Pragmatism versus purposivism in First Amendment analysis.

• Author: Posner, Richard A.
• Position: Response to article by Jed Rubenfeld, Stanford Law Review, v. 53, 2001, p. 767

In The First Amendment's Purpose, (1) Jed Rubenfeld sets against the "cost-benefit balancing" approach to free speech issues, (2) with me as spokesman, (3) an approach that forswears balancing in favor of inquiry into legislative or regulatory purpose ("purposivism"). From certain "paradigm cases" (4)--by which he means constitutional interpretations today uniformly accepted as valid--he infers three things: The First Amendment (5) forbids all regulation intended to limit the expression of opinion ("no one can be punished for expressing himself on a matter of opinion" (6)), regardless of consequences. It forbids no regulation of expression, again regardless of consequences, that is not so intended. And it allows all false factual assertions to be punished.

The contrast between Rubenfeld's approach and the pragmatic approach to free speech and other legal issues, an approach that I have defended, (7) is stark, and provides the stimulus for this paper. I shall assume in what follows that the reader has read his article.

I must explain at the outset what I mean by "pragmatism," "pragmatic adjudication," and "the pragmatic approach to free speech." Pragmatism is a complex philosophical movement (8) the core of which is a challenge to the preoccupation of the central philosophical tradition of the West, from Plato to Kant and Russell and Carnap, with establishing the foundations of knowledge--the conditions under which scientific, moral, and political beliefs can be said to be true. Pragmatists believe that the task of establishing such foundations and so validating our beliefs as objective is either impossible or uninteresting, and in either case not worth doing. The test for knowledge should not be whether it puts us in touch with an ultimate reality (whether scientific, aesthetic, moral, or political) but whether it is useful in helping us to achieve our ends. The human mind developed not to build a pipeline to the truth but to cope with the physical environment in which human beings evolved, and so be tested not by its correspondence with "reality" but by the consequences of believing or disbelieving it.

Pragmatism doesn't lead in a straight line to a philosophy of adjudication. But it encourages a mindset that is skeptical of any such philosophy that casts the judge in the role of a quester after certainty who employs to that end tools as close to formal logic as possible. It encourages the thought that the object of adjudication should be to help society to cope with its problems, and so the rules that judges create as a by-product of adjudication should be appraised by a "what works" criterion rather than by the correspondence of those rules to truth, natural law, or some other high-level abstract validating principle.

This approach is easily derided as unprincipled, ad hoc, and "political"; but it is these things only if it is thought to entail the disregard of the systemic as well as immediate consequences of judicial decisions, which no pragmatist judge worth his salt believes. Indeed, a pragmatist would choose to be a formalist judge if he thought formalism in adjudication would produce on the whole better social consequences than attempting to weigh up the likely consequences of each decision. I happen not to think formalism is a workable judicial philosophy, however, and though it would take me too far afield to argue that here, (9) I shall, in criticizing Rubenfeld's approach, be urging the unworkability of a formalist approach to free speech, even one defended on pragmatic grounds.

The pragmatist who has decided to be not a formalist judge (at least in free speech cases (10)) but a pragmatic one reads the relevant language of the First Amendment ("Congress shall make no law ... abridging the freedom of speech, or of the press") but finds nothing very helpful there so far as deciding the actual cases that arise nowadays is concerned. (That is an important qualification, to which I'll return: There is a core of settled meaning to the First Amendment; but settled principles are rarely litigated.) The key term, "freedom of speech, or of the press," is neither defined nor self-explanatory. So the pragmatist goes foraging in the historical background of this part of the Constitution but again finds nothing that will resolve the modern cases. He then examines the rich case law interpreting the speech and press clauses and finds that it owes little to the language or background of the relevant clauses, or to the various theories that political and legal theorists have advanced concerning the proper scope of freedom of expression. Instead the constitutional law of free speech seems on the whole, though certainly not in every respect, to be a product of the judges' (mainly they are United States Supreme Court Justices) trying to reach results that are reasonable in light of their consequences.

I am not trying to prove that pragmatism is the theory of the First Amendment but merely to suggest that a pragmatic approach is not foreclosed by the language or background of the amendment or the case law applying it. This is important because some of the systemic consequences to which a good pragmatist judge will attend are the uncertainty about legal obligation and the cynicism about the judicial process that are bound to arise if judges make no effort to maintain continuity with established understandings of the law and to observe the correlative limits on judicial creativity. The point is not that the judge has some kind of moral or even political duty to abide by constitutional or statutory text, or by precedent; that would be formalism. It is merely that continuity and restraint in the performance of the judicial function are important social goods, and any judge proposing to innovate must consider not only the benefits of the innovation but also the costs in injury to those goods.

Another systemic consequence of judicial decisions cuts the other way but is no less worthy of consideration. Judges have to worry that if they buck public opinion too strongly, the political (or, rather, more political) branches of government will clip the judicial wings. Prudence, mistaken for cowardice or lack of principle, is likely to rein in the most aggressive assertions of judicial power. (And so judges are most aggressive when they are dissenting, because they don't have to live with the consequences of the positions they're asserting--there are no consequences.) The pragmatist judge will not fool himself into thinking that the sheer power of legal logic will carry the country with him on matters on which it feels strongly. He will be cautious in spending down his political capital.

Concern with consequences both systemic and immediate implies a comparison of good and bad consequences, and therefore a "balancing" of them; and if good consequences are relabeled "benefits" and bad ones "costs," then pragmatic adjudication is a form of cost-benefit analysis, and Rubenfeld has labeled me correctly after all. This is a natural though not inevitable endpoint of a judicial philosophy that takes its cues from pragmatism. But a number of qualifications are necessary in order to prevent misunderstanding:

(1) "Costs" and "benefits" must not be understood in exclusively or even (in the First Amendment setting) primarily monetary terms. Indeed, because the image of balancing costs and benefits exaggerates the precision that is attainable in the First Amendment area, and tends to suppress the other qualifications that I have indicated, I prefer to call the approach that I espouse to free speech issues the "pragmatic" approach rather than the "balancing" or "cost benefit" approach.

(2) A related point: Quantification is rarely feasible and even more rarely undertaken when courts consider the consequences of free speech and of its regulation.

(3) Long-run rather than short-run costs and benefits are the proper focus--a point I'll come back to.

(4) Costs and benefits need not be balanced anew in every case if the cost-benefit analysis of a class of cases has crystallized in a rule that the judges have merely to apply. This is related to my earlier distinction between systemic and immediate consequences of a decision.

(5) And thus (following from (4)) the balancing of costs and benefits by the judge takes place at the margin, outside the core of settled doctrine--not everything is up for grabs in every case. It would not do for the Supreme Court to say, "While we recognize that freedom of speech has great social value, we can't find any convincing evidence that the value added of having judges enforce it justifies the costs entailed, since we observe that peer nations like the United Kingdom have a reasonable amount of free speech without constitutional limitations on Parliament's power to censor. Therefore we shall no longer consider First Amendment claims justiciable." The pragmatic judge is constrained by the settled features of the legal framework, whatever he thinks of them.

The last two points--that pragmatism doesn't necessarily imply balancing at retail and that any such case-by-case balancing is proper only outside the settled core of doctrine--are particularly important to bear in mind in order to prevent a too-quick collapse of pragmatism into case-by-case balancing. As I said earlier, a pragmatist might reject the use of balancing tests in First Amendment cases because he thought the consequences of using them were on balance bad, maybe because they give judges too much discretion. I think on the contrary that the balancing approach has considerable merit in First Amendment cases outside the heartland of settled law, but this is not an entailment of the pragmatic approach. It is unclear whether Rubenfeld appreciates this distinction; consequentialism, case-by-case balancing, and cost-benefit analysis may be all one to him.

Pragmatic adjudication in free speech cases has meant, for example, that judges who in the...