The Sickness Unto Death of the First Amendment

By DeGirolami, Marc O. | Harvard Journal of Law & Public Policy, Summer 2019 | Go to article overview

The Sickness Unto Death of the First Amendment


DeGirolami, Marc O., Harvard Journal of Law & Public Policy


INTRODUCTION  I.   PERIOD ONE: FIRST AMENDMENT NATURAL      RIGHTS AND LIMITS II.  PERIOD TWO: THE TURN INWARD      A. The First Wave of Change: Political Speech's         Preferred Position      B. The Second Wave of Change: The Inward,         Anti-Orthodoxy First Amendment III. PERIOD THREE: THE COMING OF THE      CONSTRICTORS      A. Academic Constrictors      B. Judicial Constrictors IV.  THE UNITY OF SPEECH AND RELIGION CONCLUSION 

Such is the nature of despair, this sickness of the self, this sickness unto death. (1)

INTRODUCTION

The "sickness unto death," in Soren Kierkegaard's work of the same name, is the despair an individual experiences in realizing that the self is separated from God. (2) In perceiving the division of the finite self from the infinite God, and in yearning for a union that is impossible, the individual despairs of his individuality--of his autonomous liberty and detachment from the divine--and strives mightily to reattach the self to something collective, extrinsic, and transcendent. Back to God. (3)

Something like this despair now afflicts the First Amendment in American law and culture. But it was not always so. In the early American Republic, free speech was conceived as a natural right that government ought often to constrain in order to achieve or protect certain collective social goods. Its purposes, as well as its limits, were understood in instrumental, communal, and other-regarding terms. Those purposes and limits assumed that the political community could and should make value judgments among different ideas. The justifications for and limits to free speech were closely aligned with those invoked for religious freedom. Both freedoms were conceived within a larger framework of collective, extrinsic ends.

But beginning in the middle decades of the twentieth century, courts and commentators increasingly justified freedom of speech as enhancing and maximizing individual autonomy. Other earlier justifications and limits steadily receded in prominence. By the late twentieth century, these justifications and limits had largely been supplanted by the view that free speech was intrinsically valuable for human identity and self-actualization.

During this period, the self-regarding rationale for free speech was united with a related prudential consideration that repudiated any state or official orthodoxy as to the value of speech. The new rule was that the government must never make judgments about the substantive worth of speech, and that courts must assiduously guard against communal efforts to set "content-based" limits on the full freedom of speech. (4) In the rhetoric of American law and culture, free speech was, in this period, routinely defended as inherently good for the individual, or even as constitutive of what it means to be American. Some limits remained, but communal political judgments about the value of the content of speech were no longer thought legitimate grounds for legal restriction. "Antiorthodoxy" of all kinds became a watchword of free speech protection. For both principled and prudential reasons, government could never be granted the power to judge the value of speech.

Yet once the right of free speech was understood as a self-regarding and intrinsic end of human fulfillment, very little remained to inform its exercise beyond the caprice of the exerciser. As before, the prevailing legal conception of the right of free speech was united with that of the right of freedom of religion during this period: solipsistic, personalized, changeable, deracinated from any common purposes and traditions, and often unchallengeable inasmuch as there were no acceptable, extrinsic criteria for doing so--and certainly none with which the political community could be trusted. Within this framework, the scope of free speech as well as religious liberty rights greatly expanded. The last hundred years represent, as one recent book reports, "The Free Speech Century," (5) and the right of religious freedom also enjoyed enormous growth. …

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