Stanley Fish takes us on a tour of First Amendment theory that leads up to the recent controversial decision:
Decisions like Hustler v. Falwell exhibit a pattern. Before coming down on the side of the speech the government tries to regulate, the Court declares its distaste and even revulsion in the face of what it must, according to its lights, permit, as if to say, “we are on the right moral side, we regret having to do this, but, hey, it’s the First Amendment.”
This “rhetoric of regret” is on display in spades in the famous Skokie case (Smith v. Collin, 1978), in which a 7th circuit court declares that a march by a band of neo-Nazis through a neighborhood populated by Holocaust survivors must be allowed even though, as the Court concedes, emotional and mental distress would be inflicted upon elderly people who had already suffered more than enough.
It’s a very informative and readable history, I recommend the whole thing.