Radically subversive speech and the authority of law.

• Author: Smith, Steven D.

This is essay attempts to use a familiar, relatively concrete constitutional question to think about a familiar, relatively abstract jurisprudential question - and vice versa. The constitutional question asks why we should give legal protection to what I will call "radically subversive speech." The jurisprudential question concerns the ancient problem of the legitimacy or authority of law in general. "What is law," as Philip Soper puts the question, "that I should obey it?(1) I will try in this essay to show that the abstract question sheds light on the more concrete one - and vice versa.

I emphasize that my object is not to provide a thorough review of either the problem of subversive speech in relation to free speech theories or the large literature concerned with legal authority.(2) My interest, rather, is in exploring one aspect of the intersection of these problems. Because the discussion considers two problems at once, it does not proceed in linear fashion to a unitary conclusion that can usefully be stated in advance. Instead, its method is to start by looking at - but not attempting to resolve - one problem, then to consider the other problem, and finally to circle back on itself in the end.

1. The Special Problem of Radically Subversive Speech

   Start with the narrower question. "Radically subversive speech," in this discussion, will refer to speech that challenges government at the core by denying the very legitimacy of the existing legal order. This kind of speech does not argue that the government has erred in adopting this or another particular policy or that some discrete feature of the existing political regime is unjust or ill-advised. It argues, rather, that the government itself is fundamentally illegitimate and should be repudiated or overthrown.

   It is not easy to cite unadulterated examples of radically subversive speech. In part, that is because most speech is complicated, containing various and perhaps conflicting layers and dimensions of meaning. In part, the difficulty is also due to the fact that speakers typically do not craft their messages to fit legal or theoretical categories; indeed, insofar as the categories define exceptions to constitutional protection, prudent speakers might craft their messages so as not to fit those categories.(3) What one can say with confidence, though, is that there is a discernible range of political discourse that government regulators operating in tense or troubled times may sincerely regard as radically subversive speech, and they may classify the speech as such in decisions about whether it should be legally protected.

   Indeed, our free speech tradition has been shaped in a series of encounters with speakers - anarchists, radical labor agitators, war resisters, and communists - who were understood, fairly or not, as advocating just this kind of subversive message.(4) Those historical encounters tended to produce two things: decisions upholding restrictions on speech and dissents containing eloquent and passionate free speech rhetoric.(5) In the long run, it seems that the dissents have proven more powerful than the decisions,(6) as the Supreme Court's recent flag desecration rulings reflect.(7) For the moment, though, I intend not to side with either the decisions or the dissents but merely to frame the far from novel claim that radically subversive speech presents special obstacles, both practical and conceptual, for free speech theories.

   The problem with such speech arises partially because the objective it ostensibly aims to achieve - the subversion of the existing government - may seem an especially catastrophic evil. Speech that attacks or threatens things the existing political order holds dear may be troublesome enough, but speech that threatens the political order itself raises the stakes to another level of magnitude. Hence, early decisions reasoned that, under a balancing test, the Constitution should permit speech regulations designed to prevent such a political overthrow even if the actual prospect of an overthrow was remote.(8)

   Standing alone, however, this "balancing" argument does not identify the central problem radically subversive speech poses. It is possible, after all, that the existing legal order is or may become oppressive and illegitimate. If that is so, then speech exposing the illegitimacy of government would be true, and if such speech succeeded in bringing the illegitimate regime to an end, it seemingly would have achieved an especially valuable political good. In this vein, Holmes conceded, "If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."(9)

   Nor is this concession purely artificial. We can identify historical examples of oppressive political regimes - the Third Reich, for instance - whose fall we regard as desirable and just. It is conceivable that our own government might be or become such a regime. So if radically subversive speech threatens to produce a catastrophic evil, that risk arguably must be balanced against the possibility that it could produce a singularly important political good - if, that is, the subversive message declaring the illegitimacy of government is true.

   But the qualifier points to the more basic problem: radically subversive speech is not true. Rather, it is demonstrably "false" - in a special sense. To be sure, free speech theorists tend to be wary of "true" and "false"; indeed, they may insist that we can never be finally sure what is true and what is false and that. this is precisely the reason that we must always keep the free "marketplace of ideas" inviolate.(10) But in contrast to the broad array of statements uttered in public and private discourse, the truth or falsity of which is independent of any theory of free speech, there will be a few notions that any given theory must itself presuppose and thus necessarily accept as true. Ideas incompatible with these necessary premises or presuppositions are, by implication, false.

   This incompatibility is most obvious in the case of radically subversive speech that denies the value of free speech. This sort of denial will necessarily be in conflict with any theory affirming the value of free speech - which is to say that relative to the premises of any theory of free speech, this sort of radical claim win be false. In this vein, Larry Alexander notes that "freedom of speech cannot rely on the search for truth as its basis for tolerating advocacy of the repeal of freedom of speech."(11)

   But the necessary falsity of radically subversive speech is not limited to radical claims that may deny the value of free speech. In various ways, even radical claims that attack the legitimacy of the government without explicitly denying the value of free speech will run afoul of necessary premises of free speech theories. Consider, for example, the "democracy" rationale, which in one version or another informs much free speech thinking. The core idea of this rationale is that our political community is founded on a commitment to democratic government, and democratic government is possible only when citizens are free to speak their minds on political issues. Within this theory, "truth" comes to have a special meaning. Robert Bork explained his version of the theory:

   Truth is what the majority thinks it is at any given moment precisely because the majority is permitted to govern and to redefine its values constantly. "Political truth" . . . has no unchanging content but refers to the temporary outcomes of the democratic process. Political truth is what the majority decides it wants today. It may be something entirely different tomorrow ....(12)

   Under this view, most ideas are, at least as far as free speech theory is concerned, at least potentially "true"; they might at some point gain the support of a democratic majority. Hence, "there is no such thing as a false idea.(13) But this pronouncement is too broad. By the logic of the democracy rationale itself, there is one kind of idea that is demonstrably false - that is, an idea that contradicts the very logic of the democracy rationale by asserting that democratic government is illegitimate and hence that democracy is not the test of "Political truth." Bork drew the natural inference: "Speech advocating forcible overthrow of the government" should not be protected, he reasoned, because "[v]iolent overthrow of government breaks the premises of our system concerning the ways in which truth is defined, and yet those premises are the only reasons for protecting political speech."(14)

   Similar problems may exist, though in more veiled fashion, with respect to other rationales for free speech, such as the "marketplace of ideas" rationale or the "self-realization" rationale.(15) A premise implicit in any free speech rationale is that speech is for some reason entitled to a degree of legal protection; a theory of free speech must affirm at least that much in order to be a constitutional theory of free speech. Another necessary notion of free speech, it seems, is that there is a regime or legal order with at least enough authority to grant legal protection to speech. It is hard to see how any constitutional defense of free speech could decline to accept these premises and still be a theory of free speech. Radically subversive speech, however, contradicts these essential premises. Consequently, one might argue that a theory of free speech is logically committed to the conclusion that radically subversive speech is false - "false," that is, not "objectively" or in the abstract, but as measured by the premises or necessary presuppositions of the theory of free speech.(16)

   Confronted with the claim that radically subversive speech is "false," proponents of the prevailing view might respond, following Mill, that even false speech is...