Reply to critics.

• Author: Shiffrin, Seana Valentine
• Position: Articles in this issue, p. 309, 327, 337, 385, 399 - Symposium: Individual Autonomy and Free Speech

I am grateful for the thoughtful and challenging responses of the group members and pleased to have the opportunity to elaborate upon the thinker-based approach in reply. I wish Ed Baker were still here to continue the conversation alongside. Unfortunately, my remarks will be tentative, speculative, and most regrettably, partial. The excellent issues and questions posed by the commentators deserve a longer and more detailed treatment than time and space allow.

Broadly speaking, the responses fall into four categories, raising methodological issues, questions about scope, worries about under-inclusivity, and worries about over-breadth. I will address them only roughly in turn, because, given overlap, a strict separation would prove too rigid.

METHODOLOGY AND SCOPE

Vince, Steve, Tim, Jim and Susan posed a number of pertinent questions about the methodology operating in the backdrop of my proposed approach, its scope, and the theoretical advantages I associate with it.

My general approach is to start with the First Amendment and to ask what arguments for freedom of speech would make the most justificatory sense of its inclusion and its deontological status in a legitimate constitution. My short answer is that a legitimate, operative democracy both presupposes its citizens are functional thinkers and moral agents and, further, must treat them as such to respect their human rights. To respect the status and significance of its citizens qua thinkers, the state cannot retain its legitimacy while undermining the conditions necessary for the development and exercise of each member's capacities for free thought. Instead, Riven the significance of these capacities to each individual and to our joint social project of to cooperate and self-legislate justly, it must make the protection of those conditions a foundational priority. A freedom of speech protection is essential to that mission.

This immediately raises the question of scope and limits. Jim asks, why, then, would there be a state action requirement in the First Amendment? That is, why wouldn't the thinker-based theory condemn all limitations on the freedom of thought, whether the source of the limitations was the state or a private entity? In a complementary way, Tim might be read as asking, why wouldn't such an approach suggest requirements of positive provision--to establish schools and libraries, e.g., rather than merely to refrain from abridgment? Generally, mightn't what falls under a freedom of thought approach exceed what is typically thought of as protected under a freedom of speech rubric?

It is, in my view, a strength of the theory that it helps to explain what state abridgments of free speech have in common with private and social abridgments. (1) It also seems like a strength that the theory can explain the continuity between the idea that a commitment to freedom of speech may require governmental abstinence from active obstructing disfavored speech and the related idea that this commitment may demand certain positive provisions by the government, including but not necessarily limited to protection against hecklers and other forms of attempted private censorship, as well as provisions to ensure fair access to public fora for expression. (2)

Let me start with Tim's question about the relationship between freedom of speech and freedom of thought. Tim's suspicion that there are aspects of freedom of thought that may not be well-captured or well-protected fully by a 'freedom of speech' protection may be correct. Although, for the most part, I think the connection is fairly close. In any case, as I will later argue (not that I take Tim to disagree), it is not a theoretical defect if a freedom of thought protection ranges beyond a strictly construed free speech protection.

Three points may clarify my view of the connection between freedom of thought and freedom of speech: First (for most people in most circumstances over an extended period of time), (3) freedom of thought cannot be achieved on one's own, solely within the confines of one's mind, because (complex) thought itself requires, for its development and refinement, access to others' thoughts and opportunities for the externalization of thoughts to oneself and to others. Hence, there is a very intimate connection between freedom of thought and freedom of speech. If externalization of mental content or communicative access to others is obstructed or otherwise significantly constricted, then speech is not free and, in turn, thought is not fully free.

Second, some protections of freedom of thought are not directly forms of free speech protection, as those terms are commonly used, but because they either are so closely connected, or they implicate when speech may be restricted, they usefully fall under the label of a broadly understood 'free speech' theory. Two examples may illustrate my point: First, although direct efforts to manipulate others' thoughts without restricting or manipulating their speech might be thought to jeopardize freedom of thought but not freedom of speech (or at least not freedom of speech directly), that separation seems too hasty. Some forms of thought control may take the form of speech (e.g. hypnotic, bombarding, or deliberately false speech). The thinker-based view would explain why that form of speech would not fall under the free speech protection but, rather, why that speech could be restricted (whether that speech is of government or private origin). (4) Other forms of thought control or thought interference might use no speech at all: e.g., electronic waves might be aimed at the brain to disrupt its function. Here, though, we might point out that this case implicates freedom of speech because the speech of the victim would no longer be the product of authentically generated thought (as would also be true of the prior case). Although our primary aim in response to these scenarios should be to protect the free thoughts of the potential victim, the connection to free speech is not far.

Second, as Tim points out, access to information may be a necessary condition of freedom of thought, but it may not seem like the most natural locution to call restrictions on information provision abridgments of free speech. My response here takes a fairly similar form. Some withholding of information falls within the legitimate purview of individual privacy (some aspects of which are themselves essential to the individual qua thinker as I discuss below); perhaps some withholding falls within the purview of legitimate governmental secrecy. To fill out when information should be made available would require supplementing the thinker-based theory with a larger theory of acceptable privacy and secrecy. That supplementation does fall within the rubric of a 'flee speech' theory because it concerns what sorts of things the government (and others) must speak about and what sort of speech they may legally refuse to engage in; further, when information is illegitimately withheld, free thought and free speech based on that thought is impaired. So, although I will not offer a theory of how broad the Freedom of Information Act should be and which part of it, if any, should be constitutionally mandated, I do think that the theory of its scope is an aspect of free speech theory and that the issue of information provision at least implicates so-called "free speech" values. (5)

Third, the adequate conditions for freedom of thought may include measures like adequate food and other economic resources. Anti-poverty measures are not standardly thought to fall under the category of 'freedom of speech.' I surely grant that intuitive, ordinary language point. Whether the free speech protection should be more broadly interpreted to exude a penumbra that includes such measures that render the flee speech protection meaningful is a venerable issue that implicates larger issues in constitutional theory and economic justice, the resolution of which is not entailed by the thinker-based theory on its own. (61) am content here merely to acknowledge that if one cares about the adequate conditions of freedom of thought, one would be lead to care about its material as well as its intellectual conditions, whether under a constitutional 'flee speech' lens or under some other viewing device.

Some might take the thrust behind some of these questions to suggest that a thinker-based theory seems to require more than the First Amendment is generally taken to cover. Further, this is a flaw because the theory is not well-tailored to explain and interpret the First Amendment speech clause, in particular. I agree that a concern about the social and material conditions adequate for free thought entails a larger agenda than is covered by freedom of speech, at least the judicially enforceable branch of that topic as it has been standardly interpreted. Perhaps the standard interpretation is correct. I am not sure of that (or of its particular limits) but the thinker-based approach is not inconsistent with the view that the First Amendment tackles only part of that agenda. The thinker-based approach may suggest that the foundations of freedom of speech may demand the government (and perhaps other social institutions) do more than the First Amendment, itself, requires.

That consequence in itself should not feel surprising. (7) The theoretical foundations of the 4th and 5th Amendments most likely involve privacy values whose natural extension and satisfaction conditions range beyond merely protecting against unwarranted searches and seizures and self-incrimination. Other First Amendment theories also have (salutary) overhang. Democracy theories, like Jim's and Robert's, (8) draw on a commitment to democracy whose implications (e.g., one person-one vote) range beyond how to treat speech on public affairs or more broadly, speech within public discourse.

That does not mean that any of these theories suggest that the First...