Experts Discuss Parameters of Free Speech at Law Review Symposium
The symposium featured a keynote address by Chief Judge Alex Kozinski of the U.S. Circuit Court of Appeals for the 9th Circuit, as well as several panel discussions on the proper theoretical foundations for the constitutional protection of free speech.
Panelists for the afternoon session, “The Eclectic Objection,” examined definitions of free speech and debated whether the First Amendment is all-inclusive or requires court-defined limits.
The panel was moderated by Professor Emeritus Lillian BeVier, and included Professors Vincent Blasi of Columbia Law School, Frederick Schauer of the Law School, Steven H. Shiffrin of Cornell University Law School, and Eugene Volokh of UCLA School of Law. It was followed by comments from Yale Law School Dean Robert C. Post and Professor James Weinstein of Arizona State University Sandra Day O’Connor College of Law.
Blasi, who has written extensively on the history of freedom of speech, placed the subject in a historical context.
He began with the traditional idea of the “collective good” of free speech espoused by John Milton, James Madison, and John Stuart Mill. But by the 20th century, according to Blasi, such a broad notion seemed naive.
As a result, there was a rush among philosophers and jurists to define and justify free speech at a time of increasing globalization.
Blasi describes a “turn toward more individual-centered theories of free speech. If we can’t really agree on what the predicted collective consequences will be, and if we can’t really agree on exactly what is entailed by the commitment to democracy, maybe there are other types of arguments that will establish a strong free-speech principle,” he said.
The starting point for such a principle is the notion of autonomy of the individual within a public sphere, which leads to the idea that “more [free speech] is always better.” This principle implies exceptional trust in individual listeners.
This trust is not always shared by those in power, Blasi said, and such a definition of free speech is still incomplete. In every era, there is “a desire to regulate speech in a systematic way that we look back in retrospect as unfounded and dangerous. A key argument was ‘never before has the world looked like this.’”
“When we think that in the age of the Internet — ‘never before have we faced these challenges’ — it’s true, but it’s very easy to overreact to that problem,” he said.
Schauer discussed the methods with which free speech has been enforced or supplanted, and warned against relying too much on legal tradition.
He finds an analogy for free speech in civil and criminal law. “Just as torts might serve goals of both deterrence and compensation, criminal punishment might be in part about deterrence, part about rehabilitation, part about retribution and so on,” he said. “The First Amendment might be in part about protecting art and music, in part about increasing knowledge by allowing challenges to the conventional wisdom, in part about ensuring various democratic goals understood in different ways.”
Shriffin takes a more eclectic view of freedom of speech. The exercise of free speech can interfere with “many values, such as order, reputation, privacy, decency and intellectual property,” he said. “The Supreme Court has always balanced these values.”
In practice, the value of free speech is its role in dissent. “All large scale societies will be riddled with unjust hierarchies,” he said. The freedom to dissent is critical to keeping injustice in check, according to Shriffin.
Volokh, however, said freedom of speech is poorly defined and questioned the presumptions he said are inherent in the arguments of his colleagues.
“Does the First Amendment only protect public discourse or political dissent?” he said.
Other buzzwords, such as “necessary” and “autonomy” are too vague to be helpful, he said. Volokh is content to let the Supreme Court define it.
“Generally speaking, communication is constitutionally protected unless there is an exception and the court is willing to carve out exceptions,” he said.
Post and Weinstein attempted to put the panel discussion into context, with Post characterizing the argument as the “presumptive, all-inclusive approach” to the First Amendment to a definition that includes limits.
Robert Post and James Weinstein
Post offered an analogy of an aviation chart maker who bungles a chart, resulting in a plane crashing into a mountain. Is the chart maker protected by the vague umbrella term “communication” as a defense? “On the table here is the issue of whether there is a first amendment defense, not whether the speech is protected.”
Weinstein argued there is no one rule as to what the First Amendment covers. “You need some lexical hierarchy, a core with peripheral or important values around the core,” he said.
Context and purpose are necessary components when deciding whether or not the First Amendment applies, according to Weinstein.
Reported by tim arnold