Critiquing Free Speech

First Amendment theory and the Challenge of Interdisciplinarity

Matthew D. Bunker

• Publisher: Routledge
• Year: 2001
• ISBN:
  9781135652067
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Communication Studies
• Index: Languages & Linguistics

In this exceptional volume, Matthew D. Bunker explores the work of contemporary free speech critics and argues that, while at times these critics provide important lessons, many of their conclusions must be rejected. Moreover, Bunker suggests that we be wary of interdisciplinary approaches to free speech theory that--by their very assumptions and techniques--are a poor "fit" with existing free speech theory and doctrine. In his investigation of diverse critiques of free speech theory and his sophisticated rebuttal, he provides an innovative and important examination of First Amendment theory. In doing so, he establishes a new agenda for First Amendment theory scholarship that incorporates some of the critics' insights without abandoning the best aspects of the free speech tradition.
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Distinctive features in this volume include:
* an overview of the traditional approaches to First Amendment theory,
* an examination of work from key First Amendment scholars and theorists, at both the individual and group level,
* an emphasis on interdisciplinarity ranging from femi- nist and critical legal scholars to economists and literary theorists, and
* a new agenda for First Amendment theory scholar- ship which incorporates critical comment while pre- serving the best aspects of the free speech tradition.

CHAPTER
1

Classical First Amendment Theory

The legal scholar now confronts a dizzying array of competing disciplines and approaches. Law has become a sort of meeting ground for academic ideas and trends. And because it has become an interdisciplinary crossroads—affected and infected by so many different influences—law has become, as perhaps never before in American history, one of the most absorbing intellectual subjects.

—J. M.Balkin¹

The United States Supreme Court has not singled out one overriding theoretical justification for free speech, although it has its favorites among the theories discussed in this chapter. Still, the Court has been quite eclectic in its use of these theories, leading theorist Thomas Emerson to make an observation some thirty years ago that is no less true today: “The outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases.”² Some commentators have been vexed by the Court’s theoretical eclecticism, while others have viewed it as a strength of First Amendment jurisprudence.

Before critiquing some of the contributions of the new interdisciplinarians, it may be helpful to sketch briefly what this book refers to as “classical” First Amendment theory, which I am defining as those works that emerged out of a shared Anglo-American, liberal (as that word is used in political philosophy) perspective. Strictly speaking, of course, the First Amendment is a purely American invention, and its text encompasses rights other than free speech. Moreover, much discussion of freedom of speech is philosophical in nature rather than merely descriptive of existing constitutional rights. Nonetheless, because the term First Amendment theory is widely adopted in the disciplines of law and communication, it will be used here. Classical may strike some readers as slightly pretentious, but because traditional has a whiff of the pejorative, classical it shall be.

This chapter will review a number of important contributions to First Amendment theory. This review is necessary both to establish a baseline for the chapters that follow—to encapsulate, in brief, the tradition against which the interdisciplinarians are reacting—and to underscore the importance of freedom of speech in the estimation of a number of outstanding thinkers. Although its detractors sometimes seem to outnumber its supporters these days, it is hoped that this brief overview will suggest that classical First Amendment theory, while imperfect, is still a vital and important resource.

Marketplace Theory

The marketplace of ideas theory, so named because of Justice Oliver Wendell Holmes’s famous passage in Abrams v. United States,³ represents one of the most powerful images of free speech, both for legal thinkers and for laypersons. Marketplace theory is often traced to English poet (and censor) John Milton’s powerful 17th-century defense of unlicensed printing in the Areopagitica:

Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worse, in a free and open encounter?⁴

Milton’s optimism about truth routinely overcoming falsehood seems misplaced after the horrors of the 20th century, and the scope of his tolerance famously did not extend beyond his fellow Protestants, but his is an important beginning nonetheless.⁵ The notion of a transcendent, nonrelative “truth” has, of course, itself been contested of late, as will be discussed in more detail later.

Marketplace theory grew in sophistication as a result of British philosopher John Stuart Mill’s 1859 defense of free speech in “On Liberty.”⁶ Mill noted that when government (even when aligned with the popular will) sought to silence an unpopular opinion, three possible conditions obtained. First, the unpopular opinion could conceivably be true. Even though those who seek to silence the opinion could, in good faith, believe it to be false, they are not infallible. Mill reminds us that many of our greatest certainties are liable to overturned at some point:

Yet it is as evident in itself, as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present.⁷

One of the chief merits of human beings, Mill argues, is that they are able to listen to criticisms of their opinions and modify those views where necessary.

If the unpopular opinion thus turns out to be correct, suppressing it would have been a terrible mistake. It would have been more terrible, Mill maintains, because Milton was wrong:

But, indeed, the dictum that truth always triumphs over persecution, is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes. History teems with instances of truth put down by persecution. If not suppressed for ever, it may be thrown back for centuries.⁸

Second, Mill suggests, the unpopular opinion might, in fact, be false, and the received opinion in the society, true. Even in that case, the unpopular opinion should not be suppressed, Mill argues. He suggests instead that doing battle with incorrect opinions is the only way an educated person can be quite sure of her premises. Without deep knowledge of competing opinions and the cultivation of the ability to defend one’s own views, the received opinion is held as dead dogma only. An educated person must, Mill maintains, hear opposing arguments, not from those who would refute them, presumably by setting up straw persons or otherwise diluting the force of the arguments, but from their most ardent and articulate defenders. The educated person

must know them in their most plausible and persuasive form; he must feel the whole difficulty which the true view of the subject has to encounter and dispose of; else he will never really possess himself of the portion of the truth which meets and removes that difficulty. Ninety-nine in a hundred of what are called educated men are in this condition; even of those who can argue fluently for their opinions. Their conclusion may be true, but it might be false for anything they know….”⁹

In fact, Mill suggests, if fluent opponents should prove unavailable, it would be necessary to invent them. The devil’s advocate is a critical component in the search for knowledge.

Mill acknowledges the argument that not all people need to engage in such mental labors. If a knowledgeable elite can marshal the intellectual firepower necessary to support the received opinion, perhaps the masses need not be bothered. They can simply accept the received wisdom, secure in the knowledge that someone, somewhere, can defend it against all comers. In the course of a discussion that reveals Mill’s rather nasty anti-Catholic bias, he argues that without uninhibited free discussion, broadly practiced within the society, the received opinion itself is diminished. Without the almost structural relationship between an idea and its competitors, the idea itself loses some key portion of its significance: “Instead of a vivid conception and a living belief, there remain only a few phrases retained by rote; or, if any part, the shell and husk only of the meaning is retained, the finer essence being lost.”¹⁰ Mill gives the example of religious doctrines, which gain meaning in their struggle against rival theological conceptions, but gradually fade and die when they achieve victory. Mill suggests that 19th-century Christianity is in exactly this sort of senescence—received as true by professing Christians, but rarely practiced with any rigor when its tenets conflict with the customs of a believer’s country or class. The early Christian Church, on the other hand, had a much more vigorous grasp of doctrine because of its struggle against real enemies.

Mill admits that genuine human progress necessarily involves the overcoming of disagreements and the acceptance of an increasing number of truths that have no extant rivals. Still, he argues that some means of challenging received views, even if contrived, is necessary for true learning. Mill cites the dialogues of Plato as an early and skillful example of this genre.

Finally, Mill considers the possibility that the unpopular opinion that is sought to be suppressed is neither entirely true nor entirely false, but some mixture of the two, and that it shares this condition with the received opinion it challenges. Popular opinion, he points out, is often only partially true, or a limited or distorted version of the truth. Unpopular opinions—Mill calls them “heretical” opinions—often contain parts of the truth suppressed by the received opinion. In a more contemporary vernacular, unpopular opinions point to “marginalized” truths or portions of truth. Mill cites Rousseau’s challenge to the Enlightenment philosophes’ worship of civilization and progress: “The superior worth of simplicity of life, the enervating and demoralizing effect of the trammels and hypocrisies of artificial society, are ideas which have never been entirely absent from cultivated minds since Rousseau wrote; and they will in time produce their due effect….”¹¹ Mill’s point, of course, is not that the Noble Savage is to be preferred to doctrines of progress and civilization, but simply that the Enlightenment view was somewhat one-sided and found a useful corrective in Rousseau’s thought.

Mill thus urges that the third condition—the partial truth of the received opinion and its rival—points toward the necessity of free discussion. Only by competition between the two can the truth in each be discovered. He admits that true partisans are unlikely to be moved by the free airing of alternative views, and in fact may become even more dogmatically entrenched in their views when confronted with the opinions of their ideological enemies. Nonetheless, Mill argues, the grain (or more) of truth contained in the unpopular opinion can be grasped by more judicious listeners only in the open combat between it and the received view.

Mill purported to show that whether an unpopular view is true, partially true, or entirely false, it should not be suppressed. While many thinkers continue to acknowledge the power of Mill’s insights, suitably amended, numerous other commentators have questioned his entire enterprise. Some critiques have focused on the hyperrational character of Mill’s hypothetical public. The assumption that rationality will characterize many, or even most, hearers in the debate between unpopular opinions and received views seems wildly optimistic to some. Again, the intervening century—along with work in such fields as psychology and communication theory—has cast some doubt on the rationality of the average citizen. If the average listener is either irrational or a slave to some socially constructed worldview that inhibits free and rational mental processes, Mill may be in error. Moreover, postmodernism and related movements have problematized the claims of reason itself to be anything more than a local, parochial, and historically situated faculty, often fatally infected by existing power relations.

Defenders of marketplace theory generally assert that reason, while imperfect, is the best tool humanity has, and that while people may accept false ideas over true ones in the short run, truth will emerge over the long run. One problem, of course, is that the long run can be quite long (as Keynes put it, in the long run we are all dead) and that false ideas can do great harm in the here and now. Another problem, as theorist Frederick Shauer pointed out, is that even if a populace is not likely to accept some false idea, great harm can nevertheless be produced by the false idea’s side effects: “By side effects I mean those consequences that are not directly attributable to the falsity of the views expressed. People may be offended, violence or disorder may ensue, or reputations may be damaged. It is foolish to suppose that the expression of opinions never causes harm.”¹² Marketplace theorists have generally assumed, with little empirical evidence, that the benefits of an unregulated marketplace of ideas far outweigh such side effects.

Millean marketplace theory probably first became instantiated in American law through the unlikely person of Justice Oliver Wendell Holmes. Holmes, in good pragmatist fashion, was highly skeptical about the existence of objective truth. Nonetheless, Holmes believed that such provisional truth as human beings could achieve was attained through the open competition of ideas. In a memorable formulation, Holmes expressed this view in his powerful 1919 dissent in Abrams v. United States, which is worthy of quoting at length:

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. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very fou...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Introduction
• CHAPTER 1: Classical First Amendment Theory
• CHAPTER 2: Imperial Paradigms and Reductionism
• CHAPTER 3: Stanley Fish, Literary Theory, and Freedom of Expression
• CHAPTER 4: First Amendment Theory and Conceptions of the Self
• CHAPTER 5: The Public-Private Distinction and the New Realism
• CHAPTER 6: The Normative First Amendment
• CHAPTER 7: Shall We Commit First Amendment Theory?