In praise of hostility: antiauthoritarianism as free speech principle.

Author:Kang, John M.
Position:Thirtieth Annual Federalist Society National Student Symposium
  1. CIVILITY MATTERS II. THE UNPERSUASIVE RATIONALE IN HUSTLER MAGAZINE V. FALWELL III. ANTIAUTHORITARIANISM DEFINED IV. THE HAZARDS OF DISRESPECTING THE MONARCH V. AUTHORITARIANISM'S SOLEMN EXPECTATIONS VI. THE EMERGENCE OF THE ANTIAUTHORITARIAN CONSTITUTION A. Popular Sovereignty in the Constitution B. Skepticism Regarding Leaders VII. ANTIAUTHORITARIANISM IN PUBLIC DISCOURSE A. The Declaration of Independence B. Paine's Common Sense C. A Parade of Upward Contempt VIII. DEVELOPING AN ADJUDICATIVE PRINCIPLE A. Those Circumstances Where Antiauthoritarianism Would Justify Speech 1. Subversive Speech 2. Profane Political Speech B. When Antiauthoritarian Speech Would be Prohibited in the Name of Authoritarianism C. Uncertain Situations: Grade, Middle, and High Schools IX. DEAR MR. BURNS, GET LOST! Kudos.

    Eight years after graduating as valedictorian of your law school, and having toiled as editor-in-chief of the law review, you have finally made it Big. A familiar name in The New York Times, you have helped establish a string of major precedents by winning one federal appeal after another for your venerable white shoe law firm, and for your fabulous accomplishments, the firm has made you the youngest partner in its one-hundred-year history. But complacent gratification was never your style. Eager to embrace challenges, you left the firm to work as a law professor and, within ten years, became an eminent constitutional law scholar at a name-brand school on the East Coast. Now, twenty-five years after graduating from law school, you find yourself in the most enviable position in the legal profession: Chief Justice of the United States.

    You look outside the windows in your corner office at the Supreme Court onto a sparkling spring afternoon in Washington, D.C., resplendent with cherry blossoms. You feel blessed, and without being smug, you marvel at your status as the most prominent judge in America; your every word recorded for posterity and studied by legions of law students, professors, lawyers, and judges.

    Your moment of serene reflection is about to be interrupted, however. Your secretary, with manifest dismay, quietly knocks on your door. She says, "Chief Justice, there's something that you should see, if you haven't already." She hands you a copy of Hustler magazine, a magazine so smutty that purveyors of Playboy and Penthouse would have primly, and at least publicly, abjured subscribing to it. (1) "Look at page 15," your secretary dolefully instructs you. You nervously thumb through the magazine's pages of filth and flesh, and on page 15, you see an ad parody featuring you--or, rather, a fictitious "you" that has been brazenly concocted by Hustler's editors--casually recounting with bemused satisfaction your first time having sex. In the parody, "you" tell the interviewer that your first time took place in an outhouse ... while you were drunk ... with your mother. (2)

    Two minutes after reading the Hustler parody, you are mortified to realize the inevitable: numerous people at the Supreme Court building--your colleagues, the staff, and, perhaps worst of all, the nameless throng of visitors from mannerly provincial locales like Bowling Green, Kentucky, who populate the audience during oral arguments--have no doubt seen this parody. You soon discover from your distraught clerks that the parody has gone viral in cyberspace, and it is relentlessly surfacing on countless websites. Your friends, everyone from appellate court judges to your high school prom date, have emailed you, shocked and empathetic. You hear snickering from some teenage students, impudently attired in backwards baseball caps, who are touring the Court building as you walk past them in the hall. And, after a day consumed by silent angst, your eighty-one-year-old mother has called you from her home in a suburb of Milwaukee, her voice choked by sobs of torment.

    Should Hustler be entitled to publish such a parody about you? If you are a public figure or public official--if you are "intimately involved in the resolution of important public questions or, by reason of [your] fame, shape events in areas of concern to society at large" (3)--then, according to the Supreme Court in Hustler Magazine v. Falwell, yes. (4) And because you are, after all, the Chief Justice of the United States, you probably are a public official as the Court defines it, and so it is highly unlikely, if not impossible, that you will be able to sue Hustler for money damages for having inflicted ruthless emotional distress upon you.

    Considering the emotional devastation that such a decision can unleash, the Court, one would expect, should have varnished its decision with a splendid justification. But it did not--not by a long shot. And there is something troubling about that. The Court in Hustler made public figures and public officials appallingly vulnerable to emotional injury, thereby violating basic expectations for moral decency.

    In this Article, I explain that the Court in Hustler arrived at the correct decision by denying the right of public officials and public figures the right to recover for money damages, but I argue that the Court failed to offer a serviceable justification. Instead, the Court offered a rationale that was inapplicable to the facts of the case, and, even if granted every due allowance, would suffer from theoretical incoherence. This Article posits a robust adjudicative principle, derived from the pre-Founding history of speech regulation in England, that should be used by courts to resolve a number of thorny First Amendment issues.

    The Article is organized as follows. Part I sets the background by explaining that civility--an indispensable moral value--is imperiled when the courts prohibit public officials and public figures from suing for damages inflicted by outrageously offensive speech. Part I argues that civility is more than good manners; civility is essential for the well-being of both society and the individual. Indeed, Part I shows that the common law has traditionally prohibited speech that humiliates others, especially the sort of nastiness initiated by Hustler. Therefore, Part I insists that any case that sanctions a departure from this norm of civility requires an exceptional justification.

    Part II summarizes how the Supreme Court in Hustler, while sanctioning such a departure, failed to offer anything that could be called an exceptional justification. The Court in Hustler denied notable public officials and public figures the right to sue speakers who subjected them to shocking humiliation. The Court reasoned that certain famous people figured so conspicuously in public affairs that information about them should be disseminated in an uninhibited and robust manner. By having access to such information, the audience, according to the Court, presumably would be better able to assess the public officials and public figures that were targeted by the speech. In other words, the Court believed that protection for offensive speech, including vilely abusive speech, was necessary to aid the audience in its search for truth.

    Part II argues that although the Court's ruling in favor of Hustler is defensible, the Court's reliance on the search for truth is misguided in two respects. First, the Court in Hustler stumbles-miserably, in fact--in applying this ostensive search for truth justification to the facts in the case, which are not amenable to the search for truth in the form the Court described. Second, even if the facts of Hustler were pliable for the justification from truth, that justification, in the abstract, is conceptually incoherent and the Court should not have chosen it in the first place.

    Part III begins the Article's project of developing an alternative justification for the Court's decision in Hustler. That justification derives from the axiom that a culture of antiauthoritarianism is essential for a political society dedicated to popular sovereignty. The Article makes its case by describing in detail a society--one quite different from contemporary America--in which the people are formally expected to defer to the authority of Great Men and other luminaries. Such a society, Part IV will suggest, was England in the late sixteenth and early seventeenth centuries. To bolster public hierarchy, English courts forbade speakers from degrading public officials and public figures. In a telling inverse of the Court's Hustler decision, the English courts meted out punishment for offensive speech in proportion to the prestige enjoyed by the offended party: nobles were entitled to more protection than commoners from offensive speech; the king was entitled to more protection than anyone else. Part V explains how King James I justified such disparate treatment by invoking his status as God's lieutenant on earth who, like God, should be obeyed without question. Although King James's arguments may appear absurd today, they spoke to an early modern English society that accepted a strict social hierarchy as both natural and necessary.

    Part VI transplants the discussion to colonial America in the early eighteenth century where the conditions for antiauthoritarianism were fertile. Unlike England, America lacked the stable communities and traditional authorities that could rein in individualism. Young people left their parents, chose marital partners in the absence of, or in opposition to, parental approval, and moved from one town to another, seeking better opportunities. Americans therefore appreciated the rewards and pleasures of individualism and resisted authoritarian strictures. Part VI also explains how antiauthoritarianism manifested itself in the United States Constitution and its most salient source of interpretation, the Federalist Papers.

    Part VII focuses on other sources. I examine the taunting, hyperbolic collection of insults against the king that constitutes the bulk of the text in the Declaration of Independence. I also look...

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