Constitution Daily

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Is the American free speech consensus under attack?

May 3, 2017 by Nicandro Iannacci


“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”

With these words in his concurring opinion in Whitney v. California (1927), Supreme Court Justice Louis Brandeis offered a stirring testament to the value and importance of the freedom of speech, a fundamental right enshrined in the First Amendment to the U.S. Constitution.

What does “free speech” mean, anyway? According to constitutional scholars Geoffrey Stone and Eugene Volokh, “the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.” This is an extraordinary idea, sweeping in its defense of expression in a wide variety of forms and contexts; it is, as legendary First Amendment attorney Floyd Abrams recently noted, “a story of American exceptionalism.” To be sure, it is not a story without struggle or controversy. But in America today, there is a widespread, bipartisan consensus that leads the world in protecting and celebrating the freedom of speech.

But why do we do it? Why is speech worthy of this special treatment? As Justice Brandeis suggests in the passage above, and as constitutional scholar Erwin Chemerinsky explains, the freedom of speech is both a means and an end. It enables self-governance by ensuring open debate and the opportunity to criticize public officials. And it assists in the discovery of truth by creating a “marketplace of ideas” in which the truth is most likely to succeed. But speech is also important on its own terms, as an essential component of autonomy. In speaking, you define yourself and fulfill “the needs … of the human spirit,” as Justice Thurgood Marshall put it. Ultimately, we protect the freedom of speech because we don’t trust the government to determine which speech is good and right, and which is not.

In the last decade, however, a rapidly changing nation has given new voice and urgency to simmering critiques of this free speech consensus.

One major argument is the corporate critique, powerfully articulated by Justice John Paul Stevens in his lengthy dissent to the Court’s 2010 decision in Citizens United v. Federal Elections Commission. “The Court’s opinion is a rejection of the common sense of the American people,” he thundered, “who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

In other words, the unique structure and privileges of a corporation—limited liability, perpetual life, concentration of financial resources and more—give it an unusual ability to corrupt and distort the political process. The “marketplace of ideas” may be threatened by a large and unrepresentative actor. So for critics, distinguishing between corporations and non-corporations in the regulation of political speech is permissible, even wise. After all, corporations are not distinct members of the political community, and the government’s interest in preventing corruption is enormous. Indeed, one organization, Free Speech for People, is entirely devoted to overturning Citizens United and limiting the rights of corporations through two proposed constitutional amendments.

Another argument is the equality critique, resurgent as protests against Ann Coulter, Richard Spencer, and other provocative speakers on university campuses have endured blowback from traditional free speech advocates. “What is under severe attack, in the name of an absolute notion of free speech, are the rights, both legal and cultural, of minorities to participate in public discourse,” argued Ulrich Baer, vice provost at New York University, in a recent New York Times op-ed. (The First Amendment does not apply to private organizations, including private universities, but it does apply to public universities, and First Amendment values remain at issue elsewhere.)

In this vision, speech inflicts psychic harm and silences debate when it “invalidate[s] the humanity” of others or questions their right to speak at all. As Stone and Volokh acknowledge, the Court already makes exceptions for certain types of unprotected “low-value” speech—defamation, true threats, “fighting words” and more—so, critics argue, why not carve out another exception for, say, hate speech? One legal scholar, Charles Lawrence, has argued that in certain contexts, racist speech is the equivalent of “fighting words” and can be regulated. Perhaps even the Enforcement Clause of the Fourteenth Amendment could justify regulation as anti-discrimination.

Finally, there is the privacy critique, finding greater interest in the age of the internet and new media. In a talk at the National Constitution Center in 2015, legal scholar and former journalist Amy Gajda raised a chief concern: “Information is being published today in ways that courts are going to have to decide, is that information newsworthy, so newsworthy that it deserves to be published, despite the fact that it invades someone's privacy?”

For critics, “quasi-journalists” un-beholden to ethics codes and angry exes armed with “revenge porn” are among the threats to individual privacy and dignity. Just because a piece of information is true, they say, doesn’t mean it deserves First Amendment protection. Tort law already recognizes that someone who “gives publicity to a matter concerning the private life of another” can be sued if the matter is “highly offensive to a reasonable person” and “not of legitimate concern to the public.” Indeed, this invasion-of-privacy argument was the key to Hulk Hogan’s successful lawsuit against Gawker, which led to the website’s closure. So why not enact greater protections? Why not draw more lines against irresponsible or malicious behavior?

For these visions to emerge triumphant, critics will have to convince a nation that is more protective of speech than any other. Despite some evidence that attitudes are changing, such changes remain an uphill battle.

Nicandro Iannacci is a web content strategist at the National Constitution Center.

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