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THE OLIVER WENDELL HOLMES
DEVISE LECTURE
PERFECT FREEDOM, PERFECT JUSTICEt
CHARLES FRIED
INTRODUCTION
In two of Holmes's most famous utterances, his dissent in Lochner v. New
York' and The Path of the Law,2 the Essay whose centenary we celebrate in
this Symposium, he aims a particular rhetorical dart at Herbert Spencer,
whose Social Statics3 Holmes summed up in the phrase "[e]very man has a
right to do what he wills, provided he interferes not with a like right on the
part of his neighbors. "4 Herbert Spencer is no longer a particularly revered
source, 5 but the principle Holmes attributes to him is essentially the same
(not, I suppose, by accident) as Immanuel Kant's Universal Principle of Justice: "Every action is just that in itself and in its maxim is such that the free-
tThis Essay is based on a lecture given on September 18, 1997 at the Boston University
School of Law to commemorate the one hundredth anniversary of the delivery there of
Oliver Wendell Holmes's The Path of the Law.
' Associate Justice, Supreme Judicial Court of Massachusetts, Carter Professor of General Jurisprudence, emeritus, and Distinguished Lecturer, Harvard Law School. I thank
Bruce Ackerman, Stephen Breyer, Ron Cass, Lawrence Lessig, Frank Michelman, Robert
Nozick, Robert Post, David Rosenberg, Kathleen Sullivan, Kevin Toh, Laurence Tribe,
and Eugene Volokh for their comments on early drafts of this Essay and Patricia
Washienko of the Boston University School of Law Class of 1998 for her editorial and research assistance.
1 198 U.S. 45 (1905).
2 Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897), reprinted in 78 B.U. L. REv. 699 (1998).
3 HERBERT SPENCER, SOCIAL STATICS; OR THE CONDITIONS ESSENTIAL TO HUMAN
HAPPINESS SPECIFIED, AND THE FIRST OF THEM DEVELOPED (1865).
4 Holmes, supra note 2, at 466, 78 B.U. L. REV. at 706; see also Lochner, 198 U.S. at
75 (making the same point).
5 For a tribute to Spencer, to which Holmes contributed a fulsome-if ambiguousletter of praise, see HERBERT SPENCER ON THE AMERICANS AND THE AMERICANS ON
HERBERT SPENCER 84-85 (1883).
BOSTON UNIVERSITY LAW REVIEW
[Vol. 78:717
dom of will of each can coexist together with the freedom of everyone in accordance with a universal
law." 6 It is not hard to see why this principle
"stinks in the nostrils" 7-to use another phrase drawn from The Path of the
Law-of every tyrant, real or theoretical, who would impose his vision on
the world, whether in the name of equality, community, the working class or
the master race, or the progress of the absolute spirit. Nor is it hard to see
why this maxim may have seemed an impediment to benevolent men and
women determined to lighten the sufferings of their fellows. We may count
among those the first Justice Harlan, whose dissent in Lochner8 for himself
and two others, but not Holmes, chronicles so well the hardships attendant
upon the baking trade that one would have to be a dogmatist indeed not to
applaud the humanitarian impulse behind the law the Court struck down. It
requires more of an explanation, however, to see why the principle of mutual
independence should have drawn the ire of a harsh moral skeptic like Holmes. It was certainly not from an excess of fellow-feeling, for there is every
reason to believe that he would have brushed aside with equal hauteur any
attempt by the Court to impose some regime of its own in the name of benevolence. 9 No, what got under Holmes's skin was the Lochner Court's ambition (and Kant's and Herbert Spencer's) to articulate and be moved by a
vision of perfect freedom, perfect justice.
The vision of the Lochner majority, though its application in the case was
obtuse and even a touch odious, was one where government neither makes
nor owns us. Government is our creature, and a limited one at that, existing
to serve us in many ways but most importantly to protect our freedom, to
protect us from each other when we would take more liberties with our
neighbor than we would allow him to take with us, but certainly not to commandeer us in a project that is not our own in the name of an ideal we may
not share. This is the notion of limited government-government limited to
protecting us from violence and enforcing the bargains we make freely and
without fraud. In many ways this has proved an impossible dream. As a constitutional dream we have all but abandoned it, although as a political ideal it
still beckons. And the constitutional dimensions of a vision'are important.
We may all be free marketeers today, but these are fragile trends. The incorporation of a vision in constitutional doctrine, however, gives it a heft, a durability, that lifts it above the vicissitudes of ordinary politics. That is just
what Holmes objected to. But there is one manifestation of this vision which
6 IMMANUEL KANT, METAPHYSICAL ELEMENTS OF JUSTICE 35 (John Ladd trans., BobbsMerrill Co. 1965) (1797).
7 Holmes, supra note 2, at 462, 78 B.U. L. REV. at 703.
8 See Lochner, 198 U.S. at 65 (Harlan, J., dissenting).
I His famous phrase in Buck v. Bell, 274 U.S. 200, 207 (1927), that "three generations
of imbeciles are enough," would doubtless have reappeared in some form in Skinner v.
Oklahoma, 316 U.S. 535 (1942), to smite Justice Douglas's discovery in that case of a
fundamental right to oppose a state statute requiring the sterilization of a habitual thief.
19981
PERFECTFREEDOM, PERFECT JUSTICE
has not been extirpated from constitutional doctrine. At the time of Lochner
this manifestation scarcely existed, but today it is as vigorous and florid as
any aspect of constitutional doctrine: the freedom of the mind-what we
think, what we say, what we read, what we listen to. Indeed, today that freedom receives a stringency of protection that Justice Peckham, Lochner's
author, would never have dreamed of according to freedom of contract or
property.
A.
The Need for an Archimedean Point
Two related logical flaws are thought to undo Peckham's vision, and
though the recitation of these flaws as undoing the claims of economic liberty
has become a commonplace, I repeat it here because it is the extension of
this deflationary logic into the realm of thought and expression that particularly concerns me in this Essay. Archimedes of the bathtub was famous for
his claim that given a place to set his lever--a tou q~rP 0-he could even
move the world. It is the absence of such a ntou qcW, such an Archimedean
point, which has been thought to undo the argument for law-essentially private law enforced by criminal sanctions-as a system tending towards perfect
freedom and perfect justice. For the premise of equal liberty requires first of
all a scheme of boundaries drawn around a person and around that in which
he is invested such that the entry on that territory is the wrong to be compensated, the crime to be punished, or the permission to be purchased-hence
tort, crime, and contract. But these boundaries have not been drawn by any
convincing natural philosophy. The premise of personality, with which
Locke begins, threatens either to extend to infinity without providing a
means of practical limitation or to shrink to nothing, as any one person's
claim even to liberty of movement or breath inevitably impinges on some active claim of another. In more familiar terms we might say that Locke failed
to solve the problems of externalities and distribution. The system of natural
freedom presupposes an initial distribution which would also allow the designation of what is an externality of what. We all expect and always have
looked to law to fix these two terms, but as it is law whose terms and limits
the system of justice as perfect freedom seeks to establish, we are deprived
of that Archimedean point outside of law by which to judge and configure
the limits it would impose. Holmes's rejection in Lochner and The Path of
the Law is an expression-even a mocking expression-of this argument that
the search for such an Archimedean point must end in disappointment, that
constitutional argument that takes up such a search ends in absurdity.
10 "Tell me where I might stand and I can move the earth." Simplicissmus, a Sixth
Century A.D. Syracusan writer, attributes these words to Archimedes. The Greek is appropriately Doric and so might even have been spoken by Archimedes. My thanks to Professor T. Corey Brennan for this information.
BOSTON UNIVERSITY LAW REVIEW
B.
[Vol. 78:717
"The Social Construction of Reality"
Recently this puncturing argument has received a new name and generalizing form: the social construction of reality. That there is no Archimedean
point outside of law from which to construct a theory of natural entitlements
that law must protect is but a special case of the general point that any human science-natural, social, or moral-takes its criteria from within the
subject to which it is addressed. Indeed the argument against natural entitlements is the very type of this general argument. To those who drafted and
adopted the Constitution it seemed natural that the right of property be protected from expropriation and the obligation of contracts be protected from
abrogation by the state, because they supposed it self-evident what those
rights were, and they did not notice that it was the same state whose powers
they would limit, which had defined and prolonged them in the first place.
But just as this social creation, the State, could not coherently be limited by
reference to rights that were its own invention, so too society was thought to
be fundamentally organized by entities, most notably the family, whose reality was society's own construct. So it is with the value of physical objects
and human labor. So it is with forms of authority, independence, and association. So it is, we have learned, with the division of the sexes and indeed
with the identity of the individual person, subsisting over time as the distinct
and ultimate subject of discourse and attribution. But most encompassingly,
it is not just social fact that is the construction of social customs, of habit, or
of law but the whole of reality itself. The natural sciences are not immune
but are similarly subject to subjection as are the social sciences. Even physics
and mathematics, therefore, are the constructs of our wishes.
The question would, of course, be: "By what tendencies does this construction take place?" The answer reminds us of Thrasymachus's definition
of justice in The Republic: Justice is the interest of the stronger, and so also
do those who control power and wealth control the laws, customs, and concepts that make their ascendance seem inevitable. Subtler thinkers have suggested a reflexive movement by which concepts confer and control privilege
just as much as privilege institutes concepts. This perspective is meant both
to deliver from the constraints of past conceptual constraints and to offer alternative systems to those previously constrained by them. Marxism, for all
its claims to scientific objectivity, was a leading reference for this argument
among some Western social theorists. Today this has splintered into many
fragments, and race, gender, and sexual orientation all are offered as perspectives from which to see both the construction and re-construction of rival
realities.
Only in certain corners of academia are the more extreme versions of this
argument taken seriously. That is why Professor Sokal's hoax was greeted
with delight almost everywhere and with such wonderfully self-refuting
howls of pain in the small world where the missile hit its target in the bull's
eye. Professor Sokal, a theoretical physicist, submitted a paper entitled
Transgressing the Boundaries: toward a transformative hermeneutics of
1998]
PERFECTFREEDOM, PERFECTJUSTICE
quantum gravity to Social Text, a leading scholarly journal in cultural studies, the academic field consecrated to the social-construction-of-everything
(science most definitely included) thesis. The fun of the thing was that Sokal
deliberately made his arguments from science drastically, catastrophically
wrong, when they were not simply incoherent. The learned editors of Social
Text accepted his submission for publication in a special double edition devoted to defending cultural studies against the charge that their treatment of
science was ignorant and incompetent. 1' Sokal thus convicted the editorsleaders in their field-not so much of stupidity and ignorance, but, as the
philosopher Paul Boghosian has pointed out, of being politicians "prepared
to let agreement with [their] ideological orientation trump every other crite12
rion for publication, including something as basic as sheer intelligibility."
What marks the extreme and absurd extension of the social constructionist
stance is the place where its assertion collapses into self-contradiction. The
Latin tag for the refutation is the rhetorical trope tu quoque-roughly "you're
another." The philosopher Thomas Nagel has recently deployed this trope in
his William James Lectures, published last year as The Last Word. To argue
against logic is to argue after all, and thus to submit to logic. The argument
against evidence in general appeals to evidence and so disproves itself. The
social construction of everything is a claim about reality and as such it inevitably claims an Archimedean point from which to judge that which it
designates as socially constructed. In the end there must be objective truths
and valid arguments. The only possible response to this demonstration is for
the social constructionist to deny that he was appealing to argument at all,
which is a move in discourse analogous to the "move" in chess of sweeping
the pieces off the board. I do not claim that there are no social constructs,
but only that truth and reason are not among them.
C.
Free Speech
It is striking that as Lochnerism retreated, the constitutional protection of
freedom of thought and expression increased. Both bodies of doctrine share a
common intellectual feature: Both purport to judge ordinary law; both claim
an Archimedean point outside of law from which to exert their leverage.
Must this embrace of a kind of Lochner-like fundamentalism in respect to the
First Amendment also be dismissed-as was Lochner itself-as a symptom of
the emptiness and opportunism of all legal theorizing? Is Morton Horwitz
13
correct in protesting against "the Lochnerization of the First Amendment"
See Paul Boghosian, What the Sokal -Hoax Ought to Teach Us, in THE TIMES
LITERARY SUPPLEMENT, Dec. 13, 1996, at 14 (describing Sokal's Hoax).
12 Id.
13 Morton J. Horwitz, The Supreme Court Term, 1992-Foreword: The Constitution of
Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REv. 30, 109-16
(1993) (denouncing the current Court's desire to preserve content neutrality).
BOSTON UNIVERSITY LAW REVIEW
[Vol. 78:717
and Jack Balkin in protesting against the hijacking of the First Amendment, 14
which had once served left or "progressive" causes, but is now being pressed
into opposite service in cases like R.A. V. v. City of St. Paul Minnesota15 (the
cross burning case) and Buckley v. Valeo 16 (the campaign finance case)? Are
Horwitz and Balkin right to complain that just because arguments that had
worked so well for progressive clauses work in that other direction too, that
this is no excuse for such a shift? Or is there something more and better at
work here? I think so. Freedom of thought has a special claim and its principles offer an Archimedean point that cannot be carried back into the system
of law it is meant to move.
I have already sketched the Lochnerian vision of perfect freedom, perfect
justice-that is the greatest freedom of one's person and property consistent
with a like freedom of all-and the objections which are thought to undo it.
What is the equivalent vision of First Amendment liberties? Judges and writers on this subject have been notoriously divided between an emphasis on the
political aspect of the First Amendment, what might be called freedom of
address, and the libertarian aspect, generally called freedom of expression.
The first finds voice in Alexander Meikeljohn's famous theory of the First
Amendment as adjuvant to democratic self-government. 17 But Meikeljohn's
theory has long seemed far too limited and instrumental. Limited, because
the instrumental or self-government view cannot without an extension so
wide as to deprive it of specific meaning cover scientific and literary communication, not to mention music and visual communication. Overly instrumental, because it invites a variety of restrictions even on political discourse
to discourse carried out in a certain tone of voice, and also invites restrictions that limit the volume of some to amplify the volume of others; and even
invites restrictions that claim that the very contents of some speech impede
rather than further democratic self-government. The alternative view, 18 what
14 See
J.M. Balkin, Some Realism about Pluralism: Legal Realist Approaches to the
First Amendment, 1990 DUKE L.J. 375, 383 (noting that conservatives are using the First
Amendment to serve their freedom of contract causes).
15 505 U.S. 377 (1992).
16
424 U.S. 1 (1976).
17
See generally
ALEXANDER MEIKELJOHN, FREE SPEECH AND ITS RELATION TO SELF-
GOVERNMENT (1948). Although Ronald Dworkin some years ago stated a thesis quite close
to the one I offer here in his response to Andrea Dworkin and Catherine MacKinnon on
pornography, see Ronald Dworkin, Liberty and Pornography, N.Y. REV., Aug. 15, 1991,
at 12, a recent essay urging campaign finance reform sounds a distinctly Meikeljohnian
note. Dworkin even adopts the misleading and mischievous "drown out" metaphor: "It
seems perverse to suffer the clear unfairness of allowing rich candidates to drown out poor
ones ...." Ronald Dworkin, The Curse of American Politics, N.Y. REV., Oct. 17, 1996,
at 22. It is true that Dworkin has always shied away from libertarian arguments, preferring
to base fundamental rights in his conception of equality, what he calls "equality and civility." Id. at 23.
18 The locus classicus is THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION
1998]
PERFECTFREEDOM, PERFECTJUSTICE
I call the freedom of expression view, powerfully stated first perhaps by Justice Brandeis's concurrence in Whitney v. California,19 has to many seemed
excessively self-indulgent, an indulgence cut off from the political and legal
contexts in which it would apply. 20 I propose another emphasis as coming
closer to the foundation and less fraught with misleading implications: free21
dom of thought.
The term is properly comprehensive: A notion of freedom of thought
which does not allow the thought to be expressed or which controls what
thoughts one may receive is immediately and obviously absurd. Freedom of
thought includes both giving and receiving access to the thought of others.
By speaking of freedom of thought I wish to push to the fore exactly that
which developed First Amendment doctrine-as found in cases like West
Virginia v. Barnette,22 (the flag salute case), Brandenburg v. Ohio,23 Virginia
State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,24 (the
commercial speech case), Buckley v. Valeo,25 Texas v. Johnson,26 (the flag
(1970).
U.S. 357 (1927).
Professor Pnina Lahav identifies Holmes with a libertarian account of free speech,
'9 274
20
and Brandeis, in his concurrence in Whitney v. California, 274 U.S. 357, 372 (1927), with
a republican account. See generally Pnina Lahav, Holmes and Brandeis: Libertarianand
-Republican Justifications for Free Speech, 4 J.L. & POL'Y 451 (1987). Holmes's approach, however, seems to me to have been too skeptical to be identified with any strong
moral view such as libertarianism (hence Holmes's animadversions against the libertarian
Spencer). Even so, Holmes's dissent in Abrams v. United States, 250 U.S. 616, 624
(1919), certainly supports the libertarian designation. See id. at 630-31. Kathleen Sullivan
has suggested to me that perhaps Holmes is a moral and constitutional skeptic on economic
markets but much closer to the view I urge on freedom of speech. It is interesting that the
metaphor he chooses to express that libertarian adherence in Abrams is a market metaphor.
See id. at 631. For an excellent recent analysis, see Robert Post, Equality and Autonomy
in FirstAmendment Jurisprudence, 95 MICH. L. REV. 1517 (1997).
21 The view I put forward here is very close to that stated in David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334 (1991). See also
Charles Fried, The New First Amendment Jurisprudence:A Threat to Liberty, 59 U. CHI.
L. REV. 225 (1992).
22 319 U.S. 624 (1943) (striking down a West Virginia Board of Education resolution
requiring all school children to salute the flag).
23 395 U.S. 444 (1969) (setting forth the clear and present danger test for political
speech).
24 425 U.S. 748 (1976) (striking down a Virginia statute which prohibited a licensed
pharmacist from advertising the price of prescription drugs).
25 424 U.S. 1 (1975) (striking down portions of the Federal Election Campaign Act of
1971 setting maximum limits on campaign expenditures).
26 491 U.S. 397 (1989) (holding that a Texas statute prohibiting the desecration of a
venerated object violates the First Amendment as applied to defendant's expressive conduct in burning the American flag).
BOSTON UNIVERSITY LAW REVIEW
[Vol. 78:717
burning case), R.A.V. v. City of St. Paul Minnesota27-seeks to establish:
that the state has no business seeking to control-that is, to prohibit or com28
mand-the minds of its citizens.
D. Clearand PresentDanger
We have come by rapid stages to a fairly full realization of this principle
of freedom of thought. Recall that Eugene Debs, who, while in prison, received almost a million votes in the presidential election of 1920, was convicted for what today would seem the most anodyne political rhetoric. 29 In
the first stage the Court responded to what in other systems has always
seemed the most urgent justification for suppression of freedom of thought:
the suppression of speech directed at the peace, security and lawful order of
the society. As Robert Bork has pointed out, there is a powerful case-at
least in a democracy-for drawing the line at speech that encourages violation of the very rules that a free society has instituted democratically for its
own just ordering, just as there is justification for suppression of speech that
would undermine the security of that order in the face of threats from the
outside. 30 After all, the speaker is by hypothesis left free to advocate anything at all within the limits of lawful order: He may advocate the change of
policy, a change in the laws, or the constitution, through regular means and
those regular means are in a democracy sufficient to respond to any argument that succeeds in convincing others.
Now, of course, speech may be used not only to argue and persuade but
also to signal. The red light at an intersection and the words "Ready. Aim.
Fire" are not arguments. Neither are the communications of conspirators
executing a plan to rob a bank, or blow up a building, or fix prices. The
point was put most pithily by Learned Hand in 1917 in the Masses case:
"Words are not only the keys of persuasion, but the triggers of ac-
27 505 U.S. 377 (1992) (striking down a St. Paul ordinance prohibiting burning a cross
when one has reasonable grounds to know this will arouse "anger, alarm or resentment on
the basis oflrace").
28 Kathleen Sullivan asks why, if freedom of thought is the crux and this implies autonomy of persons, do we extend First Amendment protection to corporations. Am I not
making a prudential judgment that government interference is what is likely to have a
skewing effect? My argument is an autonomy-based argument. Corporate speech is just
the speech of persons organized in a particular way. And, as I argue in Part I, infra, government interference in debate is only objectionable so long as it is coercive. In any event,
the audience of corporate speech has a freedom of thought claim as well.
29 See Debs v. United States, 249 U.S. 211 (1919) (upholding defendant's conviction
under the Espionage Act of 1917 on grounds that defendant's speech "tended" to inhibit
recruiting of the Armed Services).
30 See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47
IND. L.J. 1 (1971).
1998]
PERFECTFREEDOM, PERFECTJUSTICE
tion .... ",31 But the early development of the law was haunted by the difficulty Bork later identified: How far must we tolerate, in Hand's words,
"[p]olitical agitation, [which] by the passions it arouses or the convictions it
engenders, may in fact stimulate men to the violation of the law." 32 Hand's
own solution was practically unstable and theoretically unsatisfactory:
If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have
attempted to cause its violation. If that be not the test, I can see no escape from the [unacceptable] conclusion that ... every political agitation which can be shown to be apt to create a seditious temper is illegal. 33
Hand's test both excludes and includes too much. It denies First Amendment protection to pacifist teaching that it is a person's duty peaceably to
disobey certain laws, while granting it-to use Mill's example-to the inflammatory denunciation of food speculation to a hungry mob assembled at a
corn dealer's house. 34 Hand's distinctions foreshadow another attempt to
draw the line, that of Justice Harlan in Yates v. United States, between
"advocacy of abstract doctrine and advocacy directed at promoting unlawful
action." 35 But as Holmes long ago recognized, "[e]very idea is an incite31 Masses
Publ'g. Co. v. Patten, 244 Fed. 535, 540 (S.D.N.Y. 1917).
Id.
33 Id.
32
34 See JOHN STUART MILL, ON LIBERTY (Elizabeth Rapaport ed., 2d ed. 1978) (1859).
35 354 U.S. 298, 318 (1957). In Scales v. United States, 367 U.S. 203, 250 (1961),
Justice Harlan gave the example of Scales's teaching of how to kill a man with a pencil as
advocacy that crosses the line from the abstract to the concrete. Perhaps this is not advocacy at all, but closer to an instrumental communication as part of a course of action. As I
have argued:
Another intellectual puzzle, which the law has dealt with by taking it for granted, is
the use of speech to further criminal agreements and enterprises, as when words are
used to join a conspiracy, to give orders, or to supply instructions in furtherance of
some criminal scheme. In all these cases the law has understood that the words are
not being used to express an idea or an attitude so much as they serve as signals and
actions. I can help you to build a bomb by supplying parts and helping you assemble
them or by giving you the instructions to make the bomb. All this falls outside the
bounds of First Amendment protection, but the boundaries may be fuzzy and a sophisticated manipulator of ideas may make something that is squarely in one category
look like it is also in the other. But we need not be fooled. For a discussion of the appropriateness of a prior restraint preventing publication of the technical information
necessary to build a bomb, see [Jonathan L. Entin,] Note, United States v. Progressive, Inc.: The Faustian Bargain and the First Amendment, 75 Nw. U. L. REV 538
(1980). For a thorough and illuminating general exploration of this question, see
KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE 81-89, 281-82
(1989).
Charles Fried, The New First Amendment Jurisprudence:A Threat to Liberty, 59 U. CHI.
L. REV. 225, 241 n.68 (1991). On this view the teaching in Scales is no more protected by
BOSTON UNIVERSITY LAW REVIEW
[Vol. 78:717
ment. It offers itself for belief and if believed it is acted on unless some other
belief outweighs it. ,,36 In the end the Court, in the now canonical formula of
Brandenburg v. Ohio, 37 gave up on trying to distinguish between different
kinds of persuasion, and drew the line in terms of the urgency and immediacy of the danger to peace and good order to be feared from the persuasion,
and then only if the forbidden advocacy is "directed ... to producing" that
imminent harm. The protection of persuasion has become very broad indeed:
It includes even advocacy intended to provoke imminent lawlessness but
which is not likely imminently to produce it. We might say that all persuasion is protected except that which at the extreme both intends and threatens
immediate violence. Advocacy of violence is the greatest threat to government, and even that threat is now not enough to justify the power of suppression except in an emergency.
E.
Beyond Clear and Present Danger
I think it can be said that in accord with the settlement in Brandenburg,
interests of the state less urgent than that of "imminent lawless[ness]" have
had a progressively harder time of it in making their claim against the principle of freedom of thought, of freedom of persuasion, of freedom to seek to
persuade, and the freedom to put oneself in the way of persuasion. So it was
inevitable that the once flourishing prohibition of obscenity should have become virtually moribund, except as it implicates the interests of children. Inevitable perhaps, but instructive nonetheless, for the opening to free public
discourse of sexually explicit speech and representations illustrates the conclusion, that freedom to persuade, freedom of thought, cannot be limited to
coolly stated abstract propositions and that no expression intended to reach
the mind to stir it to belief, to feeling or to thought (I seek to exclude signaling) can coherently be excluded from the reach of the principle. Novels
were an easy step; surely poetry must follow. Plato understood just how
much music communicates and influences the mind, and so did the Court in
Ward v. Rock Against Racism.38 Plays and movies. Certainly pictures. Fithe First Amendment than would be the command, "Ready. Aim. Fire." A recent case to
this effect stated:
Any argument that [the book] is abstract advocacy entitling [it], and therefore, Paladin to heightened First Amendment protection under Brandenburg is, on its face, untenable .... [The] book constitutes the archetypal example of speech which, because
it methodically and comprehensively prepares and steels its audience through exhaustive detailed instructions on the planning, commission, and concealment of criminal
conduct finds no preserve in the First Amendment.
Rice v. Paladin Enters, Inc., 128 F.3d 233, 255-56 (4th Cir. 1997).
36 Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting).
37 395 U.S. 444 (1969).
38 491 U.S. 781, 790 (1989) (describing music as "a form of expression and communication"). Professors Ackerman and Post have raised questions with me about my extending
my claim beyond speech that can be characterized as rational discourse. Take it by slow
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PERFECTFREEDOM, PERFECTJUSTICE
steps. First, the principle I urge must include argumentation that to some-perhaps to
me-seems sophistic or fallacious, for otherwise the merits of an argument will determine
its constitutional status. Next, the principle will cover oblique argumentation, parody or
irony, for much the same reason. But a cartoon with or without a caption or speech balloons can make the same point. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46
(1988) (protecting the magazine from an emotional distress claim based on a caricature of
Jerry Falwell). Pictures, too. Think of Goya's pictures of the horrors of war. Music is the
most interesting case. Suffice it to say that a government that seeks. to control it is, by that
action, conceding its effect on the mind. That was Plato's point in Book X of The Republic
and he did not seek to control music while permitting rational argument he disagreed with
free rein. He would banish both. The point is that how a thing is said may be an important
part of what is said. Further, no one but the speaker is in an authoritative position to say
when another way of saying something would be as good as the speaker's chosen way. To
be sure, where the chosen means of communication is regulated for some reason other
than that it is a chosen means of communication-for example, acts of terrorism-the government has far greater leeway. See United States v. Eichman, 496 U.S. 310, 318 (1990)
(holding that flag-burning, as a form of expression, is protected by the First Amendment);
Texas v. Johnson, 491 U.S. 397, 410 (1989) (same); United States v. O'Brien, 391 U.S.
367, 375 (1968) (holding as constitutional a federal statute which prohibits intentional 'destruction of selective service registration certificate); see also Church of the Lukumi Babalu Age, Inc. v. Hialeah, 508 U.S. 520, 547 (1993) (holding that local ordinances which
banned animal sacrifice as a form of religious practice violated the Free Exercise Clause
of the First Amendment); Wisconsin v. Mitchell 508 U.S. 476, 479 (1993) (finding that
where defendant intentionally selected victim of aggravated battery based on his race, penalty enhancement was not prohibited by the First and Fourteenth Amendments). See generally Lawrence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problem of Hate Crime and Animal Sacrifice, 1993 SuP. CT. REV. 1 (1993)
(discussing constitutionality of punishing private behavior based on message and/or motive). Music has a message; it just cannot be put into words.
Chief Judge Richard Posner, in his Holmes Lecture delivered at Harvard Law School in
October 1997, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637
(1998), argued that academic moral argument both has been and should be without practical effect. On one view of the First Amendment it is the only kind of discourse worthy of
constitutional protection. See also Charles Fried, Philosophy Matters, 111 HARV. L. REV.
1739 (1998) (replying to Posner).
It is possible that those who limit First Amendment protection to rational discourse are
thinking of discussions in what John Rawls has called the public political forum: the discourse of judges, of government officials, and of candidates for public offices and their
spokespersons. These Rawls would constrain to observe the norms of public reason. But
he is quite careful to distinguish the public forum from what he calls the background culture, which includes the culture of churches and institutions of all kinds, and from nonpublic political culture, which includes the media of all kinds. Of these he says:
[T]he idea of public reason does not apply to the background culture with its many
forms of nonpublic reason nor to media of any kind. Sometimes those who appear to
reject the idea of public reason mean to assert the need for full and open discussion in
the background culture. With this political liberalism fully agrees.
John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 768 (1997)
(internal citations omitted).
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nally, and perhaps most interestingly, gestures: This was the point recognized in the statement but avoided in the result in the draft card-burning case,
United States v. O'Brien,39 and properly embraced in the flag-burning cases,
Texas v. Johnson4° and United States v. Eichman.4 1 Certainly the unanimous
result, if not the opinions, in the cross-burning case, R.A. V. v. City of Saint
Paul Minnesota,42 shows how strong the Court's commitment to this principle is. That nude dancing should attract First Amendment protection, as a
conjunction of these several strands, also is no surprise. 43
I also believe that much detailed First Amendment doctrine-public forum, time-place-manner, heckler's veto-can be shown to be a fairly
straightforward working out of the principle of freedom of thought in these
surely less urgent contexts of practical conflict than is presented by Brandenburg. The concept of content neutrality in these contexts seems to me pretty
close to the mark in identifying where some non-speech concern of the government leaves off and thought itself is being regulated. Defamation law
gives me more difficulty, while I leave the interesting case of commercial
speech for later. But the doctrine which allows a person to resist having expression attributed to him, put in his mouth or foisted on him-as in Wooley
v. Maynard" (the New Hampshire license plate case), Miami Herald Publishing Co. v. Tornillo,45 and Hurley v. Irish-American, Gay, Lesbian and
Bisexual Group of Boston46-is not only a straightforward but an urgent doctrinal completion of what freedom of the mind consists of. Just as one may
39 391 U.S. 367 (1968) (holding as constitutional a federal statute which prohibits intentional destruction of selective service registration certificate).
40 491 U.S. 397 (1989) (holding that flag-burning, as a form of expression, is protected
by the First Amendment).
41 496 U.S. 310 (1990) (holding that flag-burning, as expressive conduct, is protected
by the First Amendment).
42 505 U.S. 377 (1992) (concluding that an ordinance banning the display of
a symbol
which one knows, or reason to know, "arouses anger ... on the basis of race, color,
creed, religion or gender" is facially unconstitutional because proscription is based on
content).
43 See Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (holding that while nude
dancing may be seen as marginally expressive conduct, state public indecency law preventing it does not violate the First Amendment).
" 430 U.S. 705 (1977) (declaring that the state may not constitutionally require an individual to display an ideological message on his or her private property for the purpose that
it may be seen and read by the public).
45 418 U.S. 241 (1974) (finding that state statute requiring newspaper to print political
candidate's reply to press criticism violates First Amendment guarantee of freedom of the
press).
46 515 U.S. 557 (1995) (holding that state court's application of public accommodation
law requiring private association who organized a parade to include among marchers a
group conveying a message that the association does not want to convey violates First
Amendment).
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not be punished for burning the flag, so he may not be punished for refusing
to salute it. West Virginia State Board of Education v. Barnette,47 the flag
salute case, is a perfect example of how a proper implication may be drawn
from the general principle. In the words of Justice Jackson:
It is now a commonplace that censorship or suppression of expression
of opinion is tolerated by our Constitution only when the expression
presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded
only on even more immediate and urgent
48
grounds than silence.
And then comes the peroration:
If there is any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to
confess by word or act their faith therein. If there are any circumstances
49
which permit an exception, they do not now occur to us.
F.
"The Social Construction of Reality" versus Free Speech
This is where we have come, and we got here early. What I wish to consider now is whether the principle of freedom of thought is also undone by
the same argument as undid Lochner: that neither law nor political theory offers an Archimedean point for justifying or even conceiving such a freedom.
I think we find this Archimedean point in the objectivity of truth. My contention is that freedom of thought and the claims of objectivity are mutually
reinforcing. Indeed, I claim that without conviction about the objectivity of
truth, freedom of thought is left without an adequate political ground and that
in abandoning our allegiance to freedom of thought we abandon our allegiance to truth. This may seem a paradoxical claim since throughout history
it has been those who have seemed most sure of their truths, the Inquisitors
and the Commissars, who have been the most assiduous censors and most
relentless enforcers of orthodoxy.
It is not hard to see why those who believe in the social construction of
everything, including even the truths of science and the methods of reason,
should also have no special commitment to freedom of thought. This con47 319 U.S. 624 (1943) (decreeing that State compulsory pledge of allegiance as applied
to public schoolchildren violates First and Fourteenth Amendments).
48 Id. at 633.
49 Id. at 642. Professor Ackerman reminds me that, as Justice Frankfurter pointed out
in his dissent, the Jehovah's Witnesses in this case were not compelled to believe anything.
Thus the case is properly viewed as addressing two points: (1) freedom of religion, and (2)
a Tornillo-like concern for freedom to publish, where one's own voice is the medium of
publication. Indeed the Miami Herald was probably freer to disavow what it would have
been made to publish than the children in Barnette.
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[Vol. 78:717
nection was made in a recent debate between the philosophers John Searle
and Richard Rorty. Searle argued that the abandonment of what he called the
Western Rationalistic Tradition, the belief in a mind-independent reality and
in the objective validity of the methods of reason, was an important step for
those who scorn the familiar commitment of scholarship and the academies
to the dispassionate search for truth, for those who see the work of scholars
and faculties as driven by political goals, and thus would take the further step
of judging that work and those faculties by political criteria. Here is Searle:
The scholarly ideal of the [Western Rationalistic] Tradition is that of the
disinterested inquirer engaged in the quest for objective knowledge that
will have universal validity. Precisely this ideal is now under attack. A
pamphlet issued by the American Council of Learned Societies,
authored by six prominent humanities institutes ...
[is an example of
such an attack. They assert that]: "as the most powerful modern philosophies and theories have been demonstrating [the reference here is
presumably to Derrida, Kuhn and Rorty], claims of disinterest, objectivity and universality are not to be trusted, and themselves tend to reflect local historical conditions." They go on to argue that claims to
50
objectivity are usually disguised forms of power seeking.
In reply, Richard Rorty, whom Searle identifies as the very pontiff of this
rejection of rationalism, readily acknowledged that this was indeed his philosophical credo, but proclaimed nonetheless his allegiance to the autonomy of
the academy. His argument was what in law used to be called confession and
avoidance. First the confession:
Searle is right ...
that the bad guys tend to favor my side of the
[philosophic, theoretic] argument. There really are people around who
have no qualms about converting academic departments and disciplines
into political power bases ....
I have to admit to Searle that the
[ACLS] committee which produced that dreadful sentence actually did
include people who really believe that the philosophical views I share
with Kuhn and Derrida entail that the universities have no further use
for notions like "disinterest" and "objectivity." 51
And now the avoidance:
Philosophers on my side of the argument think that we can only explain
what we mean when we say that academic research should be disinterested and objective by pointing to the ways in which free universities
50 John R. Searle, Rationality and Realism, What is at Stake?, 122 PROC. AMER. ACAD.
ARTS & Sci. 55, 69 (1993) (discussing higher education and its underlying philosophical
principles). I leave it to the reader to "deconstruct" this quote from the ACLS using
Nagel's tu quoque. Hint: the statement relies on the demonstrations of the most powerful
philosophies and theories. In what sense are they powerful?
51 Richard Rorty, Does Academic Freedom Have Philosophical Presuppositions?,
ACADEME, Nov.-Dec. 1994, at 52.
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actually function. We can only defend such universities by pointing to
the good which these universities do, to their role in keeping democratic
government and liberal institutions alive and functioning.
[T]he only difference between desirable objectivity and undesirable
politicization is the difference between the social practices conducted in
the name of each. 2
My point in putting this striking exchange before you in such detail is to
illustrate that the denial of objectivity does indeed leave thought vulnerable to
political agendas of every sort. Rorty's response to Searle is encouraging
only in that he thought the statement quoted from the ACLS was "dreadful,"
but the substance of Rorty's reply is hardly reassuring. He is against only
"undesirable" politicization. Rorty's criteria for the forms of independence
are avowedly pragmatic-what works-and, as is always the case with pragmatism, we need to know what counts as working. Rorty's answer is in
terms of "serving democratic government"-in other words in terms of politics. Professors Fiss 53 and Sunstein,5 4 whose views I discuss later, following
Meikeljohn, also make democracy the touchstone of First Amendment doctrine and come to some potentially quite repressive conclusions as a result:
Speech disparaging racial groups or women may be suppressed; media may
be forced to carry unwanted messages; and the speech of some may be forcibly diminished so as to amplify the speech of others, The point might be put
formally this way: that while the theory of the social construction of truth
may be compatible with a regime of freedom of thought, it is compatible as
well with any degree and kind of repression.
If truth is an outcome of social processes, which it is the business of politics to control, the standard of truth can provide no leverage by which to
judge politics. But it is just such a point of leverage outside politics that freedom of thought requires to assert itself as a distinct force against the pressures of politics. The current very strong First Amendment jurisprudence
needs to justify itself as more than just another opportunistic gambit by one
or an other side in political struggle.
52
Id.
53 See generally OWEN
M. Fiss,
THE IRONY OF FREE SPEECH
(1996);
Fiss,
(1996).
OWEN M.
LIBERALISM DIVIDED: FREEDOM OF SPEECH AND THE MANY USES OF STATE POWER
For a respectful but devastating review of Fiss's views, see Robert Post, Equality and
Autonomy in First Amendment Jurisprudence,95 MICH. L. REV. 1517 (1997).
See generally CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH
(1993), an expansion on chapter 7, "Speech in the Welfare State: A New Deal for
Speech," and chapter 8, "Speech in the Welfare State: The Primacy of Political Deliberation," in Sunstein's previous book, THE PARTIAL CONSTITUTION (1993).
54
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[Vol. 78:717
G. A Proof 55
The more difficult and- interesting proposition is to show that the commitment to truth and reason as objective criteria 56 protects the mind against the
claims of politics. Like the social construction view, this commitment to
truth is compatible with a regime of freedom of thought, but I want something more from it: I want it to have a special and close relation to freedom
of thought. I want it to provide the leverage, the criterion outside of law to
judge law and enforce a regime of freedom of thought upon it. I want to
show that a commitment to truth entails a strong First Amendment regime.
This is what my lever image comes down to as a formal matter, for if all we
have is the compatibility of truth with free thought we do not have very
much, for truth may also be compatible with pervasive suppression, and that
is the alternative that must be excluded. If it is excluded then we have entailment. The commitment to truth leads us to embrace freedom of thought,
and the system of freedom of thought is thus sufficiently supported by affirming the commitment to truth.
The objective view of truth affirms that if a proposition is true, it is so by
virtue of an external reality and not of our wishing that it be so nor of our
making it so. It does not mean that as to any particular proposition we affirm
as true that we are necessarily certain of its truth. We have a conception of
truth and we believe that the proposition we affirm today conforms to it. But
that is wholly compatible with our believing that the proposition may be disproved, and if disproved we should then believe its opposite. The commitment to truth is not a commitment to any particular proposition we hold to be
true-the mistake made by dogmatists. On the contrary, the commitment to
truth and reason is a commitment to the proposition that there are objective
truths, that there are rational methods, and that by demonstration and argument we may sometimes attain them. Practically then, the commitment is a
commitment to demonstration and argument, for no proposition can be immune to them, even one previously accepted as logically valid or demonstrably true. Thus the commitment to reason and truth is similar to the commitment that science makes to evidence and proof.
55 Robert Post has pointed out to me the affinity between the view I state here and that
stated by Hannah Arendt. See HANNAH ARENDT, Truth and Politics, in BETWEEN PAST
AND FUTURE: EIGHT EXERCISED IN POLITICAL THOUGHT 227, 259 (1961) (arguing that a
commitment to truth stands above and must be immune to claims of politics and concluding that "[tiruth, though powerless and always defeated in a head-on clash with the powers
that be, possesses a strength of its own"). This moral independence implies a fortiori
epistemological independence-an Archimedean point outside politics. Politics, by contrast, and particularly totalitarian politics, has a particular affinity with lies.
56 My invocation of the objective nature of truth may not commit me to take sides in the
debate between forms of realism nor about the "correspondence" theory of truth. For a
recent review of these positions, see Fred Sommers, Putnam's Born-Again Realism, 94 J.
PHIL. 453 (1997).
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I say similar rather than identical only because science being an institutional enterprise in practice limits the range of evidence it will consider, the
arguments it will entertain, as well as limiting the persons and sources from
which it will receive argument and evidence. It is because science is the human enterprise that most nearly represents a systematic commitment to truth
and reason, that the social constructionists have sought so urgently to relativize science, as they would relativize norms regarding family institutions or
the institution of property. In doing so they rely on this institutional aspect of
science. That is a mistake and an instructive one. No reflective scientist
would exclude consideration of any argument or evidence in principle, but
only because she was making a second order judgment about how with limited time and resources she could best test the truth and rationality of a theory. If an interlocutor from outside these institutional bounds caught her attention-at the gym or at a dinner-and presented arguments and evidence
that were persuasive, neither science nor the commitment to rationality
would allow her to ignore them just because of the irregularity of their presentation. She is not like a court which is bound not to consider irregularly
presented arguments and evidence. And in general any rational person committed to truth may adopt rational strategies to guide his search for truth, but
these strategies are second order commitments which are always subordinate
to the object of the search itself. Because they are subordinate, these strategies must in principle be open to revision in the light of evidence. 57 (This, by
the way, is one of the many mistakes made by social scientists who appropriate the writings of Thomas Kuhn to lend the prestige of science to their universal social constructivism. 58)
57
Robert Nozick has pointed out to me a passage in which he considers the claims of
Jurgen Habermas that rationality requires "an open willingness to listen to opinions from
every source." ROBERT NOZICK, THE NATURE OF RATIONALITY 125 (1993). He concludes
that "rationality does not require the most extensive sifting of evidence, computational assertion, and so on. That process itself has its costs, and some (rough) decision would be
made about the time and energy to be put into any particular decision or formation of belief." Id.
58 Kuhn's claim, if it is his claim, that the move from one paradigm to another in science cannot be seen as a move to a truer or more valid set of theories-for example, that
Newton was just as right as Einstein about the addition of velocities, see THOMAS S.
KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 121 (1962) (concluding that scientific
paradigm shifts result "not by deliberation and interpretation, but by a relatively sudden
and unstructured event")-has been the darling of constructivist social theorists. It has
been so often refuted that to take it on again is like shooting at ambulances. See, e.g.,
PHILIP KITCHER, THE ADVANCEMENT OF SCIENCE: SCIENCE WITHOUT LEGEND, OBJEC-
WITHOUT ILLUSIONS 272-78 (1993) (refuting the Kuhnian claims about the history
of Lavoisier's phlogiston debate with Priestly, but acknowledging that the relativist slant
of "kuhnian claims" may represent the view of Kuhn's interpreters more than that of
Kuhn); Dudley Shapere, Review of Kuhn's The Structure of Scientific Revolution, 73 PHIL.
REV. 391 (1964). See generally Karl Popper, Normal Science and its Dangers, in IMRE
TIVITY
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The commitment to truth and reason-rationality, for short-entails a
commitment to remaining open in principle to persuasion; that is, to evidence
and argument. The reverse proposition also holds: Rationality is in principle
inconsistent with a refusal to consider arguments or evidence; that is, a refusal to allow oneself to be persuaded. But that is just what a regime of freedom of thought is: It is a regime in which no coercive power may legitimately limit persuasion as persuasion, because it is persuasion. Thus
rationality entails a regime of freedom of thought and provides the Archimedean point, the nou qm, for strong First Amendment freedoms.
I want to be clear about what I have shown so far and what I have not. By
showing that a commitment to rationality entails a commitment to freedom of
thought I have shown that freedom of thought as a constitutional principle
has a basis outside of law and indeed outside of social constructs if rationality itself is not socially constructed. But the commitment to rationality just is
a commitment to the proposition that rationality is not socially constructed.
So freedom of thought is not subject to the same deconstructive arguments as
dismantled the system of freedom of contract and of property collected under
the term Lochnerism. Whatever else may be said against strong First
Amendment freedoms they cannot be undermined in that way.
But may they not be undermined in other ways? Here are two. First,
though a commitment to truth, what I call rationality, is possible and does
not depend on social constructions expressing all sorts of other commitments,
nevertheless does this not just show that truth is one value among many, so
that we may choose to subordinate it to some alternative? May we not, for
instance, as Fiss 59 and others have suggested, subordinate it to the value of
equality? But what would it mean explicitly and with one's eyes open to subordinate rationality to equality? That we would deliberately disregard evidence and argument if it had the tendency to undermine a commitment to
equality? But the proposal is incoherent. It is like trying not to think about
elephants. If someone offers evidence and arguments against, say, the equality of the sexes, you might-as some regimes have done in other contexts 6° LAKATOS: CRITICISM AND THE GROWTH OF KNOWLEDGE 51, 51 (1970) (finding more in
common with Kuhn than Kuhn found with him, and arguing that Kuhn's view of "normal
science" correctly outlines the problems with institutionalized quests for truth, but ultimately disagreeing with the relativism inherent in Kuhn's model). See also ISRAEL
67-89 (1967); ISRAEL SCHEFFLER, ON CHANGE
(1996); Imre Lakatos, Falsifications
and the Methodology of Scientific Research Programmes, in IMRE LAKATOS: CRITICISM
AND THE GROWTH OF KNOWLEDGE, supra, at 91, 177-80 (characterizing the Popper/Kuhn
SCHEFFLER, SCIENCE AND SUBJECTIVITY
AND OBJECTIVITY IN SCIENCE: REFLECTIONS ON KUHN
disagreement as a conflict between Kuhn's view of science limited to the "psychology of
discovery" and Popper's sophisticated program delineating the "rationally reconstructed
growth of science").
59 See generally Fiss, THE IRONY OF FREE SPEECH, supra note 53; FISS, LIBERALISM
supra note 53.
60 See, e.g., Mari Masuda, Public Response to Racist Speech: Considering the Victim's
DIVIDED: FREEDOM OF SPEECH AND THE MANY USES OF STATE POWER,
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refuse to listen and even seek to silence the speaker. But you do not thereby
disprove her and most importantly you do not thereby convince yourself.
Only better arguments and more evidence can do that. You can certainly
choose to act irrationally, but you cannot choose to think that way-you just
do it. (Some people turn to drugs to escape this iron necessity.) And so it is
with any other value-socially constructed or not-that might be proposed as
a trump over rationality.
There is a second way in which rationality might be subordinated to other
values. Might I not reason as follows: I desire freedom of thought for myself, but if I do not trust my neighbor's capacity to be persuaded by argument and evidence but instead fear that he might be led to do me, or himself,
harm as a result of being falsely persuaded? Might I not reasonably calculate
that the danger to me, or him, from his being falsely persuaded is great
enough that I would be willing to give up some measure of my own freedom
and concede to government some power to protect both of us from his being
falsely persuaded? I think not. The principle of freedom of thought did not
depend on any particular characteristics of the thinking person-whether it is
I or someone else. The capacity to respond to argument and evidence is a
general human capacity, not a capacity for which one must be qualified-if it
were, who would supply the credentials? It is possible that some may be disqualified, by reason of youth, or mental illness, or some other abnormality.
But the idea that rationality is an elite capacity denies the very capacity to respond to reason that is the premise of rationality altogether.
Here, then, is the only true marriage of reason and equality: Just as I may
not deny the privilege of reason to myself, even for fear that I might be convinced by unreason, so I may not deny it to others to try to convince me.
And I may not deny it to them lest they be convinced by unreason.
In short, rationality requires that I hold myself open to persuasion. To
concede to the state the authority to shield me from persuasion does a particular kind of violence to my human nature. It is an irrational concession. In
contracts we might bind ourselves to future action, even though we may then
judge that the commitment was a mistake. And law generally commits us to
regimes and restrictions we may later find to be less than advantageous in
particular circumstances. The First Amendment as freedom of thought is different: It protects against government interfering with the process of judgment itself, the judgment by which we may conclude that all the other commitments we make are wise or not. Thus freedom of thought is the highest
order freedom, and limitations on that freedom are the most radical incursions as they limit the process by which we determine whether to accept any
and all other limitations. 6' Freedom of thought protects who we are, in so far
Story, 87 MICH. L. REV. 2320, 2356-58 (1989) (proposing that hate speech aimed at historically oppressed groups should be banned).
61 To quote Cardozo, "[O]f that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom." Palko v. Connecticut, 302 U.S.
BOSTON UNIVERSITY LAW REVIEW
[Vol. 78:717
as who we are is chosen, and if not chosen our personality is certainly the
vector of the choices we make. To the extent that we cannot judge we cannot
choose. This abstract way of making the point readily translates into the
strong sense of outrage we feel if government tries to tell us what we may
think, whom we may try to persuade and who and what we may decide to
allow to try to persuade us. The way that outrage expresses itself is summed
up in the phrase that it is none of the government's business to try to control
my thought. Of course government may try to persuade us, because in principle we want to be open to anyone's persuasion. The government's persuasion might even be particularly persuasive, its voice carry particular weight
with us. But that too is a matter of our judgment. And that power of judgment is what the First Amendment protects.
H. Objections: Drown-Out and Equality
Those who challenge standard doctrine are unlikely to be satisfied by my
response to them. The objection that some instances of speech are so disturbing or so unreasonable or so far beyond the pale of democratic suggestion that they do not contribute to democratic discourse I hope are sufficiently rebutted by my demonstration that the First Amendment, while it may
be about democracy, is not only about democracy. Others, as I have said,
urge the claim for equality, which after all also enjoys emphatic support in
the Constitution's text. These two strands come together in a powerful way
in the writings of Fiss and Sunstein as they claim that democracy requires
that government turn down the volume on some speakers so that others may
be heard-or even silence some messages altogether in that those messages,
by the ideas they contain, silence others. 62 I call this the drown-out view, and
it claims to appeal beyond democratic process to the same value I affirm
here, at least in so far as the focus is on the opportunity of all to express
their minds and to hear the greatest variety of expression from others. Finally, there is the subtlest challenge of all, which may accept the basis for
First Amendment freedom I offer here, but ask why it is protected only
against government. From this question some come to the conclusion that
First Amendment doctrine rests now and cannot avoid resting at least in part
on a material basis, and that material basis of First Amendment doctrine iseven if the mind is not-the creature of law itself.
I start with one aspect of the drown-out thesis, because in disposing of it
we learn something more about how the freedom-of-thought argument works
and thus head off attempts to justify government intervention in any of a
number of contexts. The argument that I have in my sights takes this form:
Speech may sometimes have the purpose or effect of silencing. Racist speech
and pornography, it has been argued, have the effect of making their targets
319, 327 (1937).
62
See, e.g., Fiss, LIBERALISM DIVIDED: FREEDOM OF SPEECH AND THE MANY
supra note 53, at 36-37, 69-70, 80-81, 84, 87, 101, 114.
STATE POWER,
USES OF
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less willing to speak out and others less willing to listen to them. For that
reason government, in the interest of free speech, may prohibit this kind of
speech just as it may control speech to prevent the noise from one speaker
literally from drowning out others. The defect in the argument is that it conflates two mechanisms of drown-out. 63 Unlike the case of literally jamming
the other's message, racist or sexist speech, if it has the effect attributed to
it, produces it through the mind: Potential speakers are persuaded that they
are less worthy individuals and so they are less inclined to contribute their
voices in debate; and potential listeners are persuaded that these speakers are
not worth attending to. But as the argument must concede that the mechanism of the silencing is through persuasion, it must also concede that the
government's countermeasures must be directed at silencing the attempt to
persuade: The government stops the message because of what it says and the
evil the government fears works through the channels of the mind. I do not
see how we can escape the conclusion that the government is stopping the
message because it is afraid that people might believe it. But that is precisely
what the First Amendment has consistently identified as what government
may not do: It may not prohibit or compel speech because of how it may
move the mind of a listener. 64 Such compulsion preempts the processes of
persuasion within the mind and for that reason betrays the commitment to
truth as rationality.
The same objection, though in attenuated form, holds against an equalization rationale for suppression: Equalization argues that the sheer number of
some speakers' messages drowns out the messages of others. Banal sitcoms
drive out serious public interest broadcasting. Thirty second spots detract attention from more detailed, more nuanced political argument. But here, too,
Robert Post addresses other defects in this argument in his compelling critique of
equal protection analysis in First Amendment jurisprudence. He notes that this "line of
argument requires [its proponents] to establish [that] the silencing effects of pornography
and hate speech produce systemic distortions in public discourse." Robert C. Post, Equality and Autonomy in First Amendment Jurisprudence, 95 MICH. L. REV. 1517, 1532
(1997). According to Post, a survey of national media "renders this proposition quite implausible." Id. at 1533.
Post does acknowledge other distortions of the public debate, but contends the solution
is not a general right of access to influence the debate. First, all ideas are not equal;
"influence is in some measure a result of the assessment of ideas, and ... for this reason
efforts to equalize influence must involve both the equalization of ideas and the control of
intimate and independent processes by which individuals evaluate ideas." Id. at 1535. Second, enforced equal opportunity to influence public debate "sever[s] speech from intensity ...[and] from knowledge." Id. at 1537. "In such a system, public discourse could no
longer mediate between individual and collective self-determination. To read the Constitution as requiring the state to ensure that all citizens have an equal chance to influence public debate, therefore, would contradict the basic First Amendment value of collective selfdetermination." Id. at 1537-38.
64 See Dworkin, Liberty and Pornography, supra note 17, at 13-15.
63
738
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drown-out is a metaphor parasitic on just exactly what this kind of suppression is not. If it were literally true that the sitcoms or thirty second spots
were preventing alternative modes of speech from being communicated at
all, the metaphor would be apt. But the metaphor is grossly misleading, since
it does not deny that the weightier messages are in fact available. It is only
that they seem to lose out rather consistently in winning the attention of their
hoped for audiences. But choosing to pay attention-to a PBS documentary
or a Ross Perot infomercial-is a choice. Thus prohibition or compulsiongovernment regulation-that seeks to affect that choice once again, though at
one remove, seeks to control the mind. I say at one remove, because persuasion works by getting and then holding a person's attention, but how we deploy our attention is one of the fundamental operations of mind. Thus this
form of the drown-out argument does not really claim that the government is
merely, as in assigning non-overlapping broadcasting channels, making sure
that one speaker does not prevent an audience from hearing his competitor.
Rather it is preventing one competitor from distracting another by a more
appealing or a more arresting message. But distraction is a form of persuasion and preventing distraction is controlling persuasion. The standard doctrinal term of content neutrality quite exactly marks the line between real
drowning out and a misleading metaphor parasitic upon it.
I.
State Action
The most serious challenge asks why the First Amendment must be taken
to protect only against mind control by the government, when private power
so consistently seeks to compel or prohibit expression and so to interfere
with persuasion. Newspapers and churches, for instance, regularly do exactly the thing that the principle of freedom of thought says government must
not do. If it is the principle we respect and not just its affirmation in the constitutional text, why should we not condemn mind control by actors other
than the government, particularly when they are powerful actors with great
influence and large resources? If freedom of thought is a principle of political
morality, surely it may extend beyond the constitutional text that enshrines it.
And if it does, then may we-that is the organized community-not take action to promote that principle wherever it is importantly implicated?
Straightaway this perspective leads the principle of freedom to conflict
with itself. As we have seen, the principle implicates both the right to speak
and the right not to speak. But in the most important instances, to respect one
person's right not to speak (that is to broadcast the speech of another) is to
allow him to limit that other person's freedom to speak. There is no way to
mediate this conflict without taking sides, and with unimportant exceptions, 65
65 1
put aside, for instance, the complaint that a large owner of residential properties
might make if he were precluded by law from monitoring the speech of his tenants. See
Prune Yard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) (involving a free speech claim in
normative conflict with a shopping center owner's property rights).
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the law quite properly does not take sides and does not seek to mediate because of the way in which the freedom is understood: It is freedom from
government; it has no concern with speech as a value to be balanced against
other values, nor yet with the value of speech. It is the purest negative right.
And that forces us to ask why freedom from government is so special, why
mind control by government offends the principle of rationality, but control
by non-governmental actors-churches and newspapers, for instance-does
not? Because the claims of government potentially blanket the field. Government is ultimate, inescapable, and total. This is Max Weber's notion of
the state-at least the modern state-as enjoying the monopoly of force: Weber did not mean that others do not use force in a modern state, but that all
legitimate force is either wielded by the state itself or by its permission or
delegation. The state is the ultimate ground on which we stand-there is no
further retreat, and so if. the state seeks to control our minds we are caught
indeed. (This is a normative not a factual monopoly. We may, of course,
defy the state; but within the context of law-and that is our context todaywe may not do so lawfully.)
J.
Public Forum
Imagine now a regime where every square inch of territory was someone's
private property. 66 To leave your home to go to the movies you would pass
on private streets with the permission of their owners-you would probably
have a permission card for which you would pay an annual or a per-use fee.
All the state would do is enforce these property rights and the contracts made
about their use. The airwaves too, whether radio or sound or light-usque ad
coelum-would be privately owned. In such a regime your freedom of
thought would depend on how much property you owned. You could not
communicate outside your property or receive communication except at the
sufferance of others. And if most of the property was in the hands of a single
owner or syndicate of owners your freedom of mind would be at the sufferance of that person. 67 The neutrality of the state in such a regime would be
worth very little indeed, and it is this fantasy that may haunt those who ask
of the Constitution that it protect them against private as well as public
power.
But we do not have such a regime! The public forum doctrine is one of
strongest manifestations of our actual condition in which there are large public spaces in which we are free to move about and communicate with others.
The streets are a public forum because they are the default channels by
66 For a fuller discussion of this fantasy, why it is just a fantasy, and how to get around
it if it were not, see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 178-82 (1974)
(discussing the implications of exclusive property rights in the context of Locke's theory of
private property).
67 See, e.g., Marsh v. Alabama, 326 U.S. 501 (1946) (finding that people living in a
company town could not be deprived of the constitutional guarantee of free speech).
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which any person may in principle reach any other person. And that is why
the state must not only not forbid speech in general-as per the Brandenburg
decision-but must allow the greatest possible freedom for its exercise in that
residual space which is open to us all. Thus it is a mistake to argue, as some
do, 68 that public forum doctrine is an instance of government allocating facilities for the exercise of speech, as it might hand out NEA grants. Rather,
public forum doctrine recognizes the residual authority of the state over the
channels between our private domains and 69locates our final freedom to reach
others physically as well as mentally there.
K.
DisposableIncome
There is another version of this fantasy that is instructive as well: What if
some, many, any enjoyed no disposable income whatever, that is every
penny was allocated to the basic necessities of life. To take this to an extreme, let us assume that even time, or as the economists like to call it leisure, did not exist. Anyone in that circumstance would be like a person in
the regime without public streets and with no money to claim access, or like
a person in a regime with streets but no public forum doctrine because all
government property was available only for designated permitted uses. These
are the fantasies that haunt those who deny the significance of state action, or
perhaps they are the fantasies with which they seek to frighten us. For in
those worlds the negative right to be free of government control of your
mind is virtually worthless since government control or private control of
everything else is so pervasive that there is nothing left for the mind, for
communication. Control of the mind as such is swallowed up in control of
everything in general. The fantasy then leads to the conclusion that the value
of all freedom of speech as a negative right depends on allocational decisions
by the state-whether of public fora, or of private means by which to exercise that freedom. And those allocational decisions must be made pursuant to
some policy-at best a policy of equal voice, equal access in a material
sense.
We do not have such regimes, and these fantasies are, after all, just fantasies. In developed liberal democracies the state does not seek total control of
the residual space between us and few adults live so close to the bone that
they have not the time or the means to reach each other, or lack other people
who in fact are willing to speak in their behalf. Therefore the negative freedom will have some meaning, some occasion for its expression, without government having to make allocational decisions about who speaks when and to
whom; and that already means a great deal. Indeed once there is a chink in
the fantasy structure of totality, all manner of agitation and pressure for reform may be exercised. And of course most, almost all, live far above the
line that I have drawn-that is why it is worth the while of advertisers to
68 See, e.g., SUNSTEIN, supra note 54, at 46-47 (1993).
69 See Craig Benefit v. City of Cambridge, 424 Mass. 918 (1997).
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spend large sums in trying to reach them. Consider the situation in many of
the states of eastern Europe. Few private individuals had any capital at all,
and those who did were likely to be former officials or gangsters. Yet there
was sufficient disposable income that a rather vibrant politics grew up
quickly, and freedom of thought now has considerable scope for a large part
of the population.
Given a context such as obtains in all of the developed world, I would argue that the allocational-cum-distributional justification for government suppression of speech is quite invalid. It is only in the fantasy world where all
speech must be licensed by the government or procured at the sufferance of
some private monopolist, that the failure of the government to subsidize or
authorize speech is the same as government suppression. In the standard
context, therefore, the principle of freedom of thought is sufficiently underwritten if the government refrains from suppression. I define suppression as
either direct suppression, which. is the prohibition or mandating of expression, or indirect suppression, which is the manipulation of the background
conditions of law-the rules of contract,
property civil liability-for the pur70
pose of suppressing expression.
What the principle of freedom does not entail is a prohibition on the government from speaking itself or subsidizing selected private expressions.
Given the background conditions I hypothesize, such government support
does not amount to suppression. Private speakers are as free as they were before to speak. And the increment of speech by the government authorized
speakers does not, as we have seen, in truth drown out the non-government
speaker, but only competes in the realm of thought for the attention of the
audience. Exactly this point is implicit in Buckley v. Valeo, 71 which ruled
unconstitutional limitations on the amount of speech a political candidate
might engage in (and spend resources to engage in), but allowed a system of
government financing of political campaigns (with attendant spending limits)
so long as participation in it was voluntary, that is so long as government
subsidized speakers were not granted a monopoly but might have to compete
with non-subsidized speakers for audience attention.72
70 We have indirect suppression of expression when a contract, say, to keep secret a
certain item of information, is enforced or not enforced not because of the general forms
of contract but because of the content of the communication or the status of the parties as
speakers. In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the Court allowed a person who had been promised anonymity by a newspaper in return for some confidential information to sue for damages for breach of that agreement. Such a suit not only does not
constitute indirect suppression, but recognizing some privilege in the newspaper to break
its contract would in fact disadvantage future journalists seeking to give the same contractual assurance.
71 424 U.S. 1 (1.976).
72 See id.
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L.
Commercial Speech
Freedom of thought depends only on a background of some legal regime
or other that meets minimal conditions that do not require any reference to
the very freedom being defined. There is no looming circularity. On this secure point of leverage we have constructed a body of law that, more than any
other I know, is the working out in detail of the implications of a principle.
The eloquence that First Amendment doctrine has attracted-from Holmes,
Brandeis, Jackson, Brennan, Harlan, Blackmun, Scalia, and Thomas-I
would put down to the powerful draw that a great idea has had on receptive
minds as they struggled to instantiate that idea in concrete doctrine.
I would illustrate this Hegelian progress of reason into doctrine by one
concrete example. Once upon a time the Court declared beyond the pale of
First Amendment protection "purely commercial advertising. ,,73 That casual
but quite general statement was examined and qualified in 1973 to apply only
to advertising that did no more than propose a particular contractual arrangement-an arrangement which government had the undoubted authority
to regulate. 74 There the Court may be seen as drawing the line between
speech as action, a performative, almost a signal, and speech as the communication of an idea. Both the person who offers and the one who accepts an
offer of an illegal bargain are better seen as engaging in actions than in the
communication of ideas. Thence emerged only two years later a distinct
doctrine welcoming what is called commercial speech into the embrace of
First Amendment doctrine. 75 That embrace has been cautious because regulation of commercial speech overlaps most insistently with economic regulation, plain and simple. Consider the example of United States v. Carolene
Products Co. ,76 in which the Court held that a federal statute forbidding the
shipment in interstate commerce of filled milk violated no constitutional liberty. Only a person in the grips of a theory could have seen this legislationlike the legislative campaign against margarine, which had spawned unsuccessful constitutional challenges 77-as anything other than a measure procured by the dairy lobby to protect its interests at the expense of competitors
and consumers. The Court not only turned aside the constitutional challenge
in Carolene Products but issued its famous footnote four proclamation distinguishing economic regulation from "legislation which restricts those political processes which can ordinarily be expected to bring about the repeal of
73 Valentine v. Chrestensen, 316 U.S. 52, 54 (1942).
74 See Pittsburgh Press Co. v. Pittsburgh Human Relations Comm'n, 413 U.S. 376
(1973).
75 See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748 (1976).
76 304 U.S. 144 (1938).
7 See, e.g., McCray v. United States, 195 U.S. 27 (1904) (finding that a statute which
imposed a higher tax on oleomargarine which contained artificial colors to make it look
like butter was constitutional).
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undesirable legislation," 78 thereby incidentally endorsing the freedom of address conception of the First Amendment. Now compare that to 44 Liquormart, Inc. v. Rhode Island.79 In that case the state of Rhode Island decreed
that there shall be no advertising of liquor prices "in any manner whatsoever." 80 Once again a more blatant use of legislation to protect a small interest favored by the legislature at the expense of the public could scarcely be
imagined-and the Court treated the state's claim that it was seeking to
"promote temperance" with appropriate scorn. 8' Here was Carolene Products all over again, but what a difference in the response! Justice Thomas,
concurring, put the proposition most distinctly:
In cases such as this, in which the government's asserted interest is to
keep legal users of a product or service ignorant in order to manipulate
their choices in the marketplace, .
.
. such an "interest" is per se ille-
gitimate and can no more justify regulation of "commercial" speech
82
than it can justify regulation of "noncommercial" speech.
Just as in anti-hate speech and anti-pornography legislation the defect here
was pursuing a government policy by "keeping would-be recipients of the
speech in the dark." 8 3 Regulation which seeks to accomplish its end by forbidding or mandating what may issue from or reach the mind uses a forbidden means, because mind control for any purpose is forbidden.
CONCLUSION
We are entering on a time when the creation, transmission, and processing
of information are becoming the most important forms of economic activity.
Recent commercial speech doctrine has extended the principle of freedom of
thought into that domain, so that it is a fair question whether the state's claim
of sovereignty over the economy will prevail over the Constitution's declaration of independence for the domain of the mind.84 Compromise is not easy.
Balancing tests that remit the demarcation of the boundary between what the
Constitution allows and what it forbids to ad hoc judicial judgments are inadequate to the task. If I am right about the vaster range of human activity
that will be drawn into the ambit of the First Amendment, then we may be
78 Carolene Products, 304 U.S. at 153 n.4.
79 116 S. Ct."1495 (1996).
10 Id. at 1509.
81 See id.
82 Id. at 1516 (Thomas, J., concurring).
83 Id. at 1518 (Thomas, J., concurring).
I I greatly regret that the Court in Glickman v. Wileman Bros. & Elliott, Inc., 117 S.
Ct. 2130 (1997), did not see what Justice Souter pointed out in dissent, that the convergent
analogies of Buckley v. Valeo, 44 Liquormart, Inc., and Hurley almost compelled a decision against the aspect of agricultural marketing orders the court upheld. See Glickman,
117 S. Ct. at 2143-45 (Souter, J., dissenting).
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sure that politics will press hard to stake its claim over this domain. It will
not readily allow so much to slip beyond its jurisdiction to be governed only
by-in Kant's phrase-the laws of freedom. The Communications Decency
Acta 5 which sought to control what it characterized as indecent speech on
the internet until the Supreme Court struck it down, 86 and the claims of government to regulate the many new channels of communication offered by cable, satellite, and telephone lines are all examples.8 7 Balancing will not contain these claims nor protect freedom of thought in these new domains. The
strength of First Amendment freedom has been the strength of the doctrine
structuring that freedom. The whole elaborate system of three- and four-part
rules, levels of scrutiny, forum doctrine and the distinctions between contentbased, viewpoint-based and content neutral regulations have grown up to
give structure and body to First Amendment freedom. The concept of content neutrality is a particularly apt and important crux of free speech doctrine. A newspaper, just because it is a newspaper, is no freer than anyone
else to break its contracts, 88 or violate the antitrust laws in the conduct of its
business, 89 or commit a trespass. 90 Those who would accord special privileges to speakers because they are speakers-rather than to speech-make a
dangerous mistake: They invite a conception of the First Amendment as a
privilege granted by government rather than as a near absolute limit on government's power to regulate the content of speech. This false premise then
invites the false conclusion that such a privilege must be balanced against
competing grants of the privilege in the name of something called "First
91
Amendment interests. "
85
86
47 U.S.C.A. § 223(a)-(h) (1997).
See Reno v. American Civil Liberties Union, 117 S. Ct. 2329, 2334 (1997) (holding
the Communications Decency Act unconstitutional because it violated the First Amendment).
87 See, e.g., Turner Broad. Sys., Inc. v. F.C.C., 117 S. Ct. 1174 (1997) (Turner II)
(determining that the cable television must-carry provisions did not violate the First
Amendment); Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994) (Turner I)
(finding that heightened First Amendment scrutiny is demanded to analyze the Cable Television Consumer Protection and Competition Act's must-carry provisions which required
cable television systems to dedicate some channels to local broadcast television).
88 See Cohen v. Cowles Media Co., 501 U.S. 663, 665 (1991) (holding that the First
Amendment does not shield a newspaper from damages for breach of a promise of confidentiality).
89 See Associated Press v. United States, 326 U.S. 1 (1945) (finding that the Associated
Press's restrictive membership requirements violated the Sherman Act). The case is sufficiently explained by the reasoning I offer here, but there is indeed language in it that supports the view I criticize. See id. at 20.
9 See Tilman v. Distribution Sys. of Am., Inc., 224 A.D.2d 79, 80 (1996) (declaring
that the newspaper had no right to continue to throw newspapers onto plaintiffs property).
91 See Turner II, 117 S. Ct. at 1204 (Breyer, J., concurring). This turn to balancing illustrates the general proposition that positive rights require balancing, while negative
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Content neutrality, by subjecting speakers to the ordinary background laws
that are unconcerned with the contents of speech, makes possible the line
between government regulation of speech and a private party's regulation of
speech (say a newspaper or broadcaster), which not only does not violate
free speech but, as we have seen, is necessary to it. The distinctions can be
shown to respond to the underlying principle of freedom of thought. In this,
then, Holmes's dictum that "general propositions do not decide concrete
cases" 92 was correct, but for a particular reason. The great principles decide
concrete cases but only by the intermediation of more or less general doctrines, which as Holmes also said in The Path of the Law, are "referred articulately and definitely to an end which [they] subserve." 93 This has indeed
happened with First Amendment law. That is not to say that the implementing doctrines are as secure as the principle they protect, but they have served
well enough that it requires more demonstration than has been offered before
we should accept that they are inapposite to the new context. And even if
doubts may be raised, the principle of prudence demands that the present
structure not be dismantled until alternatives are offered. The case for a new
structure is far from having been made. The terms of disagreement in the
two Turner Broadcasting94 cases, which consider the limits of government
power to regulate cable broadcasting, seem to me to have been appropriate
and to prove the hardiness of the standard doctrine, even though Justice
Kennedy's plurality opinion-that legislation forcing cable operators to
broadcast stations they might have preferred to drop was "content neutral"adopted a mistaken conception of content neutrality. 95 Justice Breyer agreed
with the dissent that the law amounted to "suppression of speech," but
thought the "price" worth paying because of the "First Amendment interests
on the other side." 96 I am correspondingly wary of the suggestion that the
whole context is so new that new doctrines must be fashioned for it and until
then the issue should be remitted to ad hoc balancing, with a due regard to
First Amendment values. 97 The First Amendment value just is the right to be
free of government control of thought and ideas; and that right, like all
rights, must be instantiated in principle and doctrine.
So perhaps we are closer today than ever we have been to the vision of
rights require line drawing for their closer specification. See Charles Fried, Types, 14
CONST. COMMENT 55, 56-59 (1997).
92 Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).
93 Holmes, supra note 2, at 469, 78 B.U. L. REV. at 708.
94 See Turner!, 512 U.S. 622 (1994); Turner!!, 117 S. Ct. at 1174.
95 See Turner!,512 U.S. at 662.
Turner 11, 117 S. Ct. at 1204.
97 See, e.g., Denver Area Educ. Telecomm. Consortium v. F.C.C., 116 S. Ct. 2374,
2384-85 (1996) (plurality opinion) (adopting a balancing approach in determining whether
or not the First Amendment was violated by the Cable Television Consumer Protection
Act of 1992 in part because of changes taking place in telecommunications technology).
96
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perfect freedom, perfect justice. How unsatisfactory that we should have to
depend for that on the imperfect scaffolding of law and legal doctrine, but it
is only through them that-to end as Holmes did one hundred years ago"you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.", 98 That glimpse and echo are
nothing other than the glimpse of the truth and the freedom to know it.
91 Holmes, supra note 2, at 478, 78 B.U. L. REV. at 715.