> Look at the balance of harms in this example. Your argument proceeds from the assumption that the balance of harms matters. Legally, it does not where politi

> Look at the balance of harms in this example. Your argument proceeds from the assumption that the balance of harms matters. Legally, it does not where political speech is concerned. This is pretty much the closest thing to a legal absolute as our system of laws has. Restrictions on speech are generally subjected to strict scrutiny. Strict scrutiny is not based on a balance of harms test. Rather, for a restriction to pass strict scrutiny, it must satisfy the following factors: 1. It must be justified by a compelling governmental interest. 2. It must be narrowly tailored to achieve that interest. 3. It must be the least restrictive available means to achieve that interest. Note that balance of harms doesn't factor anywhere into this analysis. The closest thing is the "compelling interest" test. But "compelling interest" isn't a test that weighs one interest against another. Rather, it simply asks whether the restriction's positive effects, examined on their own, are crucial, essential, or necessary, rather than merely desirable. This is a fairly high bar, by the way. Getting back to our original question: A restriction on politicized hate speech by government employees would presumably trigger strict scrutiny, largely because of the political nature of the speech. So, does it pass strict scrutiny? Let's go factor by factor. 1. Does the government have a compelling interest in preventing hate speech by employees? No, because preventing such speech isn't crucial, essential, or necessary. It's merely desirable. Lives will not be lost, property will not be destroyed, and national security will not be directly compromised if a government employee engages in hate speech. The expected harm from hate speech by government employees is largely psychological. Further, the psychological damage inflicted by one crackpot will most likely be very small. While it's clearly a bad thing, it's not compelling by strict scrutiny standards. We could stop here, as the restriction has already failed the first test and thus failed strict scrutiny. But let's continue for the sake of the exercise. 2. Is the restriction narrowly tailored? If the interest is the prevention of psychological harm to minorities, and the law restricts that hate speech and nothing else, it's probably narrowly tailored. 3. Is the restriction the least restrictive means? Probably not. One could imagine an alternative solution whereby the government actively and publicly disclaims its employees hate speech. That would be less restrictive, and would probably go a long way toward achieving the goal.