Taking Hearers Seriously
Neuborne, Burt, Texas Law Review
Taking Hearers Seriously BRANDISHING THE FIRST AMENDMENT: COMMERCIAL EXPRESSION IN AMERICA. By Tamara R. Piety. Ann Arbor, Michigan: University of Michigan Press, 2012. 342 pages. $70.00.
Once upon a time, vigorous Supreme Court enforcement of an expansive First Amendment was the darling of the American left. For most of the twentieth century, when progressive reformers were certain that they were on the right side of history, the leftviewed free speech as a destabilizing force capable of eroding an oppressive and unequal status quo.2 The possibility of negative fallout generated by an extremely robust First Amendment was deemed by people like me to be a small price to pay for the ability to invoke a robust free speech principle to usher in a better, more equal world.
Unlike the confident left, many mid-twentieth-century American conservatives, battered by the Great Depression of the 1930s, appalled by excesses committed in the name of conservative values by fascist lunatics,3 and confronted by an almost unbroken phalanx of intellectual support for leftist programs, did not look to the future with confidence. Instead of viewing the uncensored exchange of views as a path to inevitable political, economic, and social triumph, many American conservatives viewed uncensored speech as a dangerous invitation to lawlessness and anarchy. The American right's unhappy role in the 1940s and early 1950s in connection with McCarthyism and the successful effort to outlaw the American Communist Party-ranging from enthusiastic leadership and support to tepid acquiescence-illustrates the fear of many mid-twentiethcentury conservatives that uncensored speech and uncontrolled freedom of political association posed an unacceptable risk of radical social and economic change.4
When, in the late 1960s, the Warren Court protected the free speech rights of the Ku Klux Klan in Brandenburg v. Ohio,5 formally rejecting the "bad tendency" test and transforming the Holmes/Brandeis dissents6 into powerful legal doctrine highly protective of controversial speech, the leftbreathed a sigh of relief and awaited its inevitable triumph. The right hunkered down and vowed to fight on the beaches.7 But a couple of unexpected things happened on the First Amendment road to progressive paradise.
First, during the last two decades of the twentieth century, the intellectual core of the left's political agenda imploded, while the right enjoyed a remarkable intellectual renaissance.8 Once the Berlin Wall fell in 1989, the left's political platform, premised on varying degrees of reliance on governmental redistribution of wealth-ranging from Marxism; to European democratic socialism; to the mild egalitarianism of the Kennedys and Lyndon Johnson's "War on Poverty"-ran headlong into an increasing sense that government-even democratic government-performs poorly as the economic or social linchpin of a society. Whether it was the grey tyranny of communism, the horrors of fascist rule, the kleptocratic antics of authoritarian dictators, or the often disheartening bureaucratic ineffectiveness of well-meaning welfare states, many-including many on the left-lost faith in the efficacy and moral legitimacy of a political agenda based on a strong, redistributive government. A generation of conservative intellectuals stepped into the programmatic vacuum, worshiping the market, glorifying individual autonomy, and questioning the role, indeed the very legitimacy, of much government regulation.9 Not surprisingly, many on the left, faced with a newly confident right churning out ideas at a frantic pace, and lacking a coherent alternative political model of their own,10 lost confidence in the inevitability of progressive change. Much leftist programmatic political speech dried up. What survived was a determined-and altogether noble- commitment to eliminating long-entrenched legal and social barriers to equal participation in the society. Since the achievement of such a political agenda actually weakens government by forbidding it from acting in certain discriminatory ways, and almost never asks more of government than negative prohibitions on categories of private discriminatory behavior that are already unpopular enough to be banned by the political majority, the American leftcontinued to deploy a powerful rhetoric of formal equality, even as more ambitious speech about how to achieve real equality disappeared. …