Free speech in political philosophy and its relation to American constitutional law: a consideration of Mill, Meiklejohn, and Plato.

• Author: Dry, Murray
• Position: John Stuart Mill, Alexander Meiklejohn

1. INTRODUCTION

   The American Constitution's success, according to its Founders, required that the people understand the document. One telling argument for adding a bill of rights to the Constitution was that "if a nation means its systems, religious or political, shall have duration, it ought to recognize the leading principles of them in the front page of every family book."(1) If we assume this is true for constitutional law as well, the Supreme Court's treatment of freedom of speech is cause for our concern. Not only has the Court decided controversial free speech cases with increasingly complicated doctrines, but it has extended protection to expressive activities which citizens do not ordinarily associate with freedom of speech. For example, in 1992 the Supreme Court invalidated a bias motivated crime ordinance under which a young man was convicted for having burned a cross inside the fenced yard of a black family.(2) While the decision was unanimous, only a bare majority of the Court agreed on the reasoning: while the prohibited expression came under the "fighting words" categorical exception to protected speech, the "content neutrality" rule should be applied nonetheless; under that rule the ordinance failed, since certain, but not all, "fighting words" were selected for prohibition on the basis of the message conveyed.(3) Similarly, even when a government regulation is upheld, what the Justices call "protected expression" is at times hard to square with the high-toned justifications for protecting free speech. The major free speech case in 1991 involved nude dancing at the Kitty Kat Lounge.(4) In a 5-4 decision upholding a public indecency statute that prohibited nude dancing at the Kitty Kat Lounge, a majority of the Court was unable to affirm that the government's interest in banning nudity in places of public accommodations was unrelated to the suppression of free expression. Justice Souter, who cast the deciding vote, wrote that "such performance dancing is inherently expressive," and thus "subject to a degree of first amendment protection," but he went on to explain his vote with reference to "the State's substantial interest in combating the secondary effects [e.g., likelihood of prostitution] of [such] adult entertainment establishments."(5) First Amendment scholar Frederick Schauer attributes the reasoning in cases such as R.A.V. and Barnes to "the process of abstraction" whereby

   Nazis become political speakers, profit maximizing purveyors

   of sexually explicit material become proponents of an alternate

   vision of social existence, glorifiers of sexual violence

   against women become advocates of a point of view, quiet residential

   streets become public forums, and negligently false

   harmful statements about private matters become part of a robust

   debate about issues of public importance.(6)

   The Supreme Court has drawn much of its understanding of freedom of speech from the famous Holmes-Brandeis opinions in the "subversive advocacy" cases from 1919-1927. These opinions assumed that the "marketplace of ideas" should be perfectly free of governmental restraint, because truth will win out and the best response to harmful speech is more speech, unless there is a "clear and present danger" of a substantive evil that government has a right to prohibit.(7) The most recent development of this doctrine permits government to outlaw advocacy only when it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."(8)

   This development is part of a treatment of freedom of speech which starts by distinguishing categories of unprotected speech, including incitement, obscenity, and "fighting words," from all other speech, which is protected. Protected speech cannot be prohibited and can only be regulated, as part of a "time, place and manner" regulation or as incidental to a regulation of conduct, if the regulation is "content" and "viewpoint" neutral. This means that protected speech cannot be treated differently on the basis of subject matter or point of view. As a result of the "hate speech" decision discussed above, the content neutrality rule now applies even to unprotected speech. When both symbolic expression, such as draft card or flag burning, and offensive expression, such as wearing "F--the Draft" on a jacket in a public place, are included within the First Amendment, we arrive at our current legal condition on free speech. Do we really believe that such an extensive freedom of expression is good for our polity, that the truth, whatever that might mean as applied to nude dancing or cross burning, wins out, and that no harm results from such enforced permissiveness? To begin a reconsideration of these questions, I want to examine the philosophic source of our current views on free expression.

   Modern political philosophy, as developed in the writings of Hobbes, Spinoza, Locke, Montesquieu, and Rousseau, has provided the foundation for our Constitution and for modern liberal constitutionalism generally. Government's purpose is limited to the securing of individual rights and its authority comes from the people, who give their consent (in the versions of Locke and Montesquieu, which the American Founders followed) via representatives. In addition, the powers of government are arranged in and divided among different branches, which include a separation of powers among the political branches of government and an independent judiciary.

   Turning specifically to freedom of speech, while Spinoza, Locke, and Montesquieu discuss the subject in a manner consistent with their emphasis on securing rights, John Stuart Mill (whose teaching draws on the previous philosophers) and Alexander Meiklejohn are the most prominent proponents of the free speech doctrine the Court has followed.(9) Thomas Emerson's well-known list of reasons for the importance of freedom of speech(10) comes in large part from Mill, with a hint of Meiklejohn. Gerald Gunther, who quotes from Emerson's list, also identifies Mill and Meiklejohn as prominent sources for explaining the importance of free speech. As I will show shortly, the Court's approach to freedom of speech embodies Mill's position. In addition, Harry Kalven's famous article on the New York Times libel case and Justice Brennan's article both made Meiklejohn a household name among students of the First Amendment.(11)

   In their writings on free speech, Mill and Meiklejohn both cite Socrates.(12) Mill addresses the unsettling effect Socrates had on the Athenian citizens and the extreme action they took in response, i.e., capital punishment. Meiklejohn attempts to reconcile Socrates's speech in the Apology with his refusal to allow his friends to spring him from jail in the Crito. This material is important for American constitutional law because our understanding of freedom of speech depends upon our understanding of the relationship between political activity and the activity of thought generally, that is, philosophic reflection, scientific inquiry, and artistic expression. Our current free speech doctrines assume a fundamental harmony between these two activities. If this harmony cannot be assumed, as I intend to show with this examination of Mill, Meiklejohn, and Plato, then the Supreme Court's justifications for upholding free speech claims, and its very decisions in certain cases, will need to be reconsidered.

   11. THE MODERN VIEW OF FREE SPEECH AND ITS RELATION TO FREE GOVERNMENT

   Mill's arguments in On Liberty concern civil liberty in general, as his thesis indicates.

   The object of this Essay is to assert one very simple principle,

   as entitled to govern absolutely the dealings of society

   with the individual in the way of compulsion and control,

   whether the means used by physical force in the form of legal

   penalties or the moral coercion of public opinion. That principle

   is that the sole end for which mankind are warranted, individually

   or collectively, in interfering with the liberty of action

   of any of their number, is self-protection. That the only purpose

   for which power can be rightfully exercised over any

   member of a civilized community, against his will, is to prevent

   harm to others.(13)

   Presenting the foundation for this principle in chapter three, Mill argues that "the free development of individuality is one of the leading essentials of well-being," and that "the evil is, that individual spontaneity is hardly recognized by the common modes of thinking, as having any intrinsic worth. . . ."(14) Likening human nature to a "tree, which requires to grow and develop itself on all sides," as opposed to "a machine to be built after a model," Mill argues that the more desires and feelings one has the more one has "of the raw material of human nature."(15) Such a formulation suggests the need for strong government for security, as Hobbes argued. Mill, however, posits a social part of human nature as he claims that "there is a full equivalent in the better development of the social part of [that] nature, rendered possible by the restraint put upon the selfish part."(16) This seems to be Mill's way of denying any tension between the good of an individual and the common good.

   We thus approach Mill's argument for free speech in light of the overall object of the work: to minimize governmental and social control over individuals--at least over adults in advanced societies--in order to allow them to fully develop their unique natures. Mill argues that the free expression of opinions, in speech and writing, does not lead to any social harm. Mill goes on to put a limit on free speech which anticipates the Supreme Court's "clear and present danger" test:

   even opinions lose their immunity, when the circumstances in

   which they are expressed are such as to constitute their expression

   a positive instigation to some mischievous act. An

   opinion that corn-dealers are starvers of the poor, or that private

   property is robbery, ought to be...