73: The First Amendment

A Thousand Things to Talk About
73: The First Amendment


Is the responsibility of the First Amendment’s Freedom of Speech to protect all speech equally and evenly, or to encourage an affirmative action for free speech that provides additional help to the “small voices”?

Show notes and links:
Two Concepts of Freedom of Speech (Harvard Law Review)
Kathleen Sullivan – Quackenbush Lecture at Gonzaga Law (YouTube)

Full episode text

In a speech presented by constitutional scholar Kathleen Sullivan, it’s argued that there are actually two competing and different interpretations of the First Amendment that have very different implications.

Quoting extensively here from Sullivan’s Harvard Law Review article:

In the first vision, free speech rights serve an overarching interest in political equality. Free speech as equality embraces first an antidiscrimination principle: in upholding the speech rights of anarchists, syndicalists, communists, civil rights marchers, Maoist flag burners, and other marginal, dissident, or unorthodox speakers, the Court protects members of ideological minorities who are likely to be the target of the majority’s animus or selective indifference.

On the equality-based view of free speech, it follows that the well-financed causes of big people (or big corporations) do not merit special judicial protection from political regulation. And because, in this view, the value of equality is prior to the value of speech, politically disadvantaged speech prevails over regulation but regulation promoting political equality prevails over speech.

The second vision of free speech, by contrast, sees free speech as serving the interest of political liberty. In this view, the First Amendment is a negative check on government tyranny, and treats with skepticism all government efforts at speech suppression that might skew the private ordering of ideas.

And on this view, members of the public are trusted to make their own individual evaluations of speech, and government is forbidden to intervene for paternalistic or redistributive reasons. Government intervention might be warranted to correct certain allocative inefficiencies in the way that speech transactions take place, but otherwise, ideas are best left to a freely competitive ideological market.