Reply to Critics
Shiffrin, Seana Valentine, Constitutional Commentary
I am grateful for the thoughtful and challenging responses of the group members and pleased to have the opportunity to elaborate upon the thinker-based approach in reply. I wish Ed Baker were still here to continue the conversation alongside. Unfortunately, my remarks will be tentative, speculative, and most regrettably, partial. The excellent issues and questions posed by the commentators deserve a longer and more detailed treatment than time and space allow.
Broadly speaking, the responses fall into four categories, raising methodological issues, questions about scope, worries about under-inclusivity, and worries about over-breadth. I will address them only roughly in turn, because, given overlap, a strict separation would prove too rigid.
METHODOLOGY AND SCOPE
Vince, Steve, Tim, Jim and Susan posed a number of pertinent questions about the methodology operating in the backdrop of my proposed approach, its scope, and the theoretical advantages I associate with it.
My general approach is to start with the First Amendment and to ask what arguments for freedom of speech would make the most justificatory sense of its inclusion and its deontological status in a legitimate constitution. My short answer is that a legitimate, operative democracy both presupposes its citizens are functional thinkers and moral agents and, further, must treat them as such to respect their human rights. To respect the status and significance of its citizens qua thinkers, the state cannot retain its legitimacy while undermining the conditions necessary for the development and exercise of each member's capacities for free thought. Instead, Riven the significance of these capacities to each individual and to our joint social project of to cooperate and self-legislate justly, it must make the protection of those conditions a foundational priority. A freedom of speech protection is essential to that mission.
This immediately raises the question of scope and limits. Jim asks, why, then, would there be a state action requirement in the First Amendment? That is, why wouldn't the thinker-based theory condemn all limitations on the freedom of thought, whether the source of the limitations was the state or a private entity? In a complementary way, Tim might be read as asking, why wouldn't such an approach suggest requirements of positive provision--to establish schools and libraries, e.g., rather than merely to refrain from abridgment? Generally, mightn't what falls under a freedom of thought approach exceed what is typically thought of as protected under a freedom of speech rubric?
It is, in my view, a strength of the theory that it helps to explain what state abridgments of free speech have in common with private and social abridgments. (1) It also seems like a strength that the theory can explain the continuity between the idea that a commitment to freedom of speech may require governmental abstinence from active obstructing disfavored speech and the related idea that this commitment may demand certain positive provisions by the government, including but not necessarily limited to protection against hecklers and other forms of attempted private censorship, as well as provisions to ensure fair access to public fora for expression. (2)
Let me start with Tim's question about the relationship between freedom of speech and freedom of thought. Tim's suspicion that there are aspects of freedom of thought that may not be well-captured or well-protected fully by a 'freedom of speech' protection may be correct. Although, for the most part, I think the connection is fairly close. In any case, as I will later argue (not that I take Tim to disagree), it is not a theoretical defect if a freedom of thought protection ranges beyond a strictly construed free speech protection.
Three points may clarify my view of the connection between freedom of thought and freedom of speech: First (for most people in most circumstances over an extended period of time), (3) freedom of thought cannot be achieved on one's own, solely within the confines of one's mind, because (complex) thought itself requires, for its development and refinement, access to others' thoughts and opportunities for the externalization of thoughts to oneself and to others. …