Why protect speech?

The U.S. Supreme Court has extended more protection for speech than other major courts that adjudicate rights, such as the European Court of Human of Rights. Nonetheless, the Supreme Court is frequently wrong about why speech deserves constitutional protection. That error has undermined the First Amendment that the Court purports to protect.

Do we protect speech because it is an inviolate component of individual identity, or because it furthers communal values? Doubtless, the answer is–at least to some extent–both. But the priority offered to one or the other often create divergent outcomes in important cases and First Amendment doctrines.

The communal vision of the First Amendment began its ascendance with Justice Oliver Wendell Holmes’ famous 1919 dissent in Abrams v. United States. There, some anti-war protesters had tossed inflammatory leaflets out a window. They were charged on four counts, basically for “disloyal” language that risked inciting resistance. The Supreme Court upheld the indictments against a First Amendment challenge.

Holmes dissented. Which is good. But he was a tepid defender of liberty at best. He gets far more credit as a free-speech advocate than he deserves. For one thing, his dissent defended his own prior opinion upholding the conviction of Eugene Debs, a Socialist Party candidate who’d been tossed in prison for speeches criticizing the draft. In Abrams’ case, though, Holmes figured they’d better let him go, not because of an individual’s inviolate right to express himself, but because “the ultimate good desired is better reached by free trade in ideas.” And he was right–speech is valuable to society. But that’s a shaky ground for a fundamental right to stand on.

The drafters and ratifiers of the First Amendment took a different view. For James Madison, the right to speak was essentially an enforceable property right: “[A] man has a property in his opinions and the free communication of them.” Because a man’s conscience sits at the core of his very identity, it is always “beyond the legitimate reach of Sovereignty.” Likewise, Jefferson said that “God hath created the mind free” and placed it above the dominion of government. Holmes, though, could not stomach a “perverted” liberty that “is held to prevent the natural outcome of a dominant opinion.” In other words, the mind is only free to the extent that such freedom benefits the community. And the community decides when that freedom ceases to be a boon.

The Holmesian view of the First Amendment has boiled down to a pithy phrase scattered throughout First Amendment caselaw: the “marketplace of ideas.” Repeatedly, the Supreme Court has emphasized speech’s value to a democratic society, largely eliding language about the First Amendment’s role in securing individual autonomy and  freedom of conscience. In other words, an ancillary benefit that often but not always flows from an individual right has become the rudder that steers the helm. This has subtly shaped First Amendment law, drawing it away from its original emphasis on individual autonomy into a social emphasis on the community.

The impact of this shift is perhaps most visible in cases regarding compelled speech. From the standpoint of individual autonomy, the right not to speak is an obvious component of the freedom of conscience. That isn’t so clear, however, when the First Amendment is seen only in terms of free speech’s value to society. A pair of cases about compulsory flag salutes proves the point. In 1937, eleven-year-old Lillian Gobitas and her little brother Billy were expelled from school for refusing to salute the flag. Their First Amendment claim reached the Supreme Court, where it met its demise beneath the glib pen of Justice Felix Frankfurter, an ardent Holmes fan.

Frankfurter said that freedom of speech must bow to communal values. Public education, he said, is about forming a “binding tie of cohesive sentiment” and installing “patriotic impulses” during children’s “formative period.” Dissent is not worth protecting for conscience’s sake alone, and when it clashes with society’s “binding ties,” dissent must step aside.

Happily, the Supreme Court reversed itself three years later in West Virginia Board of Education v. Barnette, ruling in favor of another pair of school-age siblings who quietly declined to salute the flag. This time, the individualistic focus on conscience was in full display. Justice Robert Jackson–who would later prosecute Nazis at Nuremberg–threw his hat in with the “freedom of mind” for freedom’s sake, not for the perks such freedom might offer the community. He echoed the First Amendment’s drafters–standing for “the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

Jackson hasn’t settled the matter, though. Prominent jurists and scholars still question Barnette. Unsurprisingly, they embrace a collectivist view of the First Amendment. Professor Cass Sunstein, for instance, has called Barnette “too cavalier” in ruling for the kids. He believes the First Amendment exists to make democracy function, not to protect individual conscience. For Sunstein, the Constitution is “emphatically not designed solely to protect private interests and private rights.”

The collectivist approach pops up in modern First Amendment cases frequently. For example, a recent Supreme Court case addressed Arizona’s public funding scheme for political candidates. The Clean Elections Act granted publicly funded candidates a windfall of additional public funds if their privately financed competitors or the competitors’ supporters outspent them. Basically, once the sum of independent expenditures by supportive third parties and the privately financed candidate’s own spending exceeded a set spending limit, then the publicly funded candidate would receive about one dollar for every dollar spent in support of the privately financed candidate. A divided Supreme Court struck down the law because it effectively penalized privately financed candidates and their allies for engaging in protected speech–i.e., each dollar they spent on communicating their message awarded their opponent.

The four dissenting justices circled up for a Holmes seance: “The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate.” Free speech’s value lies in the benefits that redound to the community, not in protecting individual autonomy. The dissenters applauded the Clean Elections Act because it furthered First Amendment values by providing “more voices, wider discussion, and greater competition in elections.” If it did so at the expense of compromising individuals’ rights to express themselves without helping viewpoints they opposed, then so be it.

Holmes still gets plenty of traction though. In Seattle, a new-fangled campaign finance program has survived legal challenge because the Holmesian paradigm has carried the day. Seattle is the first jurisdiction to try out “democracy vouchers.” Each election cycle, each resident receives four $25 vouchers. They then assign those vouchers as campaign contributions to candidates for local offices. The voucher funds come from a dedicated property levy. Essentially, this means that individual property owners are forced to pay for other people’s campaign contributions. Two property owners sued on the ground that being compelled to pay for speech they disagree with violates their First Amendment rights–a classic embodiment of the theory that the First Amendment protects individual autonomy  and conscience. The City responded with Holmes: the First Amendment is about creating a robust marketplace of ideas, so government efforts to facilitate more speech are a boon to the First Amendment, not a harm. The property owners lost, though the case is still on appeal. (Full disclosure: I’m the attorney representing the property owners).

If the First Amendment is about creating a diverse intellectual marketplace for the good of society, then that changes the First Amendment calculus, particularly with regard to compelled speech or compelled subsidies of speech. Such compulsion generally inserts more speech into the marketplace, thus enlivening rather than inhibiting the First Amendment. For “market” purposes, it doesn’t really matter whether the market actors have participated willingly or unwillingly. If the First Amendment is about individual autonomy, though, it makes all the difference.

Holmes’s “marketplace” concept has steered us far from the principles of freedom of conscience that animated the First Amendment’s drafters. Ironically, even the plain text of the First Amendment seems to refute Holmes. After all, if facilitating speech is what the First Amendment is about, then the amendment would operate like an affirmative grant of authority to government. Yet the First Amendment isn’t an enumerated power–its language is framed solely as a constraint on government power, just like its companions in the Bill of Rights.

The clash here brings to mind Robert Nozick’s discussion of moral constraints and moral goals. Nozick compared two approaches to rights, one where rights are part of “the end state to be achieved” and one where rights are “side constraints upon the actions to be done.” He called the former a “utilitarianism of rights,” where the end goal of utilitarian policy would be the fewest rights violations rather some other more traditional utilitarian metric like the least suffering. In a utilitarianism of rights, individual violations of rights are permissible so long as they reduce total rights violations. In a side-constraint system, the rights operate as constraints on goal-oriented action, full stop. The marketplace of ideas is a twist on this, since its goal is not to minimize rights violations, but rather to maximize the exercise of rights. This denies man’s native state as one of freedom or spontaneous order, instead overlaying a patina of government control over the exercise of rights in order to harmonize and somehow maximize a right’s value to society.

The conflict between these two approaches to speech will doubtless drag on. In the meantime, the Supreme Court should at least address the tension between these two frameworks for understanding the First Amendment. The Court has relied on both frameworks at different times and places, rarely caring to delve into the realm of first principles. The First Amendment and the people who have turned to it have suffered thanks to that neglect.

2 thoughts on “Why protect speech?

    • Thanks! We’re almost done with the briefing on appeal. At some point, one party or the other will probably be petitioning to SCOTUS.

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