The Antipaternalism Principle in the First Amendment

• Publication year: 2022

37 Creighton L. Rev. 579. THE ANTIPATERNALISM PRINCIPLE IN THE FIRST AMENDMENT

Creighton Law Review

Vol. 37

DALE CARPENTER(fn*)

The First Amendment expresses the idea that government should not be able to tell citizens what to speak, hear, write, or read. Yet this simple idea is riddled with exceptions so common they are barely contested. These exceptions do not ordinarily depend on the quality or value of the speech being offered but on the reason why the government wants to restrict it. So, the federal government may not punish draft-card burning because it encourages draft-resistance, but it may do so because it hinders the administration of the selective service system. The police may not shut down a Ku Klux Klan rally because it is racist, but they may do so because it threatens an immediate riot. The city may not forbid the use of a loudspeaker because it is used to criticize the police chief, but it may do so because it disrupts the peace and tranquility of a neighborhood. The zoning board may not refuse to license an adult theater because it is immoral, but it may do so because the presence of the theater contributes to crime in the area. Under the First Amendment, the justifications the government offers for suppressing speech often make the difference between validity and invalidity. Reasons matter.

May government restrict speech because it believes that speech is not good for us? More to the point, may it do so because it doubts the ability of an audience to evaluate the information and arguments in the speech? This justification for regulation is a species of legal paternalism. It is based on the fear that people will not be able to use their freedom properly. It raises the fundamental question whether the state may treat adults like children, substituting its judgment of their best interests for their own.

There is widespread liberal revulsion against paternalism.(fn1) In the words of John Stuart Mill: "[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant."(fn2) This famous passage, often taken principally to state Mill's harm principle, also states an antipaternalist corollary to that principle. The state cannot regulate a person for his own good.

Yet, disfavored as it is in theory, paternalism pervades the law. Examples of paternalism include: laws requiring people to wear helmets while operating a motorcycle; laws requiring the use of seatbelts in cars; laws forbidding gambling; laws against usury; laws forbidding swimming when no lifeguard is present; laws against dueling; limitations on the legal rights and capacity of minors and mentally disabled people; restrictions on the use of recreational drugs; the Social Security system, which compels individual investment in retirement; the prohibition against suicide; and compulsory education laws.(fn3)

The law of contract alone, usually seen as a fortress of individual autonomy, is rife with paternalism. Contract law prohibits, among other things, self-enslavement and contracts by those deemed incompetent to make them. It also prevents contractual waiver of a host of rights, including: a tenant's right to refuse to pay rent if the leasehold is uninhabitable, a promisor's right to sue for divorce or to seek relief in bankruptcy, the right of either party to seek specific enforcement, and the right to a "cooling-off" period in many consumer transactions. In each case, it is thought, the government restrains individuals because it has concluded it knows better than they what is good for them. Few question the need for at least some paternalistic restrictions on freedom.

The Constitution is not now understood generally to prohibit government paternalism. That was not always so. In the Lochner era, the Court invalidated numerous economic regulations, like minimumwage and maximum-hours laws, that were thought to be needed to protect people from their own willingness to work under difficult conditions or for very low wages. The Court thought these restrictions violated a person's right to bargain for his own wages and hours, under his own estimation of what was best for him. In Walters v. Nat'l Ass'n of Radiation Survivors,(fn4) which upheld a limit of a $10 fee to lawyers who represent veterans seeking benefits for service-related disability, the Court noted the demise of Lochner v. New York,(fn5) invalidating state economic regulation because it interfered with the libertyof contract, observing: "That day is fortunately long gone, and with it the condemnation of rational paternalism as a legitimate legislative goal."(fn6)

By contrast, in the law of free speech, and perhaps in this area of the law alone, paternalism has been largely rejected. While the rest of the Constitution contains no general prohibition on paternalism as a justification for state regulation, the First Amendment is hostile to it.(fn7) Indeed, deep concern about paternalism in speech regulation transcends the usual left-right divide on the Court.(fn8) Commentators generally agree the First Amendment is hostile to paternalism.(fn9) Yet, most analysts invoke the idea of free speech antipaternalism without examining its roots, explaining what it means, or discussing what it entails. There has been no attempt to identify and to explain what I call theantipaternalism principle across a variety of free speech domains.(fn10) This Article examines the nature and reach of this particular brand of First Amendment exceptionalism.

The Supreme Court has never upheld a speech regulation it deemed either paternalistic or justified by the government on a paternalistic rationale. Just as a finding of "protectionism" is invariably fatal to a state law burdening interstate commerce,(fn11) a finding of "paternalism" is invariably fatal to a federal or state law regulating speech. But this fact may not be as significant as it sounds. It might be that paternalism is little more than a rhetorical bogeyman, invoked when the Court has decided for independent reasons to strike down a statute, and disregarded when the Court has for independent reasons decided to uphold the law.(fn12)

The Court has not been entirely consistent in its application of the antipaternalism principle. But occasional inconsistency in application of the antipaternalism principle does not mean the underlying idea is incoherent or that some general understanding cannot be derived from its use. Still, that underlying idea must be identified. Is there a discernible principle or set of principles behind First Amendment antipaternalism that explains many of the results in past cases and usefully predicts results in future ones?

Answering this question involves, first, settling on a First Amendment definition of paternalism and, second, deciding what antipaternalism commits us to in the realm of speech regulation. As to the first question, the Court has never defined paternalism. It has simply used the word in circumstances that implicitly suggest a definition. That definition is a specialized one that differs in important ways from the definition of paternalism that might be offered by economists, political scientists, or philosophers. In the First Amendment, paternalism means: a restriction on otherwise protected speech justi-fied by the government's belief that speaking or receiving the information in the speech is not in citizens' own best interests.(fn13) The antipaternalism principle disfavors such justifications.

Second, as I see it, the antipaternalism principle entails six core commitments. First, it prevents the state from adopting what I call an information-denying strategy to achieve what it thinks are citizens' best interests. Second, it restrains the state's role as a central decision-maker, disabling the state from restricting the flow of speech as a method of discouraging choices made by individuals in their own best interests because the state believes those decisions will harm the collective welfare. Third, it forbids information-denying speech regulation even if the speech restriction will actually accomplish its aim of manipulating citizens' decision-making in a direction the state believes is in citizens' best interests. Fourth, it invalidates speech regulation that restricts the flow of information to the recipient of the information, regardless of whether the regulation takes the form of a restraint on the speaker or the recipient. Fifth, it prevents the state from justifying speech regulation based on the primary effect the speech will have on recipients. Finally, it prevents the state from justifying speech regulation based on the presumed offense the speech will cause recipients.

The choice of the word "principle" to identify this antipaternalist phenomenon in the First Amendment is deliberate. I use it in the sense that Vincent Blasi has used it to mean "a value proposition of sufficient generality and thrust that for a fair number of particular cases acceptance or rejection of the proposition constitutes a major variable in determining how the case is resolved."(fn14) Notice that the commitment to antipaternalism in free speech doctrine is not an absolute. It could conceivably be overcome by a particularly weighty governmental interest that could only be justified by a paternalistic rationale. The Court...