STAYING AFLOAT AND ENGAGED IN TODAY'S FLOODED MARKETPLACE OF SPEECH.

Author:Scudder, Michael Y.
Position:Contemporary Free Speech: The Marketplace of Ideas a Century Later
 
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Thank you for the kind introduction and invitation to give this address and participate in the Symposium. It is a special privilege for me to come to Notre Dame. I grew up in Indiana, about ninety miles from here in Fort Wayne, have always admired the University, and know several members of the Law School's faculty, including, of course, Judge Amy Coney Barrett, my wonderful colleague on the Seventh Circuit. I don't know whether Rick Garnett or Bill Kelley get the credit or the blame for inviting me. Both are friends, and I appreciate this opportunity very much.

I am honored to give this Address in the Patrick McCartan Courtroom. Mr. McCartan, the former managing partner of Jones Day and chairman of the University's Board of Trustees, is one of the finest, classiest individuals I have ever met and worked for.

I.

We gather on this picturesque campus in the heart of the fall in Indiana. All around us are Hoosier farms, small towns, and diner discussions about the latest happenings--reminders in many ways not just of yesteryears, but also of who we want to remain and be as a people--communities stitched together around shared values, bonded by a love of family and friends, and an embrace of hard, hands-on work. So, too, though do we come together in the age of smartphones, social media, e-commerce, and news cycles that seem to run twenty-five hours a day, eight days a week.

This is America today--a world where many aspects of the way we think, communicate, and interact have one foot still touching yesterday and another trying to find balance today. So today's Symposium comes at a most opportune time and covers a most important topic--Contemporary Free Speech: The Marketplace of Ideas a Century Later.

The Symposium takes its tide from Justice Oliver Wendell Holmes's dissenting opinion in Abrams v. United States. (1) The Supreme Court decided Abrams in 1919, and the case presented the question whether Russian emigres violated the Espionage Act by distributing leaflets encouraging a workers' revolution and disparaging America's involvement in World War I. (2) The Court upheld the convictions, concluding that the messages conveyed in the leaflets, intended as they were to provoke resistance against the American military campaign in Europe and to urge labor strikes in ammunition factories critical to the war effort, enjoyed no First Amendment protection. (3)

Justice Holmes dissented, arguing against the regulation of dissident speech, reasoning, in the words that gather us today, that "the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market." (4) The point, of course, is that we best find truth when speech competes with speech, with government handcuffed from putting its thumb on the side of particular messages.

What a difference a century makes. Leafletting has been replaced by Twitter and Facebook; and the public forum is no longer the town square but rather a vast digital landscape without boundaries. The free trade in ideas, once measured through the quality of finite speech, is now tested by a tsunami of speech.

With Justice Holmes's dissent in Abrams as the starting point, the Law Review has brought together a distinguished group of professors to offer ideas on how the conception of the marketplace of ideas applies, if at all, to many of today's most pressing and unanswered challenges, including contentious political discourse, hostile counterspeech, and digital privacy. Each professor has drafted an article and provided a valuable contribution.

Dawn Nunziato of George Washington University and Alexander Tsesis of Loyola Chicago tackle the digital issues head-on, proposing new ways to address the complex balance between speech and privacy, truth and untruth, in the social media era. Professor Nunziato describes current regulatory approaches to these challenges at home and abroad, recommending new legislation to limit future foreign intervention in American elections and to increase the transparency of online political advertisements. For his part, Professor Tsesis argues that consumer protection considerations should play a prominent role in the Congress's and judiciary's balancing of speech and digital privacy.

John Inazu of Washington University in St. Louis analyzes today's political contentiousness through the lens of Justice Holmes's discussion of the certainty of conviction relative to speech and its impact on the marketplace of ideas. Professor Inazu argues that society benefits when a humble approach to personal beliefs guides individual contributions to national discourse. Likewise, Leslie Kendrick from the University of Virginia assesses the tension between the Abrams-style marketplace of ideas and the "clear and present danger" test, introduced by Justice Holmes in Schenck v. United States. (5)

Reflecting on the contributions of Professors Inazu and Kendrick, Fred Schauer, also from the University of Virginia, examines the history of counterspeech--from the planned Skokie Nazi march in 1977 to today's clashes on college campuses. Professor Schauer finds today's legal frameworks underdeveloped to address fully instances where speech in its own right is used to drown out a controversial primary speaker. He offers thoughtful observations on what truly constitutes interference with speech, arguing that difficulties in defining that interference have hindered efforts to establish when counterspeech goes too far.

Finally, the Symposium benefits from broader discussions of the legal frameworks applied to assess the First Amendment in contemporary settings. Heidi Kitrosser from the University of Minnesota addresses the balance between statutorily provided speech mechanisms like whistleblower laws and Supreme Court precedent holding that the First Amendment provides no protections for government officials speaking pursuant to their official duties. (6) Mary-Rose Papandrea examines the Court's shift away from its usual speech rubrics when assessing public school students, public employees, and the government speech doctrine, concluding that the Court's resort to balancing tests in these areas comes with real costs. Finally, my former professor, Martin Redish from Northwestern University, assesses the complexities associated with compelled commercial speech, suggesting a new standard for measuring the legitimacy of government action in that domain.

II.

So the contributions to the Symposium cover substantial ground, address important issues, and offer much to react to. This Symposium, I submit, also occurs at a time of significance for the First Amendment in the Supreme Court. Perhaps the Court's most fervent and consequential defender of free speech, Justice Anthony Kennedy, has retired. His impact on American constitutional law was enormous, including, in my view, in the area of free speech. I had the privilege of clerking for Justice Kennedy, admire him deeply as judge and person, and want to offer some reflections on what I see as a few of Justice Kennedy's more important contributions to the law of free speech and what lessons those contributions may provide as the law marches forward.

Across thirty years on the Supreme Court, Justice Kennedy advanced consistent, coherent, and impassioned defenses of the value of free speech. His opinions reflect an unwavering belief that the freedom of speech is essential to our autonomy and identity as individuals and to the preservation and advancement of our republican form of government.

Allow me to illustrate these points by highlighting what I see as some of Justice Kennedy's most significant free speech opinions. At nearly every turn, and with few exceptions, it is easy to see his agreement with Justice Holmes's conception of the First Amendment as protecting the marketplace of ideas.

Justice Kennedy joined the Supreme Court in February 1988, and a year later the Court decided Texas v. Johnson, (7) holding unconstitutional the Texas statute that made it a crime for Gregory Lee Johnson to burn an...

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