Thus, beginning in 1969, in order to be allowed to censor, the neighborhood motorcycle gang had to convince a skeptical judge that the speech in question posed a grave and imminent risk to a very important (often “compelling”) governmental interest, a risk that could not be avoided by anything less drastic than censorship. The Court’s new test would almost certainly have required the invalidation of Congress’s successful attack on the leadership of the American Communist Party in the 1950s. Two years later,28 in 1971, three Democratic justices (Douglas, Brennan, and Marshall) joined two Republicans (Harlan and Stewart) in reversing the disorderly conduct conviction of a young man who wore a jacket into a Los Angeles courthouse with the words fuck the draft emblazoned on the back. The majority made it clear that an involuntary hearer’s interest in being shielded from offensive speech cannot be deemed a compelling interest justifying government censorship. Sheltered behind the Court’s clear-and-present-danger test and the Court’s rejection of offensiveness as a justification for censorship, the American left breathed a sigh of relief and awaited its inevitable triumph. The right hunkered down and vowed to fight on the beaches.
But a couple of unexpected things happened on the left’s First Amendment road to political paradise. First, during the last two decades of the twentieth century, the core of the American left’s economic agenda imploded, while the American right enjoyed a remarkable intellectual renaissance.29 The left’s economic platform had been premised on varying degrees of governmental redistribution of wealth, ranging from rigid Marxism to European democratic socialism to the mild egalitarianism of the Kennedys to Lyndon Johnson’s War on Poverty to the amorphous do-gooder policies of the Carter, Clinton, and Obama administrations. After the Berlin Wall fell in 1989, that agenda ran into an increasing sense in the United States that government—even democratic government—performs poorly as the economic linchpin of a society. Whether it was the gray tyranny of Communism, the horrors of Fascist and Nazi rule, the kleptocratic antics of authoritarian dictators, or the often disheartening bureaucratic ineffectiveness of well-meant democratically enacted government programs, many—including many on the left—simply lost faith in the efficacy and moral legitimacy of an agenda based on a strong, redistributive government.
A generation of conservative intellectuals stepped into the programmatic vacuum, worshipping the market, glorifying individual autonomy, and questioning the effectiveness, indeed the very legitimacy, of government.30 Flush with faith in their ideas—and the confidence that such faith brings—the American right discovered the First Amendment. During the early 1970s, under a new Republican Supreme Court majority, an expansive conception of free speech became attractive to Republican justices, both because robust free-speech protection fit neatly into the right’s skeptical, deregulatory approach to government generally, and because it encouraged vigorous transmission by powerful speakers of the right’s newly energized collection of ideas. When the right’s newly minted dedication to an expansive Free Speech clause was added to the reformist left’s longtime preoccupation with free speech, the resulting coalition created what I call “the First Amendment era of good feelings,”31 beginning in the 1960s with the civil rights movement and reaching its apogee in the 1989 and 1990 flag-burning cases.32
The flag-burning cases illustrate the First Amendment era of good feelings at its most intense. The Supreme Court asked why the government wished to suppress the symbolic burning or other “desecration” of an American flag. Because the government was unable to posit a compelling reason for banning flag desecration other than the distress felt by hearers and viewers, the Court’s bipartisan majority invalidated both state and federal flag-burning statutes. In both cases, the justices followed the fuck the draft case in declining to recognize the adverse emotional impact of flag burning on unwilling viewers as an adequate basis to suppress controversial speech.
During the First Amendment era of good feelings, the Republican and Democratic justices forged a strong free speech partnership. In 1976, four Republicans joined three Democrats to hold that the First Amendment protects the power of the superrich to spend big money to affect electoral outcomes,33 giving the 1 percent a tangible reason to celebrate a muscular First Amendment. A coalition of four Republicans and three Democrats then recognized limited but important First Amendment protection for truthful, nonmisleading commercial advertising,34 giving corporate management a strong stake in the First Amendment.
Even during the era of good feelings, occasional rifts appeared in the consensus. For example, four Republican justices, joined by Justice Stevens (a formal Republican but an honorary Democrat), outvoted the Court’s three Democratic justices, joined by Chief Justice Rehnquist, to hold that for-profit corporations enjoy a First Amendment right to use corporate treasury funds to oppose a statewide referendum on raising taxes,35 thus increasing corporate America’s already substantial stake in protecting free speech. In the 1980s and 1990s, the Court’s Republican majority invoked the First Amendment as a potent shield against government efforts to regulate massive private concentrations of communicative power, endearing the First Amendment to Rupert Murdoch and the other media barons who own and control most of the nation’s mass media outlets.36 To add insult to injury (literally), in the 1990s, the Court invoked the First Amendment to reverse convictions for hate speech, including cross burnings targeting vulnerable minorities.37
By 1990, some progressives began to suspect that they had made a bad First Amendment bargain. They began to realize that a free-speech doctrine that protects the rights of a couple of scruffy kids to burn flags, and provides tepid protection for carefully constrained street demonstrations, but that also protects uncontrolled campaign spending by the superrich—including corporations—abets concentration of media power in a handful of huge corporations, and shields bursts of verbal venom aimed at historically weak hearers seeking access to education and decent housing is hardly a prescription for progress. Some on the left began to view the bipartisan era as a Faustian bargain, far more likely to reinforce the status quo than destabilize it. By 2000, the First Amendment era of good feelings was over, but not before the bipartisan coalition had generated an enormously powerful body of precedent establishing an imperial Free Speech Clause.
After 2000, Republican and Democratic justices began to revert to type. The Republicans remembered the values of hierarchy, security, and control, shrinking public employees’ rights to criticize the boss,38 limiting the rights of high school students to display banners at school-supervised events,39 all but destroying the protections of the student press,40 attacking the free-speech rights of unions,41 and limiting the ability of Americans to associate peacefully with foreign organizations labeled by the government as terrorist.42 In each case, the three Democratic justices plus Justice Stevens (an honorary Democrat) dissented, urging the recognition of free-speech rights at the bottom of the hierarchy. On the other hand, the Democratic justices, realizing the danger to egalitarian values posed by a deregulatory First Amendment, stridently dissented from Republican majority opinions upholding uncontrolled electoral spending by corporations,43 invalidating efforts to use matching funds to subsidize political campaigns,44 and striking down aggregate limits on the amount a single person can contribute during a given election cycle.45
One important message emerges from the story of the evolution of the modern First Amendment: nothing about it is written in stone. The evolution of the current speaker-dominated amendment tells a story of constitutional interpretation in constant flux, as the justices seek to refine the meaning of “the freedom of speech” in response to an ever-changing America. Current First Amendment doctrine, which aggrandizes the speaker (including conduits dressed up as speakers), subordinates the hearer, ignores the speech target, and demonizes the government regulator, reflects the nation’s existential struggle during the twentieth century against totalitarian challenges from the left and right; its own failure during the McCarthy years to live up to its First Ame
ndment ideals; the political and social forces of the labor, civil rights, and anti–Vietnam War movements; and a libertarian reaction against intrusive (and bumbling) government of any kind. But the wheel turns. A steady diet of speaker-obsessed deregulatory free-speech doctrine has begun to expose its costs to Madisonian democracy and to the larger social partnership between speakers and hearers that supports it. The time may be ripe for a modest political shake-up in Mr. Madison’s First Amendment neighborhood.
TAMING ARISTOCRATIC SPEAKERS
The structure of Madison’s First Amendment reminds us that the speaker is—and should be—first among equals. Without free speakers, Madison’s democratic machine never gets started. It’s no coincidence that Madison begins his poem by celebrating the conscience and expressive power of the autonomous speaker, turning to the rest of the communicative community—hearers, conduits, speech targets, and regulators—only after the speaker has been celebrated and granted pride of place. But first among equals doesn’t mean overweening tyrant. After all, half of the First Amendment—press, assembly, and petition—is about the rest of the neighborhood. The challenge is to find a way to respect the primacy of the speaker while preserving the dignity of everyone else.
I believe we can learn from Madison’s recognition that respect for private property is a crucial guaranty of political freedom. The Contracts Clause and the Fifth Amendment’s Due Process and Takings Clauses46 are designed to ensure that government does not unfairly appropriate valuable assets belonging to members of the community. The hope is that by ensuring that even dissenting, politically weak, and unpopular individuals receive protection for their property, something close to a power equilibrium will emerge between the individual and the state.
Perhaps that lesson can be applied in Mr. Madison’s neighborhood to block already privileged speakers from appropriating valuable assets belonging to other folks in the neighborhood. For example, when in corporate or commercial speech settings the Supreme Court authorizes an otherwise unprotected corporate speaker to “borrow” the right to know belonging to hearers, the Court should make sure, first, that hearers are willing to lend their rights; and, second, that the borrowed rights will actually be used by corporate speakers to benefit their true owners, the hearers. Thus at the point where an otherwise unprotected speaker is relying on borrowed hearer rights, First Amendment doctrine should shift its priorities from speaker to hearer. In the commercial speech context, the Supreme Court gets the hearer-centered doctrine right most of the time, protecting truthful commercial speech about lawful options that will be of use to hearer/consumers in making efficient market choices, but declining to protect speech that is either useless or detrimental to consumers.47 That’s why commercial speech urging the performance of an unlawful act is unprotected. That’s also why egregiously false and misleading commercial speech lacks First Amendment protection. Finally, it’s why government commercial speech regulators are given regulatory breathing room in order to ensure that the hearers’ interests remain paramount.
But the Court got it dead wrong in Citizens United and other cases in the corporate electoral speech area, where large profit-making corporations, lacking free-speech rights of their own, are permitted to borrow the hearers’ right to know, and then are allowed to bombard hearers with false, misleading, and overwhelmingly one-sided speech. Despite its hearer-borrowed nature, the corporate speech doctrine is relentlessly speaker centered, with not a hint of concern for the interests of hearers except as a rhetorical flourish designed to further enable privileged speakers. It’s time to turn “borrowed” corporate speech rights into a hearer-centered doctrine. That would mean limits on corporate speech that’s objectively false and misleading or that encourages hearers to engage in unlawful or harmful behavior, such as violent video games sold to children. It would mean limits on the corporate electoral speech that currently forces hearers to absorb massive amounts of corporate propaganda that they do not wish to hear.
A free-speech doctrine that takes hearers into account would also involve thinking about when an otherwise unprotected speaker should be allowed to borrow the rights of others in the first place. For example, much speech depicting the violent torture and rape of women or the torture of animals falls outside most people’s definition of “the freedom of speech.” But when the neighborhood speech regulator tries to suppress it, she is often met by the argument that the poorly drafted regulation might also be used to outlaw hunting videos, Dante’s Inferno, Swan Lake, or Romeo and Juliet. That’s how the purveyors of animal snuff videos and kiddie porn usually get off. The unprotected speaker borrows the rights of future protected speakers and deploys the borrowed rights to extract an undeserved windfall. In settings where potential future speakers are unlikely to be able to defend themselves effectively, allowing unprotected speakers to borrow their rights today in order to destroy a flawed regulatory scheme that may be deployed against weak protected speakers tomorrow may well be a good idea. That’s how the Warren Court often protected civil rights demonstrators. But when the potential future targets of a flawed regulatory regime are powerful speakers fully able to assert their own rights, or when the protected future speech is of no discernible social value, why allow today’s unprotected speaker to borrow the rights of tomorrow’s speakers at the expense of everyone else in the neighborhood?
TAKING HEARERS SERIOUSLY
Madison’s First Amendment is not just about speakers. It envisions a social partnership between committed speakers and informed hearers, both of whom are entitled to be viewed as autonomous human beings vested with dignity, and both of whom are crucial to the proper functioning of choice-dependent institutions like democracy. A First Amendment jurisprudence that gave more than lip service to the dignitary and instrumental interests of autonomous hearers would move the needle closer to Madison’s conception of a partnership between speakers and hearers, and away from the current master-servant relationship.
Let me be clear. I am not suggesting that we treat hearers as weak and malleable beings unable to defend themselves from rapacious speakers without help from a paternalistic state. That path empowers government speech regulators to overthrow the speaker and, in the name of protecting weak hearers, to substitute themselves as the dominant force in Mr. Madison’s neighborhood. Both the fuck the draft and flag-burning decisions were correct in refusing to go down that dangerous road.
I am suggesting, though, that First Amendment doctrine should recognize that hearers as well as speakers are entitled to be treated with dignity. As strong, autonomous beings, hearers do not require paternalistic protection against most offensive, distasteful, or even hostile speech. But when demonstrably false speech inhibits the proper functioning of choice-driven institutions or when speech is particularly corrosive of a hearer’s dignity, is destructive of a hearers’ right to equal treatment, and/or threatens to drown out alternatives, the definition of “the freedom of speech” should reflect proper concern for the hearer. For example, a politician consciously lying about receiving the Congressional Medal of Honor does not help our institutions of democratic choice work better. By vesting the liar with greater respect and persuasive power than he deserves, such a lie makes it harder for an autonomous hearer to make an informed choice about whether to support the liar’s positions. Maybe the Court’s decision in the Medal of Honor case is consistent with such a hearer-sensitive approach. Maybe that’s what the Court meant by suggesting that the lie was not intended to induce specific behavior in reliance on it. But inducing specific behavior on the basis of a lie is not the only way a hearer’s dignity can be violated. The undeserved deference and respect that the liar inevitably extracted from his immediate audience, to say nothing of the distress caused to actual winners of the medal for heroism when the lie was exposed, should have counted in the Court’s legal calculus. Maybe the outcome would have been the same, but it should have been a much closer case. If we are concerned that the members of the motorcycle gang would use a ban on lying
as a wedge to control speech they don’t like, why not limit the penalties, rather than elevate the lie to protected status?
Likewise, a family burying a son lost in defense of the nation has earned a dignitary right to a moment’s repose from the rantings of religious bigots, even when the rantings take place on a public sidewalk just out of earshot of the funeral. Once again, the Court seemed to nod in that direction when it stressed that the demonstration couldn’t be seen or heard from the church. But actual disturbance at the church or grave site isn’t the only way the speakers inflicted unnecessary pain on the grieving family. The family’s contemporaneous knowledge that the funeral ceremony was being hijacked, just out of earshot, by demonstrators boisterously linking the young soldier’s death to toleration of homosexuality at the very moment the young man was being interred imposed gratuitous pain on a family that deserved better. Perhaps even when the interest of the family as involuntary hearers is put into the balance, the case comes out the same way, but the Court’s wholly speaker-centered opinion does not even acknowledge the dignity of the grieving family. If we are concerned that huge damage recoveries would risk deterring worthwhile speech, why not regulate the remedy by limiting damages, instead of insisting that speech so destructive of a hearer’s dignity is fully protected by “the freedom of speech”? In short, why should the folks in Mr. Madison’s neighborhood tolerate a steady diet of useless, potentially harmful speech just because they live in terror of the local motorcycle gang? Can’t the gang be rehabilitated or disarmed?
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