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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Matrix: Democracy and Free Expression (in Three Dimensions)
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Tuesday, January 19, 2010
The Matrix: Democracy and Free Expression (in Three Dimensions)
Guest Blogger Stephen M. Feldman Does democracy require the protection of free expression? Ever since Alexander Meiklejohn published Free Speech: And its Relation to Self-Government in 1948, a steady stream of jurists, constitutional scholars, and political theorists have reiterated the maxim that free expression is a precondition for democracy. The people must be able to discuss political issues openly, without fear of governmental punishment, or democracy cannot exist. Yet, throughout American history, numerous presidents, congressional members, Supreme Court justices, and state and local officials have endorsed suppression, particularly of political speech and writing. If the connection between free expression and democracy were so obvious, so necessary, why would so many governmental leaders act in such a manner? Consider flag desecration. In 1904, Nebraska convicted Nicholas Halter and Harry Hayward for violating a state statute proscribing desecration; they had sold bottled beer affixed with labels bearing the American flag. Although the defendants argued that the law violated their constitutional right to “personal liberty,” encompassing free expression, the U.S. Supreme Court upheld the convictions in Halter v. Nebraska, decided in 1907. The Court emphasized the expressive nature of the flag: “[T]o every true American the flag is the symbol of the nation’s power,—the emblem of freedom in its truest, best sense.” Exactly for that reason, Nebraska had enacted its law, which resembled those in two-thirds of the then-45 states. The state statute, the Court reasoned, promoted the common good by nurturing patriotism. “[A] duty rests upon each state … to encourage its people to love the Union with which the state is indissolubly connected.” But in 1989, the Supreme Court concluded contrariwise. Texas v. Johnson held that the state violated the first amendment when it convicted Gregory Johnson for burning an American flag in political protest during the 1984 Republican National Convention. Like in Halter, the Court emphasized the expressive quality of the flag. Also, like in Halter, the Court recognized that the state enacted the law precisely because of the flag’s symbolism: the state argued that the anti-desecration statute would further its “interest in preserving the flag as a symbol of nationhood and national unity.” In Johnson, though, the Court found this very purpose problematic: the government’s desire to promote patriotism by protecting an emblem, the flag, could not withstand first-amendment scrutiny. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” What can explain these seemingly inconsistent cases? Did the Halter justices betray our hallowed principle of free expression?—even though the majority included Oliver Wendell Holmes, Jr., renowned as perhaps the greatest Supreme Court guardian of free expression in history. Did the Johnson justices sully our flag and debase the value of patriotism?—even though the majority included Antonin Scalia, one of our most conservative justices. Free Expression and Democracy in America: A History (University of Chicago Press, 2008) answers these questions. The free expression of the early-twentieth century, when the Court decided Halter, differed from that of the late-twentieth century, when the Court decided Johnson. And at the root of this change in free expression lay democracy. As Meiklejohn and other first-amendment theorists have posited, free expression and democracy are integrally bound together. American democracy, however, has not remained static. During the 1920s and 1930s, cultural, social, and economic pressures caused the nation to transform from a republican democracy into a pluralist democracy. Under the republican regime, virtuous citizens and officials ostensibly pursued the common good. Free expression therefore always remained subordinate to the overarching communal goal of the common good—as Halter suggested. Under the pluralist regime, democratic processes structured supposedly fair and open political battles in which citizens sought to satisfy self-interest. Free expression became a crucial component of the pluralist processes and thus developed into a constitutional “lodestar”—as Johnson emphasized. Many scholars equate free expression with the first-amendment legal doctrine emanating from the Supreme Court. If the Court pronounces that the government cannot punish political speech unless necessary to achieve a compelling purpose, then the court, it appears, affords free speech an importance commensurate with the highest pantheon of constitutional rights. But Supreme Court legal doctrine tells only part of the story of free expression in the United States. Other institutions, particularly Congress, contribute to the formation and interpretation of legal doctrine. Equally important, one must go beyond legal doctrine, regardless of its sources, to appreciate the relevance of two competing traditions: dissent and suppression. The tradition of dissent recognizes an American ethos of speaking one’s mind without fear of punishment. In the politically turbulent 1790s, the courts had not yet developed strong doctrinal protections for expression, but Americans generally enjoyed a robust de facto liberty. Yet, alongside this American tradition of dissent, a countervailing tradition of suppression has always remained powerful. Whereas many Americans have reasonably expected to speak their minds without penalty, many (and often the same) Americans have simultaneously suppressed political outsiders, whether based on race, religion, or otherwise. Both traditions can be manifested officially—through a congressional statute, for instance—or unofficially—through nongovernmental actors. Mob violence, tar-and-feathering, and chasing outsiders from town have been common means for unofficially suppressing those who diverged too far from the mainstream. During the regime of republican democracy, legal doctrine harmonized more closely with the tradition of suppression, while during the pluralist regime, doctrine has shifted closer to the tradition of dissent. Even so, both traditions have persisted throughout the course of American history and have contributed to the experience and understanding of free expression. One might envision legal doctrine, the tradition of dissent, and the tradition of suppression as three intersecting axes that together determine the degree of free expression at any particular time in history. Each axis represents a variable that specifies a component of free speech and writing. Consequently, for the year 1800, one can discuss the courts’ doctrinal approaches to free expression, how strongly Americans manifested the tradition of dissent, and how strongly they manifested the tradition of suppression. The same could be done for 1850, for 1950, or for any other year (or for various eras). The three axes together provide a relatively complete picture of free expression. Despite this mathematical metaphor, though, I do not propose to identify in Free Expression and Democracy in America: A History a precise ‘quantity’ of free expression for any point in time, as if one merely needed to identify the proper coordinates on a graph. Instead, I depict with something akin to a three-dimensional picture the American experience and understanding of free expression during different historical periods. Legal doctrine is important here, but it is not everything. Doctrine, dissent, and suppression are not independent of each other. Intense governmental suppression implemented through statutory laws might, for example, spark strong dissent. Likewise, expressions of dissent sometimes provoke in reaction both official and unofficial suppression. And judicial applications of apparently well-established legal doctrines can vary in accordance with the current magnitudes of the competing traditions. If, at a particular time, public opinion strongly supports suppression, then the Supreme Court justices will probably uphold governmental acts punishing unpopular speech and writing. Much depends on the contemporary political and cultural alignments. In recent years, we commonly hear talk of the “culture wars,” but American culture wars are as old as the nation itself. Cultural battles, played out on the shifting fields of democracy, have been endemic to American history. During the framing era, Americans constructed republican democratic governments grounded on the assumed existence of a common good for a homogeneous people. But how did these Americans maintain homogeneity? By excluding other Americans from belonging to and participating in the polity. Yet, early outsiders—including women, indigents, African Americans, and Native Americans—and new ones in subsequent eras, have fought to expand the political community so that they too might belong. During many of those battles, free expression has been a tool, sometimes a sword and sometimes a shield, as individuals and groups maneuvered for advantage. In the crucible of these cultural and political clashes, often literally fought to the death, Americans have forged democracy and free expression. Most important, doctrine, dissent, and suppression all interrelate not only with each other but also with democracy. In the courts, for instance, republican democracy engendered a methodology of judicial review: courts ensured that governmental actions promoted the common good rather than partial or private interests. Following from this general methodology, specific legal doctrines governing free-expression issues subordinated speech and writing to the pursuit of the common good. The transition from republican to pluralist democracy, however, generated a concomitant change in judicial review. Instead of emphasizing a supposed distinction between the common good and partial or private interests, courts typically sought to police the functioning of pluralist democratic processes. Consequently, as a crucial component of those pluralist processes, free expression transmuted into a preeminent constitutional right. Yet, regardless of the niceties of legal doctrine—whether under republican or pluralist democracy—Americans have manifested the countervailing traditions of dissent and suppression. To take one illustration, during the pre-Civil War nineteenth century, elite white Southerners relied on republican democratic principles to justify both slavery and the suppression of abolitionist speech and writing. These white Southerners insisted that African Americans lacked the virtue requisite for liberty and free government and that abolitionist expression therefore contravened the common good. In response, abolitionists consistently proclaimed a traditional liberty to speak their minds, especially on an issue so central to free (republican) government. In the slavery-abolition battle as well as in other disputes through American history, democracy provides the fundamental context for understanding the intertwined operations of doctrine, dissent, and suppression. Posted 3:35 PM by Guest Blogger [link]
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Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. 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Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |