The idea of a broadly defined right to free speech is under siege. One attack currently comes from those who see the "liberal" idea of free speech as a threat to equality. The topic is complex and charged with emotion. It surfaces in questions of hate speech, in campus codes that seem to allow punishment even for some political speech not directly aimed at individuals, in discussions of "pornography," and in group libel laws. The issues raised are painful, and the divisions reflect scars left by oppression based on race. and sex. (Curiously, the discussion often ignores issues of class and power.
Some of the critics would return to a test allowing suppression of speech with the "bad tendency" to produce evil results. Others advocate allowing courts to balance the benefits and evils of speech on an ad hoc basis--protecting speech when the judge thinks the benefits of protection in the particular case outweigh the evil done by the speech. Professor Stanley Fish, for example, embraces ad hoc balancing. Professor Catharine MacKinnon likes the bad tendency test and would replace viewpoint neutrality with a test frankly weighted in favor of the "oppressed" and against "oppressors." Professor Mari Matsuda would also abandon neutrality, often allowing blacks to direct hateful speech at whites, but not vice versa. To protect black students from emotional distress she would (it seems) support banning Huckleberry Finn from some classrooms.(1)
This essay will examine these suggestions for basic change in first amendment doctrine in light of history. Since these proposals to restrict the idea of free speech are reactions against current doctrine, I will quickly review some basic free speech doctrine. Then I will look at episodes from the history of freedom of speech, especially at the effort to suppress anti-slavery expression in the years before the Civil War. Finally I will suggest ways that can sometimes be used to transcend current controversies over free speech.
Many advocates of new restrictions on speech based on its ideas or point of view pay little attention to free speech history. As a result, while critics have deepened our understanding by highlighting some of the costs of broad protection for speech that is evil, they have left the benefits of protection and costs of changing it in darkness.
When they ignore free speech history, advocates of restriction have plenty of company. With a few notable exceptions,(2) American legal education has paid too little attention to either the history of liberty or of free speech. In the past powerful interests have sought to limit speech by use of the bad tendency test, by use of ad hoc balancing, by treating political speech as libel, and by demanding protection from emotional distress caused by speech. From the Sedition Act to the crusade against slavery, to the opposition to wars and the draft, elites have advanced such doctrines as justifications for suppression of speech, including political speech.
Because history provides vicarious experience, an examination of the history of suppression should be a part of evaluation of plans to revise free speech. The past cannot solve our present problems, but it can provide expanded experience by which to make practical judgments. It also suggests the need to search for new ways of transcending current battles over free speech.
FREE SPEECH DOCTRINE AND ITS HISTORY
A. Free Speech Theory
Free speech doctrine embraces the idea of a public domain where government may not suppress discussion because of the ideas advanced, especially on matters of public concern. Matters of public concern should be broadly understood to include all those ordinary and personal matters as to which people seek to structure or transform their lives. Since social action is a primary method of transformation, protection of speech about social action is a central concern of free speech doctrine. In practice, the public domain (used here to mean the area where speech is protected) is bounded by definitions of protected and unprotected content (e.g. political speech and obscenity) and protected and unprotected fora (e.g. in a public park or in a pamphlet, in contrast to someone else's church service).
The idea of a public domain for free speech is implicit in representative government. The argument from democracy is one, but only one, justification for free speech. Other justifications recognize that speech is essential to self-fulfillment, to the advancement of knowledge and the discovery of truth, and to the right to participate in how one's life and society are structured.3
One metaphor embraced by advocates of representative government is that of agency. Like all metaphors, at best this one only approximates reality.4 In the agency metaphor, the people are the principal, elected officials are the agents, and free speech in the public domain is an essential technique by which the people may consult, set the agenda, and decide on the course of conduct for their agents.5
The agency theory has radical implications. Elections, even elections with competing political parties, are not the main measure of democratic government. Instead, democratic government requires free discussion and association so that people can discuss and decide how they collectively would seek to structure their lives. It also requires that information relevant to political choice be available to participants in the political system. To the extent that association, discussion, and dissemination of relevant information are suppressed, government is less democratic.6 Using the word democracy in this sense, Stuart Sutherland suggests that, because of the Official Secrets Act forbidding government employees from disclosing anything learned in the course of their duties, the United Kingdom is "one of the least democratic countries in the Western world."(7)
The public domain provides a safe space that can be used for many purposes, including discussion and setting agendas.8 In theory, and to some degree in practice, it is a place where the claims of power may be challenged and the abuses of the powerful exposed.(9) That free speech often falls short of this ideal should not surprise us. What should surprise us, given the remarkable tenacity of economic and political power, is that it sometimes comes so close.
The concepts of a "public domain" and of protection against censorship based on "content" both conceal problems behind their superficial simplicity. The idea of a public domain implies boundaries. Setting boundaries allows governmental suppression--for those things outside the boundary. So if obscenity is outside the circle of speech in the public domain, that expression about sexuality is unprotected. Since some types of "action" are outside the area of protection, the speech treated as such action is unprotected.(10) The agency model is also problematic. One of its assumptions (and an assumption behind representative government), is that the people represented have an equal right to influence government policy. Realities of wealth, power, and status produce significant deviation from this ideal. Finally the argument derived from democracy contains a paradox. A representative government can make a decision to limit free speech or democracy. But to the extent of the departure, representative government becomes something else. If the departure from free speech is sufficiently substantial, government is no longer democratic or representative.
In American history, the public domain free from censorship has never included all speech. Libel, books about sexual themes, advocacy of birth control,(11) criticism of slavery,12 criticism of war and the draft,13 and "false and malicious" criticism of government officials(14) have all, at one time or another, been treated as outside the domain of free speech. Proposals to restrict free speech rights focus on the boundaries of the space allocated to free speech. Changing the boundaries, in turn, involves changes in free speech doctrine, because doctrine sets the boundaries that protect "speech" from suppression. Just such a change is advocated by current critics.
This essay will focus on efforts to enhance equality by censoring some types of currently protected speech. A major impetus for revising free speech doctrine has been an expressed desire to promote racial and sexual equality. "Equality," like "free speech," is not a self-defining concept. Nor, of course, is it clear that suppressing speech that is currently protected will enhance equality.
Curiously, law professors often devote more attention to advancing equality by limiting speech than to advancing equality through economic change, access to education, guaranteed employment, or for redistribution of wealth. In part this fact may simply reflect the occupational biases of law professors. Law professors most often write about changes in judicial doctrine or in legislation that seem practical. Significant redistribution of resources is unlikely to come from courts. Indeed, there are powerful arguments that substantially redistributing wealth is an inappropriate role for judges. Nor, in the current political climate, is significant redistribution likely to come from the legislature. By conventional wisdom we cannot afford such changes. Changes in free speech doctrine, however, seem cheap. They are unlikely to be accompanied by a tax hike. They come from courts with some regularity, and legislators are often quite ready to initiate changes in free speech doctrine by proscribing expression they find obnoxious.
Historically, free speech has been an aid to those seeking social change. Control of "speech" has been used by those in power to retain power and repress criticism and change. (Of course suppression of speech because of the ideas expressed is only one means of social control.) Those who contest the views of those in power and who advocate change opposed by the...