Freedom of Expression: The Philosophical Basis
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Probably no other provision of the Constitution has given rise to so many different views with respect to its underlying philosophical foundations, and hence proper interpretive framework, as has the guanantee of freedom of expression.405 The argument has been fought out among the commentators. “The outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases.”406 Some commentators argue on behalf of a complex of values, none of which by itself is sufficient to support a broad-based protection of freedom of expression.407 Others would limit the basis of the First Amendment to only one among a constellation of possible values and would therefore limit the coverage or the degree of protection of the speech and press clauses.
For example, one school of thought believes that, because of the constitutional commitment to free self-government, only political speech is within the core protected area,408 although some commentators tend to define more broadly the concept of “political” than one might suppose from the word alone. Others recur to the writings of Milton and Mill and argue that protecting speech, even speech in error, is necessary for the eventual ascertainment of the truth through the conﬂict of ideas in the marketplace—a view skeptical of our ability ever to know the truth.409 A broader-grounded view is expounded by scholars who argue that freedom of expression is necessary to promote individual self-fulfillment—that, when speech is freely chosen by the speaker to persuade others, it defines and expresses the speaker’s “self” and promotes his liberty410 and “self-realization” by enabling him to develop his powers and abilities and to make and inﬂuence decisions regarding his destiny.411 The literature is enormous and no doubt the Justices as well as the larger society are inﬂuenced by it, and yet the decisions, probably in large part because they are the collective determination of nine individuals, seldom clearly reﬂect a principled and consistent acceptance of any philosophy.
405 Although “expression” is not found in the text of the First Amendment, it is used herein, first, as a shorthand term for the freedoms of speech, press, assembly, petition, association, and the like, that are covered by the Amendment, and, second, as a recognition of the fact that judicial interpretation of the clauses of the First Amendment has greatly enlarged the definition commonly associated with “speech,” as the following discussion will reveal. The term seems well settled, see,e.g., T. Emerson, The System Of Freedom Of Expression (1970), although it has been criticized. F. Schauer, Free Speech: A Philosophical Inquiry 50–52 (1982). The term also, as used here, conﬂates the speech and press clauses, explicitly assuming they are governed by the same standards of interpretation and that, in fact, the press clause itself adds nothing significant to the speech clause as interpreted, an assumption brieﬂy defended in the next topic.
406 T. Emerson, The System Of Freedom Of Expression 15 (1970). The practice in the Court is largely to itemize all the possible values the First Amendment has been subject First Nati’l Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978).
407 T. Emerson, The System Of Freedom Of Expression 6–7 (1970). For Emerson, the four values are (1) assuring individuals self-fulfillment, (2) promoting discovery of truth, (3) providing for participation in decisionmaking by all members of society, and (4) promoting social stability through discussion and compromise of differences. For a persuasive argument in favor of an “eclectic” approach, see Shriffrin, The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment, 78 NW. U.L. Rev. 1212 (1983). A compressive discussion of all the theories may be found in F. SCHAUER, Free Speech: A Philosophical Inquiry (1982).
408 E.g., A. Meiklejohn, Political Freedom (1960); Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971); BeVier, The First Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle, 30 STAN. L. REV. 299 (1978). This contention does not reﬂect the Supreme Court’s view. “It is no doubt true that a central purpose of the First Amendment ‘was to protect the free discussion of governmental affairs.’ . . . But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters—to take a nonexclusive list of labels—is not entitled to full First Amendment protection.” Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).
409 The “marketplace of ideas” metaphor is attributable to Justice Holmes’ opinion in Abrams v. United States, 250 U.S. 616, 630 (1919). See Scanlon, Freedom of Expression and Categories of Expression, 40 U. PITT. L. REV. 519 (1979). The theory has been the dominant one in scholarly and judicial writings. Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 967–74 (1978).
410 E.g., C. Edwin Baker, The Process of Change and the Liberty Theory of the First Amendment, 55 S. CAL. L. REV. 293 (1982); C. Edwin Baker, Realizing Self-Realization: Corporate Political Expenditures and Redish’s The Value of Free Speech, 130 U. PA. L. REV. 646 (1982).
411 Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982).