Madison's Music

by Burt Neuborne

  When a right to know would have real benefits for hearers, though, as in challenges to government secrecy or efforts to increase the variety of voices in mass media, the Court usually shuts it down. In secrecy cases, it defers to the government’s assertion of national security interests. In mass-media cases, it defers to corporations’ private property interests. In the end, the hearer’s so-called right to know is almost always turned into a device for forcing hearers to be subjected to speech they don’t want to hear, but it rarely gives them access to important speech they do want to hear.

  ARRIVISTE CONDUITS

  Conduits, especially major newspapers, television and cable networks, and Internet providers, are the neighborhood arrivistes. The conduit’s principal role in the neighborhood is to function as a skilled tradesman who builds and runs complex machinery transmitting the speech of others to a larger audience. Think of the highly skilled artisans who owned and operated the printing presses in Madison’s time. Today’s conduits have persuaded the Supreme Court to let them dress up as aristocratic speakers, even though all they do is run a big machine that transmits the speech of others to a mass audience.

  Madison gave conduits their own clause—the Free Press Clause—designed to permit skilled tradesmen to transmit the speech of others to larger audiences free from government interference. But the current Court usually ignores Madison’s Free Press Clause, treating it as just another colony of the imperial Free Speech Clause, which does all the legal work. Thus under current law, the press is treated as just another group of speakers with no special institutional rights or responsibilities. But why did Madison bother to include a separate Free Press Clause? If it were read properly, conduit protection under the Free Press Clause might differ significantly from speaker protection under the Free Speech Clause. If we decoupled the two clauses, the press might be granted a special First Amendment institutional role to seek out and offer voice to weak speakers whose own voices have been silenced—for example, by imprisonment or other form of government muzzling.15 Recognizing a special institutional role for the press as conduit would also argue for rules that insulate the press from being forced to reveal sources or from liability for innocently distributing the speech of others. It might even facilitate press access to government secrets. On the other hand, press conduits might be subject to regulations designed to ensure access to the mass media for otherwise blocked or unheard voices.16 Until we separate the conduit from the speaker, though, the Free Press Clause will continue to languish as a backwater of the imperial Free Speech Clause.

  SLUM-DWELLING TARGETS

  Speech targets—the people being talked about—are the neighborhood slum dwellers. A speech target’s interest in being described accurately and with dignity is almost always subordinated to the interests of aristocratic speakers and conduits masquerading as speakers. Under existing First Amendment rules, false speech that harms the reputation of a speech target in the public eye (the “public figure”) is immune from punishment unless it was uttered with “actual malice,” which usually translates into subjectively knowing that the speech is false. False speech about public figures uttered without actual malice, even when the speaker or the conduit has been grossly negligent in checking the facts, slips under the law’s radar.17 Under existing ground rules, therefore, powerful speakers and conduits can unfairly ruin a speech target’s reputation with false charges as long as no one can prove they know they’re spreading lies.

  THE LOCAL MOTORCYCLE GANG

  Government speech regulators are the neighborhood motorcycle gang, eager to terrorize the entire neighborhood if allowed any traction at all. Much of our modern free-speech law glorifying the speaker has little to do with making institutions of choice work better or advancing the human dignity of the speaker or anyone else. Make-weight arguments about human dignity or institutional efficiency are really designed to reinforce and justify the Court’s almost pathological mistrust of the ability of a government official to regulate speech fairly. Modern free-speech law rests on a slippery slope so precipitous that any step toward government speech regulation aimed at controlling dysfunctional speakers, improving the quality of choices for hearers, or reinforcing the Kantian dignity of hearers and speech targets is demonized by the Supreme Court as a first step toward tyranny. The result is a First Amendment jurisprudence that claims to be built on improving the functioning of our institutions of choice and reinforcing our commitment to human dignity but is paralyzed by fear of government regulatory abuse. It has spawned a speech culture that can be corrosive of the very values of institutional efficiency and dignity it is supposed to serve.

  Like the privileged of most neighborhoods, aristocratic speakers defend their status by fearmongering, reminding us that government speech regulators have generally behaved very badly, often using the state’s monopoly of force to crush dissenters. The only safe solution, argue the First Amendment speaker aristocrats, is a set of prophylactic rules, both substantive and procedural, designed to prevent the government motorcycle gang from getting any traction at all.18 It’s true, of course, that governments have a terrible censorship track record, but the modern Supreme Court’s demonization of the government speech regulator has at least two flaws. Many of the worst examples of government censorship come from totalitarian governments or authoritarian institutions like the Catholic Church before the Enlightenment. But today, Great Britain, Germany, and France regulate the flow of speech in a few narrowly defined settings, including campaign finance, hate speech, and libel without falling into totalitarian hell. Perhaps more important, pulling the government speech regulator completely out of the game does not mean that the flow of speech will become unregulated. If government is disabled from doing the job, someone else will direct the speech traffic in Mr. Madison’s neighborhood—probably one or more powerful private speakers or conduits. Which of the following three scenarios should frighten you most as a good Madisonian democrat: the prospect of government regulation of campaign spending in an effort to protect political equality, rules requiring limited access to the mass media for voices unable to purchase commercial airtime, or the situation in today’s America, where a relatively few corporations and billionaires own every single engine of mass communication—newspapers, publishers, bookstores, television stations, cable networks, movie studios, theaters, and Internet platforms?

  IS THE NEIGHBORHOOD RIPE FOR A LITTLE URBAN RENEWAL?

  The relationships between and among the five inhabitants of Mr. Madison’s neighborhood give contemporary free speech law its content and texture. Like any long-established neighborhood, it may need some urban renewal. Four recent Supreme Court cases illustrate the current Court’s glorification of the speaker, despite the fact that half of the First Amendment is about empowering hearers and other members of the First Amendment community.

  In the first case,19 the Court reversed the criminal conviction of a would-be local politician (newly elected to a local three-person water board) for falsely asserting during a town meeting that he had been awarded the Congressional Medal of Honor. Focusing on the dignitary right of a speaker to self-definition, the Court observed that even inveterate liars are entitled to fantasize about themselves in public, including when performing a public duty. That’s Kant on stilts—a dignitary right to lie. But that was just window dressing. The real basis for the Court’s opinion was a fear that criminalizing willful lying in the absence of proof of tangible harm would place a dangerous weapon in the hands of government officials, who might be tempted to react to vigorous criticism by cynically branding it as an indictable lie. Think what Putin could do with such a law. That’s a classic example of fear of the motorcycle gang forcing us to tolerate speech that is unsupported by any plausible concept of human dignity and that cannot possibly be thought to aid hearers in making our institutions function better. The Court’s rhetorical elevation of lying to a mystical exercise in Kantian dignity is typical of our front-end approach to useless or harmful speech. Througho
ut our First Amendment jurisprudence, we deal with fear of government abuse by elevating useless or harmful speech to underserved heights of protection. Why not focus instead on the back end, by acknowledging the unprotected nature of the speech while limiting available sanctions to minimize the chances of government abuse—a kind of cruel and unusual punishment clause just for speech. Maybe we should just limit the weapons available to the motorcycle gang. Instead of turning an inveterate liar into Prometheus raging at the gods, why not make sure that no one was actually harmed by his conscious lie, and then let him off with an apology or a small fine?

  In the second case,20 eight members of the Court voted to reverse a jury’s award of compensatory damages for intentional infliction of emotional distress against a group of antigay religious fanatics who staged a raucous demonstration on public land one thousand feet from a church during the funeral of a young soldier killed in Iraq in the line of duty. The demonstrators, who already had picketed some six hundred military funerals, waved graphic placards and claimed that the soldier’s death was a just punishment from their god (not mine) for America’s toleration of homosexuality. The funeral procession passed within two hundred to three hundred feet of the demonstrators. The jury awarded $2.9 million in compensatory damages and $8 million in punitive damages for intentionally inflicting emotional distress on the family as it buried a son. The justices reversed, ruling that, because the demonstration was on public land and was not visible from the church, First Amendment freedom of speech included a speaker’s right to hijack the funeral of a young soldier as a backdrop for their bigotry, despite the additional anguish imposed on the soldier’s family.

  In the third case,21 the Court invalidated a ban on the sale to children of violent video games that depict digitally simulated acts of misogyny, rape, torture, and murder. Justice Scalia, writing for the Court, insisted that no First Amendment difference exists between Dante’s graphic verbal depiction of violence in the Inferno and interactive video-game simulations of rape and murder. The justices reasoned that because the government is unable to prove conclusively that children are adversely affected by reading Dante or playing computer video games in which they act out scenes of misogyny, the speakers (the for-profit corporations that develop and sell violent video games to minors) were immune from government regulation.

  Finally, the Court struck down a federal statute banning videos depicting the wanton torture and violent killing of small animals,22 holding that the statute’s inapt description of the scope of its coverage might be read someday by a foolish member of the motorcycle gang to criminalize documentaries about hunting. Because, reasoned the justices, hunting documentaries are protected under freedom of speech, the entire statute must be invalidated, even the ban on depicting violent cruelty to animals. In short, to deflect a hypothetical future assault on speech about hunting that will probably never happen, the Court provided a windfall to the distributor of videos depicting cruelly abused dogs fighting to the death.

  These four cases assemble a motley collection of “dignitary” speakers: (1) an inveterate liar using false statements about winning the Congressional Medal of Honor to increase his local political clout, (2) a group of antigay religious fanatics trashing the funeral of a dead soldier to make a bigoted statement, (3) the developers of violent video games pitching misogyny, torture, and murder to kids for fun and profit, and (4) the makers of videos depicting the warped torture and brutal killing of small animals. It’s possible, of course, that all four cases were rightly decided. After all, the prosecutor forgot to allege that the lie about winning the Medal of Honor was designed to bolster the liar’s local political influence. The religious bigots picketing the soldier’s funeral were just out of earshot of the church. The link between a child’s exposure to violent video games and adverse changes in the child’s values and personality, while plausible, cannot be conclusively proven. And the animal-crush-video statute was very poorly drafted. But that’s not how the Court’s opinions read. In each case, rather than conceding that the speech in question was of no value, ruefully explaining why the particular effort at regulation before the Court was technically deficient, and advising how future similarly valueless speech should be dealt with, the Court’s tone was positively triumphant about protecting “the freedom of speech” of four appalling speakers, not one of whom provided information of use to hearers, and not one of whom had any respect for the dignity of the rest of the folks in Mr. Madison’s neighborhood.

  Don’t get me wrong. I get nervous about government censorship. But I also get nervous about the Court’s fixation on speakers who run roughshod over the others who live in the neighborhood. Recognizing a community of speakers and hearers doesn’t mean the overthrow of the speaker. But is it really necessary or wise to raise appalling speakers above the law just because we mistrust government’s ability to regulate them fairly? Why don’t we spend more energy worrying about minimizing the chances of improperly motivated government censorship? How did we get to such a place?

  A TALE OF TWO FREE-SPEECH CLAUSES: DEREGULATORY AND ASPIRATIONAL

  In today’s America, robust constitutional protection of free speech is neither a Republican nor a Democratic idea; it’s a consensus American idea. And that’s a wonderful thing. But as I’ve noted earlier, it can be a false consensus. All nine Justices agree about the importance of robust free-speech protection, but their agreement masks an important difference in their readings of the First Amendment. The five Republican justices tend to tear out seven words—“Congress shall make no law . . . abridging . . . speech”—and read them as a deregulatory command forbidding any government interference with communication, at least by rich and powerful speakers. After preventing the government from regulating speech in most settings, the Republicans appear comfortable letting powerful corporations decide what gets said to whom.

  The four Democratic justices tend to approach the First Amendment as an aspirational partnership between speakers and hearers aimed at preserving human dignity and improving the efficient functioning of institutions dependent on informed free choice. The Democrats also subordinate the rest of the First Amendment to an imperial Free Speech Clause, but at least they use all ten words—“Congress shall make no law . . . abridging the freedom of speech,” letting the words the freedom of act as a filter to allow narrow government regulation of speech in aid of their aspirational vision of the ideal free-speech community.

  Because any government regulation of speech usually impinges on human dignity and threatens the free market in ideas, the Democratic aspirational approach to the First Amendment usually dovetails with the Republican deregulatory approach, creating a powerful bipartisan consensus First Amendment. In the many settings where the deregulatory and aspirational approaches overlap, constitutional protection of the speaker usually trumps all competing values. Such a left/right consensus about the importance of free speech is relatively recent. For much of the nation’s history, free speech was just one of a number of important values that jostled with each other in the formulation of constitutional law. Free speech usually lost.23 Until recently, a desire for vigorous Supreme Court enforcement of a robust First Amendment was a trademark of the American left and the bête noire of the American right. For most of the twentieth century, left-wing reformers, certain that their ideas were on the winning side of history, viewed robust free speech as an agent of change capable of destabilizing an oppressive and unequal status quo. To the reformist American left, more speech meant more—and faster—social and economic change. The future potential impact of a deregulatory First Amendment on the weak and the poor was deemed a small price to pay for the ability to invoke a robust free speech principle today in support of a more equal world.

  Unlike the confident left, many mid-twentieth-century American conservatives, appalled by the excesses of fascist lunatics, their faith in unregulated economic markets battered by the great Depression of the 1930s, and confronted by an almost unbroken phalanx of academic su
pport for leftist programs, did not look to the future with intellectual confidence. The Republican Party’s shameful role in the infringement of free speech in the 1940s and 1950s—supporting McCarthyism, urging censorship of politically radical or erotically suggestive speakers, books, and movies, and applauding the successful effort to outlaw the American Communist Party—reflected the fear of many conservatives that uncensored speech and uncontrolled freedom of political association posed an unacceptable risk to the status quo and would lead to political, social, and economic chaos.24

  The result was Republican support for a weak First Amendment built around the “bad tendency” doctrine, authorizing government to censor controversial speech based on its perceived tendency to lead to social harm. Under the bad-tendency test, a plausible suspicion that speech might increase the likelihood of harm was sufficient to ban the speech.25 That’s what sentenced the opponents of World War I such as Eugene Debs to prison. That’s also what led to the successful criminalization of the American Communist Party in 1951. In the late 1950s and the 1960s, the Warren Court, with a comfortable 6–3 Democratic majority (7–2 if you count Earl Warren as an honorary Democrat), rejected the bad-tendency test, laying the foundation for the modern First Amendment. In 1958, Justice Harlan discovered freedom of association. In 1964, the Court ruled that “public figures” must prove “actual malice” before suing a newspaper for libel. Throughout the 1960s, with the glaring exception of draft-card burners, the Court repeatedly shielded civil rights demonstrators and opponents of the Vietnam War from arrest and prosecution.26 The process culminated in 1969,27 when eight justices (five Democrats, if you include Earl Warren, and three Republicans) formally repudiated the old “bad tendency” doctrine in favor of a new constitutional standard—the “clear and present danger” test, originally articulated in the 1920s in the great Holmes/Brandeis opinions in Abrams and Whitney. The 1969 Court held that ranting by Ku Klux Klan leaders threatening “revengeance” against the government at some unspecified future time could not be deemed criminal in the absence of proof that the speech was almost certain to cause very serious and imminent harm.