It wasn’t that the Supreme Court felt “God Hates Fags” was valuable speech, or that they were good with “Crush Videos.” Suffering bad speech is the price we pay for free speech, and the Court recognized that trying to micromanage speech beyond the established categorical exceptions was a dangerous game. The Texas 12th District Court of Appeals acknowledged this when it held Texas’ revenge porn law unconstitutional.

Realizing that it was impossible to survive a straightforward application of strict scrutiny, the State of Texas took a remarkably different path on appeal. What makes this all the more remarkable is that Texas conceded at oral argument that its law was subject to strict scrutiny. Then again, it had no reasonable choice, it being a content-based law that prohibited speech.

On appeal, however, it’s as if none of this happened, none of this matters anymore. They’ve got a totally new scheme.

The primary purpose of the First Amendment is to preserve an uninhibited marketplace of ideas so that the people may discuss matters of public concern.

Seems reasonable, at first blush. After all, what’s wrong with a “marketplace of ideas”? And surely we want people to “discuss matters of public concern,” right? But there’s no cite for this proposition, as well there couldn’t be as it’s untrue. There is no “primary” purpose, despite the surface gloss of this being a perfectly fine purpose. The purpose is that we can discuss whatever we want, whether the government, or anyone else, decides it’s sufficiently valuable, unless it falls within a categorical exception.

Government regulation designed to suppress one side of a debate on a matter of public concern is appropriately subjected to the highest level of review—strict scrutiny. All other protected speech is reviewed under intermediate scrutiny, i.e., whether the regulation is justified by a substantial interest and the government’s solution is narrowly tailored to serve that interest.

This comes off as a fairly reasonable approach, provided one isn’t considering the full nature of speech that doesn’t involve debates of public concern, from art to humor, from anger to love. Not only is it a smooth attempt to create a quasi-rational argument by ignoring the full panoply of protected speech that has nothing to do with public concerns, public debates, but it shifts the goal posts: this does not reflect the established First Amendment law of the United States. Even if it sounds totally reasonable to you, it doesn’t change the Supreme Court’s jurisprudence.

There is no sliding scale of scrutiny, from “strict” for matters of public concern to “intermediate” for everything else. It’s not the law. It doesn’t exist. Even if it seems “reasonable” at first blush, it has been resoundingly rejected.

But it’s not “reasonable,” even if it might seem that way from a superficial appeal.

The level of scrutiny depends on the value of the speech. Although most speech deserves First Amendment protection, “not all speech is of equal First Amendment importance.” The concept of a “hierarchy of First Amendment values” was “long recognized” by 1985 and reaffirmed this year. Given that not all speech is equal, it should be no surprise that the Supreme Court does not review all regulations of speech equally.

Texas cites two cases in support of this proposition, Dun & Bradstreet v. Greenmoss Builders and Lozman v. City of Riviera Beach, Fla., reflecting how far they’re willing to strain themselves to seize upon an inartful phrase in an opinion, unfortunately used in the Court’s rationale for defamation law, and bootstrap it into a general principle. The occasional tendency of the Supreme Court to fall back on lazy platitudes to justify perpetuation of categorical exceptions to the First Amendment, however, applies only to its exceptions, not to all speech.

Would it be reasonable for the State of Texas, or any other governmental entity, to be in charge of picking and choosing which argument in a debate was sufficiently “valid” to be worthy of protection? Would it be reasonable to let some Speech Czar decide what constituted art? Would your expressions of love or hate meet the approval of the State? What about your humor? If some state bureaucrat didn’t laugh, would it not be funny enough to allow you to utter it? And to bring this point to its necessary conclusion, what if the joke was deeply and profoundly offensive to someone? Could the state make it a crime for you to tell a joke that you, and others like you, found hysterical but someone with different sensibilities found horrifying?

That’s the argument the State of Texas is trying to make, and, indeed, it’s the argument that those who want to prohibit speech based on their personal notions of value, of good and bad speech, of words and ideas which they find tolerable, as opposed to your choice of speech.

Thankfully, the choice has already been made, and the Supreme Court of the United States has concluded that unless speech falls within certain categorical exceptions, it is your decision, not the State’s, to say it or not. Or hate it when someone else says it, or not. But not to prohibit it. Not to criminalize it.

Having conceded that their revenge porn law, Texas Penal Code 21.16(b), is subject to strict scrutiny, it’s rather bizarre that the State of Texas seeks to raise an argument that it explicitly conceded before the lower court. Desperate states do desperate things, I guess. But as much as the argument might appeal to the newly empowered scolds who believe they have the moral authority to dictate what speech and expression is worthy of their blessing,

None of this is meant to suggest that “revenge porn,” as that phrase was originally intended, isn’t an evil, and shouldn’t be hated and rejected by any person of good conscience, just as “God Hates Fags” hardly enjoys constitutional protection because it deserves it. But the zeal to eradicate the horrible words leaves vast swatches of speech vulnerable, criminal, because of the inability to fine the words, find an approach, to frame laws that limit only the evil and not turn substantial numbers of well-intended people into criminals as collateral damage.

The scolds don’t care about the bodies they leave behind in their zeal to prohibit the speech they despise. The First Amendment does, and the State of Texas can’t talk its way out of the protections the Constitution provides and the Supreme Court has upheld. The choice here is whether some evils go uncriminalized, or some free speech goes prohibited. In the United States, we choose speech.