First Amendment Constitutionalism

Abstract

This article develops a contextual model of free speech. Despite extensive work in this area, dating back to the early twentieth century, the three dominant theories of free speech do not adequately describe the full range of expressions protected by the Constitution. The proponents of the first school of thought claim that the purpose of protecting free speech is to further democratic institutions. Those of the second conceive personal autonomy to be the predominant reason why free speech is so carefully guarded by courts and society at large. And those of the third persuasion relate the American people’s high regard for free speech to the advancement of knowledge. While each touches on the ideals of representative democracy, none fully accounts for the intricacies of the First Amendment within the context of overall constitutional structure. Each contains elements of why free speech is so important to our legal culture, but none of these three provides a comprehensive account.The First Amendment is not solely established to protect speech but also the other predicates of representative democracy. Speech empowers individuals to engage in self-realization within a community of equals committed to the general welfare. Any regulations inhibiting, limiting, or restraining it should be narrowly tailored to safeguard the Constitution’s overarching guarantee of liberal equality for the common good. This principle derives from the Preamble to the Constitution’s General Welfare Clause and the Declaration of Independence’s Unalienable Rights Clause. Scholars and courts have too often ignored these two sources of federal power. Yet they provide the groundwork for representative democracy, wherein expressive liberty enables individuals to voice their political opinions, enjoy personal dignity, and attain knowledge and expertise. Free speech is a function of a constitutional system that enables people to pursue happiness for the betterment of the whole polity. After expounding a comprehensive theory of free speech and critiquing its most important alternatives, the article applies this major shift in First Amendment thought to defamation, intentional infliction of emotional distress, and incitement doctrines.