Managing Deliberation: The Quandary of Democratic Dialogue

Abstract

Some of our best and most influential constitutional scholars have recently revived view that essential objective of First Amendment is to promote a rich and valuable public debate. Their claim is that First Amendment issues ought to be decided not by to ... personal autonomy, or right of self-expression but, rather, by reference to Amendment's positive purpose of creating an informed public capable of self-government.' Because this understanding of First Amendment subordinates individual rights of expression to collective processes of public deliberation, I shall call it theory of First Amendment. Moved by disreputable state of contemporary democratic dialogue in America, proponents of collectivist theory of First Amendment have used theory to advance a powerful reform agenda, ranging from statutes designed to correct corrosive effects of private wealth on elections to legislation calculated to free marketplace of ideas from distorting effects of large media oligopolies. The Supreme Court has been largely hostile to this agenda, objecting to its tendency to achieve its purposes through suppression of individual speech. Thus in Buckley v. Valeo Court struck down limitations on independent campaign expenditures, stating that the concept that government may restrict speech of some elements of our society in order to enhance relative voice of others is wholly