Critics of "Free Speech" and the Uses of the Past
Curtis, Michael K., Constitutional Commentary
The idea of a broadly defined right to free speech is under siege. One attack currently comes from those who see the "liberal" idea of free speech as a threat to equality. The topic is complex and charged with emotion. It surfaces in questions of hate speech, in campus codes that seem to allow punishment even for some political speech not directly aimed at individuals, in discussions of "pornography," and in group libel laws. The issues raised are painful, and the divisions reflect scars left by oppression based on race. and sex. (Curiously, the discussion often ignores issues of class and power.
Some of the critics would return to a test allowing suppression of speech with the "bad tendency" to produce evil results. Others advocate allowing courts to balance the benefits and evils of speech on an ad hoc basis--protecting speech when the judge thinks the benefits of protection in the particular case outweigh the evil done by the speech. Professor Stanley Fish, for example, embraces ad hoc balancing. Professor Catharine MacKinnon likes the bad tendency test and would replace viewpoint neutrality with a test frankly weighted in favor of the "oppressed" and against "oppressors." Professor Mari Matsuda would also abandon neutrality, often allowing blacks to direct hateful speech at whites, but not vice versa. To protect black students from emotional distress she would (it seems) support banning Huckleberry Finn from some classrooms.(1)
This essay will examine these suggestions for basic change in first amendment doctrine in light of history. Since these proposals to restrict the idea of free speech are reactions against current doctrine, I will quickly review some basic free speech doctrine. Then I will look at episodes from the history of freedom of speech, especially at the effort to suppress anti-slavery expression in the years before the Civil War. Finally I will suggest ways that can sometimes be used to transcend current controversies over free speech.
Many advocates of new restrictions on speech based on its ideas or point of view pay little attention to free speech history. As a result, while critics have deepened our understanding by highlighting some of the costs of broad protection for speech that is evil, they have left the benefits of protection and costs of changing it in darkness.
When they ignore free speech history, advocates of restriction have plenty of company. With a few notable exceptions,(2) American legal education has paid too little attention to either the history of liberty or of free speech. In the past powerful interests have sought to limit speech by use of the bad tendency test, by use of ad hoc balancing, by treating political speech as libel, and by demanding protection from emotional distress caused by speech. From the Sedition Act to the crusade against slavery, to the opposition to wars and the draft, elites have advanced such doctrines as justifications for suppression of speech, including political speech.
Because history provides vicarious experience, an examination of the history of suppression should be a part of evaluation of plans to revise free speech. The past cannot solve our present problems, but it can provide expanded experience by which to make practical judgments. It also suggests the need to search for new ways of transcending current battles over free speech.
I. FREE SPEECH DOCTRINE AND ITS HISTORY
A. Free Speech Theory
Free speech doctrine embraces the idea of a public domain where government may not suppress discussion because of the ideas advanced, especially on matters of public concern. Matters of public concern should be broadly understood to include all those ordinary and personal matters as to which people seek to structure or transform their lives. Since social action is a primary method of transformation, protection of speech about social action is a central concern of free speech doctrine. …