Another First Amendment
What can the First Amendment accomplish in society? In particular, can it foster equality? This Essay, written for Columbia Law Review’s 2018 Symposium on equality and the First Amendment, argues that, if the question is whether freedom of speech could serve equality, the answer is yes. Freedom of speech can serve nearly any value, including equality, because it has enormous normative flexibility. Any number of normative frameworks can generate reasons to protect “freedom of speech,” and many frameworks have in fact embraced free speech over the years. But despite its normative capacity, it is not clear that the First Amendment has the cultural capacity to do what is being asked of it. Presumably the goal of seeking a more egalitarian First Amendment is to achieve a more egalitarian society. It is not clear that the First Amendment is the engine for that project. To suggest that a progressive First Amendment could significantly alter a nonprogressive society is to overstate greatly the importance of the First Amendment. Simply and intractably, the way to have a more progressive First Amendment is to have a more progressive society, not vice versa.