Self-Governance and Free Speech

2012-09-03 19:12:03

The free speech clause of the First Amendment is not self-defining. Although Congress is required to ‘‘make no law’’ that ‘‘abridges the freedom of speech,’’ a principle that also applies to state and local governments through the process of incorporation, precisely what this prohibition includes is open to debate. Despite what might seem to be its plain textual meaning, the clause cannot signify that government is incapable of making any law that limits or penalizes expressive communication. Such a view would void many widely accepted criminal statutes, such as those proscribing child pornography, blackmail, and incitement to violence, or many common civil regulations, such as truth-in-advertising rules and other limits on Commercial Speech, or tort actions for defamation. The First Amendment is not a charter for total government inaction in the communicative context, nor was it intended to be, as early constitutional history makes clear, notably the Sedition Act of 1798. Indeed, on own terms, the Amendment prohibits government from abridging not ‘‘speech’’ but rather ‘‘the freedom of speech,’’ a phrase that embraces only a limited subset of all possible expression—and that requires a principled framework of interpretation to give it content.

Some scholars and jurists have sought to develop this framework by defining ‘‘the freedom of speech’’ in relation to the underlying aims free speech can be said to serve. In this approach, one among many theories of free speech protection, defining the positive constitutional value of speech can help determine as a negative limit what the First Amendment protects against government infringement. Over the course of the twentieth century, three main views on the subject have emerged: that free speech is indispensable for individual autonomy and self-fulfillment; that it facilitates the search for various forms of truth, especially in social and political matters; and that it is essential for democratic deliberation and selfgovernance. These positions often overlap in legal advocacy and judicial reasoning, and they are not mutually exclusive, but they are distinct and, whether in a First Amendment jurisprudence of absolutism or balancing, they suggest that different levels of judicial protection should be afforded to different types of speech. Before turning to the justification for protecting speech based on the goal of selfgovernance— the rationale most widely accepted but, at the same time, generally viewed as too narrow in its protective reach—it is necessary to consider in turn the other two commonly asserted values of free expression.

The view that free speech is necessary for selffulfillment would grant the widest possible scope of judicial protection for expressive activity. Under this approach, grounded in the value of speech to individuals, the Constitution protects expression to provide the conditions necessary for individuals to decide how to live for themselves, according to their own lights. Only a fully libertarian speech community, the argument runs, will enable as many individuals as possible to achieve their desired ends. Such libertarian openness is especially significant for those whose views about the proper conduct of life require dissident forms of personal expression; but whether or not individuals actually choose to engage in speech frowned on by majorities, having the chance to do so without the sanction of law affirms the general moral ideal of individual liberty on which republican principles of the pursuit of happiness are based. Moreover, from the perspective not of individual speakers but rather of listeners, a fully open expressive environment enables individuals to shape their lives most effectively by facilitating the widest possible range of views and personal styles to take as their standard, from the politically weighty to the aesthetically frivolous. The self-fulfillment argument for free speech thus provides a strong basis for protecting not only political speech, literature, and the arts, and radical, nonideational forms of expression such as nude dancing, pornography, or obscenity, but also Commercial Speech, an important source of information and opinion.

The argument that free speech is necessary for the effective search for truth is rooted in John Milton’s assertion in Aeropagitica (1644) that prior restraint of dissenting religious views was based on a misperception of the ability of Christian truth ultimately to triumph over error: ‘‘Let her and Falsehood grapple; who ever knew Truth put to the worst, in a free and open encounter?’’ This principle of Protestant dissent was easily adapted to secular utilitarian approaches to speech in Victorian Britain—in his classic On Liberty (1859), John Stuart Mill argued that dissident opinions be protected so that society could derive the benefit that comes from engaging with them—and to judicial arguments concerning political radicalism in the early-twentieth-century United States, as in the dissent of Justice Holmes in Abrams v. United States (1919). Under this truth-based model, the First Amendment protects speech not so much to advance the moral autonomy of the speaker or listener but rather to ensure the correct outcome of serious debate about society and politics. This view would protect a narrower range of speech than the self-fulfillment rationale—fewer modes and subjects of expression contribute to the search for Truth than are necessary for the full exercise of individual autonomy (for instance, from a truth-based rationale, it would be difficult to justify the absolute protection of Commercial Speech or of expression that does not contain ideas per se, such as pornography), but some forms of highly controversial speech would receive notable judicial solicitude, especially the antiliberal political advocacy of subversive organizations.

The third position, whose core arguments are widely acknowledged to be consistent with American constitutional principles, although not coextensive with them, asserts that speech has constitutional value especially when it contributes to the orderly discussion of government affairs. From this perspective, the Constitution protects two different types of speech based on two distinct legal mandates. Speech that contributes to democratic decisionmaking, soberly advancing views about political issues, receives absolute judicial protection under the First Amendment; other speech is subject to a greater degree of regulation according to the Fifth and Fourteenth Amendment principle of due process. In the view of Alexander Meiklejohn, the most prominent modern champion of the argument, the pedigree of this valuation of speech is ancient, extending back to Socratic ideals of public discourse about virtue and obedience to the law (‘‘if the Apology had not been written . . . the First Amendment would not have been written’’). The argument also has a distinctive basis in the democratic principles inaugurated by the American constitutional experiment. As Cass Sunstein has asserted, the popular sovereignty that grounds the United States as a republic presupposes the fully open discussion of issues of public concern. The speech protected by the First Amendment thus is that which makes possible the functioning of the government the Constitution itself established; the free speech clause is that part of the Constitution that safeguards its foundations. As an axiom of democratic government, the view that political speech lies at the core of constitutional protection is broadly accepted.

Meiklejohn famously illustrated his understanding of the value of speech through a portrait, often criticized as an idealization, of the American town meeting, one that also resembles a university seminar in its dialogic principles. ‘‘What, then, does the First Amendment forbid?’’ Meiklejohn asks in Free Speech and Its Relation to Self-Government (1948). ‘‘[The town meeting] is called to discuss and, on the basis of such discussion, to decide matters of public policy. For example, shall there be a school? Where shall it be located? Who shall teach? What shall be taught? The community has agreed that such questions as these shall be freely discussed and that, when the discussion is ended, decision upon them will be made by a vote of the citizens. Now, in that method of political selfgovernment, the point of ultimate interest is not the words of the speakers, but the minds of the hearers. The final aim of the meeting is the voting of wise decisions. The voters, therefore, must be made as wise as possible . . . . Both facts and interests must be given in such a way that all the alternative lines of action can be wisely measured in relation to one another. As the self-governing community seeks, by the method of voting, to gain wisdom in action, it can find it only in the minds of its individual citizens. If they fail, it fails. That is why freedom of discussion for those minds may not be abridged.’’ From this perspective, speech is protected by the First Amendment not to advance individual self-fulfillment nor to achieve the outcome of social or political truth, but instead, most importantly, to maintain the collective democratic process (which, in theory, serves ‘‘wisdom’’ by enabling the full airing of opinion).

Two issues typically are raised concerning Meiklejohn’s approach to speech. First, as much as his core goal to protect political speech is acknowledged as fundamental to the Constitution, many see the reach of his theory as insufficiently broad. Most immediately, critics have suggested that viewing speech as important primarily for its role in democratic deliberation provides government too much latitude to abridge nonpolitical expression. The First Amendment, commentators assert, protects far more than the publication of party platforms. What of the arts, for instance? To this assertion, Meiklejohn responded, in a manner widely viewed as unsatisfying, that many other forms of expression provide grist from which ‘‘the voter derives the knowledge, intelligence, [and] sensitivity to human values . . . which, so far as possible, a ballot should express’’—thus literature and the arts should be protected by the First Amendment, in his view, because ‘‘they lead the way toward sensitive and informed appreciation and response to the values out of which the riches of the general welfare are created.’’ At the same time, though Meiklejohn took a liberal position in the domestic ideological battles of the Cold War (he describes the body that condemned Socrates as ‘‘a kind of un-Athenian Subversive Activities Committee’’), some have asserted that the self-governance argument legitimizes government restrictions not only on the time, place, and manner of speech—which Meiklejohn approved, so that expression would accord with deliberative ideals—but also its political content. According to Robert Bork, for instance, it justifies government in prohibiting speech that advocates its own overthrow or ‘‘the violation of any law.’’

The second issue concerns the extent to which the self-governance theory justifies state regulation of expression to promote democratic ends. On this view, associated especially with Owen Fiss, the principles that underlie the First Amendment justify the intervention of the state into the expressive arena to structure public discourse in ways that enhance democracy or achieve values the Constitution affirmatively demands, such as racial antisubordination. Arguments of this type are consistent with Meiklejohn’s original principles but they are advanced in a political context in which liberals view not Joseph McCarthy but rather structural inequality as the primary obstacle to democratic life, and thus in which they demand not a libertarian but rather an interventionist political agenda on behalf of their ideals. This approach is especially salient in the arena of Campaign Finance Reform, where it is asserted that some abridgements of speech would safeguard the true ‘‘freedom of speech’’ contemplated by the First Amendment, and they have been a source of appeal for the Supreme Court in justifying public media regulation in Red Lion Broadcasting. In the view of Robert Post, such ‘‘collectivist’’ arguments typically fail to recognize that ‘‘the value of individual autonomy is inseparable from the very aspiration for self-government.’’ They also rest on a set of broad assumptions that deserve careful scrutiny, especially the notion that the distinction between public and private speech has become incoherent, and that public discourse cannot plausibly be viewed as an open dialogue between free, autonomous persons given the economic inequalities of the political arena. Future advocates of the selfgovernance approach to free speech will confront these and other criticisms as they maintain this tradition of analysis as a vibrant component of constitutional theory beyond its sixtieth year.


References and Further Reading

  • Bork, Robert H., Neutral Principles and Some First Amendment Problems, Indiana Law Journal 47 (1971): 1: 1–35.
  • Fiss, Owen, Free Speech and Social Structure, Iowa Law Review 71 (1986): 5: 1405–1425.
  • Meiklejohn, Alexander, The First Amendment in an Absolute, Supreme Court Review 1961 (1961): 245–266.
  • ———. Political Freedom: The Constitutional Powers of the People. New York: Harper & Brothers, 1960.
  • Post, Robert, ‘‘Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse.’’ In Constitutional Domains. Cambridge: Harvard University Press, 1995.
  • Sunstein, Cass. Democracy and the Problem of Free Speech. New York: The Free Press, 1993.

Cases and Statutes Cited

  • Abrams v. United States, 250 U.S. 616 (1919)
  • Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367 (1969)