Balkinization  

Sunday, May 12, 2013

Northwestern Symposium on Martin Redish

Andrew Koppelman

My Northwestern Law colleague and friend Martin Redish has been hugely influential in the free speech area.  His work has been cited by the Supreme Court a number of times, and he is probably more influential than any other scholar in transforming the Court’s approach to commercial speech and campaign finance.

The Northwestern Law Review has just published a festschrift on his work, celebrating forty years on our faculty.  It includes contributions by James Pfander, Richard Freer, Richard Marcus, Linda Mullenix, Jay Tidmarsh, Larry Alexander, Corey Brettschneider, myself, Eugene Volokh, Andrea Matwyshyn, Richard Fallon, William Marshall, Howard Wasserman, Matthew Arnould, Andrew Gavil and Christopher Yoo.

Marty and I have longstanding disagreements about free speech theory, which we worked on during a seminar we co-taught a couple of years ago.  During that semester, I wrote a paper which became my contribution to the festschrift, and which will probably end up being part of a book on free speech theory and obscenity law (so comments are very welcome).  The article is called “Veil of Ignorance: Tunnel Constructivism in Free Speech Theory.  Here is the abstract:

Modern free speech theory is dominated, in the courts and the academy alike, by a style of reasoning that posits a few axiomatic purposes of speech and from these deduces detailed rules of law.  This way of thinking can make the law blind to the actual consequences of legal rules, and damage both individual liberty and democracy.  I develop this claim through a critique of the work of Martin Redish, who has developed the most sustained and sophisticated constructivist theory of free speech.

Free speech constructivism is not the only way to understand the First Amendment. It is a fairly recent development, emerging only in the 1970s.  The idea of free speech, on the other hand, dates back to Milton’s arguments in the 1640s.  This article identifies the pathologies of constructivism, and recovers an older and more attractive free speech tradition.


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