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 First Amendment is designed to secure cultural democracy as well as political democracy. A central purpose of freedom of expression is to guarantee the right of individuals and groups to participate in culture and influence each other. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.
Most First Amendment theories focus either on protecting individual liberty or promoting democracy. The theory of democratic culture grounds freedom of expression in both liberty and democracy. The right to participate in culture is a civil as well as a political freedom.
A cultural approach is superior to a purely democracy-based approach for three reasons.
First, a cultural account offers a stronger and more convincing account of why a great deal of expression that seems to have little to do with political self-government, including popular art, non-representational art and instrumental music, enjoys full First Amendment protection.
Second, democracy-based theories argue that free speech is valuable because it legitimates the power of the nation state. But in the age of the Internet, public discourse easily overflows national borders. Opinions, ideas, and art circulate internationally, as does cultural power. Cultural freedom means that people must be able to participate in the circulation of opinions, ideas, and artistic expression not only within a single nation state, but potentially throughout the world.
Third, a cultural account has important consequences for how governments design and regulate digital telecommunications architectures. A truly democratic culture presupposes a certain kind of communications architecture, one that facilitates the growth, spread and circulation of public discourse, not merely within the borders of a country, but beyond it.
Democracy-based accounts value public discourse because it benefits self-government within a single country. Hence their focus is inevitably parochial. By contrast, cultural democracy demands that states consider the value of global exchanges of ideas and opinions and the health of the global system of telecommunications. These issues have become increasingly important as nation-states try to regulate and deform Internet architectures to further national concerns and bolster national authority.