(Published
at 1991 U. Illinois Law Review 1077)
WHITHER THE PUBLIC'S
RIGHT (Not) TO KNOW?
MILTON, MALLS AND
MULTICULTURAL SPEECH
Steven Helle*
Kent Cooper coined the phrase "the people's right to
know" in 1945,1 and that's as good a date as any to mark the
departure of the public's understanding of the First Amendment freedoms of
speech and press from the conception of the Framers.
The date could just as easily be a few years later with
the publication of the report by the Commission on Freedom of the Press in
1947.2 Or it could be much earlier with the adoption
of the "public interest" standard in the original Radio Act of 1927.3 But the phrase "public's right to
know" has become so pervasive in the public vocabulary and it so pithily
summarizes the philosophy currently in vogue characterizing our thinking on
matters of speech and press that the year of its introduction seems an apt
epochal marker.
The phrase is emblematic of the shift in protection from
the speaker to the audience that marks First Amendment law of this
century. Whereas once it was thought
sufficient to protect the speaker as a means of ensuring free expression, today
the interests of the receivers of messages are often explicitly considered and
pivotal in First Amendment cases.4
In a fascinating current phase of the shifting focus of
First Amendment law, critical legal scholars are proposing protection not only
of the receiver or object of the speech, but also of the subject. Not only should the interests of the public
in receiving speech be furthered, they contend, but as well the interests of
women, racial minorities and others who are spoken of should be protected.
This essay traces briefly the transformation of the
philosophy governing free expression generally from the classical liberal
outlook prevalent at the time of the First Amendment's inception to the
neoliberal ideology that dominates much of First Amendment law, especially
newer areas, 200 years later. It then
uses the question of government's role to facilitate access to forums,
specifically shopping centers, to illustrate the tension that transformation
has yielded in First Amendment speech and press cases. A final comment is offered on the work of the
critical legal theorists and the First Amendment of the Twenty-first Century.
I.
It is a truism that "liberalism" does not mean
today what it meant 100 years ago. One
author writes, for example:
A great
tradition--the oldest and richest in political history--is all but lost in a
fog of careless words and empty phrases.
Particularly in America, the term 'liberal' is being used to cover
policies ranging from nineteenth-century laissez-faire to dictatorial
collectivism . . . .5
The mutation of classical liberalism into the commonly
accepted ideology represented by the "public's right to know" is
examined by Jay Jensen in his estimable monograph Liberalism, Democracy and
the Mass Media.6 He labels the later ideology neoliberalism.7
The icons of the classical liberal free speech tradition,
according to Jensen, were John Milton, Thomas Jefferson and John Stuart Mill,
all of whom prized the rationality of individuals and their freedom from the
state. Milton even considered state censure
of expression to be an admission of weakness by the state.8
Preserve the liberty of individuals, up to the point
where actions impinge on the liberty of others, according to Mill.9
If individuals are free to speak, presumably they will do so. Out of this exchange, rational people will be
able to discern truth (or at least achieve the consensus necessary for
democracy to operate) for "who ever knew Truth put to the wors [sic], in a free and open encounter?" Milton
wrote.10
Jefferson likewise endorsed the value of diverse
expression, later popularized by Justice Oliver Wendell Holmes11
under the rubric of a marketplace of ideas:
In
every country where man is free to think and to speak, differences of opinion
will arise from difference of perception, and the imperfection of reason; but
these differences when permitted ... to purify themselves by free discussion,
are but as passing clouds.12
If furtherance of individual
interests was the goal, freedom from government was the key. Classical liberals regarded government as the
"traditional and chief foe of liberty," according to Jensen.13
Threats to liberty could come from many quarters, as Mill suggested, but
government represented the most powerful, most overt, and historically the most
inclined to infringe freedom.14 The notion of freedom thus
became identified with the absence of restraint by government, a negative
liberty, as Isaiah Berlin was to term it.15 The negative thrust of the language of the
First Amendment stands as the single best example: "Congress shall make no law...."16
The classical liberal ideology lost its momentum,
however, as the middle classes and bourgeoisie embraced and then adapted its
emphasis of individual interests to support monopolistic privileges.17
The cornerstone of classical liberalism -- rational, autonomous individuality
and promotion of self-interest -- emboldened the masses it did not fully
empower to attack it.18 On
their behalf, philosophers such as David Hume, Jean-Jacques Rousseau, and Emile
Durkheim questioned not only whether individuals were
rational, but even whether they had any existence or meaning apart from
society.19
As Jensen noted,
The converging forces of industrial
and intellectual revolution gradually reversed the original relation asserted
by Classical Liberalism between the individual and society... [I]t was not the autonomous and spontaneous
activities of the individual which created the character and value of the
whole, but the collective which created and determined its constituent parts. The individual was viewed as "a creature
of Society...."20
Part of the genius of Jensen's treatise was his ability
to place ideological change into a larger context of political, cultural and
scientific ferment.21 Jensen explained how the onset of
nationalism22, mass society, industrialization, imperialism, Darwinism,
the New Physics, and Freudianism all conspired to doom classical liberalism.23 Into this dynamic mix and inspired by it came
the philosophical currents antagonistic to various precepts of classical
liberalism: positivism, romanticism and collectivism.24
Some of the brightest minds of the era worked with
concepts integral to classical liberal theory such as the "Self" and
redefined them to accord with a world that deemphasized individualism in favor
of mass or public interests.25 With the benefit of hindsight, it is
apparent that what seemed an eminently stable world-view premised on classical
liberalism was crumbling even as it confidently dominated Western thought. As Jensen wrote,
"[J]ust
as the Liberal revolution transformed the world of Saint Thomas and Dante into
the universe of Newton and Locke, so the cross-currents of thought in the late
eighteenth century and the early nineteenth created an intellectual atmosphere
favorable to the acceptance of a new organic concept of the Self and Society,
and the dynamic, changing universe of Darwin and Einstein."26
Individuals were no longer conceived of by neoliberal
philosophers as each pursuing his or her own destiny
or exercising "unalienable" rights.
Modern men and women received their identity from the groups they
belonged to -- labor union, religious sect, political party, economic class,
city of residence. In short, individuals
were considered dependent on, not independent of, society.27 The libertarian notion of individuals
as aloof from society was thought antiquated and out of step with the
times. In mass society, one could not
exercise individual liberty without in some way affecting others, and so the
individual interest must be subordinated to the interest of the public.
This change to collective thinking was not confined to
philosophers. It began to seep into the
public vocabulary. Not only did Kent
Cooper and others begin to talk about a public's right to know, but the
"natural rights" that classical liberals talked about gradually
became "civil rights."28 The latter connotes rights granted to
a citizen, a member of a body politic, while the former indicates a right not
subject to the caprice of the community.29 Public opinion, mass media, and social science
are all terms taken for granted today, but which would be as foreign to an
eighteenth century classical liberal as "self-righting principle" and
"invisible hand" are to contemporary discussion of free expression.
Government is expected to play an active role in
furthering the public's freedom, unlike in classical liberalism, where
individual freedom is premised on the absence of government. It can actually be a denial of freedom in
neoliberal terms if government does not intervene. Real freedom, neoliberals
contend, involves more than casting "a man into stormy waters far from
land and tell[ing] him there is nothing to prevent
his swimming to shore."30 Effective personal freedom consists of
being put on shore to begin with.
This is consistent with the concept of positive liberty.
Instead of the "freedom from" representative of negative liberty,
individuals must have the "freedom for" achieving societally
useful goals, and government must facilitate that freedom. The obvious example is a government agency
mandated to act in the public interest in its regulation of speech, such as the
Federal Communications Commission or Federal Trade Commission. Indeed, government involvement to give
meaning to the terms in each case would seem unavoidable if the object of
protection is a public interest or public's right to know, which are not
self-defining in the same way as is an individual speaker's interest.
Legal writing began to address implementation of
collective rights and interests at about the beginning of the twentieth
century. Dean Roscoe Pound31identified
three interests relevant to legal thinking:
individual interests, social interests and public interests (by which he
meant interests of the state).32 He acknowledged that the
law up to that point had emphasized protection of individual interests.33 Pound cited the Bill of the Rights as an
example of the concern for individual rights.34
But he proposed that law is a tool for promoting social
interests, and that individual interests were protected only as a means of
promoting those social interests.35 For example, the law might protect an
individual's interest in reputation. If
an individual is defamed, he or she may remedy the injury by suing the defamer
in court.
Pound would contend, though, that the law provides a
remedy, not so much for the benefit of the individual, but for the sake of the
community. If individuals could not sue
in court, they might resort to violence and disturb the general safety and
welfare. So the law protects the individual's
interest in reputation, but only because it furthers an important social interest.36
When protection of individual interests would be inconsistent
with social interests, then the law need not protect the individual interests.
Pound's sociological jurisprudence profoundly altered law
to accord with neoliberal principles.
But he also influenced a Harvard law professor, Zechariah Chafee, Jr.37
Chafee, according to Mark Graber in his book Transforming Free Speech, was "the seminal figure in the development of the
modern constitutional defense of free speech."38 The story of Chafee's
behind-the-scenes role in stiffening Justice Holmes' understanding of a clear
and present danger between Holmes' majority decision in Schenck
v. United States39 and his famous dissent in Abrams v.
United States40 is the stuff of legend.41
Chafee was the pivotal figure in free speech law in
changing what Graber calls a conservative libertarian tradition into a civil
libertarian one. The conservative
libertarian tradition in law, an outgrowth of classical liberal ideology, was
exemplified by the writings and speeches of Thomas Cooley, John Marshall
Harlan, Emma Goldman, Theodore Schroeder, and Ernst Freund.42 Conservative libertarians, according
to Graber,
argued
that free speech meant more than the absence of prior restraints, that only
speakers who advocated criminal conduct could be punished, and that to prevail
in a libel suit, public figures had to establish that false defamatory
utterances were made in reckless or intentional desregard
of the truth... [T]hey derived their interpretation of the First Amendment from
their libertarian philosophical principles.43
In the turbulent times generated by World War I, Chafee
contended in his writings that he was drawing on and strengthening traditional
doctrines of free speech. But, in fact,
Chafee's public affection for the clear and present danger test44
and his assumption that "Congress could forbid any advocacy that
significantly threatened any of numerous public interests"45
left speakers with a much narrower realm of freedom from government than
contemplated by conservative libertarians.46 Graber notes that Chafee's attempts
allegedly to expand traditional libertarian standards of protection were
unnecessary and a failure.47
But Chafee did succeed in changing the terms of the
debate to reflect the neoliberal ideology that was taking hold in his era. Chafee did not feel bound by the Framers'
classical liberal leanings. He was an
ardent advocate of social interests as determined by changing conditions, and
he even systematically omitted evidence of Constitutional solicitude for
individuals' interests in his writings, according to Graber.48 Consistent with sociological
jurisprudence, Chafee emulated Pound in proposing that judges should avoid
consideration of natural rights in favor of actual social conditions. Categorical rules and precedents should be
followed only when they furthered contemporary social interests and otherwise
abandoned. Thus, balancing interests according
to their social value was appropriate.49
Chafee contended all the while that he was advancing the
boundaries of free speech.50 It is true that, on behalf of expanding
protection for speech, he justified some judicial activism, which was not popular
among the social progressives of his age, who placed their faith in the body of
the people, the legislature, and who were deeply offended by the Court's
hostility toward New Deal legislation.51 He also reconstrued
the clear and present danger test to offer greater freedom in a way that
Holmes, the author of the test, ultimately adopted.52 In both of these cases, it might be said that
Chafee was making the best of the language he had to work with:53 the rubric of sociological jurisprudence
characteristic of the period, which was hostile to judges substituting their
interpretations for those of legislatures, and a test that had the favor of a
unanimous Supreme Court.54
But the bottom line is that Chafee's emphasis of social
interests that could outweigh speakers' interests and the substantial latitude
he accorded legislative assessments of the free speech boundary diminished the
scope of speakers' freedom as understood by the earlier commentators from the
classical liberal tradition. It is
ironic that he even approved of the deportation of one of those conservative
libertarians, Emma Goldman, because federal officials objected to her political
beliefs.55
Still, Chafee was a product of the prevailing
intellectual climate as well as one of its promoters. Even as the developing notion of a paramount
public interest shaped his thinking, he shaped it. The public interest could have been
interpreted to allow absolutely no freedom for speech beyond what Congress was
willing to offer, as Chafee's contemporary Edwin Corwin propounded.56 But it was Chafee's writings that
provided a road map as neoliberal theory made its first forays into Supreme
Court opinions on free expression.
II.
Jensen, writing in 1959, thought that replacement of
classical liberalism with neoliberalism as the
dominant world-view was "incipient," and that the
"transformation of traditional Liberal theories of freedom and of the
freedom of the press has already begun."57 But, as Jensen implies, a change in
world-view does not occur with the click of a switch. Adherents to classical liberalism can still
be found (although they may be classical liberals on one subject and neoliberals on another) and some contemporary Supreme Court
opinions on freedom of expression cling stubbornly to the doctrine, providing
one of its few refuges today. At the
same time, other opinions involving newer media or newer areas of First
Amendment law tend to reflect neoliberal ideology.
Judicial analysis has yielded a number of principles
familiar to anyone with a passing knowledge of First Amendment law even if they
have no awareness of the philosophical backdrop. To implement the classical liberal goals of
putting the individual speaker's interest foremost and limiting government's
role, courts abide by principles of 1) no content control; 2) broad rules of
general applicability; and 3) heavy burden of proof on government.58 Regulations not directed at speech or
its content need not undergo rigorous scrutiny.
But a regulation that aims at a speaker's content is presumed
unconstitutional so that speakers have maximum discretion.
An underlying tenet of these rules, consistent with
classical liberalism's fundamental distrust of government and its tendency to
expand the scope of its authority, is a belief that freedom is limited in the
absence of predictability. Thus, not
only does the classical liberal interpretation favor categorical
analysis--protecting all political expression, for example, rather than ruling
on the merits of speech in each case--but rules against vagueness and
overbreadth also fit squarely within this tradition.
On the other hand, cases governed by the neoliberal
philosophy consider foremost the social or public interests and do not share
the same skepticism toward government.
The judicial principles relied on to implement these goals are, not
surprisingly, the opposite of the classical liberal principles: 1) content
control; 2) ad hoc balancing; 3) and a light burden on government or even a
presumption favoring government.59
A table summarizing these principles and offering a list
of case examples, although hardly exhaustive, is offered below.
Principles
Individual
interest of speaker Public
interest
key to protection emphasized
Freedom
from government Active
government
No
content control Content
control
Broad
rules of general Ad
hoc balancing
applicability
Heavy
burden on government Light
burden on government
or presumption
favoring government
Examples
Miami
Herald v. Tornillo Red
Lion v. FCC
NLRB
v. Hudgens Amalgamated
Food Employees v. Logan
Near
v. Minnesota Valley Plaza;
Lloyd Corp. v. Johnson
v. Texas Tanner
Branzburg v.
Hayes; Virginia
Pharmacy v.
Cohen v. Cowles Media Co. Virginia Citizens
Consumer Council;
Hannegan v.
Esquire Posadas de
Puerto Rico Assoc. v.
Minneapolis
Star & Tribune Tourism Co.
v. Minnesota Comm'r
of
Revenue; Arkansas Writer's Richmond
Newspapers
Project v. Ragland v. Virginia
Cohen
v. California Pacifica
v. FCC
Gertz v.
Robert Welch, Inc. Rosenbloom v.
Metromedia, Inc.
Lakewood
v. Plain Dealer
Publishing Co. Connick v. Myers
West Virginia State Board v. Rust v.
Sullivan;
Barnette; Wooley v. Maynard Snepp v. United
States
Boos
v. Barry Meese v. Keene
Board
of Education v. Pico
These cases can often be profitably compared in pairs: Gertz62
and Rosenbloom,63 Cohen64 and Pacifica,65
or Near66 and Posadas.67 One could also consider the ongoing clash
between the competing theories by field, noting the dominance of classical
liberalism in the law of prior restraint and taxation (not coincidentally two
of the oldest forms of regulation) and the appeal of neoliberal theory in newer
areas such as the law of electronic communication, commercial speech, and
information gathering. But perhaps most
illustrative of the tensions between classical liberal theory and neoliberal
theory are the access cases.
The tension even appeared in Chafee's work in the area.68
Among the risks of governmental intervention to ensure freedom of expression,
Chafee saw the possibility of unintended, ancillary effects that may be
counter-productive, the potential for governmental discrimination in deciding
who is to reap the benefits of its largesse, and the tendency of government to
increase its influence by increasing the scope of its intervention.69 Still, as early as the 1920s, Chafee was
suggesting the need for more than negative liberty. He was the first legal writer to identify
what was to become one of the most important as well as difficult First
Amendment issues of the twentieth century:
affirmative governmental action to facilitate freedom of speech.70
Should the government, for example, facilitate access by
speakers to private property such as shopping centers? In a curious sequence of cases, the U.S.
Supreme Court first ruled government had such an obligation in the 1968 case of
Amalgamated Food Employees Local 590 v. Logan Valley Plaza, Inc.71 Picketers in that case
wanted to advise customers not to patronize a grocery store because it employed
nonunion labor.
The critical factor influencing the Court was that the
public today congregates in shopping centers, not downtown business districts,
which offer numerous public forums.72 The general public was invited onto shopping
center property, and roadways and sidewalks in the mall were "functional
equivalents" of streets and sidewalks in any downtown business district.73
If the Court had upheld a right to picket only in downtown areas, many people
who might be receptive to pickets' messages would be difficult to reach. The First Amendment, in short, followed the
public.74
Among the dissenters in Logan Valley was Justice
Black, who thought private property could be treated as if it were really
public property only if the property had taken on all the attributes of a town,
including houses and sewage disposal plants, as well as a business district.75 In a statement characteristic of negative
liberty, Black wrote, "These pickets do have a constitutional right to speak...,
but they do not have a constitutional right to compel [the shopping center] to
furnish them a place to do so on its property."76
Also dissenting, Justice Byron White saw no way to limit
the scope of the decision. The
majority's logic would allow the picketers inside the store, too, he noted.77
Furthermore, any business with sidewalks and parking would seem
bound to honor the rights of all speakers, he said. "I do not agree that when the owner of
private property invites the public to do business with him he impliedly
dedicates his property for other uses as well," White wrote.78 "I do not think the First
Amendment, which bars only official interferences with speech, has this
reach."79 White agreed with Black that a company
should not be considered the same as the state for First Amendment purposes
unless it had assumed all municipal
functions normally associated with the state.80
The Logan Valley majority declined to address
whether speech that did not relate to the site of the speech could be banned.81
The connection between speech, location and First Amendment protection was
taken up in the next case, Lloyd Corp. v. Tanner,82
decided in 1972. In Tanner, five
individuals left a Portland, Ore., shopping mall after a security guard
threatened them with arrest for trespassing if they continued to distribute
flyers regarding the Vietnam War. The
five then handed out their flyers on a public sidewalk outside the mall, but
later sued, claiming their First Amendment rights had been violated.83
A five-member majority of the Court disagreed. Quoting extensively from the dissents of
Black and White in Logan Valley, the Tanner Court ruled that the
speech was unprotected because the subject of the speech lacked any connection
with the location.84 In the absence of a close relation
between the speech and the site, a shopping center would not be considered the
functional equivalent of a company town.
"There is no open-ended invitation to the public to use the center
for any and all purposes," wrote the Court.85 Noting that the First Amendment is directed
at state action, not private action, the Court cautioned against reading Logan
Valley too broadly. Property does
not "lose its private character merely because the public is generally
invited to use it for designated purposes," the Court wrote.86 Additionally, the Court considered it
relevant that the youths in Tanner could exercise their speech rights
elsewhere, while the picketers in Logan Valley had no effective
alternative forum to reach patrons of the grocery store.87
The logic of Tanner seemed to leave the vitality
of Logan Valley in doubt -- a fact that did not escape the notice of
Justice Thurgood Marshall, the author of the Logan
Valley opinion and a dissenter in Tanner. To Marshall's way of thinking, the youths'
speech regarding the Vietnam War was indeed related to current uses of the
shopping center. Presidential candidates
and the American Legion regularly gave speeches, held parades and solicited
funds in the Lloyd Corp. center.88 Lloyd Corp. agreed to, even actively sought
these uses because it both agreed with these speakers' messages and because
such activities brought more shoppers into the mall. Therefore, Marshall concluded, this case was
no different than Logan Valley because the speech at issue was
related to the location; Lloyd Corp. had already dedicated its property to use
as a forum on military involvement in Vietnam.89
Second, Marshall thought a shopping center as large and
multi-faceted as Lloyd Corp.'s should be considered the "functional
equivalent" of a public business district,90 even though only
the latter is technically run by government.
As such, it should be a public forum open to all ideas, whether or not
the ideas had some connection to the location.91 Otherwise, the notion of a public
forum would become obsolete. Because
audiences today tend not to frequent traditional public forums, First Amendment
interpretation must change to reflect changed conditions. "If speech is to reach [Portland citizens],
it must reach them in Lloyd Center," Marshall wrote.92 In an attack on negative liberty,
Marshall concluded, "When there are no effective means of communication,
free speech is a mere shibboleth. I
believe the First Amendment requires it to be a reality."93
Whereas Marshall's dissent, like his majority opinion in Logan
Valley, is plainly premised on neoliberal notions of effectuating the
public interest through active governmental involvement, the Tanner
majority is not so easy to typify. The Tanner
majority relied on the absence of state action,94
which is only decisive in a classical liberal analysis. But in a distinctly neoliberal vein, the
Court found it significant that the speech content lacked a relation to the
site.
The only explanation for this mix of incompatible
approaches, each of which could have stood alone, but which contradict each
other when used together, is that the Court wanted to reach a classical liberal
result but felt constrained by the Logan Valley precedent to rule on
content grounds. The reason the majority
sought a classical liberal outcome, as Marshall pointed out in his dissent, is
that the composition of the Court has "radically changed" between Logan
Valley and Tanner.95 A new majority was uncomfortable with
the neoliberal direction this area of law was taking.
Even though, as Marshall noted, Tanner might have
been a stronger case for recognition of a right of access,96
the new Justices were able to find a difference between the cases and call that
difference critical to the outcome. One
wonders what they might have done if Tanner had preceded Logan Valley,
and been decided the same way as Logan Valley. How would they have decided Logan Valley
with Tanner as precedent?
The answer might be found in the next case, decided four
years after Tanner. In Hudgens v. National Labor Relations Board,97 Butler Shoe Co. employees argued
they had a First Amendment right to picket in front of one of Butler's retail
stores, located in an Atlanta, Ga., shopping center, after contract
negotiations had broken down. Their
speech clearly related to the location, but the Court ruled against them
anyway. The decision was classical
liberal to the core.
It started with a "truism" that the First
Amendment only protected speech from governmental interference.98 It then rejected the distinctions drawn by
the Tanner Court in distinguishing Logan Valley, and maintained
that it was obvious that Tanner overruled Logan Valley!99 Speech content was irrelevant to First
Amendment decisions.100
Therefore, the critical factor in Tanner could not have been
content. It must have been that the
shopping center was not the same as government.101 In a remarkable observation, the Court said
it had no choice but to follow Tanner,102 and hold that the
Atlanta shopping center's restrictions on speech could not be considered the
same as government restrictions on speech.103
Little wonder that Marshall, again dissenting, felt that
"Logan Valley had been laid to rest without ever having been
accorded a proper burial."104 Marshall was in a peculiar position,
however. It was Marshall who had argued
in his Tanner dissent that it seemed as if the Tanner majority
wanted to overrule Logan Valley.105 The Court in Hudgens was simply agreeing. In a case truly phenomenal for the gymnastics
of its legal reasoning, Marshall now decided "upon reflection" that Logan
Valley and Tanner were "reconcilable."106 But his plea that the private
interests in autonomy from government "must be accommodated with the
interests of the public"107 fell on the deaf ears of
a classical liberal majority in Hudgens.
One cannot look at this series of cases without being
struck by the mercurial nature of the judicial decision-making.108 The Tanner Court felt it had to
be consistent with Logan Valley; the Hudgens
Court felt it had to be consistent with Tanner; yet Hudgens
is totally inconsistent with Logan Valley.
Nevertheless, each of these cases fits within a
philosophical tradition, and the change in Court membership and emphasis of
precedent in Hudgens should not obscure that a
profound shift in choice of philosophy was occurring. A more detailed analysis might have dwelt on
the nature of the picketers' rights, rather than merely observing that only
government can violate them. A classical
liberal might point out, for example, that the picketers enjoy greater freedom
after Hudgens even though they cannot picket
on private property. Their freedom from
government may not allow them to speak wherever they please, but they can say
whatever they please, which is more than can be said of the supposed freedom
under neoliberal theory.
A
classical liberal need look no further than the Tanner decision for an
illustration of the chimerical nature of freedom under neoliberal theory. The disagreement between the majority and
dissenting opinions on whether the speech content was related to the site
demonstrates the fickle nature of the neoliberal right. The question has two answers, both of them
correct. Their choice depends on which
answer can garner a majority of Justices.
Meanwhile the "right" is held in abeyance for four years,
while the case winds its way through the courts. The five youths in Tanner might well
have forgotten what they wanted to say by the time they learned if they had a
right to say it.
On the other hand, a neoliberal would suggest that the
Court's analysis of state action was rather superficial in Hudgens. The Court in a much earlier access case had
noted that government is not exactly passive if the rights of the property
owners are given priority over the alleged rights of speakers desiring access.109
Government does make a choice and actively implements it when the
legislature enacts trespassing laws and the police and courts enforce them
against would-be speakers.110
And therein lies the nub of the
problem regarding regulation of speech offensive because of its content
directed at gender, race or ethnic minority.
III.
Preoccupation with government is a trademark of classical
liberals, but preoccupation with the abuses by speakers is characteristic of neoliberals. Criticism of the ways that the press, for example, exercises its
presumed power111 and suggestions for improving its
performance to better serve the public interest are recurrent themes in
neoliberal critiques.
The Commission on Freedom of the Press (of which Chafee
was vice-chairman) issued a report that might well be the most thorough, yet
concise explanation of neoliberal theory with regard to the press.112 The commission noted repeatedly that
continued misuse of press power and freedom would induce regulation.113 Regulation thus was the press' fault, not
government's, as a classical liberal would contend. Regulation in the public interest is equated
with freedom in neoliberal terms, though, which amply illustrates the regard
with which neoliberals view government.
In what is almost a parody of classical liberal theory, a
current legal argument proposes that government must reduce freedom to increase
it. This is not the most compelling
argument of critical legal theorists, who are firmly within the neoliberal
tradition with their resort to governmental control of content to advance
societal aims. Their strongest argument,
if the causal link could ever be established, is that pornography and hate
speech induce violent conduct in the audience, causing harm to classes of
people at whom the speech may not even be directed. Such causation would be enough to convince
even a classical liberal of the need for censorship.
One wonders not only about the result-oriented research
being conducted by some partisans in this area, but as well about the ethics of
such research. If exposure to degrading
pictures of women really does cause even one of the research subjects or
pornography commission114 members to rape women, it would seem an
unconscionable price to pay for the results.115 Perhaps the most that can be said at
this point is that depictions of violence toward women in a laboratory setting
may cause an attitudinal shift of indeterminate duration, while depictions of
nonviolent nudity, even if degrading, have not been shown to have harmful
effects.116
But that causation quagmire is not likely to be resolved.117
The argument of interest here involves critical legal theorists'
suggestion that hate speech and pornography affect not only the audience for
the speech, but its subjects as well.
Subjects of such speech suffer rejection, a loss of self-esteem and
personal security, a sense of powerlessness--and a reduction in freedom. The lost freedom takes the form of freedom to
participate fully in society and self-government, freedom of self-fulfillment,
and freedom to speak when response seems such an inadequate reaction. To preserve the freedom of the subjects, it
is the freedom of the speakers which must be sacrificed.
Commentators such as Catherine MacKinnon,118
Richard Delgado,119 Mari Matsuda,120 and Charles
Lawrence III121 are presenting dazzling and moving
arguments on behalf of their pleas for pornography and hate speech
victims. But their strength may be more
in their timing than in their logic, because they represent a logical extension
of neoliberal theory and that theory appears to be in its ascendancy.
The neoliberal argument here is that the state should
intervene to effectuate the freedom of classes of people oppressed by the
speech of others. This would most
directly advance the interest of special publics, i.e. the affected
classes. This approach to public
interest is novel and could be argued to turn the concept, literally construed,
on its head. To act on behalf of
elements of the public whose membership might not even constitute a majority
would demonstrate almost infinite elasticity in the concept of public interest.
The heart of the matter, though, recalls the state action
argument to gain access to shopping centers.122 In that context, enforcement of
trespassing laws was seen as effectively sanctioning a ban on the speech. Professor Mari Matsuda makes the argument
regarding the failure to ban hate speech:
[A] pillar
supporting racist speech is the refusal to recognize that tolerance and
protection of hate group activities by the government is a form of state
action. To allow an organization known
for violence, persecution, race hatred, and commitment to racial supremacy to
exist openly, and to provide police protection and access to public streets and
college campuses for such a group, means that the state is promoting racist
speech....
....
Further, the law's failure to
provide recourse to persons who are demeaned by the hate messages is an
effective second injury to that person. The second injury is the pain of
knowing that the government provides no remedy, and offers no recognition of
the dehumanizing experience that victims of hate propaganda are subjected
to. The government's denial of
personhood by denying legal recourse may be even more painful than the initial
act of hatred. One can dismiss the hate group as an organization of marginal
people, but the state is the official embodiment of the society we live in.123
In short, not to respond with a
ban is to respond. The state acts no
matter what it does.
Classical liberals were always vulnerable in contending
that individuals should be free to speak and conduct themselves up to the point
where they impinge on the liberty of others.
Especially in a mass society with finite resources, it becomes clear
that anything an individual does has some effect on others. Neoliberals
now turn this reasoning on the state in suggesting that even doing nothing is
doing something that has consequence.
The state should not hide its policy choices behind vague doctrines such
as "state action"124 any more than judges
should cloak theirs behind some supposedly immutable natural laws.
This is healthy for the development of theory and
law. Neoliberals
do a service in testing premises and suggesting alternatives. But even though the state is making a policy
choice by doing nothing, it may be the right choice. There should be a stage beyond which, even in
neoliberal theory, the state should hesitate to go, especially when it is being
called upon to act as censor. As John
Dewey observed, "Even if we are obliged to abandon permanently the earlier
belief that governmental action is by its own momentum hostile to free
self-government, we are far from having refuted the evidence of history that
officials who have political power will use it arbitrarily."125
Social engineering by cleansing of speech is a drastic step.
We can acknowledge the hurt and even the diminished
capacity for freedom on behalf of individuals or groups--and do everything that
is constitutional to correct the situation--but encouraging the government to
squelch speech to preserve speech126 hearkens too much of
destroying Vietnamese villages to save them.127 The temptation can be great for
government, once given authority, to expand it and use it to political
ends. The history of this century is
rife with examples of zealous government prosecutions of speech that was of little
consequence to anybody but the speaker.128
If the state was the "chief foe" to classical
liberals, it became to neoliberals a kind of savior,
"the only institution capable of carrying out the desired perfection of
individuals en masse," according to Jensen.129 "[T]he 'open sesame' of the democratic
mind was State intervention, which is supposed to make good every lack of
liberty and equality."130
Neoliberals might do well to
adopt a bit more of the classical liberal skepticism toward the ability and
penchant of government to do all that is desired of it. A contemporary cultural anthropologist, as
well as a former Wall Street lawyer and member of the American legal staff at
the Nuremberg Trials, noted that legal institutions and the state cultivate and
benefit from esteem for the "The Law" because such respect
establishes their roles at the "core of all social discipline."131
But, she adds, the proposition that government and law are
actually responsible for social order does not withstand a moment's reflection:
Ordinary
experience indicates that law and legal institutions can only effect a degree of intentional control of society, greater
at some times and less at others, or more with regard to some matters than
others. That limited degree of control
and predictability is daily inflated in the folk models of lawyers and
politicians all over the world. No week
passes in America without extensive public claims being made by political
figures for the beneficial effects to be expected from new legislation they
sponsor as if there were no possible uncertainties in the results. Off the record, they are often far less
sanguine about the likelihood of success.132
It is also worth noting that a
First Amendment that does not protect offensive speech is an empty shell, for
popular or inoffensive speech, by definition, needs no protection. Easy cases are foreign to the First
Amendment. Plaintiffs don't sue Mr.
Rogers, they sue Larry Flynt.133
First Amendment freedom for "the thought that we
hate"134 may be a mistake and it certainly is a risk.135
It becomes harder to justify protection for such expression if
abuses by speakers rather than by government are the primary concern. The public interest, when considered on a
case-by-case basis, can be an unforgiving standard. Neoliberals seem to
have a difficult time embracing the concept, which suggests that the ultimate
test of their newer theory may be whether it produces more speech or less than
under a classical liberal regime. If the
public's right not to know is used as a vehicle to produce less speech,
but better speech, then surely a savior of some sort will be required.
No one faults the good intentions of neoliberals,
but Lord Devlin's caveat seems to ring true:
If
freedom of the press ... [or freedom of speech] perishes, it will not be by
sudden death. ... It will be a long time dying from a debilitating disease
caused by a series of erosive measures, each of which, if examined singly,
would have a good deal to be said for it.136
IV.
A quick survey of the First Amendment landscape in this
year of its bicentennial illustrates the extent to which it has evolved beyond
the intentions of the Framers. In a
sense, classical liberalism has been a victim of its own success.137
The big battles in the areas of regulation historically suspect -- prior
restraint, taxation, seditious libel138 -- have already been
fought and won.139 Perhaps it is little wonder that some
of the major theorists of this age have ignored government as the chief foe of
liberty and inquired instead into abuses of that liberty by speakers, the mass
media foremost among them.
It should be evident that choice of theory is the most
influential factor in determining the outcome of a given case and not
technology140 or supposed values of free expression,141 which can be said to be furthered
either by regulation or nonregulation.142 As the shopping center cases and countless
others demonstrate, where you end up depends on where you begin.
To attempt to predict where the First Amendment will end
up 200 or even 20 years from now would be folly. One is reminded of how in retrospect it is
obvious how classical liberal ideology was being seriously wounded even as it
appeared to be in its most robust health.
Dean Lee Bollinger suggests that freedom of the press "is heading
for, or may already have arrived at, a point at which a great intellectual
transformation will occur."143 In a book that
challenges both classical liberals and neoliberals,
he tentatively proposes that the next philosophy of freedom will be premised
not on deficiencies in speakers or government--but in the public.144
It could be that the First Amendment of the Twenty-first
Century will feature a public's right to know instilled with meaning and
fraught with purpose, instead of serving as a slogan, devoid of intellectual
principle and merely offering an invitation to government regulation.145
*Associate Professor and Head,
Department of Journalism, University of Illinois. B.S. 1976, M.A., J.D. 1979,
University of Iowa. Copyright, Steven Helle 1991.
1. J.H. Altschull,
From Milton to McLuhan, the Ideas Behind American
Journalism 250 (1990). The
phrase has since resonated through the decades, not only in editorials such as
Cooper's, but even in academic commentary.
See generally H. Cross, The People's Right to Know (1953); C.
Whalen, Jr., Your Right to Know (1973); Emerson, Legal Foundations of the
Right to Know, 1976 Wash. U.L.Q. 1; Goodale, Legal
Pitfalls in the Right to Know, 1976 Wash. U.L.Q. 29; Hennings,
Constitutional Law: The People's Right to Know, 45 A.B.A.J. 667 (1959);
Horton, The Public's Right to Know, 3 N.C. Cent. L.J. 123 (1972); Mardian, What Should the People Know?, Trial
Mar.-Apr. 1972, at 16; Parks, The Open Government Principle: Applying the Right to Know Under the
Constitution, 26 Geo. Wash. L. Rev. 1 (1957); Philos,
The Public's Right to Know and the Public Interest--A Dilemma Revisited,
19 Fed. B.J. 41 (1959); Rogers, The Right to Know
Government Business from the Viewpoint of the Government Official, 40 Marq. L. Rev. 83 (1956); Wiggins, The Role of the
Press in Safe-Guarding the People's Right to Know Government Business, 40 Marq. L. Rev. 74 (1956); Yankwich, Legal
Implications of, and Barriers to, the Right to Know, 40 Marq. L. Rev. 3
(1956); Note, The Constitutional Right to Know, 4 Hastings. Const. L.Q.
109 (1977); Note, Access to Government Information and the
Classification Process--Is There a Right to Know?, 17 N.Y.L.F. 814 (1971);
Note, The Right to Know in First Amendment Analysis, 57 Tex. L. Rev. 505
(1979); Comment, National Security and the Public's Right to Know: A New
Role for the Courts Under the Freedom of Information Act, 123 U. Pa. L.
Rev. 1438 (1975).
2. Commission on Freedom of the Press, A Free
and Responsible Press (1947).
3. Pub. L.
No. 69-632, 44 Stat. 1162, secs. 4,
9 (repealed).
4. See, e.g., Meese v. Keene, 481 U.S. 465 (1987) (interest of film
audience justifies labeling foreign movies intended to influence politics of
United States as "political propaganda"); Board of Education v. Pico,
457 U.S. 853 (1982) (plurality opinion) (book removal by school board contrary
to interests of high school library patrons); Richmond Newspapers v. Virginia,
448 U.S. 555 (1980) (right of press and public to attend court proceeding); FCC
v. Pacifica Foundation, 438 U.S. 726 (1978) (interest of listeners in not being
offended by indecent broadcasts); Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748 (1976) (interest of commercial speech
recipients); Procunier v. Martinez, 416 U.S. 396
(1974) (interest of addressees of prisoner mail); Lamont v. Postmaster General,
381 U.S. 301 (1965) (addressees need not request to receive materials labeled
"communist political propaganda"); Marsh v. Alabama, 326 U.S. 501,
507 (1946) (public's interest in free communication does not change depending
on whether corporation or municipality owns town). But see Kliendienst
v. Mandel, 408 U.S. 753 (1972) (First Amendment does not protect interest of
U.S. citizens in speaking with alien who had been denied visa).
5. W. Orton, The
Liberal Tradition 1 (1945).
[T]he
interests originally represented by Jefferson and Hamilton have
now changed places with respect to exercise of federal political power. For Jeffersonian principles of
self-government, of the prime authority of the people, of general happiness or
welfare as the end of government, can be appealed to in support of policies
that are opposite to those urged by Jefferson in his day
J.
Dewey, Freedom and Culture 53 (rep. 1989).
6. J. Jensen, Liberalism, Democracy and the Mass
Media (Institute of Communications Research, University of Illinois at
Urbana-Champaign, monograph 1959). "In many respects Jensen is the most
significant philosopher of mass media in our time." Whitby & Whitby, Jay Jensen and Neo-Liberal Thought, in
Makers of the Media Mind 156 (W.D. Sloan ed. 1990).
7. Neoliberalism also
goes by the names of welfare state, social-service state, and state
paternalism. D. Smith, Zechariah Chafee,
Jr.--Defender of Liberty and Law 80 (1986).
It has also been termed social responsibility theory. See Commission on Freedom of the
Press, A Free and Responsible Press (1947).
Dean Lee Bollinger simply contrasts classical liberalism and neoliberalism under the headings of the "autonomy
model" and the "public regulation model." L. Bollinger, Images of a Free Press 22
(1991). See also I. de Sola Pool, Technologies of Freedom (1983) (referring to
trifurcated system of communications law depending on medium of print,
broadcasting or common carriage).
8. See J. Jensen, supra note 6, at 52. "Only a very secure government tolerates
... open questioning of its justifications." L.A. Powe,
Jr., The Fourth Estate and the Constitution 238
(1991). After surveying 300 years of
freedom and regulation of the press in England, Fred Siebert offered two
propositions in summary: freedom of the
press is in direct proportion to governmental accountability, and with regard
to all types of governments "freedom contracts and the enforcement of restraints
increases as the stresses on the stability of the government and of the
structure of society increase." F.
Siebert, Freedom of the Press in England, 1476-1776, at 10 (1965).
10. J. Milton, Areopagitica 74-75
(Eng. Rep. 1972) (1st ed. n.p.
1644).
11. See Abrams
v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
12.
Jensen, supra note 6, at 54.
13. Id. at 63.
14. See Blasi, The Checking Value in First Amendment Theory,
1977 Amer. B. Foundation Res. J. 522, 529, 533, 538-41. Government "is always inclined to
preserve and extend its powers by limiting the speech that threatens
it." L. Bollinger, Images of a Free
Press 5 (1991).
15. See I Berlin, Two Concepts of Liberty 6-19 (1958). See also R. Dworkin,
Liberty and Pornography, The New York Review of Books, Aug. 15, 1991, at
12.
17. J.
Jensen, supra note 6, at 141.
18. "Liberalism was slain by the
democratic masses which it had itself set in motion." J.J. Saunders, The Age of Revolution 188 (n.d.), quoted in J. Jensen, supra note 6, at
141.
19. See J. Jensen, supra note
, at 74-77, 157, 162. See also
id. at 199-201.
20. J.
Jensen, supra note 6, at 147.
21. See Whitby & Whitby, Jay
Jensen and Neo-Liberal Thought, in Makers of the Media Mind 156 (W.D. Sloan
ed. 1990).
22. "As Liberalism receded, Nationalism
advanced. Almost every victory won by
Liberalism in the end played into the hands of its unwanted offspring and
rival. Triumphant in one contest after another, Nationalism--the outcome of the
union of Romanticism and atomic Individualism with industrial capitalism--at
last 'captured the loyalty of the masses, was accepted as the new god, and
repudiated and slew its own parent.'"
J.J.
Saunders, The Age of Revolution, a Survey of European History Since 1815, at 75
(n.d.), quoted in Jensen, supra note 6,
at 71.
23.
Jensen, supra note 6, at 69-74,
85-99.