Recovering the Freedom of Speech
Since first taking shape as a legal movement in the 1970s, originalist jurisprudence has catalogued numerous victories in courts all across America. Commitment to the Constitution's original public meaning has helped secure Second Amendment rights where they were previously infringed upon and has stopped Congress from overstepping its bounds, among other accomplishments. But, despite these advances, originalism and its champions have yet to root the First Amendment's Freedom of Speech Clause in its original meaning. To be sure, they have made serious progress in cases such as Citizens United v. Federal Election Commission, which have reinvigorated political-speech protections. By and large, however, conservatives have failed to recover the founders' notion of protected speech.
The clause that the American people adopted in the First Amendment to protect speech is inseparable from the ascertainment of truth in public life for the benefit of self-government. That clause did not protect vile speech or speech unconnected to matters of public concern, frequently called "private speech." The line between protected and unprotected speech may be difficult to draw in some cases, but, unlike the jurisprudence of the current Court, it was rooted in what Robert Bork famously called "neutral principles."
Those neutral principles — that the Constitution's primary task is to ensure self-government and that unrelated matters ought to be left to the people in a free society — are not based simply in the Free Speech Clause's original meaning, but in practical reality as well. All theories of free speech result in some form of "line drawing" between protected and unprotected speech. Two questions arise from this line drawing: Where should the line be drawn, and who decides where to draw it? The Free Speech Clause, as an original matter, drew the line to protect public speech and left the people to draw that line in other cases.
The dominant jurisprudence on the Court now, however, has departed considerably from that original understanding. It rejects the founders' original distinction between socially valuable speech and speech without social value, treating nearly all speech as subject to constitutional protection. Modern jurisprudence asserts that the First Amendment was meant to create a marketplace of ideas, a marketplace that will develop truth by permitting autonomous citizens to express or ignore nearly any speech they want. This may sound attractive to free-speech "absolutists," at least up to a point. What the "marketplace" and "autonomy" arguments are less upfront about, however, is that the Court determines them both. Because the Court has jettisoned the distinction between valuable speech and speech without social value, the Court is now the only body that draws lines between permitted and prohibited speech. And now that the Court is the arbiter of all speech, it possesses the tools to restrict even public speech — in fact, from time to time, it does just that.
The result is a jurisprudence, and thus a public square, unconnected to the search for truth, firmly rooted in the notion that no speech is fundamentally more important than any other. There is, therefore, no distinctive value for public speech under the First Amendment as it is now interpreted, and it may even receive less protection than vile speech when the Court — not the people — decide that its harms to the "marketplace" or to someone's "autonomy" are too much to bear.
Apart from a handful of notable opinions (many by Justice Alito), today's justices have not attempted to evaluate the First Amendment under originalist premises. This should lead us to seek a refresher on those premises in the hope that they can restore truly neutral principles to the application of the First Amendment.
SPEECH AND TRUTH
The Free Speech Clause, as originally understood, ensured that Americans could debate and make determinations about matters of public life. Such an endeavor, the founders understood, is consonant with the search for truth — if there is something good to be done, that good depends on facts, morality, and balancing alternatives, all of which are subject to dispute. The search for truth protected by the clause is therefore not merely a search for "political" truth, but for truth connected to the broader public good. This purpose follows from the First Amendment's text.
The phrase "freedom of speech" is part of a broader one in the First Amendment: "Congress shall make no law...abridging the freedom of speech, or of the press." Most speech in the public square during the founding era consisted of newspapers and pamphlets that discussed political issues. The "freedom of speech, or of the press" guaranteed different manifestations of the same freedom. By considering these two phrases together, we can understand more fully what the founders were driving at. In its 1774 Appeal to the Inhabitants of Quebec, the First Continental Congress wrote:
The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.
The Congress insisted that the preservation of self-government depends in part on the "freedom of speech, or of the press." Including this clause within the Bill of Rights was thus necessary to ensure, as Madison explained to the First Congress, "those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power." The obvious purpose of such "interpositions" is to prevent tyranny. A tyrant may not be interested in restricting one's freedom to speak or publish about matters unconnected to the "diffusion of liberal sentiments on the administration of Government" (indeed, "bread and circuses" can complement tyranny), but a tyrant would certainly be interested in restricting communication that did diffuse those sentiments.
A community may simultaneously protect the value of free speech while restricting speech unconnected to public life and ascertaining truth. As David Forte explains in his essay "Ideology and History," "The eighteenth century values of natural rights never totally supplanted the seventeenth century American belief in a community held together by substantive values reflected in moral legislation." In fact, this belief was informed by both the natural law and the work of Sir William Blackstone. The depth of this understanding is reflected also in Supreme Court justice Joseph Story's analysis of the First Amendment. He, too, rejected the idea that the First Amendment "was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private...[as] a supposition too wild to be indulged by any rational man."
Even as the federal Bill of Rights homed in on certain rights for explicit protection, the Constitution was still a creation of the states, which, in turn, retained "police power" to regulate for the health, safety, welfare, and morals of the community. As such, even with state constitutional provisions similar to the Freedom of Speech Clause, several states evidently saw no conflict between those provisions and state bans on pornography, blasphemy, profanity, false statements, or libel. Such speech is not connected to the value of enhancing public life through the ascertainment of truth. While that does not mean that a majority must restrict this speech, it does mean that it can.
The Sedition Act of 1798 presented the only major speech controversy of the founding era, but it confirms that the founders understood that the freedom of speech did not apply to speech without social value. The primary argument against the Sedition Act, best articulated by Thomas Jefferson, was not that it was an unconstitutional infringement on the freedom to speak or publish. Rather, Jefferson argued the act infringed on state power to regulate slander as corrupting the advancement of truth in public speech. He wrote:
Nor does the opinion of unconstitutionality & consequent nullity of that remove all restraint from the overwhelming torrent of slander, which is confounding all vice and virtue, all truth & falsehood in the US. The power to do that is fully possessed by the several state legislatures...[W]hile we deny that Congress have a right to controul the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so.
Jefferson's critique acknowledges that states may regulate speech that "is confounding all vice and virtue," or speech with no social value. On this point, the Federalists agreed with Jefferson. They argued that, since truth is a defense against slander, the distinction between vile speech and the "freedom of the press" can be preserved. The agreement on this point — that the First Amendment makes a distinction between valuable and vile speech — also intimates the risk of failing to draw this distinction. The danger in slander, Jefferson notes, is that it "confound[s]" the virtue of free speech (the ability to criticize public officials and policies in an effort to pursue a better society) with its vice (the ability to communicate epithets that do little to advance truth). If the virtue of free speech is connected to self-government, and the framers understood this virtue to advance truth, science, morality, the arts, and "liberal sentiments" on government, then it follows that conflating socially valuable speech with slanderous speech in fact serves to undermine socially valuable speech.
Moreover, the concerns over the Sedition Act were not only animated by a desire for a proper allocation of state and federal power, but also by the view that the restriction involved speech in a political context. The sort of outrage elicited by the Sedition Act did not arise against speech regulations outside of the context of plainly socially valuable speech. For example, in 1774 the Continental Congress passed laws censoring theatre performances without any apparent controversy. This, again, points to the First Amendment's distinct protection of public speech.
THE PURPOSE OF VALUABLE SPEECH
Some modern scholars have attempted to approach the First Amendment from a perspective consistent with that of the framers. Among them, Alexander Meiklejohn and Judge Robert Bork both noticed that failing to distinguish between valuable and vile speech is not only inconsistent with the founders' notion of free speech, but it also helps to undermine stable liberal democracy.
Meiklejohn derided the notion that the First Amendment is "the guardian of unregulated talkativeness." The less that the speech at issue "bears, directly or indirectly, upon issues with which voters have to deal," the more democratic authority exists to regulate it. If the government fails to distinguish speech with social value from speech without such value, then both types of speech fall within the ambit of First Amendment protection. This would not only conflate their respective social values, Meiklejohn explained, but also conflate the ways communities may respond to them. If we constitutionalize both speech that may be regulated and speech that may not be regulated, the First Amendment is no longer understood as absolutely protecting valuable speech while letting communities police speech without social value. Rather, the First Amendment now understands all types of speech to be of comparable value. "And from this it follows that, so far as the First Amendment is concerned, the freedom of speech in the public interest may also be abridged. By its association with private speech under a common principle, public speech is reduced to the level of 'proximity and degree.' The camel, once admitted to the tent, knocks it down."
Modern free-speech "absolutists" may dispute Meiklejohn and the founders' understanding as failing to absolutely protect all speech and risking the policing of even valuable speech in difficult cases. Yet this criticism belies reality. As Bork recognized in his seminal essay "Neutral Principles and Some First Amendment Problems," no theory of speech protection is entirely absolute. Maybe the "line" between constitutionally protected and not constitutionally protected speech absolutely protects all public speech but leaves democratic society free to regulate non-public speech (as the framers evidently sought to do). Maybe the line constitutionalizes all speech and lets the Court set boundaries (as our current jurisprudence does). Either way, a line will be drawn. If a line is to be drawn, Bork explained, the question "is whether the general location of the cut is justified."
The reality of line-drawing reveals the logic behind protecting public speech while leaving private speech to democratic regulation. Speech on "truth, science, morality, and arts in general, [and] the diffusion of liberal sentiments on the administration of Government" relies on truth-testing to achieve its ends and further public policy toward the good. Defamation of public officials, as Jefferson explained in the context of slander, "confound[s]" vice and virtue and is therefore no part of the search for truth. It, along with private speech and other, vile speech may thus need to be tempered to ensure both self-government and the advancement of truth.
Yet, as Bork explains in "Neutral Principles," such regulation possesses the virtue of flexibility. Democracy is better equipped to weigh values and to confront uncertain effects of speech than a court. It is thus better able to adjust and re-evaluate the line on certain private speech over time — making it more or less restrictive in light of what the majority finds appropriate. Courts, however, lack such flexibility by design. Bork rightly notes that an interpretive rule is not truly neutral simply because it is consistently applied, but because it is rooted in a neutral principle. The founders' distinctive protection of public speech provides for an interpretive rule for the Free Speech Clause rooted in the virtues of self-government.
In short, the distinction between speech with social value and speech without it allows us to understand some speech as essential to a functioning liberal democracy; other speech ought to be permitted or prohibited as a matter of prudence or taste — a matter that can be decided by the people. Courts can evaluate regulations on speech without social value in light of their impact on the speech protected by the First Amendment and other constitutional protections. This distinction — though advocates of it like Bork and Meiklejohn disagree on the scope of what speech is "public" — is far from the Court's current jurisprudence, which allows it to exercise prudential interests on any speech under the Constitution's auspices.
THE MARKETPLACE OF IDEAS
Perhaps the most famous articulation of today's dominant free-speech jurisprudence comes from the dissent of Oliver Wendell Holmes in one of the Supreme Court's earliest free-speech cases, Abrams v. United States. Holmes did not explicitly reject the Free Speech Clause's goal of ascertaining truth through public speech, but he neutered the ability of democratic authority to determine truth with any finality. Holmes argued that "the best test of truth is the power of the thought to get itself accepted in the competition of the market."
Holmes's "marketplace" conception of the First Amendment would not take hold of the Court's jurisprudence for decades, however — resulting in a number of cases that better appreciated the authority of democratic communities to distinguish valuable and vile speech. Perhaps the most notable of these cases was Chaplinsky v. New Hampshire, which provided a formulation of the authority to restrict vile speech. Though contemporary free-speech jurisprudence would re-interpret Chaplinsky, its statement of the law warrants notice given its sharp contrast with Holmes's dissent:
There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." [Emphasis added.]
Chaplinsky's explanation of acceptable free-speech regulation came alongside an important development in the Court's free-speech jurisprudence: that diverse political views, even those views antithetical to self-government, were protected by the Free Speech Clause. In this respect, the "marketplace" concept Holmes described made at least an arguably helpful contribution to expanding political speech. But whatever benefit it provided was quickly eroded by the premise underlying the "marketplace" doctrine: that nearly all speech on any topic deserves protection.
By its very nature, the "marketplace of ideas" conception cannot account for the Free Speech Clause's original understanding. True, it may help expand the understanding of political speech to include minority viewpoints (like communism), but it would do so only by happenstance: Some minority viewpoints will inevitably be about what is true or good for the country, and therefore they warrant protection as public speech. A "marketplace" approach, however, cannot protect static concepts, like well-accepted or established objective truths, nor does it understand communicating individuals to be citizens participating in public life. The individuals in the "marketplace" are, instead, "buyers" and "sellers." Rather than using speech to engage in self-government and pursue the true and good, individuals merely produce and consume speech when it is necessary or suits their tastes.
The "marketplace" approach facilitated the Court's embrace of a related rationale for the freedom of speech — one equally unmoored from the Free Speech Clause's original meaning: individual autonomy. Rather than facilitate the pursuit of truth, the freedom of speech aids individuals in expressing their emotions. The Supreme Court identified this concept in Cohen v. California by holding that California was prohibited from prosecuting an individual for wearing a jacket that said "fuck the draft" into a municipal courtroom. Because the Constitution protects the "emotive function [of speech] which, practically speaking, may often be the more important element of the overall message sought to be communicated," the Court upheld the right to "ventilate" such vile feelings. This follows from the Court's analysis that, consistent with the "marketplace" concept, "one man's vulgarity is another's lyric." Government is not charged to make "principled distinctions" between valuable and vile speech because such issues are just "matters of taste and style so largely [left] to the individual."
Admittedly, in Cohen the Court was contending with vulgar conduct that was conveying a political message. But Cohen was also decided at a time when the Court began to take First Amendment cases that had nothing to do with political speech, but only vile speech. This transition in the Court's emphasis clarified what is already true in principle about the "autonomy" and "marketplace" concepts: They completely do away with the First Amendment's original distinction between speech with and without social value. The result is, as Meiklejohn predicted and Bork reasoned, a balancing of all forms of speech by the Court and an erosion of democratic authority to make principled distinctions between valuable and vile speech.
EMPOWERING THE COURT
The logical end point of contemporary free-speech jurisprudence is easy enough to discern: If the people may not decide what kinds of private speech should be allowed or disallowed (precisely because there is no such thing as private speech), then it is the Court that must decide on what basis speech can be prohibited. Many of the Court's recent content-regulation cases demonstrate this effect and therewith the erosion of both democratic authority and the distinctive value of public speech.
In a recently decided case, Williams-Yulee v. Florida Bar, Justices Scalia and Thomas observed this disparity in the context of campaign contributions. In dissenting from the Court's decision to uphold a canon of the Florida Bar's Code of Judicial Conduct that prohibited judicial candidates from soliciting campaign contributions, the two justices noted the obvious irony between this case's holding and the more vile speech that the Court constitutionalized in recent terms:
This Court has not been shy to enforce the First Amendment in recent Terms — even in cases that do not involve election speech. It has accorded robust protection to depictions of animal torture, sale of violent video games to children, and lies about having won military medals....Who would have thought that the same Court would today exert such heroic efforts to save so plain an abridgement of the freedom of speech? It is no great mystery what is going on here. The judges of this Court...evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is — but so too are preventing animal torture, protecting the innocence of children, and honoring valiant soldiers. The Court did not relax the Constitution's guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one.
Scalia and Thomas correctly observe the irony of disallowing "election speech" while protecting speech that is apolitical and vile. But the cause of this inversion is not that the Court is unprincipled in its absolutism — the Court has never ruled out "line drawing" in speech. Rather, the cause is that the Court — in supplanting democratic authority to determine public policies regulating speech without social value — acquired the tools to determine public policies on any speech. When the value of speech may not be connected to a social value as determined by a majority but the Court nevertheless weighs different values, then those values that the Court chooses to find important will prevail over a neutral adjudication of free-speech claims.
In his article "Where Speech Loses Its Luster," law professor Patrick Garry compares how the Court has treated campaign-finance regulations and how it has treated vile-speech regulations. He concludes that, "Contrary to its highly scrutinizing, non-deferential approach in cases involving the regulation of indecent television programming, the Court's campaign finance jurisprudence does not require tangible evidence of corruption to uphold regulations." Since Garry's 2007 analysis, the Supreme Court's Citizens United decision correctly overruled some of the case law on which Garry relies, but some key disparities remain — including the freestanding interest in regulating political speech without any "tangible evidence of corruption."
For example, the Court gives Congress considerable deference when abridging the right of anonymous political speech. Garry explains that, with respect to the provision of the Bipartisan Campaign Reform Act (known as "McCain-Feingold"), by "requiring that all political ads on television include a disclosure of the ad's sponsor, the Court simply assumed 'as we must' that the disclosure requirement is 'valid to begin with'" (quoting McConnell v. Federal Election Commission). Such presumptions come with costs: As Justice Thomas's opinion in Citizens United showed, individuals may face harassment and intimidation as an effect of being forced to disclose their identity to exercise their right of free speech. And this presumption also stands in stark contrast to the lack of deference that the Court gives to legislatures in vile-speech cases.
United States v. Stevens demonstrates the lack of deference clearly. The case had to do with a statute that had banned the creation and distribution of "crush videos" — videos involving severe cruelty to animals. Justice Alito, the only dissenter, admirably argued that the statute was not only constitutional but "valuable" because it "prevent[ed] horrific acts of animal cruelty...a form of depraved entertainment that has no social value." Stevens attempted to extinguish, once and for all, the notion that a legislature may make judgments about the social value or burdens of particular speech. The considerable amount of case law suggesting otherwise, like Chaplinsky or New York v. Ferber, which dealt with child pornography, are distorted (by saying the cases merely "described" the speech as worthless) or completely overlooked.
GOVERNMENT AND CENSORSHIP
In Stevens and elsewhere, the Court has defended its prerogative to balance speech by pointing to the "danger" of democratic majorities doing so. The concern, echoed by free-speech "absolutists," is that letting the majority weigh the permissibility of undoubtedly vile speech (like the depiction of animal torture) will result in the majority weighing the permissibility of undoubtedly valuable speech (like political speech). This is censorship, they say, and it is therefore decidedly against the spirit of free speech if not wholly unconstitutional.
In a way, the censorship argument validates the social-value speech distinction: Consolidating the decision-making power over all speech into one authority will result in indiscriminate balancing. The fear of political censorship, therefore, does not actually apply to the First Amendment as originally understood: If public speech is protected without question, the people will not be able to prohibit it, though they will be able to draw the line at speech without social value (that courts may evaluate in light of its impact on the speech protected by the First Amendment and other constitutional protections). Ironically, the criticism of majoritarian speech-balancing undermines the case for modern-day First Amendment jurisprudence, since the Court now weighs nearly all speech. Indeed, the Court purports to do more than simply "weigh" different kinds of speech — it assigns different value "levels" to speech content, ostensibly valuing commercial speech, obscenity, and "fighting words" in different amounts, and political speech (supposedly) more than any other speech content. But this balancing is unprincipled and unpredictable, while undermining the right of citizens to weigh the value of private speech on the grounds that their doing so is unprincipled and unpredictable. This irony appears to go unnoticed.
Justice Alito, along with Justices Scalia and Thomas, offered a strong rebuttal to the reasoning underlying the censorship argument in United States v. Alvarez, a case involving an individual who lied about receiving the Medal of Honor. Leaving the regulation of false factual statements — speech lacking in any social value — to democratic judgment does not make the state the "arbiter of truth" generally. To the contrary, the Alvarez dissent identifies a number of areas where the state would lack the authority to prohibit false statements; unsurprisingly, they are the same areas where the founders saw the link between the ascertainment of truth and public policy to be strong: "philosophy, religion, history, the social sciences, the arts, and other matters of public concern." But even in these areas, the reason for protecting potentially false statements is not because falsity has value in itself, but because these disciplines rely upon truth-testing to determine truth. It is not the debate over what is true and false that the Free Speech Clause quashes — rather, it facilitates that debate by clearly identifying as protected speech made in an attempt to determine truth in connection with public concern. Ensuring this "valuable speech" does not bear upon, as the dissent explains, the ability to proscribe speech that is "verifiably false...entirely lacking in intrinsic value...[and that] fails to serve any instrumental purpose that the First Amendment might protect."
The Court's disparate scrutiny between some public-speech regulations and vile-speech regulations is also evident regarding abortion protests. In Hill v. Colorado, the Supreme Court upheld a Colorado law prohibiting "knowingly approach[ing]" within eight feet of another person outside a medical facility to engage in "oral protest, education, or counseling." Despite the law's obviously being adopted to target abortion protests, the Court nevertheless deferred to the state's claim that the law was not content-based. It then went on to hold that the Court should use the First Amendment to protect "[t]he unwilling listener's interest in avoiding unwanted communication" even when that "unwanted communication" is in the public square and about a matter of public concern. Hill's analysis on this point represents an extension of the autonomy rationale articulated in Cohen: The First Amendment protects the "emotive function" of speech so the speaker can "ventilate" the vulgarities he wants, while also guarding the "emotive function" of people's reaction to speech so the listener need only hear the speech he wants to hear.
Thankfully, the Court reined in some of Hill's excess in a later case, McCullen v. Coakley, finding that a Massachusetts law banning protests within 35 feet of an abortion clinic was not "narrowly tailored" under the First Amendment. But, again, the Court's ability to use balancing tests, which should be reserved for legislatures in the context of speech without social value, allowed the Court to avoid reversing Hill. The Massachusetts law was more explicitly focused on restricting pro-life speech than the Colorado law in Hill: It applied only to abortion clinics (while the Colorado law applied to "medical facilities" more broadly), and it specifically exempted abortion-clinic employees from its speech prohibition. Nevertheless, the Court insisted that the Massachusetts law was content-neutral, taking Massachusetts's proffered justification in public safety largely at its word — a scrutiny that pales in comparison to that afforded by the Court against state laws in, for example, obscenity cases. Justice Scalia credits this deferential analysis to the "entirely separate, abridged edition of the First Amendment applicable to speech against abortion."
By failing to see speech on matters of public concern as distinct from speech without social value, the Court has not only permitted itself to manipulate the acceptability of unquestionably public speech, but also refused to let democratic authorities address problems emanating from private speech.
In Brown v. Entertainment Merchants Association, the majority prohibited California's efforts to restrict the sale of violent video games to minors. In doing so, the Court's majority emphasized the relativism inherent in both the "marketplace" and "autonomy" concepts: The Court explained that it does not "distinguish politics from entertainment." The justices refused that responsibility both because making such distinctions "is difficult" and because it is "dangerous to try." As the Court said, "What is one man's amusement, teaches another's doctrine." Only the individual may make "moral judgments," said the Court, not communities.
Justice Alito's powerful concurring opinion in Brown (joined by Chief Justice Roberts) highlights the virtue of communities weighing the effects of speech unconnected to the public good (like violent video games). As Alito notes, we as a society have very little understanding of the effect of playing very violent video games on minors' development. "[S]quelch[ing] legislative efforts to deal with what is perceived by some to be a significant and developing social problem" with an undifferentiated, unreflective, categorical ban on any legislative value-weighing is certainly imprudent. But, more important, it ignores the proper role of courts regarding restrictions on speech without social value: evaluating their constitutionality case-by-case and in light of their effect on the public speech that the First Amendment was enacted to protect and the principle of justification offered by the state for that regulation.
What these cases show, in sum, is that the Court has reached a state where it is entirely normal to abridge the speech rights of individuals on explicitly public matters. Further, the Court may assign malleable "levels" of speech protection based on content, which — by eroding the distinctive protection for public speech — permits the Court to disadvantage public speech with the same tools that majorities were understood to have in the context of private speech. If defenders of free speech are truly concerned about censorship, they ought to be more worried about today's dominant free-speech jurisprudence, not the founders' free-speech jurisprudence.
RECLAIMING FREE SPEECH
The "marketplace" and "autonomy" concepts are, whatever their merits, very well intentioned. But it should not go without notice that the Court's arrogation of nearly all speech under the First Amendment's auspices continues to cause considerable harm. It has eroded the authority of the people and our democratic institutions. Similarly, it has muddied the understanding of the purpose of free speech, which is to foster a conversation among citizens about what is good and true for their community — a reality we see on college campuses, where vile speech is often wrapped with a First Amendment defense but socially valuable speech is restricted through speech "zones," "trigger warnings," and disinviting controversial political speakers. Even as technology and education have expanded both the access to and expression of information, public debate is popularly seen as just one part of the freedom of speech. Worse, to many, public debate is not even perceived as the integral part.
The freedom of speech is increasingly defined by the defense of content that was not protected by the Freedom of Speech Clause originally — lies, pornography, depictions of animal cruelty, and graphic violence. Speech's contribution to the public square is understood to have no proper role in the people's judgments about it, even while the Court weighs that very issue as it polices the "marketplace of ideas" and individual "autonomy." It would seem hard to argue that the Court's disregard of the social-value speech distinction, and the accompanying erosion of democratic authority to distinguish valuable from vile speech, have not informed these modern perceptions of what the "freedom of speech" is all about.
It is encouraging that some of today's justices recognize the most egregious cases of the new status quo, allowing some vile speech to receive more protection than political speech. Nevertheless, a wholesale re-evaluation of the Court's premises is needed. There are surely challenges in defining the full scope of the Free Speech Clause as an original matter, but disputes over degree do not justify abandoning the challenge altogether. Public speech is, as the founders knew, integral to self-government. Ensuring that the clause protects the neutral principles needed to preserve both speech and the communities that speech leads to truth is too important to dismiss as history. The Court should revive the lines drawn by the First Amendment as an original matter.