Keith Werhan. Freedom of Speech: A Reference Guide to the United States Constitution. Praeger, 2004.
[N]o really adequate or comprehensive theory of the first amendment has been enunciated, much less agreed upon.
~Thomas I. Emerson
Writing for the Supreme Court in 1937, Justice Benjamin N. Cardozo described freedom of speech as a charter member of the pantheon of fundamental rights without which “neither liberty nor justice would exist” (Palko v. Connecticut, 1937). Indeed, free speech occupied a special seat in that august group, Justice Cardozo explained, because “freedom of thought and speech … is the matrix, the indispensable condition, of nearly every other form of freedom.” Cardozo staked these claims to the privileged position of free speech with the confidence of a booster who could imagine no disagreement among his readers. His one-sentence justification for the special status of freedom of speech among constitutional rights was grounded on his reading of the political and legal history of the United States, which revealed, albeit with “rare aberrations,” a “pervasive recognition” among Americans of the necessity of free speech. But that interpretation of American history, as we saw in the preceding chapter, is overly sanguine. Justice Cardozo’s reliance on the popular tradition of free speech in America ignored the dishearteningly consistent legal tradition that subordinated freedom of speech to the interest of preserving public order and the comfort of the status quo.
In order to support a special status for freedom of speech in American constitutionalism, it is necessary to turn from history to theory. Is there something in the nature or function of free speech in the United States that justifies affording it special protection under the Constitution? Commentators who have considered that question generally have answered in the affirmative, but their justifications have varied. Amid the theoretical debate, several justifications for the privileged position of free speech remain prevalent. These justifications are that freedom of speech (1) is necessary for self-government, (2) facilitates the societal search for truth, and (3) is an essential element of individual autonomy. Each of these claims is positive in nature, positing that freedom of speech either furthers some desirable end or is itself desirable. A negative case also has been made. The negative justification highlights the special dangers presented by government regulation of expression, rather than any special value served by free speech. In this chapter, I introduce and discuss briefly each of these commonly advanced justifications for the special constitutional protection of freedom of speech provided by the First Amendment.
Positive Justifications for the Freedom of Speech
Those who have defended a special status for freedom of speech more often have emphasized the positive rather than the negative case for that position. The three leading positive justifications differ in their emphases, but they are not mutually exclusive. It therefore is possible to hold that each justification offers a partial support for special constitutional protection of freedom of speech and that each requires reinforcement by the other justifications. The three positive justifications also differ in their scope. The self-government rationale provides the narrowest support for freedom of speech. The search-for-truth justification is broader, and the autonomy argument is broader still. Paradoxically, it may well be that the strength of the three justifications are inversely related to their scope, with the narrowest account grounded on the nature of self-government providing the strongest and most limited support for special free speech protections.
The linkage among the ideas of democracy, popular sovereignty, and freedom of speech is as old as those ideas themselves, and they are very old indeed. Freedom of speech was a constituent element of the world’s first democracy, that which prevailed in Athens during the Classical Era (508 BCE-323 BCE). Classical Athenians believed that authentic public debate was a prerequisite for the creation and refinement of public policy in a democracy. They nurtured a political culture that encouraged common citizens not only to participate fully in political institutions, but also to speak forthrightly on issues of public concern.
Athenians embraced two concepts of free speech during the classical democracy: isēgoria, which meant the “equal freedom of speech,” and parrhēsia, which classical scholars usually translate simply as “freedom of speech.” Isēgoria had a more determinate meaning for Classical Athenians than did parrhēsia. Isēgoria gave each Athenian citizen an equal right to speak in the Assembly, which was the principal governing institution of the democracy. Isēgoria ensured that common citizens, sitting in the Assembly, could speak as well as listen, and thus could become active and not just passive participants in the formation of public policy. As the word suggests (the prefix iso meant “equal”), isēgoria effectuated, even as it symbolized, the equal political status of all citizens, who regardless of wealth or family, were sovereign at Athens. The opportunity isēgoria offered for broad, active inclusion of the entire citizenry in the decision making of the Assembly also reinforced the legitimacy of that institution to “speak” as the authoritative voice of the dēmos, the “people” of Athens.
Parrhēsia referred to the general freedom of speech that Athenians enjoyed as an aspect of their “liberty” (eleutheria). Classical scholar Sara Monoson emphasized the more nuanced meaning of parrhēsia as “frank speaking,” which, she argued, captures the nature of the democratic practice better than the more conventional, but bland translation, “freedom of speech.” Monoson explained, “Speaking with parrhesia meant, broadly, ‘saying everything.’ More specifically, it meant speaking one’s mind, that is, frankly saying what one thinks, and especially uttering a deserved reproach.” For Athenians, parrhēsia implied critical speech by one who expressed a conviction that was honestly held and deeply felt. According to Monoson, “To speak with parrhesia was to confront, oppose, or find fault with another individual or a popular view in a spirit of concern for illuminating what is right and best.”
Athenian parrhēsia was not limited to the political institutions of the polis. It was an element of “the open life promised by democracy.” Still, for Athenian democrats, parrhēsia conveyed their ideal conception of Assembly debate. Because parrhēsia encouraged a sharp airing of competing points of view, Athenians believed that the practice enabled the dēmos to choose wisely from among alternative policy proposals. More subtly, Athenians valued parrhēsia because it tested, and thereby affirmed, the arēte (virtue, excellence) of citizens by requiring them, for the ultimate good of the community, not only to tolerate, but also to consider, criticism from their fellow citizens. And as with isēgoria, parrhēsia helped establish the legitimacy of decisions by the Assembly. As Sara Monoson explained, “A vote taken after speeches delivered in a spirit of parrhesia could represent not simply the preferences of the majority, but the considered judgment of the demos.”
The ancient understanding of the nature and function isēgoria and parrhēsia resonates powerfully with the contemporary understanding of the role of free speech in American self-government. As the debate over the Sedition Act of 1798 showed, the earliest American claims for strongly protecting freedom of speech under the First Amendment were grounded on the idea that democracy requires that all citizens be permitted to speak freely on matters of public concern. Americans understand free speech, as did the Athenians more than two thousand years before them, as a form of political participation to which all citizens are entitled simply because they are citizens. The connection between free speech and self-government provides a prominent theme in the Supreme Court’s First Amendment jurisprudence as well. As Justice Hugo L. Black, writing for the Court, observed, “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs” (Mills v. Alabama, 1966).
Alexander Meiklejohn is the leading proponent of the linkage between freedom of speech and democracy. Meiklejohn modeled his theory of free speech on “the traditional American town meeting,” the American political institution that most closely resembles the ancient Athenian Assembly. It was in the town meeting that Meiklejohn found “self-government in its simplest, most obvious form.” His description of a town meeting makes clear the connection he posited between the fundamental principles of democracy and freedom of speech, as well as that freedom’s Classical Athenian roots. Meiklejohn wrote:
In the town meeting the people of a community assemble to discuss and act upon matters of public concern…. Every man is free to come. They meet as political equals. Each has a right and duty to think his own thoughts, to express them, and to listen to the arguments of others. The basic principle is that freedom of speech shall be unabridged.
For Meiklejohn, the “basic principle” of free speech succeeded for the very reason it had prevailed in Athens: It was necessary for effective self-government. “The final aim of the meeting,” he wrote, “is the voting of wise decisions.”
In Meiklejohn’s theory, freedom of speech is subject to limitation in accordance with rules of order that facilitate debate, deliberation, and decision making in a public assembly. “The First Amendment,” he argued, “is not the guardian of unregulated talkativeness.” This was because the “ultimate interest” served by freedom of speech is not to be found in the “the words of the speakers, but in the minds of the hearers.” Meiklejohn explained. “What is essential is not that everyone shall speak,” he wrote, “but that everything worth saying shall be said.” From these premises, Meiklejohn derived his understanding of the right of free speech in a self-governing community. He wrote, “[T]he vital point, stated negatively, is that no suggestion of policy shall be denied a hearing because it is on one side of the issue rather than another.” For Meiklejohn, as for Athenian democrats, “equality of status in the field of ideas lies deep in the very foundation of the self-governing process.” For the government to breach that democratic commitment to equality, Meiklejohn argued, was to mutilate “the thinking process of the community.”
The democratic justification for freedom of speech put forward by Meiklejohn, notwithstanding its intuitive appeal for most Americans, is subject to several criticisms. For one thing, the very resonance of Meiklejohn’s account of free speech with the experience of Classical Athens raises the question of whether his portrayal of self-government is idealized. A town meeting might embody democracy in its “simplest, most obvious form,” but it does not adequately capture the reality of contemporary American politics, particularly on a national scale. One also wonders how helpful Meiklejohn’s account is when political discourse occurs, as it frequently does, in a setting that lacks the decorum of a town meeting operating under Robert’s Rules of Order.
These shortcomings, of course, might be peculiar to Meiklejohn’s reliance on the metaphor of the town meeting. Not every argument from democracy so relies. But all theories that justify the special protection of speech because of its linkage to the process of self-government are vulnerable, with Meiklejohn’s argument, to the criticism that they are incomplete. Meiklejohn’s suggestion that free speech exists more for the audience than for the speaker provides one symptom of the incompleteness of his account. More generally, though, anyone who, as Justice Black put it in Mills, locates “the free discussion of governmental affairs” at the core of the First Amendment must confront the problem of accounting for speech that is not political in nature. In Mills, for example, the Court defined the speech it had in mind as including “discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.” That definition seemingly excludes a considerable amount of expression that many Americans assume is fully protected by the First Amendment, such as art, literature, philosophy, entertainment, and science. Does the self-government justification locate such expression on the periphery of First Amendment concern, and is thus subject to lesser constitutional protection than political speech? Is nonpolitical speech to be cast wholly outside constitutional protection and is thus at the complete mercy of government censorship?
Meiklejohn responded to this final set of objections by broadly defining the “public” speech that he regarded as a central First Amendment concern. As he reconsidered and elaborated his theory in later years, Meiklejohn included all forms of education, philosophy, science, arts, and literature in his conception of public speech, because self-government was possible only if “voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express.” But one might legitimately question whether such an inclusive definition of public speech obliterates any meaningful boundary between speech that is related to self-government and speech that lacks such a relationship. Judge Robert H. Bork, who like Meiklejohn grounded the protection of freedom of speech on its relationship to self-government, distinguished sharply between the political expression that he would include within First Amendment protection and the nonpolitical speech he would exclude. To Bork, “Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific [or] literary….” Indeed, Judge Bork was so attached to the relationship between free speech and democracy that he also would deny constitutional protection to explicitly political speech that advocates governmental change by non-democratic means. Other scholars who have advocated the self-government justification for the First Amendment’s protection of free speech have drawn different lines between the political and the nonpolitical, but all were required by the logic of this justification to make some such separation. Many scholars have responded to the boundary problem presented by Meiklejohn’s theory by concluding that the promotion of self-government can be but one element of a comprehensive justification for the special status enjoyed by freedom of speech.
The Search for Truth
Another prominent justification for special constitutional recognition of freedom of speech holds that such a right is necessary for a society’s collective search for truth. The claim here is that the function of the First Amendment is to create a hospitable environment for open inquiry, rigorous critique, and the free exchange of ideas, all of which enable a society to progress in a never-ending quest for truth. The search-for-truth justification has dominated the literature on freedom of speech, with a lineage that reaches back at least to the publication in 1644 of John Milton’s pamphlet, Areopagitica. Milton’s eloquent statement—”Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?”—remains a cornerstone of American free speech theory. Milton’s influence can be glimpsed in early American history as well. For example, in 1786, the year before the Constitutional Convention met in Philadelphia, the state of Virginia enacted Thomas Jefferson’s “Bill for Establishing Religious Freedom,” which included the assurance that “truth is great and will prevail if left to herself.”
The classic statement justifying freedom of speech as necessary for a society’s search for truth, like Milton’s pamphlet, is an English product. In On Liberty, John Stuart Mill argued, “[T]he peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” Mill observed that all efforts to silence discussion are tainted by “an assumption of infallibility.” Indulging that assumption, he believed, was a human frailty. While individuals acknowledge their own fallibility, they remain blind to the possibility of error in the opinions they held dearest.
At the core of Mill’s argument was a paradox: He believed that individuals could be confident in the truth of their opinions only if those opinions remained open to challenge. He wrote, “Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right.” This was the case for societies as well. The “only stable foundation for a just reliance” on societal opinion rested on the “steady habit of correcting and completing [its] own opinion by collating it with those of others.” Indeed, Mill correlated the soundness of societal opinion with the society’s facility in correcting its mistakes. “Wrong opinions and practice,” he argued, “gradually yield to fact and argument.”
The search-for-truth justification for free speech seems especially vulnerable in a postmodern age. Is there any such thing as truth, especially in the realm of ideas? This is not just a postmodern question. Opponents of the Sedition Act of 1798 raised this very question when insisting that truth not be considered a criterion for assessing free speech claims, especially in the realm of political critique. But Mill does not provide such an easy target. Unlike Milton and Jefferson, Mill never claimed that truth invariably triumphed over falsehood, and thus that societal opinions that emerge from freedom of speech necessarily would be true. He considered that notion “a piece of idle speculation,” for he noticed, “[m]en are not more zealous for truth than they often are for error.” Mill’s goal was not that societies obtain objective truth, but rather “truth for purposes of action,” that is, that societies have sufficient confidence in their opinions to legitimate their actions. Mill argued, “The beliefs which we have most warrant for, have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded. If the challenge is not accepted, or is accepted and the attempt fails, we are far enough from certainty still; but we have done the best that the existing state of human reason admits of.” Mill’s “truth” resembles a scientific proposition, which provides a legitimate basis for experimentation until it is successfully challenged and replaced by another proposition that better fits the data. That process of challenge and replacement, Mill hinted, was perpetual.
For Mill, societies do not search for truth because they will attain it in any complete or permanent sense. Even if a society believes that it has attained truth (indeed, even if a society has attained truth), according to Mill, it cannot know with certainty that it has done so. Mill enjoins societies to act on the basis of a search for truth as a second-best alternative to acting on the basis of truth itself: It is the best they can do. The opinions that emerge from that search are always provisional, and they remain subject to refinement or rejection as a result of constant critique and re-examination. Freedom of speech, in this view, is necessary because it is indispensable to critique, and thus to the improvement of societal opinions over time. Free speech cannot bring societies to an understanding of ultimate truth, for such is not the human condition. But it can expose at least some errors in their collective thinking, and thereby help societies progress.
Justice Oliver Wendell Holmes, Jr., embraced Mill’s theory of free speech in his breakthrough argument for affording strong First Amendment protection to dissident speakers. Holmes’s statement is one of the most eloquent, and enduring, justifications for freedom of speech. He wrote:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition…. But when 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. (Abrams v. United States, 1919, dissenting opinion).
Holmes, following Mill, believed that truth provides legitimacy for societal action. But also like Mill, he did not claim that a “free trade in ideas” inexorably leads a community to truth in any objective sense. When Holmes argued, “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” he did not endorse the reductionist position that societal consensus on a proposition is a marker of truth. Such orthodoxies, he warned, often are displaced over time. Holmes’s “best test of truth” is Mills’s second-best solution to the imperfection of human knowledge and reason. Collective acceptance or rejection of any idea after free debate is the best that any society can do in approximating truth at any given time.
Properly understood, the search-for-truth justification for free speech proffered by Mill and Holmes does not suffer from a naïve belief that unfettered discussion leads a society to the objectively correct social organization or policy. Quite to the contrary, their brief for free speech is premised on a thorough skepticism of all societal orthodoxies of the moment. Indeed, Holmes’s skepticism extended even to the case he had made for free speech itself. Immediately following the above-quoted passage, Holmes added, “[t]hat at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”
If Meiklejohn’s democratic justification for free speech resonates with Classical Athenian democracy, Mills’s and Holmes’s grounding of that freedom in a search for truth evokes the most famous critic of the ancient democracy, Socrates. The Socrates we know is based largely on Plato’s portrayal of him as “the ideal philosopher,” a seeker of truth who questioned the orthodoxies of his time by engaging the reputed wise men of Athens in adversarial dialogue. When he was done, Socrates invariably had exposed the pretensions of those who cling unskeptically to conventional wisdom. He also had gained some measure of wisdom by exposing the errors and inconsistencies of the ideas and beliefs those men had defended. But Platos’s Socratic dialogues typically end inconclusively: Having unraveled some orthodoxy, Socrates showed little interest in replacing it with another. He continued his search for true wisdom by searching out other wise men to deflate. That lifelong quest, in fact, is the defining element of Socratic wisdom—the acceptance, as Socrates put it, that one does not “know anything worthwhile,” coupled with the commitment to pursue a wisdom that is unattainable (the search for truth) as the essence of a life well lived. Because Athens was a democracy, Socrates’s critical stance inevitably put him on a collision course with the people of Athens. When, in the crucible of societal stress, the Athenians judged Socrates to be a deeply subversive and destabilizing threat to their community, they had him executed. His crime, at bottom, was nothing more than practicing freedom of speech.
Although the Socratic echo adds to the allure of the search for truth as a justification for freedom of speech by dramatically illustrating the nobility of that quest, the linkage also reveals the most telling weakness of this rationale. Although Socrates had set out to lead his fellow Athenians to truth, they responded by killing him. By placing faith in the “process of rational thinking,” the search-for-truth justification is subject to the charge that it presents a false, or at least a simplistic, account of the development of public opinion in a society. Mill grounded his theory on the assumption that societies are characterized by “rational opinions and rational conduct.” Holmes’s economic metaphor, which over time evolved into the famous “marketplace of ideas,” built on Mill’s assumption by depicting ideas as discrete entities that offer themselves up for societal acceptance or rejection, presumably on the basis of rational consumer choice. Holmes suggested that society is a collective homo economicus, which rationally and dispassionately selects the best product (idea) from a full selection of alternatives based on complete and unbiased information about them. But this is hardly an accurate portrayal of how opinions become dominant in a society. It is not necessarily the case that an idea prevails because it is better or truer than the alternatives. Ideas are not products that compete on a supermarket shelf. They often are agenda items of competing social and political groups, which differ substantially in their makeup, rhetorical ability, and financial resources. Societal acceptance might be traced less to the correctness of an idea than to the power and skill of the group advocating it. At times an idea may prevail over the competition because it best serves the interests of a dominant group or most clearly resonates with the pre-existing beliefs of a society. And as all marketers know, whether they specialize in products or ideas, acceptance in the marketplace often is determined more by the frequency and form of message than by its logical persuasiveness, by the allure of the packaging more than by the quality of the contents.
Ironically, at least one reason for the success of the search-for-truth justification in the literature of freedom of speech has been its packaging, that is, the eloquence and persuasiveness of the pens of Mill and Holmes. But a persistent unease over the plausibility of Mills’s and Holmes’s claims about the rationality of societal belief formation has led many contemporary commentators to discount this justification.
The third commonly cited justification for freedom of speech supports this right as central to the general American commitments to individual liberty, personal autonomy, and self-realization. As is the case with the first two justifications, the autonomy rationale has its roots in Classical Athens, particularly in the writings of Aristotle. In his Politics, Aristotle argued that the end (telos) of the state was to enable each of its citizens to live the good life (eudaimonia, commonly, but inadequately, translated as “happiness”). By “good life,” Aristotle meant the ultimate realization by an individual of his or her essential self as a distinctively rational human being. In order to attain eudaimonia, Aristotle believed that individuals must develop their intellects and use their powers of reason wisely. It thus followed for him that the state was obligated to create an environment that allowed individual citizens to develop their rational capacities in a way that enabled them to realize their full potential as human beings.
Justice Louis D. Brandeis, in his classic justification of free speech, connected Aristotle to the American experience with his observation, “Those who won our independence believed that the final end of the state was to make men free to develop their faculties” (Whitney v. California, 1927, concurring opinion). The founding documents of the United States support Brandeis’s claim that Americans, from the beginning, endorsed Aristotle’s prescription for the good state. In the Declaration of Independence, for instance, the United States asserted as a “self-evident” truth that individuals create governments as a means of securing such “unalienable Rights” as “Life, Liberty and the pursuit of Happiness.” And today, those who ground the First Amendment’s protection of freedom of speech on individual autonomy tend to argue, with Justice Cardozo (Palko v. Connecticut, 1937), that freedom of speech is an indispensable element of “the Blessings of Liberty” that the preamble to the Constitution obligates the government of the United States to “secure” for its citizens.
Thomas Emerson, a leading First Amendment scholar, advanced an influential argument that the autonomy rationale should be considered the leading justification for freedom of speech. Emerson believed that freedom of speech should be protected as an inherent human right. “The right to freedom of expression,” he claimed, “is justified first of all as the right of an individual purely in his capacity as an individual.” Emerson’s premises were Aristotle’s. He wrote, “[T]he proper end of man is the realization of his character and potentialities as a human being,” and “the purpose of society, and of its more formal aspect the state, is to promote the welfare of the individual.” Following Aristotle, Emerson argued, “Man is distinguished from other animals principally by the qualities of his mind…. It is through development of these powers that man finds his meaning and his place in the world.”
That is where freedom of speech comes in. Emerson began, “The achievement of self-realization commences with development of the mind.” Although individuals, he conceded, are influenced in their thinking by many factors, in the end, he claimed, their minds are their own, and “its functioning is necessarily an individual affair.” For Emerson, it was fundamental that each individual member of society possesses “the right to form his own beliefs and opinions,” as well as the right to express them. He explained, “[E]xpression is an integral part of the development of ideas, of mental elaboration and of the affirmation of self. The power to realize his potentiality as a human being begins at this point and must extend at least this far if the whole nature of man is not to be thwarted.” From this perspective, Emerson argued, the “suppression of belief, opinion and expression is an affront to the dignity of man, a negation of man’s essential nature.” The state, paradoxically, fulfills its highest purpose by consciously adopting a course of inaction, thereby creating zones of personal autonomy that individuals need in order to flourish.
The autonomy rationale differs in a crucial respect from the first two justifications of free speech. While the democracy and search-for-truth rationales generally situate freedom of speech as a means towards desirable ends, most autonomy justifications embrace that right as an end in itself. Thus, unlike Meiklejohn, one who understands freedom of speech as an aspect of personal autonomy sees that right as serving the speaker more than the audience. Here again is Emerson: “[I]t is not a general measure of the individual’s right to freedom of expression that any particular exercise of the right may be thought to promote or retard other goals of the society,” such as serving self-government or facilitating the search for truth. Rather, Emerson explained, “The [autonomy] theory asserts that freedom of expression, while not the sole or sufficient end of society, is a good in itself, or at least an essential element of a good society.” And because free speech is a constituent element of the good that society exists to promote, it is as self-defeating as it is wrong for governments to pursue their other goals or to solve their problems “by suppressing the beliefs or opinions of individual members.” By definition, doing so makes “a good society” impossible.
Because it conceives of freedom of speech per se as an inherent human right, the autonomy rationale is the broadest of the three most common justifications for that freedom. There is no limit implied here that speech must be political or otherwise public in nature, as with the self-government rationale, or that speech must serve the marketplace of ideas, as with the search-for-truth rationale. All the autonomy justification asks is that expression be self-expression. This breadth of coverage is the yin and the yang of the autonomy rationale; it is appealing to some scholars, but disconcerting to others. Is it indeed fair to ask whether it is sensible, or sustainable, to hold that the First Amendment indiscriminately protects all expression as an essential societal good?
The principal boundary limit on First Amendment protection according to the autonomy justification is not between protected and unprotected speech, but rather, as Emerson argued, between speech and action. While that limiting principle might seem firm, on inspection it is subject to serious question. If freedom of speech is essential to individual liberty and self-realization, why is not freedom of action? As Frederick Schauer has observed, “virtually any activity may be a form of self-expression.” The central problem with the autonomy rationale, according to this criticism, is its failure to demonstrate why speech should be singled out for special constitutional solicitude from among all of the other activities in which individuals engage in order to develop and to express themselves.
While it is probably fair to conclude that the search-for-truth rationale has enjoyed a prominence of place over the other two positive justifications for freedom of speech, that rationale has not fully carried the day over its two competitors. If there is any consensus among scholars on free speech theory, it is that no single rationale is sufficient to explain or to justify the special status of free speech in American constitutionalism. Most scholars appreciate the appeal, as well as the limitations, of each of the three major justifications. And by and large, they are content with the claim that the three justifications in combination present sufficient support for special constitutional protection of freedom of speech.
Not all scholars are content to rest there, however. Some have added complementary justifications for freedom of speech. Two frequently mentioned alternatives are, first, that free speech serves a “checking value” by helping to expose the abuse of power by public officials, and second, that it operates as a “safety valve” that enables society to maintain a “balance between stability and change” by encouraging dissenters to express their grievances openly rather than take them underground. Two other supplemental justifications are more idiosyncratic to their authors, but nevertheless occupy a respected place in the free speech literature. These are, first, that freedom of speech nurtures the tolerance that a multicultural society requires for social harmony, and second, that it plays the crucial, cultural role of nurturing healthy dissent against the status quo. Each of these supplemental accounts of free speech has some explanatory force, but each remains subsidiary to the three principle justifications on which we have focused.
There remains one additional justification for specially protecting freedom of speech, and it requires special emphasis. This rationale, so-called negative theory, has assumed a particular prominence in the free speech literature in recent years, perhaps as a result of some lingering unease over the persuasiveness of the three positive justifications.
Negative Justifications for the Freedom of Speech
All of the theories of justification for the First Amendment’s strong protection of freedom of speech that we have canvassed so far have been “positive” in nature. They claim that free speech is of special value because it enables society to attain something that is especially valuable, namely, self-government, the discovery of truth, or self-realization. “Negative” free speech theories reverse that claim. They do not support any special value served by freedom of speech, but rather they justify the First Amendment’s special protection of freedom of speech by positing that government regulation of expression is especially dysfunctional and dangerous.
While positive justifications for free speech are drawn principally from Western political theory, the negative case for special hostility to government restrictions of expression derives from the painful lessons of Anglo-American political history. This history teaches that government officials are notoriously bad at regulating speech. Looking back, it is rare to conclude that speech regulations served the public interest. Perhaps the most notorious examples of this tendency toward regulatory failure in early Anglo-American history are the English licensing system and the American Sedition Act of 1798, each of which was reviewed in the preceding chapter. Both of those regulatory efforts were repressive, and both failed to achieve their objectives. Licensing was utterly ineffectual in controlling publications, and the Sedition Act helped to doom, rather than to preserve, the Federalist Party.
History also suggests that government officials, if left to their own devices, tend to overregulate speech. It is especially easy for government officials to mistake their self-interest for the public interest when regulating expression. Government officials have an inherent conflict of interest whenever they regulate commentary on their conduct in office or on the policies they favor or fear. Such conflicts, James Madison warned, “certainly bias [one’s] judgment, and, not improbably, corrupt one’s integrity.” The history of seditious libel in England and America, sketched in the previous chapter, amply illustrates the grounds for Madison’s concern.
Not all government censorship proceeds from such a conflict of interest, however. Justice Brandeis long ago noticed that speech which fundamentally challenges the mainstream beliefs and prejudices of a community often stirs up “irrational fears” among “a vast majority” of the citizen body (Whitney v. California, 1927, concurring opinion). It should come as no surprise in a representative government that public officials often respond to such fears by attempting to silence the offending voices. Indeed, Madison regarded the susceptibility of representatives to sway with the fleeting passions of their constituents to be among the most intractable problems of representative government. As the experience of the Sedition Act of 1798 showed, when governmental censorship enjoys majority support, juries are unreliable defenders of the free speech rights of dissidents. Usually, only with hindsight, after the perceived danger has passed, have people been able to see that their fears had been overdrawn. Justice Brandeis captured this phenomenon with the haunting remembrance of the Salem Witch Trials, an event in American colonial history that we have difficulty understanding today. Brandeis wrote, “Men feared witches and burnt women” (Whitney v. California, 1927, concurring opinion).
Even when officials are not motivated by a desire to suppress speakers or their messages, they tend to overregulate speech. Government officials tend to be overly concerned about expressive activities that threaten to disrupt public services or the daily routine, especially if the speech is controversial or of interest to only a small segment of the community. From the perspective of a government regulator, protecting freedom of speech can appear abstract and unappealing when compared to the seemingly more concrete and pressing demands of maintaining public convenience and order. When one adds the inherent difficulty of regulating expression—deciding what can and cannot be said or selecting the circumstances in which expression is or is not appropriate—the recipe for regulatory failure is complete.
Positive and negative justifications of freedom of speech are not mutually exclusive. Indeed, it might well be that any comprehensive, theoretical account of freedom of speech in the United States must include positive and negative elements. But as Frederick Schauer, the scholar who is most closely associated with a negative theory of freedom of speech, observed, on a deeper, perhaps psychological level, the two kinds of justifications stand as opposites. While positive theories are optimistic, declaring a set of “ideal aspirations” that capture “all that we are and all that we wish to be,” negative theory is infused with pessimism, reflecting our realization of the limits of our government and of ourselves. Negative theory, Schauer wrote, accepts that “neither a population nor its authoritative decision makers can even approach their society’s most ideal aspirations.”