Speech restrictions that don't much affect the autonomy of speakers.

• Author: Volokh, Eugene
• Position: Symposium: Individual Autonomy and Free Speech

1. SPEECH RESTRICTIONS WITH LITTLE IMPACT ON SPEAKERS

   The sad occasion of Ed Baker's untimely death is perhaps a fitting reason to reflect on the speech of those who are no longer living. Most of what is worth reading was written by authors who have died. All of what is now worth reading will one day fall in the same category.

   I take it none of us thinks such material is or should be less constitutionally protected than the writings of the living. I know of no court that has suggested any such thing. Yet the speech of authors who are now dead poses a difficulty for speaker-based free speech theories (or speaker-based components of broader theories).

   Say the government were to ban a book written by a nowdead author: Aristotle, Machiavelli, Marx, Hitler, Orwell. Such a ban would have no effect on the author's autonomy.

   It would not deny him an opportunity to "fully develop a complex mental world, identify its contents, evaluate them, and distinguish between those that are merely given and those one endorses." (1) It would not interfere with "the appropriate development and regulation of the [author's] self, and of [the author's] relation to others," (2) at least if "relation to others" means the relation of actual living human beings. It would not interfere with the author's "authority (or right) to make decisions about" himself. (3) Those authors are beyond the writ of governments.

   What is wrong with such bans, it seems to me, is that they burden the rights of the living, not of the dead--of readers, not of authors. Some might identify, I suppose, some symbolic interference with the author's "self-expression," but in the absence of a living self such interference is metaphor, not reality.

   Some might suggest that a few authors could be deterred from speaking during their lives by the fear that their influence will be legally blocked after their death, but that seems unlikely. Even those who think they write for the ages are unlikely to be much affected by the possibility that some government some time after their death might restrict their works.

   Some might point to the rights of future "speakers," such as publishers or booksellers. But while the law rightly protects such rights to convey the speech of others, surely the real tragedy of a ban on Ed Baker's works--or on Aristotle's works--would not be that it will interfere with the speech of a future bookseller. And of course many works are made public through largely automated mechanisms such as Google Books or Hein-Online, whose operators may not even make any conscious choice about what to publish. It can't really be booksellers' rights that are chiefly at stake here.

   Rather, once time removes the author from the realm of those who possess rights, what is left is the reader. Life, and the law, are for the living. And the reader's rights are entirely sufficient to provide the works of now-dead authors with full First Amendment protection.

   Consider likewise the republication of a leaked document: an internal government report, a business's memo describing its plan to close plants, a business's investigation of whether its products make people sick, or a political advocacy group's long-term strategy for accomplishing its political goals. Let's call this the "pure leak republication" scenario. And consider alongside it the republication of a leaked document together with careful analysis and criticism of the document by the republisher, which we'll call the "speaker-supplemented leak republication" scenario.

   Pure leak republication does not do much to advance speakers' autonomy, or their development as thinkers. In many cases, the original authors did not wish the documents to be released. (4) Whatever the value of the publication to listeners, it doesn't seem to be respectful of the authors' mental autonomy. Moreover, if the report was an internal corporate document, then under Ed's and Seana's own framework, the development of the report would not have involved sufficient "thinking" to justify full protection. After all, Ed's and Seana's conclusions that commercial advertising and nonmedia corporate speech aren't fully constitutionally protected rest largely on the view that business employees' speech is generally not sufficiently self-expressive, or not sufficiently connected to their status as "thinkers." (5)

   The leaker must have thought about whether to leak the documents, but I doubt this thinking would suffice to qualify the leak for full constitutional protection under Ed's or Seana's framework. After all, advertising agency employees and corporate press release writers do some thinking about what to write for their bosses, as well as about the morality of whether to write it--but that isn't enough, under Ed's and Seana's models, to qualify such employees for full speaker-as-thinker protection. Plus one can imagine situations where the document wasn't even deliberately leaked, but just accidentally released.

   Likewise, though the recipient of the leak (say, a newspaper editor or a Web site operator) must have thought about whether to publish the leaked document, that thinking is also likely not sufficient for full protection under Ed's and Seana's framework. And of course such thinking might well have been largely motivated by market pressures, focusing more on whether the document will draw paying readers and advertisers than on any deeper moral questions. If so, then it would be hard to distinguish the speech from the economically shaped speech of advertisers or non-media business corporations-speech that, under Ed's and Seana's approach, lacks sufficient value as self-expression.

   Yet I take it that the case for protecting such pure leak publications remains strong, because of the interests of readers (including the possibility that the readers' own future speech will be affected by what they learn from the published leaks). Perhaps in some situations such speech may nonetheless be restricted, for various reasons. (6) But that possibility applies equally to the pure leak publications and to...