they should be determined by some kind of balancing test, that free speech is subject to some kind of measurement of whether it does more good than harm, may make intuitive sense to juries, but as legal theory it is bad and dangerous.
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