an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Matrix: Democracy and Free Expression (in Three Dimensions)
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.