Redish on Freedom of Speech

Article excerpt

ABSTRACT-My contribution to this Festschriftfor Marty Redish looks at two of his most important articles on freedom of speech, both published in 1982. One article deals with free speech and advocacy of crime, while the other presents Marty's general justificatory theory of freedom of speech. Although I agree and disagree with various parts of Marty's analysis in the former, I am unpersuaded that Marty's general theory can succeed either positively or normatively. Marty Redish is an important scholar in several domains, displaying enviable versatility as well as depth. Although he is perhaps the leading contemporary expositor of the law of federal jurisdiction, he is almost as important a figure in the vastly more crowded field in which his and my scholarship overlap. Redish on Freedom of Speech is my modest contribution to this richly deserved Festschrift.

I. REDISH ON FREEDOM OF SPEECH: THE BASIC POSITIONS

Marty Redish has written many articles and books on the topic of freedom of speech, but I believe his most important contributions to the topic were two contemporaneous articles that were published thirty years ago. In The Value of Free Speech,1 published in the University of Pennsylvania Law Review, Redish sets forth his view of the basic justifying theory of the Free Speech Clause of the First Amendment. And in Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger,2 published in the California Law Review, Redish recounts the history of the treatment of illegal advocacy under the First Amendment from Schenck v. United States3 to Brandenburg v. Ohio4 and offers his own view on what that treatment should be.

In the Pennsylvania Law Review article, Redish argues that the basic value underlying freedom of speech is that of individual self-realization.5 It is the value that best explains First Amendment doctrine and best justifies the existence of that doctrine. According to Redish, all the values offered as alternatives to self-realization, such as democratic decisionmaking, ultimately derive from individual self-realization and thus presuppose it.6 For example, the value of a democratic system of government rests ultimately on democracy's contribution to individual self-realization, both intrinsically in allowing individuals to control their destinies and instrumentally in developing human faculties that themselves further self-realization. Or so Redish argues.7

In the California Law Review article, Redish examines the important and historically significant corner of free speech doctrine dealing with advocacy of illegal conduct. As can be ascertained from the article's title, Redish endorses the clear and present danger test,8 though not necessarily as it was first elaborated in Schenck9 or later elaborated in Brandenburg.10 For example, Redish rejects the implication in Brandenburg that the speaker must intend the illegal conduct that his words advocate to be validly convicted despite a First Amendment plea in his defense.11 On the other hand, Redish would allow the speaker's conviction only if his words directly, as opposed to indirectly, advocate the illegal conduct, which may or may not be consistent with Brandenburg.12 (I would argue that such a requirement is not a fair implication of Brandenburg.)13

I do not believe Redish succeeds in making his case in either article. Because the article on illegal advocacy is a more localized failure, I shall take it up first.

II. THE DILEMMA OF ADVOCACY OF ILLEGAL CONDUCT

There are three approaches the law might take to speech that could stir an audience to commit crimes. First, the law could focus exclusively on the audience, punishing it and only it for any crimes or attempted crimes it commits as a result of having been stirred to do so by the speaker's words.

Second, the law might attempt, through either the threat of punishment or outright muzzling, to prevent the speaker from uttering the words (or employing other symbols) that might stir the audience to illegality. …