BEYOND THE FIRST AMENDMENT: THE POLITICS OF FREE SPEECH AND PLURALISM

Vol. 16 No.1 (January 2006), pp.59-64

BEYOND THE FIRST AMENDMENT: THE POLITICS OF FREE SPEECH AND PLURALISM, by Samuel P. Nelson. Baltimore and London: The Johns Hopkins University Press, 2005. 240pp. Cloth. $50.00. ISBN: 0-8018-8173-0.

Reviewed by Steven B. Lichtman, Department of Political Science, University of Vermont. Email: steven.lichtman [at] uvm.edu

Contemporary First Amendment theorists must inevitably struggle with a curious “problem.” The First Amendment worked—and it worked in spectacular fashion. Gone are the days in which American governments – federal or state – attempted to engage in wholesale censorship. In 1964, Lenny Bruce was jailed for a blue standup routine delivered at New York’s Café Au Go Go; in 2005, Howard Stern secured a $100 million dollar five-year contract to appear on satellite radio. Even in a post-9/11 world in which basic civil liberties seem to be under threat from initiatives like the USA PATRIOT Act, the aborted Total Information Awareness scheme, and the recently-revealed domestic eavesdropping program, it is exceptionally rare to see government try to repress speech directly. If the First Amendment is a civic teaching tool, then, it appears to have taught us well.

That, however, is precisely the problem. While the lessons of freedom of speech and the values it represents have been well-learned by individual citizens, the lessons of First Amendment law and how to prevail in speech disputes have been well-learned by government and powerful private actors with censorial interests. There are two major reasons that government today rarely attempts to shut down expression directly: (1) it knows that it cannot, and (2) it knows that it does not have to. Indirect restrictions aimed at one thing (such as tracking potential terrorists) but with the side-effect of limiting speech can achieve censorial goals without offending the First Amendment to a degree likely to generate judicial rejection. Furthermore, censorship done by private parties instead of official actors does not even bring the First Amendment into play.

It is the strained duality between the First Amendment and free expression that is the subject of Samuel Nelson’s thought-provoking book. The First Amendment, Nelson argues, has become an incomplete and inadequate means of protecting free speech, and yet because of its dominance in the discourse of free speech, we have become hamstrung by it, unable to break away and seek a new means of valuing expression in contemporary America. We are confined, Nelson insists, by “a legal and proceduralist focus of debates about speech under the First Amendment framework” (p.3). This confinement, Nelson continues, has led us to a point in which the free flow of information that the First Amendment purports to preserve can easily be compromised.

One pertinent example Nelson provides is the Texas stockbroker who, on his own private time, was also a prominent public advocate against affirmative action. His employer, citing the [*60] company’s code of conduct as justification for its actions, ordered him to curtail his off-the-job political activities, and fired him when he refused. While the First Amendment is the standard means of adjudicating free speech claims, it is inapposite to the behavior of a privately-held corporation claiming a dubious pecuniary relationship between its public image and the unrelated political activities of one employee. That such a problem is not at all rare, and is in fact common to modern free speech disputes, is clear evidence for Nelson that a new paradigm for free speech is in order.

Nelson is, of course, not the first scholar to notice the First Amendment’s limited scope. In a 1986 article, Owen Fiss memorably claimed that the so-called “Free Speech Tradition” of protecting the street-corner speaker against governmental harassment was no longer sufficient to vindicate free speech. Indeed, this stress on speakers’ autonomy had led to the bizarre result of corporations claiming to have the same free speech “rights” as natural persons—and of those claims succeeding. Now, two decades later, the problem Fiss identified has become more acute, and BEYOND THE FIRST AMENDMENT is a broader philosophical investigation of the limitations Fiss exposed. Nelson adroitly demonstrates how a series of traditional explanations for free speech must be adjusted or even abandoned so as to accommodate new realities, especially in an internet age where conflicts about speech can easily transcend the borders of the American First Amendment regime.

The first half of the book is devoted to describing – and dismantling – three strands of thought that are said to justify free speech: libertarianism, expressivism, and egalitarianism. Each of these chapters is an impressive survey of the relevant academic literature on free expression, and taken together, they paint a comprehensive picture of the variegated nature of First Amendment theory. There are isolated times in which Nelson’s categorizations lead to some unwieldy linkages – his “expressivism” is a broad umbrella which covers both Thomas Emerson’s stress on individual self-fulfillment and Alexander Meiklejohn’s focus on democratic decisionmaking, a structure which glosses over the important distinctions between individualistic theories of free speech and communitarian visions – yet these quarrels do not detract from Nelson’s rich and wide-ranging review of the field.

The most important contribution of BEYOND THE FIRST AMENDMENT is its attempt to offer up a new model for understanding and safeguarding free speech. Having laid out his argument for the First Amendment’s contemporary deficiencies, Nelson proposes a new “pluralist” framework that shakes off the strictures of the unitary understandings he has been examining. Grounding his framework in the concept of “speech acts” advanced by John Searle and J.L. Austin and in the moral pluralism (as opposed to interest group pluralism) espoused by Isaiah Berlin and Charles Larmore, Nelson argues for an approach to expression that “denies . . . the [*61] existence of a single principle by which to judge all outcomes” (p.141).

This approach would avoid the awkward gymnastics in which other theorists have had to engage so as to allow their theory to accommodate situations that do not appear to be covered, such as Meiklejohn’s shoehorning art into his theory about speech and self-government by suggesting that exposure to art makes individuals better-formed as democratic citizens. A pluralist approach, by contrast, would dispose of the need to rationalize art into some other value, and would defend art as one of a series of values that are not superior or inferior to one another, but worthy of protection and recognition on their own terms. Speech act theory, by placing expression in broad social contexts such as the speaker-listener relationship and the commonalities of language, “denies a single underlying metric for what counts as speech” (p.147), and thus enables Nelson’s model to take shape.

As a purely philosophical matter, Nelson’s pluralist framework is certainly intriguing. The model must be more than a mere talking point, though, and Nelson wisely endeavors to show how the pluralist framework can be deployed as a means of resolving actual cases. The Supreme Court’s 1989 application of the First Amendment to flag-burning was, to Nelson, nothing more than a rote gesture that failed to account honestly for the legitimate reactions of onlookers. Using a group of veterans reacting to flag-burning protestors at a Memorial Day parade as his counterexample, Nelson shows that, while the traditional First Amendment approach mandates that “the flag-burning speaker is protected, and the audience of veterans has no claim to make,” the pluralist approach instead provides that “both the speaker and the audience have claims to make, and these may be resolved politically” (p.147).

Perhaps one way of describing Nelson’s pluralist framework is to depict it as Stanley Fish with a smile. Fish has famously argued that “free speech” is nothing more than cheap rhetorical cover for pure politics; political actors who seek to advance their agendas need only lay claim to the label of “free speech” and their chances of success increase exponentially. Where Fish was deconstructive, Nelson is constructive. Fish was merely urging a cantankerously candid approach that would recognize this tomfoolery for what it is. Nelson’s pluralist model not only acknowledges, a la Fish, that “nonspeech issues are turned into speech claims for the rhetorical benefits that come along with an invocation of free speech,” but it also enables such claims to be taken off the table entirely as needless distractions, so as to “clear the way for a debate over freedom of speech” (p.156) in the relevant arenas for dispute resolution. Nelson’s model is thus both attitude and method; it allows us to be both Fishian adults about free speech in general and effective arbiters of free speech disputes in particular.

A drawback of this approach, one which Nelson addresses with varying degrees of success, is the elevation of the audience’s interests to the level of a virtual veto. A framework for speech that legitimates the claims of listeners as [*62] legally actionable seems to allow for just as much injury to the concept of freely-flowing information as the monist frameworks Nelson so persuasively disparages. Nelson comments at length on the 2002 libel verdict won in Australia by a mining tycoon who objected to material that appeared in an online version of the American business magazine Barron’s. Ultimately, Nelson concludes that in finding for the mining tycoon, despite the fact that Barron’s has few readers in the southern hemisphere, the Australian court simply took the wrong approach to free speech. Yet it must be noted that this case was resolved in a manner Nelson deems incorrect, notwithstanding the High Court of Australia’s recognition that publishing is “a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension” (DOW JONES & CO. v. GUTNICK, 2002). That the High Court got the result wrong in a Nelsonian sense while seemingly adopting a Nelsonian framework for its analysis is a powerful indicator of the seductive nature of audience-indulgence, and its potential for shutting down speech.

Nelson argues that a properly pluralist approach would “judge speakers by the standards of their own national understanding of freedom of speech or by the standards for speech prevalent in the countries that they see as their primary audience” (p.171), something which the Australian court arguably failed to do. In adopting this position, however, Nelson seems to drift uncomfortably close to the mistakes of American courts that dismiss the audience’s role. Nelson would have resolved the Australian case, for example, by unilaterally writing off an entire section of listeners as functionally irrelevant. The only method of closing the veto-loophole that pluralism opens, it seems, is a solution that at the very least gives courts a power that can be easily abused.

Nelson’s critique of the contemporary First Amendment-centered outlook on freedom of speech also tends to understress an important competing point. It has been argued elsewhere that the First Amendment was designed not as a thumping celebration of speech for its own sake, nor even as an acknowledgement that democracy requires citizens to have access to freely-flowing political information, but instead as a means of preserving American federalism and limiting the power of the national government. Leonard Levy has specifically suggested, for example, that the speech and press clauses were intended to reserve any potential powers of regulation in this area to the states. Akhil Amar has likewise pointed out that modern-day fretting about the stifling nature of a “community standards” approach, while not unwarranted, belies the original tendency of free speech advocates to seek out state legislative and judicial officials for protection against threats to expression coming from Congress.

Any limitations of the First Amendment may thus be a problem not just of theoretical construction, but a problem of the historical perspective from whence the Amendment emerged. Put another way, the First Amendment’s truncated reach is more likely a design [*63] defect, rather than a manufacturing defect. If the First Amendment does a poor job of protecting speech, this is the case not because the Amendment has been clumsily applied and interpreted by two centuries’ worth of constitutional lawyers and judges, but rather because the Amendment was invented for an entirely different purpose. Furthermore, if the Amendment were exclusively about federalism, it seems to have accomplished its mission, which could make Nelson’s plaintive appeal for reform even harder to hear. This is not to apply a triumphalist sheen to the First Amendment; it is simply not sufficient to say that the Amendment has done its intended job of cabining the reach of the federal government and be done with the inquiry. If anything, this merely gets us back to the original problem Nelson identifies, and shows how right he is. Yet Nelson’s argument would be even stronger were he more cognizant of this powerful historical counterweight that serves as added resistance to the reformulation he advocates.

BEYOND THE FIRST AMENDMENT is an intriguing and important contribution to the literature on free speech. While it is likely beyond the grasp of all but the most talented undergraduates, its overview of First Amendment theory is an excellent resource for graduate students beginning to explore the field. For scholars, it is a challenging and provocative work sure to cause us to reassess how we teach and write about the subject.

REFERENCES:

Amar, Akhil Reed, 1998. THE BILL OF RIGHTS. New Haven, CT: Yale University Press.

Austin, J.L., 1962. HOW TO DO THINGS WITH WORDS. Cambridge, MA: Harvard University Press.

Berlin, Isaiah, 1969. FOUR ESSAYS ON LIBERTY. New York: Oxford University Press.

Emerson, Thomas I., 1970. THE SYSTEM OF FREEDOM OF EXPRESSION. New York: Random House.

Fish, Stanley, 1992. THERE’S NO SUCH THING AS FREE SPEECH. Oxford: Oxford University Press.

Fiss, Owen. 1986. “Free Speech and Social Structure,” 71 IOWA LAW REVIEW 1405.

Larmore, Charles, 1996. THE MORALS OF MODERNITY. Cambridge: Cambridge University Press.

Levy, Leonard W., 1999. ORIGINS OF THE BILL OF RIGHTS. New Haven, CT: Yale University Press.

Meiklejohn, Alexander, 1948. FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT. New York: Harper.

Searle, John R., 1969. SPEECH ACTS: AN ESSAY IN THE PHILOSOPHY OF LANGUAGE. Cambridge: Cambridge University Press. [*64]

CASE REFERENCES:

DOW JONES & CO. v. GUTNICK, 2002 AUST HIGHCT LEXIS 61.

TEXAS v. JOHNSON, 491 U.S. 297 (1989).

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