Public and Private Speech: Toward a Practice of Pluralistic Convergence in Free-Speech Values

Abstract

The article takes the distinction between public and private speech in the areas of public employment and defamation, where the leading cases are Connick v. Myers and Dun & Bradstreet v. Greenmoss Builders, Inc., respectively, and shows the difficulty which the Supreme Court and the lower federal courts have had in defining public and private speech in First Amendment cases. The thrust of the article is to formulate a clearer definition suitable for use by jurists and lawyers in First Amendment free-speech cases by resorting to three writers of philosophical bent who have addressed the question of what consitutes the "public": John Dewey, in The Public and Its Problems; Hannah Arendt, in the chapter "The Public and the Private Realm" in her book The Human Condition; and Walter Lippmann in The Public Philosophy. The article further relates the views of Dewey, Arendt, and Lippmann to conventional judicial and scholarly rationales for freedom of speech like the instrumental rationale of political governance and the intrinsic rationale of self-expression, especially as developed in the early formative period of freespeech values by Justices Holmes and Brandeis. In the course of the argument, the metaphilosophical ideas and methods of Richard P. McKeon are used, in connection with the writers' views of what constitutes the "public," to develop a model of convergence. This model of convergence is then used to achieve the major goal of the article, philosophical clarification of the standards for identifying public and private speech in constitutional litigation. To this end the model of convergence, employing a plurality of meanings for the "public," is applied to the mass of confusing case law in the lower federal courts, offering practical solutions to problems of conflict and ambiguity in particular concrete cases.