Madison's Music

by Burt Neuborne

  Defenders of the current system argue that imposing a legal duty to vote would violate the First Amendment. Once formal barriers to voting have been removed, opponents of compulsory voting argue that the decision not to vote is an individual’s choice, entitled to as much respect as a decision to participate in the political process. There is, of course, great irony in arguing that the First Amendment guarantees the right not to vote but doesn’t guarantee the right to vote. Despite the irony, though, it is true that any form of compulsory voting would risk forcing some nonvoters to act inconsistently with their political beliefs. In order to avoid such an unpalatable result, any civic duty to vote should have a convenient escape hatch, allowing an individual to opt out of voting merely by expressing a desire to do so. Once such an easy opt-out is made available, I see no constitutional problem in operating an opt-out voting process instead of the current opt-in model. After all, a legal system that has rejected constitutional challenges to military conscription, compulsory jury service, compulsory schooling, compulsory vaccination, compulsory health insurance, compulsory cooperation with the census, and compulsory taxation to support programs with which the taxpayer profoundly disagrees can hardly draw a principled line at a civic duty to vote, especially one that can be so easily trumped by a convenient opt-out. We know from our experience with activities ranging from joining class actions to participation in 401(k) retirement plans that opt-in systems tend to yield low turnouts and that the turnout is lowest among the poor and less educated. And yet we insist upon operating an opt-in system for voting. A legislative switch to an opt-out system would virtually eliminate the third tier without violating anyone’s First Amendment rights.

  If the idea of compulsory voting is a little too Orwellian for your taste (even with a no-questions-asked opt-out clause), the size of the third tier can be dramatically decreased by lowering the hurdles associated with voting. No democracy makes it harder to vote than we do. We require prospective voters to carry out three preliminary tasks before casting a ballot. First, a prospective voter must ascertain the place and method of registering and voting. In years past, officials bent on preventing blacks from voting made it as hard as possible to find the registration office. Nowadays, nobody actually hides the registration office, but the radically decentralized nature of our election administration often makes it difficult to identify exactly where to go to register to vote, much less where to go to actually cast a ballot. Our bewildering array of precincts, election districts, and assembly districts can create an electoral maze. While great progress has been made in simplifying registration—postcard registration is now widely available, and the forms have been standardized in federal elections—the process of learning where to register and vote can seem daunting to a poor, unsophisticated person thinking about voting for the first time.

  Second, in the United States, the burden of placing one’s name on the voting rolls in advance of the election must be borne by the prospective voter. In most states, it is not enough to be motivated to vote on Election Day. The motivation must have caused the prospective voter to take the preliminary step of registering, usually at least a month in advance of the election. No other democracy places such a preliminary burden on the voter. The United States did not begin doing so until the first decade of the twentieth century, which not so coincidentally triggered a decline in voter participation from 75 percent in 1896 to 44 percent in 1924. In virtually every other democracy, the duty of assembling the voter registration rolls is placed on the government. In our system, the requirement of advance registration acts as an economic and social screening mechanism, disproportionately filtering less sophisticated, poorer voters out of the process. When we register young men for the draft, we don’t count on voluntary compliance; we compel registration on pain of criminal sanction. When we enumerate the population for the census, we don’t rely on voluntary registration; we use government officials to compile the data, and we compel cooperation with the process. When we register persons for jury service, we don’t rely on voluntary registration; the government compiles the juror rolls and compels service. But when it comes to voter rolls, the government neither requires registration nor makes any effort to compile the necessary information.

  Finally, once registration hurdles are surmounted, we require prospective voters to vote on a workday, often using vintage voting equipment and appallingly outdated information technology, causing lines that can last for hours, especially in poor, black, and Latino precincts. Affluent election districts update their election technology, lowering the error rate and eliminating long waits to vote. Inner-city election districts, strapped for funds, often use the oldest, least reliable voting technology, and experience numbingly long lines, which discourage all but the most highly motivated. When you add cynical voter ID laws or proof of citizenship requirements designed to create yet one more hurdle for the poor, the democratic process loses much of its moral legitimacy.

  Extremely low voter participation in the United States is not caused by some perverse form of American exceptionalism. It is the predictable cumulative impact of legally imposed transaction costs on voting. Were we to simplify and update election administration, require the government to assemble the voting rolls, permit Election Day registration, and make Election Day a holiday, the problem of a morally unacceptable third tier would dramatically diminish. Nonparticipation would continue, of course. But it would be at a far lower rate, and, most important, it would no longer be radically skewed by race and class.

  Ask yourself this very troublesome question: is the real reason we tolerate so many unnecessary hurdles to voting that, deep down, we don’t want the poor to vote? Have we found the ideal hypocritical way to limit the franchise—formally guarantying everyone the right to vote, but under such a lukewarm, indeed hostile, standard of legal protection that we tolerate, indeed invite, regulatory hurdles that predictably disenfranchise the poor in large numbers, allowing us to blame them, not us, for the continued exclusion of the poor from American political life?

  The justices all claim to understand Madison’s central First Amendment message: that vigorous political speakers and well-informed voters are the indispensable core of a robust democracy. Indeed, in recent years, Justice Breyer has argued in dissent that the underlying purpose of the First Amendment, indeed the entire Constitution, is to make democracy work. In the name of protecting vigorous speakers, however, the current Court has uncoupled the Free Speech Clause from its democracy-supportive context, ignored three of the ten words in the clause, and construed the remaining seven to elevate the interests of wealthy speakers over the interests of everyone else. The challenge is to build on the Court’s rhetorical acceptance of the relationship between informed voters and democracy, to develop a democracy-friendly First Amendment based on all forty-five words of Madison’s full text. Read with careful attention to the parts and the whole, as one would read a great poem, those forty-five words effectively protect the essentials of a democracy: the right to vote, the right to be a truly informed voter as opposed to a pawn, the right to enjoy fair representation via contested elections, and the right to participate equally in a democratic process free from manipulation by the very rich.

  7

  Mr. Madison’s Neighborhood

  Madison’s First Amendment doesn’t stop with the protection of electoral speech or even with the protection of formal democracy. The Founders understood that a robust democracy cannot live on political speech alone. That’s why Madison begins his poem in the apolitical interior of the human spirit with freedom of religious (and eventually secular) conscience. He knew that the habits of thought that enable free people to govern themselves justly and well—respect for individual dignity, a healthy sense of self-worth, curiosity about and respect for others, skepticism about absolutes, toleration of disagreement, and openness to change—cannot thrive without a steady flow of unfiltered information, ideas, and opinions about art, philosophy, literature, science, technology, history, eth
ics, economics, psychology, sociology, sex, leisure, and business. Would-be tyrants have always understood that control over speech about the full range of human experience—not just politics—is crucial to the maintenance of authoritarian rule. It’s no coincidence that Hitler and Stalin (to say nothing of Mao Tse-tung and Pol Pot) abhorred literary or artistic innovation. They knew that freedom to imagine and depict the world in new, even disturbing, ways nourishes an indispensable core of individuals who chafe at imposed orthodoxy, especially state-imposed political conformity.

  I’ve argued earlier that the inside-to-outside order of the First Amendment’s six textual clauses tells us a good deal about how laws governing the relationship between speech and democracy should be structured. Can their careful order also guide us in establishing legal ground rules governing speech generally? Again I believe that the answer is yes. The protected freedoms of the First Amendment—conscience, expression, press, association, assembly, and petition— not only depict democracy in action, but also celebrate a partnership between free speakers and free hearers that is the bedrock on which democracy rests. The first three clauses—Establishment, Free Exercise, and Speech—protect an autonomous, intellectually committed speaker, free to shape her own destiny, personality, thoughts, and beliefs and to express those thoughts and beliefs openly, even when they challenge deeply entrenched orthodoxies. Immanuel Kant, an eighteenth-century German philosopher whose respect for the inherent dignity of every human being profoundly influenced Madison and the other Founders, would smile. If Madison had stopped after the first three clauses, the First Amendment’s structure would be almost entirely speaker centered, a one-dimensional celebration of the Kantian self as speaker. Unfortunately, that’s just about where the current Supreme Court stops, with an imperial Free Speech Clause that subsumes the final three clauses—Press, Assembly, and Petition—which celebrate the speaker’s interaction with a “neighborhood” of Kantian hearers, who must also be free to shape their own identities and preferences. The full First Amendment is a story about the interaction between free speakers and free hearers in a democracy. The challenge is to forge coherent First Amendment doctrine that respects both speakers and hearers.

  WHO LIVES IN MR. MADISON’S FIRST AMENDMENT NEIGHBORHOOD?

  Five kinds of people live in Mr. Madison’s metaphorical First Amendment neighborhood—speakers, hearers, conduits (whose principal function is to transmit the speech of others to larger audiences), speech targets (persons discussed or described in the speech), and government speech regulators (you can tell them by their shifty eyes and black hats).

  ARISTOCRATIC SPEAKERS

  The current Supreme Court, fixated on seven deracinated words from the First Amendment (“Congress shall make no law . . . abridging . . . speech”), has anointed speakers as the neighborhood aristocrats. Beginning with the great Holmes and Brandeis dissents in the 1920s, nourished by Justice Jackson’s luminous rhetoric in the 1943 case exempting Jehovah’s Witnesses schoolchildren from a duty to salute the flag each morning, and culminating in the “Fuck the Draft” and flag-burning decisions of the late twentieth century, modern First Amendment doctrine has become increasingly speaker centered to the virtual exclusion of everyone else in the neighborhood.1

  Speakers often defend their privileged position by invoking their status as autonomous human beings blessed with free will. Citing Immanuel Kant, John Milton, and John Locke, three great theorists of individual dignity, speakers insist, correctly, that truly autonomous human beings must be empowered to speak freely in order to shape their own identities and form their own preferences, shielded from the dead hand of the state. Once the celebration of a Promethean vision of the heroic speaker raging at the gods is exhausted (it can take days), aristocratic speakers retreat to a somewhat less lofty position. The free flow of ideas and information generated by autonomous speakers, they argue correctly, is essential to the ability of hearers to make the informed decisions on which the efficient functioning of choice-dependent institutions like democracy, markets, and scientific inquiry depend. The ghost of Galileo is usually trotted out to demonstrate both the affront to human dignity and the adverse impact on scientific inquiry imposed by the Church’s censorship of his work in the seventeenth century.2

  At this point, the Supreme Court usually breaks down and embraces the aristocratic speaker without asking whether the particular speech before the Court actually enhances a hearer’s capacity for informed free choice or whether the other inhabitants of Mr. Madison’s neighborhood are also entitled to be treated as dignified human beings.

  HAUTE BOURGEOIS HEARERS

  Hearers are the neighborhood haute bourgeoisie—respectable, even admired, but a clear cut below the aristocracy of speakers. When the communicative interests of speakers and hearers point in the same direction, as they do most of the time, First Amendment protection is at its strongest. Those are the easy free-speech cases. However, when the interests of speakers and hearers diverge, the edge usually goes to speakers. It takes a very thick skin to be a hearer in today’s version of Mr. Madison’s neighborhood. Apart from overt threats and intense face-to-face verbal assaults (“fighting words”), an unwilling hearer has almost no right to be shielded from false, offensive, denigrating, or even frightening speech. For example, according to the Supreme Court, a black family newly arrived in the neighborhood has no right to be protected against a speaker burning a cross on the sidewalk across the street from the family’s house, unless the government can prove beyond a reasonable doubt that the cross burning was actually intended to threaten or intimidate the family.3 Merely intending to denigrate the newcomers or express opposition to their presence in the community isn’t enough. You can’t even tell the jury that burning a cross is presumed to be an attempt at intimidation.4 Under current Supreme Court doctrine, the black family’s First Amendment role as involuntary hearers is to act as a piñata for the privileged speaker, even when it hurts—a lot. Similarly, Holocaust survivors living in Skokie, a largely Jewish suburb of Chicago, had no right to be shielded from Nazi marchers who chose to display swastikas and other Nazi regalia in the Jewish suburb precisely because the symbols would upset the elderly Jewish victims.5 Finally, consider a woman who has reached an agonizing decision to terminate a pregnancy. According to the Supreme Court, as a hearer in Mr. Madison’s neighborhood, she is fair game for so-called counselors who insist on approaching her and trying to talk her out of going through with her decision even as she is walking through the doors of a health facility. It did not seem to occur to any of the justices that a woman preparing to face a physical and emotional ordeal might be entitled to a few moments of privacy, free from the reach of the neighborhood’s aristocratic speakers.

  In fairness, the Court occasionally drops a crumb to a beleaguered hearer. Face-to-face threats and gross insults can be prohibited,6 but the protection probably doesn’t apply to hate speech directed to the general public. If I were a hearer, I wouldn’t get too excited about my “fighting words” protection, though; the Supreme Court hasn’t used it since 1942. Unreasonably noisy speech can be ordered to be toned down.7 Prospective voters are assured a quiet zone as they approach the polls.8 Consumers may be protected against egregiously false, misleading, or particularly distressing commercial advertising.9 Commercial mail or phone solicitations can be banned in certain contexts.10 Demonstrators marching in front of a target hearer’s home must keep moving.11 In some states, women approaching an abortion clinic may be afforded “free access” corridors or floating “buffer zones,” sparing them face-to-face confrontation with antiabortion protesters but permitting demonstrators to line up on either side of the corridor to shout and display disturbing messages that the women do not wish to hear or see.12 In many states, women seeking an abortion have no access corridor at all but must wade through a sea of vilification. The Supreme Court has even held that, under the First Amendment, a woman entering a medical facility to obtain an abortion is fair game for antiabortion “couns
elors” who are constitutionally entitled to approach her and earnestly try to talk her out of the abortion even when she doesn’t want to talk to them.13

  Hearers may occasionally assert an independent right to receive information. In 1965, Congress required the addressees of “communist political propaganda” mailed to them from abroad by foreign governments to put their names on a post office list affirmatively requesting delivery. The Supreme Court invalidated the requirement, even though it found that the foreign government (the speaker) had no First Amendment rights. Instead, the Court ruled that the addressee/hearer had an independent First Amendment right to receive the magazines in question free from government interference—a First Amendment “right to know.”14 That’s actually where First Amendment protection of commercial and corporate speech comes from. If you read the Supreme Court’s corporate or commercial free-speech opinions closely, you’ll find that the justices are careful not to say that corporations have independent First Amendment rights. Instead, the Court allows the corporate speaker to borrow the hearers’ First Amendment rights to receive the information. Unfortunately, unlike the 1965 case, in which the hearers were seeking access to the speech in question, nobody bothers to ask the hearers in corporate or commercial speech cases whether they actually want to hear the speech. No one even thinks of providing unwilling hearers in those kinds of cases with a means to avoid unwanted communications premised on the hearers’ so-called right to know. It’s like a right to be fed spinach whether or not you actually want to eat it. The Supreme Court simply assures the “lucky” conscripted hearers that unlimited corporate electoral speech and annoying commercial advertising is actually good for them—like spinach.