Freedom of Speech: Constitutional Protection Reconsidered.

• Author: MONTANYE, JAMES A.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment

Two hundred years of experience and eighty years of determined scholarship have failed to yield a consistent and coherent theory of what the First Amendment means and how it is to be interpreted. No proposal has yet survived the rigors of logical examination, and, despite some highly imaginative efforts in recent years, matters remain about where they stood in 1971 when Robert Bork concluded that "the law has settled upon no tenable, internally consistent theory of the scope of the constitutional guarantee of free speech. Nor have many such theories been urged upon the courts by lawyers or academicians" (Bork 1971, 20). A fresh approach to First Amendment thinking is warranted at this juncture, not only because traditional scholarship has failed to produce robust results, but also because the "information economy" has drawn attention to the fact that the divergent First Amendment doctrines presently applied to the press, broadcasting, advertising, the Internet, and other channels of communication are ill suited to contemporary needs.

I approach the problem of theory-building by exposing the "first amendment" rule of constitutional contract that a society of rational (i.e., utility-maximizing) individuals would adopt in order to protect private expression rights against arbitrary and coercive abridgment by the state. My essay differs from most other work in this area because it largely avoids traditional themes of constitutional theory, case law, and original intent. It is grounded instead in the methodology of positive economics, which is characterized by its freedom from ideology, ethical positions, and normative judgments, and by the falsifiability of its explanations and implications (Friedman 1953). Specifically, the essay builds upon constructs of public choice and constitutional economics, two branches of mainstream economics that have emerged in recent years as tools for analyzing government structure and decision making. The overarching focus of public choice is "the economic study of non-market decision making [i.e., social and collective choice], or simply the application of economics to political science" (Mueller 1989, 1). The constitutional rules that define the framework within which nonmarket issues are decided, and which constrain the scope of collective decision-making, are the focus of constitutional economics (Buchanan 1991). This approach to theory-building avoids many of the criticisms leveled at traditional First Amendment scholarship. It also provides an exogenous and noncircular point of reference from which to analyze alternative First Amendment theories, doctrines, interpretations, precedents, and remedies.

The "first amendment" rule of constitutional contract that is exposed here has three defining characteristics. First, the rule protects all forms of expression that serve, and are the object of, the voluntary exchange of private property rights, including "commercial" speech, which is not fully protected under prevailing First Amendment doctrine. The rule protects private expression rights per se, and also protects the process by which property rights of all sorts (including expression rights) are exchanged in economic, political, and social markets. Second, the rule excludes from constitutional protection those forms of expression that hinder the market process, such as perjury, fraud, and libel. Expression of this sort reduces the welfare of all individuals in the long run, and so is left vulnerable both to private tort action and to statutory abridgment in situations where abridgment is more efficient on balance than piecemeal litigation. And third, the rule declares presumptively unconstitutional any statutory abridgment of private expression rights that overtly benefits some individuals at the expense of others.

This rule, and the principles that emerge from it, are astonishingly simple and parsimonious, and yet they cover the gamut of legitimate First Amendment issues. The rule is transparent to the manner and technology of communication, and so is ideally suited to any open society whose economy and social structure are information based. It protects the expression rights of all individuals against predation by political majorities (distributional coalitions) that periodically gain control over the coercive machinery of government. It requires no imputation of social costs and benefits. It squares with the notion, advanced by John Locke and Thomas Jefferson, that the protection of private property is the first duty of government. And it squares with the principle that every law's claim to validity is rooted in the unanimous consent of the governed, something that is given only when state action promotes the rational, long-term self-interest of every individual.

The "first amendment" rule that emerges here does not provide a comprehensive doctrine for information-age policies, notwithstanding its broad and beneficial sweep. A comprehensive doctrine must deal not only with private rights of expression but also with the many and varied collateral property rights that are complementary to the exercise of expression rights. That is, distinctions must be drawn between rights of expression, which are protected by the "first amendment" rule of constitutional contract, and property rights in communications facilities, which are protected by a separate "fifth amendment" rule that limits the taking of this property to public purposes and requires payment of just compensation. To characterize that dichotomy in more memorable terms, it is necessary to distinguish between the sewage, on one hand, and the sewers through which it flows, on the other. Points of tangency and overlap obviously exist between the two sets of property rights and their covering constitutional rules (Epstein 1992), a point of interest and importance that lies beyond the scope of this essay.

In what follows, I first identify the need for rational and coherent First Amendment theory by illuminating the failure of traditional legal scholarship to provide it. I then establish the principles of communication theory, public choice, and constitutional economics from which the rational "first amendment" rule is drawn. Then I take up the rule itself.

Traditions of First Amendment Theory and Doctrine

Politicians, bureaucrats, judges, scholars, and special interests of all stripes have sought, since the debate over the Sedition Act of 1798 (which effectively criminalized both public criticism of incumbent Federalists and public praise for Jefferson's competing Republicans), to find substantive meaning in--and to pour meaning into--the enigmatic nature of the First Amendment's black-letter protection of speech, press, and assembly (collectively, "rights of expression"). The framers placed little stock in the amendment, believing that the Constitution itself protected private expression rights by withholding the public authority necessary to abridge them. The Constitution's principal author, James Madison, thought that passing the Bill of Rights was a trivial exercise, agreeing in the end to support the first ten amendments "not because they are necessary, but because they can produce no possible danger, and may gratify some gentlemen's wishes" (quoted in Rutland 1971, 173). Alexander Hamilton (who, as a lawyer, won jury nullification of the common law of seditious libel on behalf of publisher John Peter Zenger), writing in Federalist 84, viewed constitutional protection for the press as "impracticable," arguing that press freedom, "whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government" (Hamilton, Madison, and Jay [1787-88] 1961, 514).

Scant attention was paid to the First Amendment between 1801, when the Sedition Act expired, and World War I (Rabban 1981). Interest was rekindled when the Espionage Act of 1917 prohibited and punished political speech that allegedly posed a "clear and present danger" to the American form of government (Schenck v. United States, 249 U.S. 47 [1919]). The Supreme Court of the day held that the First Amendment protected, at most, the discussion of "legitimate" political issues.(1) A minority of the Court believed, however, that the proper scope of the First Amendment was substantially broader. According to this view, first articulated by Justice Louis Brandeis (the "people's lawyer" of the Progressive era), the amendment not only protected political expression but also provided broad protection for the exercise of all expression rights that advanced intellectual development and personal happiness (Whitney v. California, 274 U.S. 357 [1927], at 376). Brandeis observed that individuals create private value by expressing themselves in various ways (e.g., rooting for the home team, writing letters to journals, creating and reading literary works), and he considered such activities to be among the fundamental rights and liberties constitutionally protected by the First and Fourteenth Amendments. That view subsequently was adopted by the Court's majority, and it has remained at the core of First Amendment doctrine ever since.

Despite this train of ad hoc developments, the quest for coherent First Amendment theory has come up empty, although the quest itself has transformed the amendment into a cultural symbol and metaphor for individual liberty that is asserted to protect every form of expression from political commentary to nude dancing.(2) The result is a present tangle of conflicting ideas about what the First Amendment represents and, in a normative vein, what it ought to...