Deliberative Autonomy and Legitimate State Purpose under the First Amendment
Bagchi, Aditi, Albany Law Review
The right to free speech is usually thought of as rooted in the autonomy of the speaker: An autonomous individual may speak freely and the state may not stop her. Some commentators have found such an autonomy-based view of our free speech rights abstract and divisive. Turning instead to the interests of the audience, they start with our commitment to democracy and regard the right to free speech as instrumental to our democratic interest in open public dialogue. (1) I argue here that free speech law does--and should--revolve around an alternative organizing principle: the autonomy of the listener.
The particular conception of autonomy I advance here is deliberative autonomy. Deliberative autonomy looks to the purposes of state regulation and asks whether they are consistent with the liberal conception of the person that underlies the constitution. In the context of free speech, deliberative autonomy precludes the government from denying citizens access to others' speech based on presumptions about how listeners will react. This point is especially important today, when it is tempting to shut down the speech of fundamentalists who do not believe in the constitutional rights that would protect them. (2) The reason that the United States government may not prevent such individuals from proclaiming the evils of a religion, a society, or a nation lies neither in their right to express hatred nor in the public interest in hearing or 'airing' such hatred. Rather, the government must allow speakers to express disdainful and even indirectly dangerous views because to disallow speech out of fear that the speech will be persuasive violates the deliberative autonomy of those whom censorship aims to protect.
Deliberative autonomy is deliberative not in the general sense that government should not interfere with deliberation, but in the more specific sense that the government may not act in a manner that denies our capacity to reason and deliberate. (3) As a consequence of its nature as a demand for recognition, in the first instance, deliberative autonomy constrains state purpose. State purpose is not identical with the reasons that a government gives a court; it must be inferred from the social meaning of the state's justifications.
I begin in Part I by developing the concept of deliberative autonomy and contrasting it with alternative conceptions of autonomy that have been proposed under the First Amendment. In Part II, I show how deliberative autonomy already manifests itself in free speech doctrine. Part III explores the relationship between deliberative autonomy and democracy, and argues that, contrary to theories that treat autonomy as merely instrumental for democracy, autonomy motivates democracy and is in that sense prior to it. In Part IV, I defend the focus on state purpose and advocate the interpretation of state purpose by way of social meaning. State purpose is essential to a number of constitutional doctrines, including free speech, but the interests of autonomy are best served where, for historical reasons, the Court is most sensitive to the social meaning of state action. Part V responds to two frequent challenges to autonomy-based theories of the First Amendment, by showing how, because deliberative autonomy is only a regulative principle, (4) it depends neither on empirical conditions nor on a holistic moral philosophy. Finally, in Part VI, I discuss how the application of the principle of deliberative autonomy can place negative and positive burdens on the state.
I. THE CONCEPT OF DELIBERATIVE AUTONOMY
Joel Feinberg identified four types of autonomy: first, "the capacity to govern oneself"; second, "actual condition[s] of self-government"; third, "an ideal of character"; and fourth, "sovereign authority." (5) An authority conception of autonomy may derive from a view about our capacities and virtues, but as a principle, it asserts a kind of jurisdictional right of persons over certain aspects of themselves. …