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Several proponents of laws restricting hate speech and pornography have based their arguments on the claim that the First and Fourteenth amendments must be balanced in order to protect both liberty and equality rights.

Robert Post is one of the critics of this argument. He argues that it requires an "Ultimate Interpreter" that can be neither the people nor the Supreme Court. Because we cannot locate such an interpreter, the argument is flawed. He writes as follows:

To the extent that the value of equal citizenship is used to justify limiting public discourse, the interpreter of the value cannot be the people, because the very function of the appeal to the Fourteenth Amendment is to truncate the communicative processes by which the people clarify their collective will. In such circumstances the Ultimate Interpreter, whoever or whatever it may finally turn out to be, must impose its will without popular accountability. Our government currently contains no such Interpreter, not even the Supreme Court, whose constitutional decisions are always shadowed by the potential of constitutional amendment or political reconstruction through subsequent appointments. The impossibility of locating such an Interpreter suggests the difficulties that attend the argument from the Fourteenth Amendment.
Reference: Robert Post, "Racist speech, Democracy, and the First Amendment" in Speaking of Race, Speaking of Sex, p. 133.