Issues

Foreword to Free Speech Foundations Symposium, held at Northwestern Pritzker School of Law on October 25, 2015.

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the breadth of issues surrounding disputes with communicative components is meant to identify competing legal factors without rendering the First Amendment all-inclusive nor, on the flip side, irrelevant to broader ranges of activities. Coupling theoretical and practical considerations about a case best balances judicial deliberation. Rather than ad hoc balancing, judges should apply a rigorous multifactoral test that evaluates whether any relevant communications are likely to result in constitutional, statutory, or common law injuries; whether historical or traditional considerations indicate the speech is protected by the First Amendment; whether there are countervailing government interests; whether the regulation is tailored sufficiently for the government to achieve its stated aims; and whether there are any less restrictive means for achieving underlying policies.

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals. The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems to have little to do with political self-government enjoys full First Amendment protection. Second, democracy-based theories value speech because it legitimates state power. But in the digital age, public discourse does not respect national borders. Opinions, ideas, and art circulate internationally, and so does cultural power. Cultural freedom means that people must be able to participate in the circulation of opinions, ideas, and artistic expression throughout the world whether or not this legitimates a particular nation state. Third, democracy-based theories protect speech because this benefits self-government within a single country; hence, their focus is inevitably parochial. By contrast, cultural democracy demands that states consider the value of global exchanges of ideas and opinions and the health of the global system of telecommunications. These issues have become increasingly important as nation-states try to regulate and deform Internet architectures to further national concerns and bolster national political authority.

Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five rights—speech, press, assembly, association, and petition—that I call the Democratic First Amendment. I will argue that the Democratic First Amendment is best read to adopt a particular vision of citizenship, one associated with the Democratic Republican philosophy of Thomas Jefferson and his allies. Citizens, on this view, are meant to be active in a myriad of ways, to engage with and even challenge their elected representatives, and to develop and communicate their values and opinions jointly, through assemblies and associations. It stands in sharp contrast to the passive form of citizenship, limited to biennial voting, favored by Jefferson’s Federalist adversaries. Each of the rights of the Democratic First Amendment, I show, advance this kind of democracy. More importantly, these rights are, to use the Supreme Court’s term, “cognate,” and must be exercised in combination to enable meaningful and active citizenship. The First Amendment, in short, is not just democratic, it is also kaleidoscopic.

The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free speech problem, but the Supreme Court has left the pertinent doctrine in a state of confusion. I offer a better account of free speech law, one that depends on some neglected free speech values—the protection of religious disagreement, the promotion of mutual transparency among persons, and the positive valuation of ethical confrontation. I conclude that, under familiar rules of constitutional avoidance, state antidiscrimination laws should be construed to allow this kind of speech.

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be a logically essential part of the First Amendment calculus. We further observe, however, that free speech theory and doctrine provide a basis for regulating, as well as protecting, the speech of nonhuman speakers to serve the interests of their human listeners should strong AI ever evolve to this point. Finally, we note that the futurist implications we describe are possible, but not inevitable. Moreover, contemplating these outcomes for AI speech may inspire rethinking of the free speech theory and doctrine that make them plausible.

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the U.S. Supreme Court held that Texas could deny the Sons of Confederate Veterans a specialty license plate because the public found the group’s Confederate flag logo offensive. The Court did not reach this conclusion because it deemed the Confederate flag to fall within a category of unprotected speech, such as true threats, incitement, or fighting words; because it revisited its determination in R.A.V. v. City of St. Paul that restrictions on hate speech are unconstitutional; because travelers who see the license plates are a “captive audience”; or because Texas had a compelling interest in disassociating itself from a symbol that it regarded as promoting racial discrimination. Instead, the Court held that Texas was entitled to ban Confederate flags because all speech appearing on specialty license plates constitutes government speech immune to the usual restrictions of the First Amendment. This Article dissects Walker and its larger significance for the government speech doctrine. This case takes the Court’s growing deference to institutional government actors and puts it on steroids. Relying heavily on a “reasonable person” inquiry, Walker suggests that it will frequently be “reasonable” for people to believe that the government has endorsed private speech appearing on public property or spoken by a public employee or student. But under well-established First Amendment principles, the government’s tolerance of private expression is not the same as endorsement. The Article examines the dangerous implications of Walker in a wide variety of contexts, from the speech rights of public school students and government employees, to advertisements on public transportation, and to new means of communication.