Autonomy and free speech.

• Author: Baker, C. Edwin
• Position: Symposium: Individual Autonomy and Free Speech

The legitimacy of the legal order depends, in part, on it respecting the autonomy that it must attribute to the people whom it asks to obey its laws. Despite the plethora of values served by speech, the need for this respect, I claim, provides the proper basis for giving free speech constitutional status.

To justify this claim requires development of five points. First, because the concept of autonomy (or the analogous concept of liberty, treated here as largely interchangeable) is notoriously slippery and subject to varying usages, Part I specifies the particular conception of autonomy that I consider constitutionally relevant and distinguishes it from a prominent alternative that, I believe, should be central legislatively as long as the legislation is consistent with the first conception. Second, since this version of autonomy is, in a sense, simply stipulated, the claim that it is the relevant conception for establishing legal legitimacy and, hence, should have a constitutionally foundational role requires defense and must be connected to constitutional interpretation. That is the subject of Part II. Part II also considers the often raised question of whether any constitutional or foundational role for autonomy should or even can be limited to speech or expressive behavior. Third, it must be shown that this conception of autonomy has sufficient bite to give relatively determinate answers to important First Amendment issues. Fourth, this proposed content must survive reflective equilibrium. For these tasks, giving protection to autonomy need not, and probably should not, duplicate (or merely describe or explain) existing constitutional holdings but should lead to a satisfying account of why many holdings are right and an appealing (or at least plausible) explanation of which other holdings should be rejected. Part III considers these two issues. Finally, interwoven into the remarks is development of a view that, rather than free speech being an essential attribute of an otherwise undefended but merely described theory of democracy or, maybe, of "our democracy," legal legitimacy--and respect for autonomy--requires both constitutional democracy and also broad speech freedom that encompasses non-political speech as a necessary limit on majoritarian or popular rule.

Those who disparage autonomy as a basic, virtually absolute First Amendment value usually take one of three tacks. First, they stipulate or imply that autonomy tot liberty) refers to an individual doing whatever she chooses. (1) This stipulation, often an intellectually lazy way to avoid thinking through the legal implications of a state commitment to respect autonomy, makes the term virtually meaningless for purposes of constructive legal theory or political theory (but maybe not moral theory where the question is often, "should I do this act, obey this law?"). Part I offers an alternative stipulation that, Part II claims, is required by constitutional and political theory. Second, they treat a laissez faire economic order as an implicit aspect of respecting autonomy--a view illustrated by many critical comments here. (2) Recognizing the problem this claim has for my views, I focused on and rejected this claim in my first published writing about free speech, (3) and restate my rejection here in Part III's discussion of commercial speech. I conclude that right-wing libertarian theory invokes an ideologically useful (to them) but intellectually indefensible conception of autonomy. (4) Third, most plausibly, those who do not regard autonomy as an absolute value, view the only humanly meaningful conception of autonomy to be some version of substantive autonomy, a view that would lead, for example, to the type of balancing advocated by Steve Shiffrin. (5) In the face of this pragmatic challenge, Part II seeks to show that a formal conception has relevance as a side constraint on law necessary for legal legitimacy and appropriate for constitutional theory. If successful, this illustrates the civil libertarian instinct that the constitution restrains the "means" government uses to pursue even good ends as well as prohibits subordinating or enslaving people as permissible ends.

1. THE CONCEPT OF AUTONOMY (6)

   A person's autonomy might reasonably be conceived as her capacity to pursue successfully the life she endorses--self-authored at least in the sense that, no matter how her image of a meaningful life originates, she now can endorse that life for reasons that she accepts. Surely complete autonomy in this sense is never perfectly realized but will exist only more or less on various continuums. Such autonomy is dependent on the presence, often the distribution, of material resources, psychological resources, and other natural and social conditions. Policy measures--laws or distributions--that increase one person's autonomy in this sense will often decrease another person's. This and related conceptions of autonomy I will call substantive theories. My general view is that promoting substantive autonomy, along with matters of collective self-definition, should be a major aim of the state and the legal order. Still, the precise choice of state aims is an appropriate subject of politics, which inevitably balances advantages for those with some ideals against advantages for those with other conceptions of the good. (7) The key claim to be advanced here, however, is a caveat: pursuit of this and other state aims should only use means that respect a more formal conception of autonomy of each person. (8)

   In the formal conception, autonomy consists of a person's authority (or right) to make decisions about herself--her own meaningful actions and usually her use of her resources--as long as her actions do not block others' similar authority or rights. This formal autonomy in relation to one's self does not include any right to exercise power over others. It does, however, encompass self-expressive rights that include, for example, a right to seek to persuade or unite or associate with others--or to offend, expose, condemn, or disassociate with them. This formal conception might seem relatively easy to apply in relation to speech though clarification is useful even there. More difficult may be applying it to other behavior. Nevertheless, I have argued elsewhere that this formal conception is coherent and warrants virtually absolute protection from, and respect by, the state especially in relation to self-expressive or value-expressive behavior. (9)

   Three features of this formal conception should be noted. (Hereafter, references only to autonomy should, unless the context clearly indicates otherwise, be understood to refer to this formal conception.) First, a person's formal autonomy is not limited to acts that do not harm another person's substantive autonomy but rather is limited to those acts that do not interfere with another's equal formal autonomy. Most obviously, A's autonomous acts can harm B competitively, by persuading C in a manner harmful to B's goals. A can also convince B, for better or worse, to have some view or follow some ideal that B would not otherwise have or pursue--a pursuit that can damage B's (or others') substantive autonomy. Alice might convince Betty that she is personally worthless or that she should only act to serve Alice's desires. Alice can convince Carol that Betty, Carol's spouse, is worthless or unfaithful, making Betty's life miserable when C leaves. Or Alice might simply persuade Carol to choose to socialize with Alice rather than Betty to Betty's great regret. In each case, B and C still have authority, are still authorized, to make choices contrary to the choices to which A's speech leads them. Political and religious analogs to these harms are straightforward. As noted below, however, the characterization should change in each example if A creates the effect by lying (or speaking without regard to her belief in the truth of what she says). In general, though, statements of A, even if harmful of B, are exercises of A's autonomy and are not coercive of either B or C.

   Second, in order to identify when someone's behavior interferes with another's decisions presupposes some distribution, constituted by a legitimate legal order, of decision making authority. This distribution, largely constituted by property rights, should reflect the interaction of a democratically authorized (legal) framework, individual acts, and moral requirements of equality and justice. Though some argument is needed, the later moral constraint leads to a demand that allocation of a person's body should be based, at least to a considerable degree not further investigated here, on respect for the autonomy of the person whose body it is. Democratic decision making should not be understood as authorized to establish slavery--or authorized to create a baseline distribution to A (possibly a husband or parent) of general authority over B's body or, more relevantly here, B's speech--though proper paternalism in respect to children raises issues that I put aside. The fact that meaningful opportunities to lead a self-authored life (i.e., substantive autonomy) requires various material conditions--beginning with sustenance and shelter and maybe education and medical care--does not create implications for the required respect for (formal) autonomy but rather is either part of the domain of basic (i.e., constitutional) equality or a matter of democracy, with its general authority over distributive (or redistributive) matters. Formal autonomy and formal equality are both basic but do different, non-conflicting work in relation to a legitimate legal order. In contrast, though hugely significant, substantive autonomy and substantive equality are largely and properly subject to variable democratic promotion.

   Third, although this formal conception of autonomy encompasses a person's choices to self-expressive use of her resources or speech (through persuasion or...