New Report Shows Links Between Public Opinion and Free Speech Protections

JB

Over time public support for free speech helps buttress — or undermine — existing legal protections. Public support for free speech tends to be strongest for speech that clearly promotes an informed citizenry and democratic self-governance. However, the public tends to have less tolerance for offensive speech and speech that it regards as extremist, particularly when it fails to see a connection to democracy.

The public is also much less protective of media rights than individual rights. That makes it less likely that the high court will rule for news organizations in First Amendment cases than it would in an environment of high public respect for the news media.

The study points to a wide range of mechanisms by which public opinion affects judicial decisions, ranging from the appointments process — which shifts the median or “swing” Justice on the Supreme Court — to the fact that judges and Justices live in the same culture as everyone else. These effects may often be indirect, but over time they may matter a great deal.

“We are now engaged in a really vital debate over civil liberties after 9/11, and it becomes ever more important for the public to show its support for our basic freedoms,” said [ISP Director Jack M.] Balkin, “It’s a time of challenge but also a time of opportunity. Courts can’t do everything by themselves, nor should we expect them to. If the public rises to the occasion and supports freedom of speech when it is threatened, the judiciary will be far more likely to protect this core freedom.”

What is needed, the study says, are larger efforts to educate the public about the First Amendment. It proposes a model for educating students and the public on First Amendment issues, focusing on how free speech and a free press advance democracy and serve the public interest. The model education program should also educate the public about the difference between using social norms and social disapproval to regulate speech, and using the power of the state in the form of fines and criminal penalties.

The best way to learn about freedom of speech, the study argues, is by doing. Individuals are more likely to support the sort of speech in which they themselves engage or could imagine engaging. Thus the study suggests that schools create programs that allow students to practice journalism and political expression, using new technologies such as blogs and podcasts.

Even marginal improvements in public education may have important long term effects on public support for the First Amendment, the study concludes. Research suggests that the better educated individuals are, the more tolerant they are of even offensive and indecent speech, and the more willing they are to protect routine journalistic practices.