Lost and not yet found: The New First Amendment

Abstract

Lost and not yet found:The New First Amendment Mark A. Graber (bio) Steven Shiffrin in 1983 argued that "one size, fits all" approaches to the First Amendment distorted both legal and rhetorical practice. "[S]peech interacts with the rest of our reality in too many complicated ways," he wrote, "to allow the hope or the expectation that a single vision or a single theory could explain, or dictate helpful conclusions in, the vast terrain of speech regulation."1 Rather than continue working within the frameworks established by the classic works in civil libertarianism,2 Shiffrin urged scholars to emphasize "the diversity of speech" and develop "more appreciation for the advantages of thinking small." "It is time," he concluded, "to move away from a general theory of the first amendment."3 The essays that follow reflect different movements away from the general theory of the first amendment. Most, following Shiffrin, focus on particular free speech problems. Peter Quint writes about hate speech and campaign finance reform. Gordon Silverstein explores judicial precedents concerned with the right not to testify before legislative committees. Few find the general theory of the first amendment to be of much use. Kermit Roosevelt observes that the traditional civil libertarian focus on negative liberty is antiquated in a world of "pervasive government regulation." Kathleen Sullivan suspects a "free speech doctrine" that emphasizes an "abstract political subject" will be "unable to address both truth and power in its current context." Most interesting, many essays reject the first amendment as a basic organizing category for general theorizing. Such matters as campaign finance reform and hate speech are placed into broader constitutional categories, but those categories do not encompass all free speech issues and encompass many issues tangential at most to the civil libertarian tradition. Deborah Hellman explores campaign finance reform in the context of general theories concerned with what money should buy. Donald Downs explores hate speech in the context of general theories concerned with the purpose of universities. The format of these essays and the conference at which they were first presented reflects another aspect of the movement away from the general theory of the first amendment. The reign of civil libertarianism facilitated the sort of normal science conducive to traditional academic conferences and conference papers. These formats are more problematic when inherited paradigms are collapsing, but not yet replaced. Alternatives to the general theory of the first amendment, the "schmooze" approach suggests, may require alternative forms of academic conferences and conference papers. Ludwig Wittgenstein famously observed, "(a) philosophical problem has the form: 'I don't know my way about.'"4 Sometimes displacement is minor. Persons debating the fastest way to the University of Maryland typically know where they are, where they are going, and the various alternative routes. Civil libertarians debating whether a particular speaker has a right to champion the proletarian revolution agree that speech required more judicial protection than property5 and that speech may be prohibited, if prohibited at all, only if the speaker incited "imminent lawless action."6 On other matters, disorientation is severe. Teenagers contemplating life after high school may not know whether they want to go to college, whether they want to study engineering, or how to identify a good undergraduate engineering program. Civil libertarians debating whether cigarette advertising is constitutionally protecting may not agree on whether the matter concerns speech or property, on the constitutional justifications for state regulation, or on the constitutional benefits from protection. In both cases, confusion about appropriate frameworks generates confusion about the relevance and weight of evidence. Is a university in which faculty consistently win substantial grants one with highly productive professors or one that deemphasizes undergraduate education? Does a study demonstrating that commercials influence smoking decisions strengthen or weaken the case for banning Joe Camel? Traditional convention panels and papers work best when displacement is minor. The standard fifteen minute paper presentation practically assumes broad agreement between presenter and audience on general frameworks. Issues are confined to the application of well known models to a particular problem. Everyone knows the basic elements of a successful argument and what constitutes evidence for each position. The sole question for consideration is whether a conventional rhetorical strategy...