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Updated: 02/02/2009
At this point, we will turn to a discussion of the principles and philosophy behind the freedom of expression:
According to Professor Thomas I. Emerson, the system of freedom expression is based on four premises:
Another argument often given is
The fundamental justifications for protecting speech divide into two main groups:
1. values to individual : Based on John Lock's philosophy which holds
2. values to society: Grounded in Milton's Areopagitica of 1644 in which he established
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Three principle values are served by the First Amendment Law:
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Now, let's look at those values and how they have been interpreted in the study and litigation of the First Amendment.
Free Expression Value #1: Advancing the value of knowledge and truth:
1859, John Stuart Mill, recognized that the press was a protection against tyrannical or corrupt governments. Any attempt to silence expression , even that of a one-person minority, deprives the people of something important. (See Overbeck p. 44). He stressed four basic propositions in defense of freedom of expression:
Marketplace of Ideas
In the 20th Century the Marketplace idea was recognized by Justice Oliver Wendell Holmes:
- "the preliminary freedom extends to the false as well as to the true; the subsequent punishment may extend to the true as to the false."
- He argued that unless publication attacked the FORM of the U.S. government, they didn't violate 1st Amendment.
The marketplace approach was attacked as early as the 1930s.
- Marxist, Herbert Macuse, said that people have to be able to tell the important from the unimportant.
- He was horrified that broadcasters report the "momentous and the mundane in the same monotone."
- He said that the media monopoly effectively blocked dissent and prejudged right and wrong, true and false..."
- 1940--Commission on the Freedom of the Press said
- Press was increasingly concentrated in hands of fewer people.
- Professor Chafee believed the press could not play its proper part in society in the "mere absence of governmental restrictions." Rather, affirmative action by the government or others, would be needed.
- The government can lay down the rules of the game which will promote rather than restrict free speech.
- In 1967, Jerome A. Barron: Marketplace is an antiquated and impractical concept because of changes in media since 1791.
- tough to get into the broadcasting business because of $$$ and limits in spectrum
- $$ a problem when trying to get into newspaper bus.
- "The creation of two remedies is essential-
- A non-discriminating right to purchase editorial advertisements in daily newspapers
- A right of reply for public figures and public officers defamed in newspapers
Free Expression Value #2: Facilitating Self-Government
Safety Valve function:
- Allows society to be exposed to wide range of ideas, also brings about stable and adaptable community
- When freedom of expression is suppressed, people have to resort to extreme means to get their ideas out.
- People focus on the act of suppression rather than the ideas themselves.
- Also makes it hard to make rational decisions.
- Allows dissidents to "release energy" in a socially acceptable means.
Self-governance: freedom of expression necessary in society dependent on self-governance.
1940's Professor Alexander Meiklejohn wrote that self-governance is the most important concern of the first amendment.
- Political speech was most significant and deserved absolute protection from governmental interference.
- Made distinction between political and non-political speech.
- Believed that only expression that incites unlawful acts should be punishable
- Suggested that political speech was the only speech that was protected
- Chafee pointed out that would preclude limits on such things as libel and obscenity.
But as we already discussed, Meiklejohn altered his position somewhat in later writings to make it more inclusive.
Free Expression Value #3: Promoting individual fulfillment, growth, expression and autonomy
Obviously some of the arguments placed under the first two categories can apply here as well. It is also under this category of value, many of the criticisms of the current interpretation of the First Amendment fall.
These critics say there should be some regulation because the values of personal fulfillment, growth, expression and autonomy are being stifled or suppressed by some forms of expression currently allowed. (Remember the "spiral of silence" theory in Com 314?)
Individuals can have no rights unless the communities in which they live are stable and healthy. Respect for others is a prerequisite is a community which values freedom is to survive. Safety is another important aspect which is necessary, as is a sense of common sense about what is appropriate and decent. Professor Melefi Kete Asante argues that these three are necessary for a free society and for free expression. (Fraleigh and Tuman, 1997)
This position takes objection to the Preferred Position Balancing Test which assumes that free expression is the more important value when a conflict occurs. Other countries make no such assumption, and in fact, Canada has more restrictions on pornography because they believe the harms outweigh the free speech issue.
In some cases, free expression of one group silences another. This is the focus of Lederer and Delgado in their book, The Price We Pay. Their contention is that hate speech tends to silence minorities, pornography silences women, lack of funds prevent some political groups from competing effectively in political campaigns.
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In our study of the First Amendment, I found additional books (among many) that offer particular insight. (Of course any of these are encouraged for your book reviews) Be able to discuss the major concepts presented in each one.
1. Lee Bollinger: The Tolerant SocietyBolinger argues that our view of the First Amendment has changed over the last several decades and has us to allow speech that no other free society permits to the same degree. His arguments fall into the first two classifications above.
Among his contentions are
For the first time, the position was NOT to start from the NEGATIVE pole of what expression was NOT protected (and determining if the speech in question fell in that group) but rather determining what WAS protected (and determining if the speech in question fell in THAT group.)
Bollinger wrote that Holmes was looking at the case from a human "rights" position, and the other justices were looking at it from a punishment perspective. This dissent provided the foundation for our view of the First Amendment today.
Bollinger pointed out that not everyone agreed with Holmes and quoted professor John Wigmore who said that Holmes
Question: Are we, then, placing a disproportionate emphasis on free speech at the expense of other equally important rights and issues equally important to our society?
(The fact that the Preferred Position Balancing Test is the predominant position of the High Court over the past few years seems to support at least the first part of Bollinger's argument.)
2. In The Price We Pay, the editors offer a collection of essays that explore first amendment interpretation from a victim and harm point of view. Cass R. Sunstien makes the position that those who negatively impacted by the free speech in the form of pornography or hate speech are usually those who have less money and those who have less social position or power....
He contends that unrestricted speech contributes to what he calls a "caste" system. Therefore, free speech should be interpreted to accommodate free expression and anti-caste principles. These qualifications would allow restrictions of:
3. Collins and Skover approach the First Amendment from three different perspectives and offer some additional challenges to thinking on the matter in their book, The Death of Discourse (2005):Pornography: because it is linked to sufficient harms to women (but limited to pictures and film/video and not the written word)
- participants are frequently harmed in the making of pornography
- causal connection to violent acts
- promotes degrading and dehumanizing behavior toward women
- pornography is far from the highest tier of public discourse.
Hate Speech:
Sometimes speech might be classified as 'hate' but may be associated with cultural/political discourse; such speech should be protected. Hate speech that does not add to the marketplace of ideas should be restricted.He cites the Stanford "harassment policy": (Stanford is a private university )
Harassing speech is defined as that which
- "...is intended to insult or stigmatize and individual or a small number of individuals on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin; b) is addressed directly to the individual or individuals whom it insults or stigmatizes and c) makes use of insulting or "fighting' words or nonverbal symbols.
- The speech must also be uttered to "inflict injury or tend to incite to an immediate breach of the peace...(and be) commonly understood to convey direct and visceral hatred or contempt for human beings on the basis of (race, gender, etc.)" p. 269-70
- This argument is frequently called the Silencing Argument and is used with application to pornography, racist and other discriminatory speech. Ironically it has been used to justify political correctness standards in corporations and institutions. That result is illustrated in the example below:
In his prologue to Dictatorship of Virtue: Multiculturalism and the Battle for America's Future, Richard Bernstein writes:
"..."multiculturalism" is a defense against exposure or criticism and to bring into service a vocabulary to which multiculturalism has an almost salacious attraction, words like 'racist',' 'sexist,' 'homophobic.' To put matters bluntly: the multiculturalist rhetoric has the rest of us on the run, unable to respond for fear of being branded uni-cultural, or racist, or (to get into the trendy academic lingo) complicit in the structures of hegemony imposed by the Eurocentric patriarchy and its strategies of domination."
Later in the book, he provides numerous examples. On p. 89, he write of the college student at Cornell University who went through training to be a residence hall advisor.
"Once, during the 'Issues of Oppression' workshop, a fellow trainee [she happened to be black] asserted, as Tim remembered it, that white men have life handed to them on a 'silver platter,' she said. Tim responded to this. He did not mean to downplay the disadvantage of people of color, he said, but he came from a rural part of Pennsylvania where many white people lived lives of dire poverty, so it did not seem to him that all whites automatically have lives of great privilege and ease.
"'I was screamed at so severely by the other RAs and RHDs for espousing such 'racist' views that I almost quit on the spot,' Tim said.' Later that same day, he attended a small-group session with other trainees where he was required to explain why he had made his offensive comment. During that conversation, fellow trainees made some dubious remarks. One criticize the decision made by the New York City St. Patrick's Day Parade to exclude gays, saying of the parade bosses, 'They're just a bunch of drunken Irish anyway.'
Tim is of Irish descent. An other student said white males had no culture." (p.89-90)
So, while, the silencing argument makes some very strong points, there are also very serious concerns. Obviously the Cornell University was not operating under the safeguards suggested by Carl Sunstein.
Skover argues that perspective is crucial to our understanding and application of the First Amendment.
They contend that our Bill of Rights was created with the Orwellian perspective that tyranny came from governments, "Big Brother" with hands on and in our lives.
Speech has changed since the writing of the Bill of Rights. "Public talk is increasingly taking a distinctive and aestheticized form consistent with the look and feel of commercial television. This transformation of public talk is essential to the effective marketing of images and commercial goods in a highly consumerist culture." (p. 4)
So they believe the First Amendment should now be seen from a Huxleyan perspective: the nightmare comes not from government tyranny but from NO need to censor dissent, because the population is so anaesthetized with diversion, pleasure and "soma tablets: that they just don't care enough TO dissent. It's a "don't worry; be happy" self-induced blindness that allows tyrants to take over and have their own way.
Collins and Skover write: "Metaphorically, television is the soma tablet of modern society." (p. 7)
They go on to quote Carl Bernstein: "We are in the process of creating a true idiot culture in America....For the first time in our history, the weird and stupid and the vulgar are becoming our cultural norm, even our cultural ideal. (p 7)
They identify three approaches to First Amendment law and say none of them really deal with he Huxleyan reality in which we now live.
Market Place of Ideas and its role in a democratic society. The individual cares about truth and governance and is involved in the process. Self-restraint is understood and necessary in the interest of the public good. Anything which gets in the way of rational decision-making and public discourse is subject to restriction because it threatens free expression and democratic society.
The problem with this approach is that television and other mass media "corrupt and suffocate" these values and processes. In fact, Professor George Anastaplo advocated the elimination or restriction of television because it essentially oversimplified issues and "dumbed down" the American people, inhibiting their ability to function fully in a democratic society. (This is generally a pro-regulation position.)
Each of these approaches fall short in some way:
- "The classical scenario invites tyranny.
- The modern scenario embraces triviality.
- The reformist scenario endures ineffectiveness." (p. 36)
The Classicists would eliminate the superficial, the objectionable, the entertainment content and perhaps even television itself. We'd be better off without it. They see the Huxleyan threat to democracy as far more serious than the Orwellian Big Brother. There's no way that such an approach is realistically applicable to modern culture. People will not give up their television.
The modernists see the values the free expression of the individual, and thus see Big Brother as the problem, while the pursuit of pleasure (the Huxleyan threat) is no problem at all, in fact it may be positive.
But Collins and Skover make an astute statement: "Unfortunately, the modernists are unaware that the First Amendment likewise cannot remain static when triviality and amusement threaten to become accepted criteria for public expression." In support, the cite Larry King, "If we had booked God and O.J. was available, we' move God." p. 40
The Reformist scenario doesn't really acknowledge human nature. While reformists say the battle can be won with media literacy training (and that's a good thing), they fail to recognize that the public's desire for self-amusement will win out over any educational effort and if they try to entertain while educating, they will undercut their own arguments.
So, they say we are in a paradox: it is between Orwell and Huxley, between "hands on" and "hands off" public regulatory policy.
Communication today emphasizes products over lifestyles, image over fact, romance over reason. "It is more a total cultural system than an exclusively informational one;
it is a social discourse whose unifying item is the meaning of consumption." This system re-factors the marketplace of ideas equation. The ideas component is de-emphasized in favor of the marketplace component. 'Commercial culture assigns no value or meaning to communications apart from their market value.' Hence, in the commercial culture, truth is that which sells." (p.81) [emphasis mine]
Collins and Skover discuss the consequences of this in detail in the following pages, including their concerns about distraction marketing and a distortion of logic and the debasement of values.
"This kind of thinking - which accept proof that is not proof - is an essential intellectual factor in our economy, for if people were careful thinkers it would be difficult to sell anything.....it follows that in order for our economy to continue in this present form people must learn to be fuzzy-minded and impulsive, for if they were clear-headed and deliberate, they would rarely put their hands in their pockets.....If we were all logicians the economic would not survive."
So we associate the American Flag with beer and jeans, and in the process, water down our values. Over time and wear, the values blur and fade, and we become cynical and indifferent to them. They no longer matter.
The authors are concerned also about the conversion of consumer and commodity identities. No longer do we agree with Descartes, "I think, therefore I am." Rather, we are what we buy. Products determine our place in society, how we see ourselves and how others see us.
So we have shifted from a citizen democracy to a consumer democracy.
How does this fit with the individual values upon which the First Amendment was based? What happens to the individual values (and his/her rights) when corporate speech is valued equally in the marketplace?
"The defenders of the.... idea that free speech values associated with individual autonomy and self-realization" cannot tolerate the idea that free speech should "now be affiliated with corporate communications for profit."
What does profit have to do with the ideas on which the Marketplace of Ideas and the First Amendment is based? How does it help the citizen-self?
The Huxleyans don't see any reason why commercial speech should not be included; in the new age of consumerism, the corporate speech provides valuable information to the consumer-self (whether or not it's really information at all).
Speech cannot be defined in the context of the First Amendment in this approach. Speech must (in this perspective) be any type of expression, and thus no restrictions on pornography are allowed, regardless of the harms which may be associated with it.
The authors contend that since our society seems unwilling to lay down lines of decency, unwilling to trust our own instincts to do that, we may not survive and possibly should not survive.
The concept of Pornutopia is one of Huxleyan concern. Are we destroying ourselves by the intellectual distraction and dumbing down that results from our own endless pursuit of pleasure at the expense of everything else and every other type of thought?
[This is an excellent book, and my summary of its main ideas does not do it justice. All Com law students are highly encouraged to read it. These concepts WILL show up on your exam.]
4. Judge Robert Bork examines the issue of free expression from a broader societal perspective, in his book, Slouching Toward Gomorrah: Modern Liberalism and American Decline. (Now available in paperback with an updated introduction.)He sees the deterioration of our culture as resulting from more than excessive speech freedoms. Rather, those freedoms are now interpreted to protect all types of "never before protected" materials, and that is symptomatic of a greater philosophical problem.
His concern about the "assault on our sensibilities" and the cultural numbness that precipitates is illustrated as he quotes Senator Daniel Patrick Moynahan.
Moynahan said our culture was "defining deviancy down" and cited Emile Durkheim (remember Com 314 and 310?) who said there was a limit to the amount of deviant behavior any community can allow. As such behavior gets worse, the community adjusts its standards so that was once considered unacceptable is now considered acceptable or even normal. The opposite occurs as well. As behavior improves, that which was once thought to acceptable now become unacceptable. "Thus a community of saints and a community of felons would display very different behavior but about the same amount of recognized deviancy." (p. 3)
Bork says that both are happening in our society! We are defining deviancy DOWN with regard to crime, illegitimacy, drug use, and such, but we are also defining it UP with regard to what has been considered traditional acceptable behavior. Life in the traditional middle class is reclassified as oppressive and "shot through with pathologies" (p. 3) Judge Bork quotes Charles Krauthammer, "As part of the vast social project of moral leveling, it is not enough for the deviant to be normalized. The normal must be found to be deviant." (p. 3) Thus, the virtues and values of society, the ideals that actually define it, are jeopardized in such a way that we may be sliding into a high-tech dark ages.
Bork contends that we will have done that to ourselves, and he says the enemy is modern liberalism, which turns not to religion for moral guidance, but to radical egalitarianism (the equality of outcome is stressed over the equality of opportunity) and to radical individualism (the drastic reduction of limits on personal freedom).
"Radical egalitarianism reigns in areas of life and society where superior achievement is possible and would be rewarded but for coercion towards a state of equality." He cites quotas, affirmative action, radical feminism as examples.
"Radical individualism is demanded when there is no danger that achievement will produce inequality and people will be unhindered in the pursuit of pleasure." Examples are found in areas of sexuality and the popular arts.
Both of these positions oppose traditional morality.
The individualist must have freedom from authority in order to pursue pleasure.
The egalitarian must have a level field because he fears/resents any sense that one might be superior over another.
"When egalitarianism reinforces individualism, denying the possibility that one culture or moral view can be superior to another, the result is cultural and moral chaos, both prominent and destructive features in our time." p. 5 (Be able to discuss this! Excellent essay option!)
(Josh McDowell in his book, The New Tolerance, shares Judge Bork's perspective, although he writes in less of a scholarly format, his book articulates these concerns in a very clear and concise manner. )
Radical individualism, in the pursuit of pleasure (Huxleyan view, don't you think?) attacks the institutions of the society which restrain that pursuit: family, church, etc.
But those institutions act as a buffer between the individual and the state - If the individual goes too far in pursuit of pleasure the state MUST step in to prevent anarchy; result: over-powerful government or tyranny.
This progression is fueled by the development of technology and affluence which provide humans with ample time in which to pursue pleasure; we want convenience; we want what we want when we want it....What happens when it's not there? What happens when our wants impede someone else's want or need?
Thus, rampant individualism has no where to go but into the arms of a tyrannical power which will inevitably destroy it.
Radical egalitarianism grows from the concept of democracy, and carries the simplistic idea that if social processes were fair, all races, ethnic groups and both sexes would be represented proportionately in all areas of society. Absence of such representation indicates absence of opportunity. Answer: Democratize everything - corporations, colleges, churches - Do away with hierarchical authority structures.
"Radical individualism, radical egalitarianism, omnipresent and omni-competent government, the politicization of the culture, and the battle for advantages through politics SHATTER A SOCIETY INTO FRAGMENTS of isolated individuals and angry groups. Social peace and cohesion decline as loneliness and alienation rise." (p.11)
In Chapter 6, Judge Bork looks at the role of the Supreme Court in all of this. The history of constitutional law in America is one of conflict between individual rights and those of the culture/community. The court will usually chose the side of individual rights over the rights of the community. He says the Supreme Court has "constitutionalized" radical individualism.
"One of the prices we pay for our Bill of Rights is an emphasis on personal freedom that is not balanced in the document by a Bill of Personal Responsibilities or a recognition, as in the constitutions of other countries, of limits set by personal welfare." (p. 98)
That has fed our obsession with personal "rights" but even those aren't absolute. They are evaluated through a moral relativist view; decisions are based on situational ethics.
Bork cites the case Cohen v. California in which a protestor refused to remove a jacket on which was written "F-k the draft" In overturning the man's conviction for disorderly conduct, the court ruled, "One man's vulgarity is another's lyric." Judge Bork explains:
"Moral relativism, which the Court endorsed, is necessary to radical individualism. But it must, of course, be confined to areas such as speech and sexuality. It would never do to reverse a conviction for assault on the ground that one man's battery is another's sparring practice." (p. 99)
Judge Bork goes on to argue quite effectively (in my opinion) that the Supreme Court has gone beyond the limits of the Constitution, elevating the rights of the individual, and using the concept of equal protection to take basic cultural decisions out of the hands of the people, usurping the powers of the people and their elected representatives. "The founders had no idea that a Court armed with judicial review could become not only the supreme legislature of the land but a legislature beyond the reach of the ballot box." (p. 109)
So Judge Bork sees the interpretation of the First Amendment, not as one limited to issues of expression, but one of basic philosophical perspectives. It is not the problem, but rather a symptom of a much more serious cultural deficiency.......In his book, he does an excellent job of explaining how this all happened, where it all may lead, and what we can do about it. He believes in part, the answer lies in a Constitutional Amendment making Judicial action subject to democratic review. I hope you will take the time to read it!!
(You will not have to discuss Bork's ideas in detail, but be able to explain the main ideas clearly.)
Finally, it is important for students to give some serious consideration to the nature of our country, its populace and the roll of the First Amendment:. Once scholar said (and I paraphrase...) that the First Amendment and self-government is dependent upon a citizenry which is
I would like for you carefully think (given what you have learned in Mass Com Theory, Ethics and other courses) about whether our culture meets those requirements. Why do you answer the question the way you do? This may be one of the most important questions you ever ask yourself..........
References and Reading: Pember, Ch 2; Overbeck, Ch 2; Middleton, Ch 2; Carter and Franklin, Ch 2;
Suggested outside Reading: Bollinger, Bork, Collins and Skover, (Death of Discourse); Knowleton and Parsons ( The Journalist's Moral Compass ), Lederer and Delgado (The Price We Pay).
USEFUL LINKS concerning the First Amendment:
All of these sites have useful information and lots of links to other interesting sites. Please let me know if you find another good one.
SOURCES: