Free Speech Tradition Research Articles

“You are a bad boy to keep sending me pretty books”: Harold Laski, Justice Holmes, and the origins of free speech as a “marketplace of ideas”

ABSTRACT In his dissent in the Abrams case (November 1919), U.S. Supreme Court Justice Oliver W. Holmes coined the metaphor of a “free trade in ideas” to justify stronger free speech guarantees. This epistemic argument for free speech, later turned into the notion of a “marketplace of ideas,” became a powerful normative and interpretive rationale of expressive freedoms. However, before the Abrams dissent, Holmes was far from being a champion of free speech. As late as the spring of 1919, he had upheld the constitutionality of repressive wartime legislation. Thus, the summer of 1919 is a major turning point in Holmes's views. This article focuses on the role of the young Harold Laski during these months, examining his book recommendations to the Justice. Insisting on the truth-seeking functions of expressive freedoms, Laski's books pointed argument which is found in the Abrams dissent. I also consider additional reasons for Holmes's change of mind, particularly how the “First Red Scare” affected Laski and other civil rights activists. Lastly, the article reflects on what the Laski-Holmes relationship may tell us regarding the later assimilation of the Abrams dissent and the “marketplace of ideas” as core elements of a long-term libertarian tradition of free speech.

Speech Imperialization? Situating American Parrhesia in an Isegoria World

This article explores the ideological origins of the American free-speech tradition. It analyzes the two principal categorizations of free speech in classical antiquity: isegoria, the right to voice one’s opinion, and parrhesia, the license to say what one pleases often through provocative discourse, thus grounding modern free-speech epistemology and jurisprudential philosophy in a sociohistorical context. Part 1 reviews the First Amendment corpus juris. A progression of incrementally absolute judicial holdings promotes parrhesia, highlighting democratic utility over individual self-actualization; thus, Americans no longer view freedom of speech as an end ipso facto. While Athenian democracy recognized the need for provocative speech, certain institutional and social constraints, such as dokimasia, established standards of truth and accountability. Part 2 frames the historical developments of isegoria and parrhesia for modern analysis. The author begins by discussing isegoria’s principal aims, namely, promoting individual self-actualization and effective democratic governance. The European free-speech tradition, which views the individual as the locus of power, favors the former. The American tradition, which ‘depersonizes’ civil liberties such that the collective becomes the locus of control, favors the latter. Part 3 identifies the colonial developments in Anglo-American history that account for present-day U.S. free-speech permissiveness. It shows that the American preference for parrhesia-based absolutism was born from British imperialism and censorship. Part 4 suggests a need to reexamine free speech-understandings in the context of new-media proliferation and digital content regulation. The dominance of U.S.-based social media companies injects the American speech tradition into cultures with disparate free-speech philosophies and practices.

The Non-First Amendment Law of Freedom of Speech

The First Amendment dominates popular and scholarly debate about freedom of speech in the United States. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not. This Article explores the history, and the present-day operation of what it calls the non-First Amendment law of freedom of speech. Doing so changes our understanding of both the past and the present of the American free speech tradition. It reveals that the nineteenth century was not a period in which there was little legal protection for freedom of speech, as scholars have long assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires than the we commonly assume. Recognizing as much is important not only as a descriptive matter but as a doctrinal one. This is because in few other areas of constitutional law does the Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important non-constitutional mechanisms that legislators have traditionally used to promote it. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present, and our regulatory past — and, as a result, is able to proclaim a commitment to laissez faire principles that, in reality, it has never been able to sustain.

Trump's Lies: The Unconstitutionality of Government Propaganda

Government propaganda—the government’s deliberate dissemination of false claims on matters of public interest—has increasingly become a source of concern in the United States. Not only does the current presidential administration disseminate propaganda at a rate unprecedented in the modern era, so that Americans now live in an age of government-created “alternative facts,” but the internet and social media have made it possible to find receptive audiences with alarming speed and accuracy. This surge of government propaganda poses troubling questions for the health of our democracy, which requires political accountability and the valid consent of the governed to thrive. Although the crucial role that speech plays in our democratic self-rule is a major reason it merits First Amendment protection, the Free Speech Clause as currently interpreted has no part to play in combating government propaganda. Under the government speech doctrine, the Free Speech Clause does not apply to government speech, including government propaganda. It is time to revisit that conclusion. This Article argues that government propaganda, although government speech, ought to be regarded as covered by, and in violation of, the Free Speech Clause. Admittedly, this proposal is radical for two reasons. First, with few exceptions, the free speech tradition in the United States is averse to regulating harmful speech. Such regulations are believed to invite government abuse and to chill private speech. However, neither of these concerns are triggered when the government is the object rather than the enforcer of speech regulations. The second radical aspect of this proposal is bringing government speech into the purview of the Free Speech Clause. Nevertheless, government propaganda sufficiently undermines the core goals of free speech such that the Free Speech Clause ought to address it.

Your Speech or Your Life: The New York Attorney General's Camouflaged Assault on the First Amendment

Vested with vast investigatory and prosecutorial authority, New York’s Attorney General is one of the most powerful law enforcement officials in the nation, increasingly acting not only as an enforcer, but also as a de facto regulator. Among the AG’s powers is that she may settle cases on the state’s behalf by entering into agreements called “Assurances of Discontinuance” (AODs) with targets of state investigations—which for decades has been how the AG’s Office has resolved the vast majority of its cases. And for several years now, the AG has been inserting in most AODs a provision forbidding the settling party from “tak[ing] any action” or “mak[ing] … any public statement denying” the AOD’s “propriety … or expressing the view … that th[e] [AOD] is without factual basis.” This provision is apparently inspired by virtually identical clauses that the SEC and CFTC have been including in their settlements for decades. The tension between such “gag” provisions and the American free-speech tradition is difficult to ignore. Yet their potential unconstitutionality has thus far flown under the radar, with no court or commentator even acknowledging the First-Amendment concerns raised by the New York AG’s settlement practice. This Article takes on that issue, arguing that these speech-suppressant provisions’ inclusion in AODs flagrantly violates the freedom of speech. The gag clauses cannot properly be regarded as voluntary waivers of First-Amendment rights, since settling parties are required as a condition of settlement to surrender their right to publicly criticize the AG’s allegations against them—and those who refuse to do so face reprisal in the form of state prosecution or investigation. The Constitution, generally speaking, forbids public officials from using such tactics to strong-arm citizens into giving up fundamental freedoms. In fact, in at least some instances, the AG’s gag clauses amount to prior restraints on speech, a form of speech regulation considered particularly constitutionally problematic. Finally, in addition to their coercive nature, AODs’ speech-suppressant provisions raise First-Amendment concerns for other reasons—namely, that they restrict the communication of ideas and information that the public has a strong interest in hearing. This Article’s conclusions also carry important implications for the constitutionality of the SEC’s and CFTC’s speech-suppressant practices, as well as for any other official attempt to exact surrenders of constitutional rights through settlement agreements.

Are Our Laws on Freedom of Speech Fit for Purpose in the Age of 'Cancel Culture'?

Cancel culture is paradoxical. It is both a form of and threat to free speech. Consequently, law should neither absolutely protect nor absolutely suppress it. Rather, law’s primary role is to foster a culture that values free speech. The essay begins by outlining the nature of free speech (I) and cancel culture (II). It then addresses the chief difficulty raised by this question: how cancel culture fits within our free speech tradition (III). It finally proposes three legal reforms (IV).

IN PRAISE OF EVIL THOUGHTS

AbstractFreedom of thought means freedom from social tyranny, the capacity to think for oneself, to encounter even shocking ideas without shrinking away from them. That aspiration is a core concern of the free speech tradition. It is not specifically concerned with law, but it explains some familiar aspects of the First Amendment law we actually have—aspects that the most prevalent theories of free speech fail to capture. It explains the prohibition of compelled speech, and can clarify the perennial puzzle of why freedom of speech extends to art and literature. It also tells us something about the limits of legal regulation, and about the ethical obligations of private actors.

The Meaning of the “Marketplace of Ideas” in First Amendment Law

The 1919 First Amendment opinions of Oliver Wendell Holmes and Louis Brandeis comprise the seminal texts in the cannon that now includes hundreds of decisions by the Supreme Court of the United States interpreting the core of the American free speech tradition. The marketplace of ideas metaphor they developed has been invoked constantly by Supreme Court justices in First Amendment cases. It has achieved genuine load-bearing legal significance, particularly in certain arenas of free speech law, and over-arching significance in rendering the entire architecture of modern free speech law reasonably coherent and stable. This essay explores the importance of the marketplace metaphor in three discrete areas of modern free speech law: commercial speech, political campaign finance, and tort liability. While by no means the only arenas in which the marketplace metaphor has exerted important influence, these three exemplars are especially illuminating, exposing at once the strengths and weaknesses of the marketplace metaphor as a persuasive tool for ordering free speech doctrines. The essay then examines the marketplace metaphor from a wide-angle lens, making the argument that it operates to define two of the central continental divides of modern free speech law. The essay goes a long way toward providing a descriptively clear and normatively convincing account of free speech law as it currently stands.

The ideological significance of “institutional neutrality” mandates in state-level campus speech legislation

ABSTRACTThis paper focuses on the “institutional neutrality” provisions commonly included in recent state-level “campus free speech” legislation. I argue that their normative promotion of “neutrality” in fact reinforces ideologies of colorblindness, neoliberal individualism, and corporate hegemony. To perform the analysis, I examine the text of the bills and the intellectual lineage from which they descend in conjunction with statements by their proponents and allies in the campus speech debates. The theoretical significance of this analysis thus lies in further interrogating how the norms of the liberal free-speech tradition are imbued with ideological meaning. Relatedly, the article shows that the logic of older critiques regarding media industry concentration and the laissez-faire “marketplace” framework can also be applied to calls for educational institutions to strive for “neutrality.”

The Natural Right To Parody: Assessing The (Potential) Parody/Satire Dichotomies In American And Canadian Copyright Laws

This paper argues that the right to expressing oneself through parodies should constitute part of the core freedom of expression of a normative copyright regime. By drawing upon natural law legal theories, the paper proposes a legal definition of parody that would help to bring the copyright jurisprudence of a jurisdiction more in line with its free speech tradition. It argues that a broad parody definition, one that encompasses a great variety of expressive works but would not compete with the original and its derivatives in the market, is preferable to a narrow one. The paper then explains why the parody defence in American law and the parody exception in the Canadian copyright statute should follow the proposed parody definition, which would properly balance the rights of copyright owners with those of users.

Regulating Freedom of Expression on Campus

Regulating Freedom of Expression on Campus Benjamin Medeiros Free Speech on Campus. By Sigal Ben-Porath. Philadelphia: University of Pennsylvania Press, 2017. 136 pp. $19.95 (cloth). Free Speech on Campus. By Erwin Chemerinsky and Howard Gillman. New Haven, CT: Yale University Press, 2017. 216 pp. $26.00 (cloth). Safe Spaces, Brave Spaces: Diversity and Free Expression in Education. By John Palfrey. Cambridge, MA: MIT Press, 2017. 192 pp. $19.95 (cloth). For several years now, the news has been saturated with coverage of protests against invited speakers, debates over the wisdom of "safe spaces" and "trigger warnings" in the classroom, demands that universities punish those who make offensive comments, and calls to rename university buildings. No segment of the ideological spectrum has been silent. Mockery of millennial student "snow-flakes" is routine in right-wing media, and right-wing personalities like Milo Yiannopoulos and Ben Shapiro have seemed to relish the outrage generated by their mere appearance on campuses. Some more liberal writers like Jonathan Chait have also worried that militant political correctness is compromising intellectual inquiry.1 Others, however, have called these concerns misdirected.2 Three new books provide comprehensive socio-legal analysis of recent campus speech controversies. The books share the general premise that the treatment of freedom of expression in educational institutions has special significance in a democratic society, and they each provide useful guidelines for how university communities can think through the conflicts named above. In fact, the books display a striking level of consensus regarding the dynamics of these conflicts. At the same time, each author describes the priorities of educational institutions in somewhat different terms. Erwin Chemerinsky and Howard Gillman contend that "however important free speech principles are in society as a whole, they require even stronger protections in academic settings" (19). They argue that academic institutions must be places where all ideas can and should be debated (51). As a result, [End Page 315] their "central thesis is that all ideas and views should be able to be expressed on college campuses, no matter how offensive or how uncomfortable they make people feel" (19). John Palfrey and Sigal Ben-Porath likewise see academic environments as critical fora for the exchange of the widest range of possible ideas, but they are not true microcosms of society. As Ben-Porath reminds us, their "aims . . . go well beyond the general goals of a democratic republic and it makes sense for them to be organized and managed based on additional principles" (10). Her "inclusive freedom" framework for campus speech is thus a fundamental attempt to balance "the necessity of protecting free speech" while "making sure that all are included in the ensuing conversation" (12). Palfrey's framework is more literally described in terms of diversity concerns, but the conceptual contention is similar. He draws attention to the complementary, rather than contradictory, goals of diversity and free speech, calling diversity "an essential element of freedom of expression" (62). Overall, the books share the broad goal of defending the ideals of free speech in the campus context while working to reconcile them with the mandate to create more inclusive and equitable campuses. Such a fundamental goal is laudable. At the same time, they reaffirm the soundness of the liberal free speech tradition—a tradition that critics have long contended benefits some speakers at the expense of others. Such defenses of the status quo can feel unduly sanguine in today's fraught political climate. Perhaps the times call for more imaginative solutions when alt-right (or "alt-lite") figures can routinely target campuses for provocations that sometimes turn violent,3 yet faculty (especially those with little job security) are harassed or pressured to resign for otherwise protected speech.4 Though it likely was not their choice, Chemerinsky and Gillman's book cover depicts a brick wall on which the title is (rather neatly) spray-painted. This image can be read as a kind of metaphor for how these books address the contemporary debate about campus speech regulation. For all of their insight into recent conflicts, perhaps the books are still operating as if the controversy today is over graffiti on a wall. A critical American studies scholar could thus...

Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity

Recent concern about modern terrorists’ attempts to induce ideologically-driven violence has given rise to a First Amendment dilemma. Some conclude that to preserve our free speech tradition, unlawful advocacy must be protected absent the imminent danger of harm. Others argue that traditional First Amendment protection must be suspended in the specific context of terrorist speech to prevent potentially violent catastrophes. We seek to resolve this dilemma by recognizing a new hybrid category called “terrorizing advocacy.” This is a type of traditionally protected public unlawful advocacy that simultaneously exhibits the unprotected pathologies of true threats. When a speaker urges a willing listener to commit violence against an intended victim who is an intended recipient of the speaker’s advocacy, the speech constitutes a blend of protected persuasive and unprotected coercive speech. We propose a new multi-factor test designed to balance these competing elements in a manner that protects unlawful advocacy when appropriate but suppresses inherently coercive threats where they dominate the expression. In this manner we have recognized an inherent duality of two types of criminal speech when to date courts and scholars have implicitly assumed the mutual exclusivity of unlawful advocacy and true threats doctrine.

The reputation-management industry and the prospects for a “right to be forgotten” in the US

Online speech platforms present novel risks to privacy and reputation. There are situations in which unique kinds of harm can indeed occur but where the law applies imperfectly. Yet legal expansions like the European “Right to Be Forgotten” would contradict several well-established tenets of American free speech law. This paper argues that the reputation-management industry (RMI) represents one set of solutions in the absence of an American Right to Be Forgotten. The RMI counsels assiduous self-monitoring, search engine optimized promotion of one’s own preferred content, and negotiation for voluntary removal by content hosts. This approach arguably helps to address the informational distortions than can be created by true accounts of unseemly conduct and mob-like expressions of vitriolic opinion online. It likewise helps to mitigate the concern that readers will form inaccurate or unduly harsh judgments based on cursory examination of search results.The RMI thus in some ways addresses the underlying gaps between legal protection and perceived harm in a manner that accords better with the emphasis on “counterspeech” in the American free speech tradition. At the same time, the article concludes by addressing some limitations that are necessary to keep the industry from threatening free-speech principles itself.

The Big Question: Have social media and/or smartphones disrupted life in your part of the world?

The Big Question: Have social media and/or smartphones disrupted life in your part of the world?

Recorded Message for Spring Mobilization [New York, 1967

Stefan Andersson, in his review in this issue of Erik Eriksson’s book on Vietnam, cites the message that Bertrand Russell reportedly tape-recorded for the largest antiVietnam War demonstration in the United States. It took place in New York City, 15 April 1967. Russell’s tape was to have been played at the demonstration, but it was rain-shortened and the tape wasn’t presented. The whereabouts of the tape, if it is extant, are unknown. The message is of special interest for its several explicit and oblique references to the upcoming sessions of the International War Crimes Tribunal. It was not known at the time where and when they would take place, but later in April, France having failed Russell, Sweden stood Wrm in its tradition of free speech, assembly and press. The message was Wrst published in the tenth number of the New Yorkz brpf’s Foundation Bulletin (B&R C67.08). It was reprinted in Volume 2 of Bertrand Russell’s America, without the nine sentences from “We will demonstrate this” to “who insist that we identify Johnson and his policy with you the American people.” The present text is printed from the typescript, dated 7 April 1967, in the Bertrand Russell Archives (220.148669) and was compared with that in thez Foundation Bulletin. The typescript’s type is of baggage-stamp size. In extreme old age Russell commonly made his tapes from type of this size. There is no manuscript with it. Corrections are in another hand. Indeed, some of the phrasing is uncharacteristic of Russell’s prose, but his tape-recording the message must be regarded as conferring his approvalz—zjust like his extant tape-recording of “Appeal to the American Conscience” the previous year. (K.B.)

Recorded Message for Spring Mobilization [New York, 1967

June 25, 2012 (9:21 pm) E:\CPBR\RUSSJOUR\TYPE3201\russell 32,1 060 red.wpd russell: the Journal of Bertrand Russell Studies n.s. 32 (summer 2012): 80–2 The Bertrand Russell Research Centre, McMaster U. issn 0036-01631; online 1913-8032 RECORDED MESSAGE FOR SPRING MOBILIZATION [NEW YORK, 1967] Bertrand Russell Stefan Andersson, in his review in this issue of Erik Eriksson’s book on Vietnam, cites the message that Bertrand Russell reportedly tape-recorded for the largest antiVietnam War demonstration in the United States. It took place in New York City, 15 April 1967. Russell’s tape was to have been played at the demonstration, but it was rain-shortened and the tape wasn’t presented. The whereabouts of the tape, if it is extant , are unknown. The message is of special interest for its several explicit and oblique references to the upcoming sessions of the International War Crimes Tribunal. It was not known at the time where and when they would take place, but later in April, France having failed Russell, Sweden stood Wrm in its tradition of free speech, assembly and press. The message was Wrst published in the tenth number of the New Yorkz brpf’s Foundation Bulletin (B&R C67.08). It was reprinted in Volume 2 of Bertrand Russell’s America, without the nine sentences from “We will demonstrate this” to “who insist that we identify Johnson and his policy with you the American people.” The present text is printed from the typescript, dated 7 April 1967, in the Bertrand Russell Archives (220.148669) and was compared with that in thez Foundation Bulletin. The typescript’s type is of baggage-stamp size. In extreme old age Russell commonly made his tapes from type of this size. There is no manuscript with it. Corrections are in another hand. Indeed, some of the phrasing is uncharacteristic of Russell’s prose, but his tape-recording the message must be regarded as conferring his approvalz—zjust like his extant tape-recording of “Appeal to the American Conscience” the previous year. (K.B.) I t is clear t0 all who have the will to see that the United States Government is committing genocide in Vietnam. The Secretary 0f Defence informed the Senate that approximately 4,000,000 pounds of bombs fall daily on Vietnam. The tonnage exceeds all the bombing in the PaciWc theatre during the entirety of World War Two. It exceeds the bombing in Western Europe during the same period. June 25, 2012 (9:21 pm) E:\CPBR\RUSSJOUR\TYPE3201\russell 32,1 060 red.wpd Recorded Message for Spring Mobilization 81 1 [The word “confused” was deleted here and no replacement verb inserted on the typescript. The version in the Foundation Bulletin has, as would be expected from the next sentence but one, the word “identiWed”. (Ed.)] This concentration of explosives is taking place in a relatively tiny areaz—zin a country the size of New York and Pennsylvania. The Washington Post of March 17 reported that in the month previous, the United States Air Force dropped 68,000 tons thus raising the daily total of bombardment to four and a half million pounds daily. This is four times the Korean total. Four and a half million pounds daily of bombardment in a small peasant country is terror bombing aimed at the population. Reports from North Vietnam brought by our investigators make clear that roads, bridges and railways are rarely hit. Villages, towns, hospitals, schools, churches, pagodas, tuberculosis sanatoria and leprosariaz—zthese are destroyed andz especially targeted. Fragmentation bombs, steel pellet bombs, napalm, white phosphorous and magnesium bombs are used to terrorize and massacre the peasants of North Vietnam. That is their sole purpose. For any person capable of human impulse, for any man with a shred of intellectual probity, for any with the faintest murmur of moral feelingz—zthis supreme atrocity is hateful. The cynical men who discourse in the newspapers about the extent of civilian damage as opposed to military targets are men who lack honour. They compare with Germans who argued as to the extent to which Jews polluted the Aryan race when these Germans discussed the Gas Chambers. What is our proper response...

Student Advocacy and the Limits of (Action-) Free Speech: Figurations of Materiality in Tinker, Bethel, and Hazelwood

The US Supreme Court has considered the question of free speech rights for students several times since its landmark Tinker v. Des Moines ruling in 1969. In each case it has confronted the failure of existing precedents to crystallize the imaginary distinction between speech and action in such a way as to satisfactorily negotiate the social relationship between students and educators, youth and adults. This essay analyzes three cases in the student free speech tradition, attending to the ways in which materiality is thematized in the course of a negotiation of the interests of adults vis-à-vis youth.

DRAWING POWER

America prides itself on its tradition of free speech, yet it would be foolish to suggest that not all speech has been tolerated. Politicians and other influential figures have tried to silence editorial cartoonists for nearly as long as the country has existed. The corrupt New York City Tammany Hall political boss William Tweed summarized the simple potency of the editorial cartoon by saying: “Let's stop them damned pictures. I don't care what the papers write about me—my constituents can't read; but damn it, they can see pictures!” Tweed was unsuccessful in stopping Thomas Nast's cartoons, which have been credited, in part, with contributing to the politician's arrest. This article argues that politicians who fail in their attempt to silence editorial cartoons frame objectionable cartoons as attacks upon them. Politicians and their supporters are more successful in suppressing criticism when they can frame objectionable cartoons not as an attack on the individual who is being criticized but as an attack on the country—not in an individual framework but in a nationalistic framework. This works best when the country is under some sort of threat. This argument is particularly relevant because of President George W. Bush Administration's pattern of attacking the patriotism of critics of its War on Terrorism.

Creationism and Evolution: It's the American Way

The recent ruling in the Kitzmiller v. Dover court case that intelligent design is a form of religion and cannot be taught alongside evolution in science classes in US public schools garnered worldwide attention. But why is the antievolution movement so powerful in the United States?

In Many Countries Millions Lack Needed MH Care

In Many Countries Millions Lack Needed MH Care