Theories of Free Speech Protection

Perhaps more than any other area of American constitutional law, the First Amendment’s protection of ‘‘the freedom of speech’’ has been dominated by theory. Specifically, it has been dominated by differing theoretical conceptions of what a well-functioning system of free expression should protect, what it should not protect, what evils it should guard against, and which institution (courts or legislatures) should generally decide these matters. Why has theory dominated free-speech controversies? Part of the answer surely lies in the fact that two other standard sources of constitutional meaning—text and history—offer so little guidance.

The text of the First Amendment is deceptively straightforward. It provides, ‘‘Congress shall make no law ... abridging the freedom of speech ...’’ Justice Hugo Black, who served on the Supreme Court from 1937 to 1971, famously viewed the First Amendment as an absolute command forbidding all government restrictions on speech. For Black, ‘‘no law’’ meant ‘‘no law.’’ He explicitly rejected any approach that would ‘‘balance’’ free speech rights against government interests in speech regulation. ‘‘I believe that the First Amendment’s unequivocal command that there shall be no abridgment of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done,’’ he wrote in dissent in Konigsberg v. State Bar of California (366 U.S. 36, 1961). Yet even Justice Black did not rule in favor of all free-speech litigants; for example, he defined ‘‘speech’’ narrowly to mean spoken words.

The absolutist position has never prevailed for textual as well as practical reasons. As a matter of the text, neither the word ‘‘abridging’’ nor the phrase ‘‘the freedom of speech’’ is self-defining. They are terms of art that require interpretation. Does the government ‘‘abridge’’ speech when it selectively funds causes it favors? Or when it conditions the receipt of funds on the recipient’s agreement not to speak? Is it within ‘‘the freedom of speech’’ to burn a flag or draft card? To dance in the nude at a commercial establishment? To libel another person? To commit perjury? These are not questions that can be answered authoritatively simply by reading the words of the First Amendment.

For practical reasons, too, the absolutist position has been unattractive. As Justice Felix Frankfurter, who served from 1939 to 1962, wrote in Dennis v. United States (341 U.S. 494, 1951): ‘‘Absolute rules would inevitably lead to absolute exceptions, and such exceptions would eventually corrode the rules.’’ Free speech is not the only value in the Constitution, and weighty public interests sometimes counsel in favor of restricting ‘‘speech.’’ Once something is defined as within the freedom of speech, perhaps then it is protected. But whether it is defined that way requires some judgment beyond reciting the text.

That judgment could be informed by history—specifically by the intentions of those who drafted and ratified the First Amendment. Yet, perhaps surprisingly, history offers little guidance about what the First Amendment is supposed to mean. At a minimum, the Framers wanted to forbid the practice of censorship by government licensing. When the printing press was first developed, the Crown in England claimed a right to own and control it; any printed material had to be submitted beforehand to a royal censor for approval. It was criminal to publish without the king’s imprimatur. This scheme remained in effect in England until 1694 and in the American colonies until 1725. Perhaps this was all that the First Amendment was meant to accomplish. On the other hand, why would Congress enact an amendment only to prevent an evil that had ceased to exist in the colonies sixty-five years before?

Another possible target of the Framers’ concern was laws against ‘‘seditious libel.’’ English Criminal Law had punished criticism of the king and government and had even punished speech that had a ‘‘seditious tendency.’’ Some scholars have argued that the First Amendment was intended to abolish the common law of seditious libel in addition to barring licensing laws. Evidence against this view is the congressional passage of the Sedition Act of 1798, which banned ‘‘false, scandalous, and malicious writing’’ against the government. Those who objected to the act usually did so on federalism grounds, not free-speech grounds.

Almost no aspect of free-speech jurisprudence is based on the original meaning of the First Amendment. No justice on the Supreme Court has adopted an originalist understanding of free speech. Instead, decision making in free-speech cases has overwhelmingly relied on theorizing about what kinds of speech should enjoy protection in a free and democratic society. Several theories have dominated the development of First Amendment doctrine.

The first dominant theory is that the First Amendment is about the search for truth, political and otherwise, in a marketplace of ideas. The basic theory is that airing competing views will help society arrive at the truth on any given issue. Major early proponents of this ‘‘truth’’ theory were John Milton and John Stuart Mill. Milton argued that truth would win in any contest with falsehood. Mill argued that suppressing opinion was wrong, no matter whether the opinion was true or false. If the suppressed opinion were true, Mill noted, society would lose the advantage of hearing it. If the suppressed opinion were false, he added, society would lose the advantage of the more complete view of truth that would come from its encounter with falsity.

The truth theory and its accompanying metaphor of a ‘‘marketplace of ideas’’ were enormously influential in the development of free-speech jurisprudence in the early twentieth century. In their classic First Amendment opinions, Justice Oliver Wendell Holmes, Jr., and Justice Louis Brandeis leaned heavily on the truth conception. Justice Holmes wrote in Abrams v. United States (250 U.S. 616, 1919):

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out. That is at any rate the theory of our constitution.

Eight years later, in Whitney v. California (274 U.S. 357, 1927), Justice Brandeis added his view that ‘‘freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.’’

Critics of the truth theory have pointed out that truth may not always win in the marketplace of ideas. Even when it does win, it may take a long time, during which a lot of harm will be done. Other critics have noted that the marketplace of ideas, like the marketplace of goods, may be flawed. It may suffer imperfections— like domination by monopolists or by wealthy and entrenched interests—that require government intervention and correction.

Judge Frank Easterbrook of the seventh circuit has rejected these criticisms of the truth conception as a basis for speech regulation. In American Booksellers Ass’n v. Hudnut (771 F.2d 323, 1986), a case in which Indianapolis argued that its antipornography ordinance was justified because pornography was effectively ‘‘unanswerable’’ in the marketplace of ideas, Easterbrook also rejected the truth conception. Citing Milton’s and Mill’s views, he wrote:

The metaphor [of the marketplace of ideas] is honored. The Framers undoubtedly believed it. As a general matter it is true. But the Constitution does not make the dominance of truth a necessary condition of freedom of speech.... A power to limit speech on the ground that truth has not yet prevailed and is not likely to prevail implies the power to declare truth.... Under the First Amendment, however, there is no such thing as a false idea, so the government may not restrict speech on the ground that in a free exchange truth is not yet dominant.

Perhaps the leading theory of free speech in jurisprudence and in academic writing has been the selfgovernment theory. Under this theory, free speech exists to help representative democracy function well by focusing on issues of public importance, including criticism of public policy and public officials. The role of free speech, in this view, is to inform democratic deliberation and decision making; it helps make citizens responsible and the republic better. The selfgovernment theory might give less or no protection to perjury, libel, criminal solicitation or incitement, pornography, commercial advertising, and possibly hate speech that denigrates some groups. It has been advocated by many scholars on the Left (for example, Cass Sunstein) and the Right (for example, Robert Bork).

Under this view, political speech—speech intended to contribute to debate about public issues—should enjoy the highest level of First Amendment protection. Regulation of political speech is most harmful because it impairs the ordinary channels for political change. For example, if there are controls on commercial activity, it remains possible to argue that the controls should be lifted or changed. If government closes political argument, on the other hand, the democratic corrective is unavailable. Political deliberation is a precondition for debate about all other matters, like economics.

The self-government theory suffuses the case law on the freedom of speech. Judge Learned Hand, then a federal district judge, argued in Masses Publishing v. Patten (244 Fed. 535, S.D. N.Y. 1917) that ‘‘tolerance of all methods of political agitation’’ is ‘‘a safeguard of free government.’’ Justice Brandeis in Whitney argued that in government ‘‘the deliberative forces should prevail over the arbitrary’’; that free speech is ‘‘indispensable to the discovery and spread of political truth’’; that ‘‘public discussion is a political duty’’; that such discussion ‘‘should be a fundamental principle of the American government’’; that the key to ‘‘stable government ... lies in the opportunity to discuss freely supposed grievances and proposed remedies’’; and that protecting speech involves believing in ‘‘the power of reason as applied through public discussion.’’

In Schneider v. State (308 U.S. 147, 1939), a case striking down an antilittering ordinance that banned distributing leaflets, the Court held that public convenience was ‘‘insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.’’ In New York Times v. Sullivan (376 U.S. 254, 1964), which announced new restrictions on libel actions by public officials for criticism of their official behavior, the Supreme Court observed that ‘‘debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’’ The Court even used a self-government rationale for its extension of free-speech protection to advertising in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (425 U.S. 748, 1976). The free flow of commercial information, argued the Court, is ‘‘indispensable to the formation of intelligent opinions as to how [the free enterprise system] ought to be regulated or altered.’’ Thus, ‘‘even if the First Amendment were thought to be primarily an instrument to enlighten public decision making in a democracy, we could not say that the free flow of information does not serve that goal.’’

To the extent the self-government theory emphasizes protection for political speech, critics point out that it is hard to draw a line around ‘‘political speech.’’ Among other forms of speech that are not directly political, self-government theory might leave unprotected art, literature, and music. Much speech, not just rational debate, indirectly informs democratic decision making. Other critics complain that the selfgovernment rationale for free-speech protection is reductionist, leaving out the role of speech as a tool of self-realization and personal development.

The third prominent theory is that free speech contributes to personal autonomy. Under this view, speech is valuable because it helps individuals achieve self-fulfillment, to develop in the way each person thinks best. Speech may also help people develop their capacity for rational decision making. The autonomy approach would give very broad and strict protection not only to political speech but also to art, literature, entertainment, and advertising.

The autonomy theory for protecting speech is also present in numerous decisions of the Supreme Court, though it is a less common theme in First Amendment jurisprudence than is the self-government theory. Though Justice Brandeis emphasized self-government in his Whitney concurrence, he also introduced the autonomy rationale. ‘‘Those who won our independence,’’ he wrote, ‘‘believed that the final end of the State was to make men free to develop their faculties.’’ Stanley v. Georgia (394 U.S. 557, 1969), which protected an individual’s right to possess otherwise constitutionally unprotected obscenity in the home, is perhaps the Court’s most full-throated defense of the autonomy theory. ‘‘The right to receive information and ideas, regardless of their social worth, [is] fundamental to our free society.... If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.’’

In Cohen v. California (403 U.S. 15, 1971), which struck down a disorderly conduct conviction for publicly wearing a jacket bearing an expletive, the Court observed that ‘‘one man’s vulgarity is another’s lyric.’’ This suggested the moral skepticism and individualism of free-speech law. The Court also noted that ‘‘our political system rests’’ on ‘‘the premise of individual dignity and choice.’’ The Court’s protection of Commercial Speech has leaned heavily on the value of advertising as a means of enhancing individual choice and has distrusted the regulatory approach of keeping citizens in the dark about commercial information for their own good. ‘‘There is an alternative to this highly paternalistic approach,’’ wrote the Court in the Virginia Pharmacy case. ‘‘That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.’’

One criticism of the autonomy rationale is that it is too broad. Former law professor and judge Robert Bork charges that if speech is meant to contribute to self-fulfillment there is no way to distinguish it from other activities that contribute to self-fulfillment, like trading stocks or having sex. There is no principled way to prefer one of these means of achieving selffulfillment to another, argues Bork. Other critics point to problems with the concept of autonomy. The choices people make in life, they argue, are not wholly autonomous; individual choices are heavily influenced by the options people have, the options they think they have, the resources they command, and the environment in which their preferences develop. Yet another criticism of autonomy theory is that regulating speech might actually promote autonomy—for example, by ensuring that the citizen’s informational environment includes all relevant perspectives in a debate. Much advertising might be designed to overpower rational decision making by individuals and thus, on this view, could be regulated in order to prevent the subversion of the consumer’s autonomy.

Finally, there is a fourth theory of free-speech protection that emphasizes distrust of government. While the first three theories point to some affirmative good that may come from protecting speech (truth, good government, or individual autonomy) much free-speech doctrine and academic writing has emphasized this negative reason for strong protection of free speech. Distrust theory argues that even if speech has no positive value it ought not to be regulated because exercises of government regulatory power in this area are presumptively bad. This theory stresses the long history of foolish and harmful regulation of speech, including infamous decisions to ban books and great works of art.

The distrust theory focuses on three distinct evils of government speech regulation: incompetence, entrenchment, and intolerance. First, free speech guards against government incompetence. Distrust theory doubts the state’s ability to discover and implement the best informational environment for citizens and its ability to discover and implement what is true and what is false with respect to their best interests in the content of information they receive. It involves an appreciation of the fallibility of political leaders in displacing citizens as the best judges of their own interests.

Second, in the view of distrust theory, free speech guards against government entrenchment. A fear embedded in much of our free-speech jurisprudence is that government speech regulation, even when government is competent to discover some objective best interests of citizens’ informational environment, will be driven by a desire of incumbents to entrench themselves and the policies they favor. Thus, when the state has adopted an anti-tobacco or anti-gambling public policy, it will not only seek to advance those policies by regulating conduct but will seek to do so through preventing contrary information from reaching the public. Restrictions on speech will insulate the substantive conduct regulations from criticism and democratic debate. Or speech restrictions will substitute for conduct regulation, advancing the state’s policy through the especially sinister (because selfinsulating) means of controlling information rather than conduct.

Finally, for distrust theory, free speech guards against government intolerance. When the government restricts speech, this view holds, it will likely do so to disfavor unpopular ideas. For example, it would be easy enough for the state, under the guise of saving voters from confusion, to regulate political parties in a way that benefits the dominant ones and disfavors the small, unpopular ones.

Critics of distrust theory doubt whether it is really true that government regulations have been more incompetent, harmful, or error prone in the area of speech than in other areas, like the regulation of economic markets. If they are right that government has been equally incompetent (or competent) in speech and nonspeech regulation, that would leave two choices. Perhaps neither speech nor markets should be strictly protected. Thus, the appropriate level of protection for either would be left to political resolution. This position is advocated by those who see imperfections in speech and economic markets that need correcting. Alternatively, perhaps speech and markets should be strictly protected by the judiciary from government regulation. This approach is favored by libertarians.

The Supreme Court has never chosen a single theory of free-speech protection to guide its decisions. Each of the theories discussed here has appeared in First Amendment jurisprudence at different times and for different purposes. None by itself adequately explains all of free-speech law in the United States, but each gives insight into what has led to fairly robust protection overall for expression. Collectively, these theories offer a rich account of why speech is treated as a special civil liberty.

DALE CARPENTER

References and Further Reading

• Baker, C. Edwin, Scope of the First Amendment Freedom of Speech, UCLA L. Rev. 25 (1978).
• Black, Hugo. A Constitutional Faith. 1961.
• Bork, Robert, Neutral Principles and Some First Amendment Problems, Ind. L. J. 1 (1971): 47.
• Cafee, Zechariah, Jr. Free Speech in the United States. 1941.
• Carpenter, Dale. The Antipaternalism Principle in the First Amendment, Creighton L. Rev. 579 (2004): 37.
• Coase, R. H. ‘‘The Market for Goods and the Market for Ideas.’’ Am. Econ. Rev. 64 (1974).
• Garvey, John H., and Frederick Schauer. The First Amendment: A Reader. 2nd ed., 1996.
• Levy, Leonard. Legacy of Suppression: Freedom of Speech and Press in Early American History. 1960.
• Meiklejohn, Alexander, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245.
• Redish, Martin, The Value of Free Speech, U. Pa. L. Rev. 130 (1982): 591.
• Schauer, Frederick. Free Speech: A Philosophical Enquiry. 1982.
• Sullivan, Kathleen M., Free Speech and Unfree Markets, UCLA L. Rev. 42 (1995): 949. Sullivan, Kathleen M., and Gerald Gunther. First Amendment Law. 2nd ed. 2003.
• Sunstein, Cass R. Democracy and the Problem of Free Speech. 1993.

Cases and Statutes Cited

• Abrams v. United States, 250 U.S. 616 (1919)
• American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (1986)
• Cohen v. California, 403 U.S. 15 (1971)
• Dennis v. United States, 341 U.S. 494 (1951)
• Konigsberg v. State Bar of California, 366 U.S. 36 (1961)
• Masses Publishing v. Patten, 244 Fed. 535 (S.D. N.Y. 1917)
• New York Times v. Sullivan, 376 U.S. 254 (1964)
• Schneider v. State, 308 U.S. 147 (1939)
• Stanley v. Georgia, 394 U.S. 557 (1969)
• Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)
• Whitney v. California, 274 U.S. 357 (1927)