• How Should We Think About Free Speech?

    by  • October 18, 2010 • Scholarship • 0 Comments

    Constitution Day Address: 
    “How Should We Think About Free Speech?
    Justice Holmes, Justice Brandeis, and the First Amendment”

    — Steven J. Heyman

    Professor Heyman gave the following talk at Chicago-Kent College of Law, Illinois Institute of Technology, on September 16, 2010 in observance of Constitution Day. The talk is based on an article entitled “The Dark Side of the Force:  The Legacy of Justice Holmes for First Amendment Jurisprudence”, which will be published next year in volume 19 of the William and Mary Bill of Rights Journal.  © Copyright 2010 by Steven J. Heyman.

    Thank you all for coming this afternoon.  It’s an honor to take part in this observance of Constitution Day. I suppose that everyone has a favorite part of the Constitution.  In my case, it’s the First Amendment, which guarantees the freedom of speech and press.  Everyone would agree that those freedoms lie at the heart of our constitutional order.  But it seems to me that there is something deeply conflicted, and even schizophrenic, about our understanding of those freedoms.  On one hand, free speech is said to promote important values like individual autonomy, democratic self-government, and the search for truth.  And its easy to think of First Amendment decisions that represent important victories for those values.  Some cases that come to mind are West Virginia Board of Education v. Barnette,[1] which held that individuals could not be forced to salute the flag, and New York Times v. Sullivan,[2] which established a broad right to criticize public officials.  But on the other hand, there are some major First Amendment decisions that to me at least seem appalling.  One example is R.A.V.  v. City of St. Paul,[3] which struck down a ban on cross-burning in front of someone’s house.  Another example is Florida Star v. B.J.F., which held that states could not protect the privacy of rape victims by telling the press not to publish their names. 

    So I think that our First Amendment jurisprudence has a kind of Jekyll-and-Hyde quality.  This afternoon, I’d like to explore where this quality comes from.  I’m going to argue is that our free speech tradition actually consists of two very different strands.  One is a liberal humanist view that emphasizes the positive values that are promoted by free speech.  The other is a darker view that is rooted in the jurisprudence of Justice Oliver Wendell Holmes.  According to Holmes, free speech is just another form of the struggle for power between different social groups.  For the liberal humanist view, free speech is rooted in the capacity for reason, which is the basis of human freedom and dignity.  For Holmes, on the other hand, free speech is ultimately a matter of force:  the main function of speech is to determine what the dominant part of the society wants. 

    I’d like to take a few minutes to sketch these two conceptions of the First Amendment.  Then I want to criticize Holmes’s view and explain why I find it deeply problematic.  Finally, I want to say a word about what liberals can learn from Holmes. 

    I. The Liberal Humanist Strand

    So let me begin with the liberal humanist approach.[4]  This view has its roots in Lockean natural rights theory, which had a deep influence on the Constitution, the Bill of Rights, and the Fourteenth Amendment.  According to this theory, individuals are naturally free, because they have the capacity to think for themselves and to direct their actions in accord with reason.  When individuals enter into society, they give up some of their liberty to be regulated for the public good.  But they don’t give up the ability to think for themselves, or to express their beliefs and sentiments to others.  So on this view freedom of speech and thought are inalienable rights which are beyond the regulatory power of the state. 

    Free speech also has an important political function.  According to social contract theory, all political power is originally vested in the community as a whole.  The people then adopt a constitution which grants certain powers to the government.  At the same time, though, the people retain the ability to oversee the conduct of public affairs, in order to ensure that the government uses its power for the common good.  The way in which the people monitor the government is through freedom of speech and press. 

    On the classical liberal view, there is also a third basis for freedom of expression.  The interests of individuals are not limited to their material welfare.  They are also intelligent beings who have an inherent right to pursue the truth as they see it.  So in this way free speech has an important intellectual and spiritual dimension. 

    Nowadays, we don’t usually talk in terms of natural rights and the social contract.  Nevertheless, the classical liberal view has had a lot of staying power.  It’s fair to say that it still provides the basic framework for the liberal humanist view of free expression.  In modern times, this view is best expressed in the opinions of Justice Louis Brandeis, who sat on the Supreme Court at the same time as Holmes.  In a 1927 case called Whitney v. California, Brandeis articulated a powerful vision of the First Amendment.  “Those who won our independence,” he wrote,

    believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary.  They valued liberty both as an end and as a means.  They believed liberty to be the secret of happiness and courage to be the secret of liberty.  They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. . . .  Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form.  Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.[5]

     In this passage, Brandeis advances two major justifications for freedom of speech and thought.  First, he asserts that individual liberty is “an end” in itself because it “makes [us] free to develop their faculties.”  These faculties include “reason” as well as “thought, hope, and imagination.”  Second, Brandeis argues that freedom of speech is essential in a democratic society where the people govern themselves.  Citizens have a right as well as a duty to take part in public discussion, and this freedom is “indispensable to the discovery and spread of political truth.” 

    In this way, Brandeis understands the First Amendment in terms of the positive values that it promotes.  Those values are individual liberty and democratic self-government.  Almost half a century later, in Cohen v. California, the second Justice John Marshall Harlan echoed Brandeis’s argument when he wrote that the Constitution protects freedom of expression

    in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.[6]

    II. The Holmesian Strand

    Now let me turn to Justice Holmes.  In many ways, his position is diametrically opposed to the liberal humanist view that I’ve just sketched.  Thus, Holmes is famous for pouring scorn on concepts like natural rights and human dignity.  A good example can be found in a letter that he wrote in 1926 to his friend John Wu, who was a neo-Kantian legal theorist.  In that letter, Holmes said:

    I don’t believe that * * * man always is an end in himself—that his dignity must be respected, etc.   We march up a conscript with bayonets behind to die for a cause he doesn’t believe in. And I feel no scruples about it. Our morality seems to me only a check on the ultimate domination of force, just as our politeness is a check on the impulse of every pig to put his feet in the trough. * * *  So [likewise] when it comes to the development of a [body of law,] the ultimate question is what do the dominant forces of the community want and do they want it hard enough to disregard whatever inhibitions may stand in the way.[7]

    If you take this view of the law, then it’s hard to see how there could be a strong justification for freedom of speech.  And for a long time, Holmes didn’t think that there was one.  Instead, he took the position that free speech was no different than any other form of liberty, and that it could be restricted whenever it had a tendency to harm other social interests.  This was the basic meaning of the clear-and-present-danger test as it was first articulated by Holmes in the 1919 case of Schenck v. United States.[8]

    Over the course of that year, Holmes spent a good deal of time speaking and corresponding with some leading civil libertarians, including his friend Harold Laski, Professor Zechariah Chafee of Harvard Law School, and Judge Learned Hand, who wrote a pioneering opinion about freedom of speech.  As a result of their influence and his own reading, Holmes’s views on the First Amendment changed dramatically.  By the fall, when he wrote his great dissenting opinion in Abrams v. United States, Holmes had become a strong defender of free speech.  But that doesn’t mean that he adopts the classical liberal view.  In Abrams, Holmes doesn’t say that free speech is an inherent right of individuals, or that it is essential to democratic self-government.  Instead, he takes a very different approach.  Here is the key language: 

    [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.[9]

    Holmes’s reference to “fighting faiths” reflects his complex attitude toward idealism.  On one hand, Holmes thinks that we’re all idealists — we’re all “fighting to make the kind of a world that we should like.”[10]  But on the other hand, he believes that our ideals are essentially arbitrary and have no rational foundation.  Moreover, he thinks that idealism leads people to persecute those who disagree with them.  It is only when people become skeptical about their own ideals that they can resist the natural tendency to impose their views by law and “sweep away all opposition.”[11]

    So instead of presenting an idealistic account of free speech, Holmes gives a very different account.  According to this view, “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”[12]  As market actors, people pursue their own good.  So the ideas that prevail in the market will be the ones that are most successful in promoting that good.  Holmes suggests that just as economic competition promotes social welfare, so does competition in the marketplace of ideas.

    Up to this point, it might seem that Holmes believes that “free trade in ideas” will promote the good of the community as a whole.  But as Holmes makes clear in one of his earliest writings — his law review note on the Gas-Stokers’ Strike — there is no such thing as a common good or an “identity of interest” within the community.[13]  Instead, the society consists of different groups with conflicting interests.  If that is true, then the ideas that prevail in the market will be those that promote the interests of the most powerful part of the society.  And that is exactly what he says in the 1925 case of Gitlow v. New York[14]:  if an idea like proletarian dictatorship is “destined to be accepted by the dominant forces of the community, the only meaning of free speech is that [it] should be given [its] chance and have [its] way.”[15]

    In this respect, Holmes’s theory of free speech is consistent with his deeply held Darwinian views about life and law.  In Abrams, he talks about ideas competing in the market; in other writings, he talks about a “struggle for life” between competing ideas.[16]  This struggle can be understood as part of the broader Darwinian struggle between different social groups, such as workers and employers.  The ideas that prevail in this conflict will be the ones that are accepted by the most powerful group.

    Holmes’s Darwinism is only one facet of his broader scientific view of the world.  In a lecture called The Path of the Law, he says that human life is governed by the same principles that govern all other phenomena.[17]  So when he says that human life is governed by force, he is not just being cynical.  Instead, he thinks that just as physics involves the interaction of forces, so does politics. 

    So in the end, Holmes believes that political conflicts can be resolved only through force and not through reason.  As he says in an essay on Natural Law, “Deep‑seated preferences can not be argued about — you can not argue a man into liking a glass of beer — and therefore, when differences are sufficiently far reaching, we try to kill the other man rather than let him have his way.”[18]  This may sound like hyperbole, but it’s not.  The formative experience of Holmes’s life was the Civil War, in which he was wounded three times; and this experience colors all of his thought.  In Abrams, he argues that it is better for us to fight out our differences through speech rather than on the battlefield.  But ultimately, he thinks that truth is determined not by reasoned debate but by “the dominant forces of the community.”[19]

    III. A Critique of the Holmesian Strand

    Now that I’ve sketched this view, let me explain why Justice Holmes is responsible for everything that’s wrong with First Amendment jurisprudence . . . . 

    OK, that’s a bit of an exaggeration.  But I do think that Holmes’s view suffers from some major problems.  First, it doesn’t provide a convincing justification for free speech.  You don’t have to take my word for this — you can take Holmes’s word.  In a letter that he wrote to Laski in October 1919, at just about the same time that he was working on his Abrams dissent, Holmes said that he didn’t “believe in [free speech] as a theory.”[20]  As he explained, “when you are thoroughly convinced that you are right ‑‑ wholeheartedly desire an end ‑‑ and have no doubt of your power to accomplish it,” there is no convincing reason why you should allow others to obstruct your goals by whipping up opposition.[21]  If you understand free speech in terms of a struggle for power, then it is very hard to explain why the dominant group shouldn’t simply impose its views.  This is a serious problem for Holmes, and it’s one that he never resolved to his own satisfaction.

    This leads to one of the most remarkable and ironic features of Holmes’s position.  Because he can’t give a reasoned defense of the First Amendment, he makes free speech itself into a kind of “fighting faith.”[22]  This comes though in a striking way in the Abrams dissent:  within just a few lines, Holmes moves from a deeply skeptical view of the world to an assertion that we must be “eternally vigilant” against all efforts to restrict free speech.[23]  This echoes his letter to Laski, in which he says that while he doesn’t “believe in [free speech] as a theory,” he “hope[s] [that he] would die for it.”[24]  In this way, free speech becomes a sort of ideological or existential commitment without any strong rational foundation.  As Abrams shows, this attitude can provide the basis for a rhetorically powerful defense of free speech.  But it also makes it hard to engage in a reasoned consideration of when speech should be protected and when it should not be. 

    This leads to my second objection to Holmes’s view.  Just as he doesn’t give a convincing account of why we should protect speech at all, he doesn’t adequately identify what kinds of speech are valuable and worthy of protection.  On the liberal humanist view, speech should be protected to the extent that it promotes individual self-fulfillment, democratic self-government, and the search for truth.  Within this framework, some kinds of speech should clearly be protected, but others are more problematic.  For example, it can be argued that racist hate speech may be restricted because it tends to undermine rather than to promote those values.  That’s a position that I agree with, and that is accepted by most other liberal democracies.[25]  On the other hand, there are some strong liberal arguments for protecting hate speech, such as respect for individual liberty,[26] or the notion that democratic legitimacy requires that all voices be heard.[27]  But I think that people who are operating within a liberal humanist framework should at least be troubled by the problem of hate speech.  At a minimum, you can argue that even if individuals have a constitutional right to engage in speech that degrades other people, it is wrong for them to do so, and they can be criticized for this.  This is an argument that Professor Nahmod made quite persuasively in the Chicago Tribune some years ago.[28] 

    By contrast, the Holmesian view undermines the very possibility of judgments of this kind.  Instead, Holmes puts an extreme form of moral neutrality and relativism at the center of the First Amendment. To use Holmesian language, we may “hate” and “loathe” certain kinds of speech,[29] but that is merely a subjective reaction on our part — there are no objective standards that we can appeal to say that the speech is bad or wrong.  In fact, hate speech seems to do exactly what Holmes believes all forms of political speech do:  it is an effort by one group of people to assert dominance over another group  From a Holmesian perspective, it’s hard to see what is ultimately wrong with this kind of speech. 

    This is one area where I would say that American constitutional law has suffered because it has followed the Holmesian view.  For example, in a recent case called Virginia v. Black,[30] the Supreme Court declared that burning a cross at a public rally is a form of “lawful political speech at the core of what the First Amendment is designed to protect.”[31] 

    My favorite example of this approach is Judge Frank Easterbrook’s opinion in American Booksellers Association v. Hudnut,[32] a 1985 case in which he struck down the feminist anti-pornography ordinance drafted by Catharine MacKinnon and Andrea Dworkin.  The most remarkable thing about this opinion is that Easterbrook doesn’t deny that pornography causes serious harm.  Instead, he agrees that pornography subordinates women, and that it thereby causes all of the injuries that MacKinnon and Dworkin say that it does:  “affront and lower pay at work, insult and injury at home, battery and rape on the streets.”[33]  But Easterbrook’s response is:  “This simply demonstrates the power of pornography as speech.”[34]  I would say that in this opinion Easterbrook is channeling Holmes.  Like Justice Holmes, Easterbrook believes that free speech is a means by which groups struggle for power and try to make the world the way they want it to be, which may very well involve the subordination of other groups. 

    This brings me to the last objection that I want to raise, which has to do with the limits of free speech.  The liberal humanist approach can lead to an absolutist view of the First Amendment.[35]  But it doesn’t have to.  In some earlier work, I argue that the same values that support free speech also support other rights, such as personal security, dignity, citizenship, and equality, and that these rights can justify limits on speech.[36] 

    Holmes’s position is very different.  For Holmes, speech is meant to have a practical impact on the world, and it often causes social harm.  In cases like Schenck, he takes the position that speech can be restricted whenever it does cause harm.  In Abrams, Holmes largely abandons this position.  In effect, he comes to see freedom of speech as a privilege to cause harm.  So on the Holmesian view, speech cannot be restricted simply because it injures other people or the community as a whole.  And this is especially true of speech that causes emotional or dignitary injury, since Holmes’s outlook makes him rather dismissive of these kinds of harm. 

    In this respect too, our First Amendment jurisprudence tends to follow Holmes.  A good example is the Florida Star case that I mentioned earlier, in which the Supreme Court held that newspapers have a First Amendment right to publish the names of rape victims, even when state law makes those names confidential, and even when no one has even been arrested or charged with the crime. 

    IV. A Realistic Liberal Humanist Approach to the First Amendment

    In spite of all these objections, I do think that there are ways in which Holmes’s view is valuable.  Taken on its own, the liberal humanist position can seem rather naïve, as though political discourse involved citizens all joining hands and singing Kumbaya.  By contrast, Holmes has an acute sense of the role that self-interest and ideology play in political debate.  No one who has observed American politics in recent years can fail to see the descriptive power of Holmes’s view.  But the problem is that Holmes removes these clashes of ideology and self-interest from any normative framework.  What we need is a realistic version of liberal humanism — a view that is just as hardheaded as Holmes’s, but that seeks to promote the values at the core of the First Amendment. 

    The contrast between these two positions is best illustrated by the Supreme Court’s recent decision in the Citizens United case,[37] which struck down a longstanding ban on corporate spending in federal election campaigns.  By a vote of 5 to 4, the majority overruled previous cases which held that corporations could be prevented from using “resources amassed in the economic marketplace” to obtain an “advantage in the political marketplace.”[38]  According to Justice Anthony Kennedy, “[a]ll speakers” do this, and there is nothing wrong with it.[39]  Kennedy says that, by banning corporate spending, “‘[t]he government [has] ‘muffled the voices that best represent the most significant segments of the economy’” and had thereby undermined the marketplace of ideas.[40]  Although the majority does not quite put it quite like this, their position seems to accord with Holmes’s view that the political process ought to reflect “the actual equilibrium of force in the community.”[41]

    In dissent, Justice John Paul Stevens also recognizes the powerful role that corporate speech can have in the political process.  In fact, his opinion is the only one to use the term “power” to describe corporate speech.[42]  But in contrast to the majority, the dissent is acutely aware of the threat that corporate power can pose to our constitutional system.  As Stevens explains, corporate speech does not promote First Amendment values like individual self-expression and “republican self-government”[43]; instead, restrictions on corporate speech are necessary to promote those values.  In these ways, I think that the Stevens opinion is a good example of the sort of approach that we should take to freedom of speech — an approach that is just as realistic as Holmes’s, but that defends the fundamental values that Brandeis and Harlan see at the core of the First Amendment.

    [1] 319 U.S. 624 (1943).

    [2] 376 U.S. 254 (1964).

    [3] 505 U.S. 377 (1992).

    [4] This section is based on Steven J. Heyman, Free Speech and Human Dignity (2008).

    [5] Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J., concurring).

    [6] Cohen v. California, 403 U.S. 15, 24 (1971).

    [7] Letter from Holmes to John C.H. Wu, Aug. 26, 1926, in The Mind and Faith of Justice Holmes 431 (Max Lerner ed., 1943).

    [8] 249 U.S. 47 (1919).

    [9] 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

    [10] Holmes, Natural Law, 32 Harv. L. Rev. 40 (1918), reprinted in Collected Legal Papers 310, 310-12 (1920)

    [11] Abrams, 250 U.S. at 630.

    [12] Id.

    [13] Holmes, The Gas-Stokers’ Strike, 7 Amer. L. Rev. 582 (1873), reprinted in 1 The Collected Works of Justice Holmes 323-24 (Sheldon M. Novick ed., 1993).

    [14] 268 U.S. 652 (1925).

    [15] Id. at 673 (Holmes, J., dissenting).

    [16] Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443 (1899), reprinted in Collected Legal Papers 210, 217, 220 (1920).

    [17] Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897), reprinted in Collected Legal Papers 167, 180 (1920).

    [18] Holmes, Natural Law, 32 Harv. L. Rev. 40 (1918), reprinted in Collected Legal Papers 310, 310-12 (1920).

    [19] Gitlow, 268 U.S. at 673.

    [20] Letter from Holmes to Harold J. Laski, Oct. 26, 1919, in 1 Holmes-Laski Letters 165 (Mark deWolfe Howe ed., Alger Hiss abridged, 1963).

    [21] Id.

    [22] Abrams, 250 U.S. at 630.

    [23] Id.

    [24] Letter from Holmes to Harold J. Laski, Oct. 26, 1919, in 1 Holmes-Laski Letters 165 (Mark deWolfe Howe ed., Alger Hiss abridged, 1963).

    [25] See Steven J. Heyman, Hate Speech, Public Discourse, and the First Amendment, in Extreme Speech and Democracy (Ivan Hare & James Weinstein eds., Oxford Univ. Press, 2009).

    [26] See, e.g., C. Edwin Baker, Human Liberty and Freedom of Speech (1989).

    [27] See, e.g., Robert C. Post, Constitutional Domains 291-31 (1995).

    [28] See, e.g., Sheldon Nahmod, If It’s Legal, Does That Make It Right?, Chi. Trib., Feb. 17, 1994, Perspective section, at 31.

    [29] United States v. Schwimmer, 279 U.S. 644, 654-55 (1929) (Holmes, J., dissenting); Abrams, 250 U.S. at 630.

    [30] 538 U.S. 343 (2003).

    [31] Id. at 365.

    [32] 771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986).

    [33] Id. at 329.

    [34] Id.

    [35] See, e.g., Thomas I. Emerson, The System of Freedom of Expression (1970); Baker, supra.

    [36] Heyman, supra.

    [37] Citizens United v. Federal Election Comm’n, 130 S. Ct. 876 (2010).

    [38] Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659 (1990), quoted in Citizens United, 130 S. Ct. at  at 904 (internal quotation marks omitted).

    [39] Citizens United, 130 S. Ct. at 905.

    [40] Id. at 907 (quoting McConnell v. Federal Election Comm’n, 540 U.S. 93, 257-58 (2003) (opinion of Scalia, J.).

    [41] Holmes, Montesquieu (1900), reprinted in Collected Legal Papers 250, 257-58 (1920)

    [42] See, e.g., Citizens United, 130 S. Ct. at 953 (Stevens, J., dissenting) (explaining that the Tillman Act of 1907 was based on a concern about “the enormous power corporations had come to wield in federal elections, with the accompanying threat of both actual corruption and a public perception of corruption”); id. at 971 (the resources in a corporations “may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas”) (internal quotation marks and citations omitted); id. at 977 (“The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve.”)

    [43] Id. at 964, 972.


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