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Negative Liberty and What the First Amendment Ought to Be

Cross posted from Marvin Ammori's post at Concurring Opinions.

Two days ago, I posted about a law review article I’m presenting next Friday at a symposium. The symposium is dedicated to “First Amendment Challenges in the Digital Age.” Danielle was generous enough to host a little blog-athon about the topic and invite me and some of our friends. (If I may speak for Marc, Tim, Brett, Greg, and Zephyr on one thing: thank you Danielle! And thank you Concurring Opinions.)

I planned to write a few “readable” posts about the article I’m presenting. This is the first.

I’ll begin with a few basics obvious to most CoOp readers but maybe not to everyone. The First Amendment of the Constitution forbids government from abridging the freedom of speech. Because no law passed by Congress can violate the Constitution, courts will not enforce government acts (state or federal, legislative or executive) that abridge the freedom of speech.

But the term “freedom of speech” is pretty vague, as is the word “speech” itself—for example, silent flag burning is protected speech but verbal death threats are not. Because the Constitution is vague on this point, courts have developed something of a common law to interpret the First Amendment and have erected complex doctrines, exceptions, tests, and standards of scrutiny. Scholars or lawyers then review that common law and, for both practical and theoretical reasons, will debate which underlying principles animate that common law.

My article’s core argument is that the First Amendment precedent reflects (and, in fact, should reflect) an important, but overlooked, substantive commitment to ensuring that Americans have adequate physical and virtual spaces available for speech, particularly for public discourse.

This argument, however, conflicts with a widely held assumption. Academics and other lawyers often assume that First Amendment precedent reflects a core negative-liberty principle. “Negative” liberty refers to a freedom “from” government interference, a “hands-off” approach for speech, not a freedom “to” particular substantive outcomes. (For evidence that the First Amendment is generally believed to reflect a negative liberty, see page 9 and its notes.)

If the central principle of the First Amendment is promoting negative liberty, then government must stay out of “speech,” and should not regulate, for example, campaign finance, or the “speech” transmitted by large media conglomerates and telecommunications companies.

But, you might believe that, as a matter of fact, keeping government “out” of the speech market will only ensure that a few powerful speakers have access to the avenues of speech while closing out many other speakers. You might believe, as a matter of principle, that government should be able to intervene in the speech market to open additional avenues of speech for all citizens, particularly if those citizens support such intervention. But a negative-liberty model of the First Amendment would consider such intervention problematic: the government should keep its hands off of speech, even when promoting speech opportunities.

Stick with me for a moment. You decide you’d like to convince others that the First Amendment should be concerned with ensuring that all Americans have access to plentiful spaces to engage in speech. You think the Constitution should permit—and sometimes even require—governments affirmatively to ensure spaces remain open for speech. You recognize that the right to freedom of speech would be meaningless without some place to exercise it. You noticed the importance of speech spaces, not only from the Arab Spring’s Tahrir Square and Occupy Wall Street’s Zuccotti Park, but also from the use of digital spaces to connect protesters and revolutionaries around the world, from Tunisia to Silicon Valley.

So, to convince others, you make an “ought” argument. You argue that the First Amendment ought to be concerned with more than mere negative liberty. It ought to be concerned with substantive outcomes, such as whether there are actually sufficient spaces for American public discourse, whether all Americans have access to those spaces, whether those spaces support diverse speakers, and so on.

You can expect counterargument of course, particularly from those adhering to the negative-liberty model.

The usual counter-argument is a polite version of telling you that you live in a fantasy land. Whatever the merit of your arguments, they conflict with the “core principles” of our “venerable First Amendment tradition.” Our First Amendment common law points towards a negative-liberty model. Whatever you may think the First Amendment “ought” to be, the First Amendment “is” a negative liberty. (See pages 13-15).

A slightly modified version of this counter-argument engages in normative analysis, evaluating your claim. When economists engage in normative analysis, they might apply norms like efficiency or cost-savings. Free-speech scholars generally apply norms derived from our venerable speech tradition. These norms all tend to point towards negative-liberty—government distrust, nondiscrimination, no re-allocation of speech resources, etc. The analysis will include sentences like, “But your argument conflicts with the First Amendment’s commitment to nondiscrimination.”

So, essentially, applying these norms in the normative analysis is just a sophisticated way of saying: you lose because the First Amendment is committed to negative-liberty.

Your argument about what the First Amendment ought to be fails because of what the First Amendment is. Rejecting an ought argument based on an is reflects a well-known argument fallacy (the is-ought fallacy).

More importantly, the First Amendment is not in fact a model of negative-liberty. The First Amendment’s precedent actually reflects a deep commitment to ensuring adequate spaces for Americans to speak. Once we demonstrate that point, we can argue that the First Amendment ought to have that commitment to ensuring the same kinds of physical and digital speech spaces that sparked a democratic “Spring” in historically closed societies.

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