Madison's Music (18 page)

One important message emerges from the story of the evolution of the modern First Amendment: nothing about it is written in stone. The evolution of the current speaker-dominated amendment tells a story of constitutional interpretation in constant flux, as the justices seek to refine the meaning of “the freedom of speech” in response to an ever-changing America. Current First Amendment doctrine, which aggrandizes the speaker (including conduits dressed up as speakers), subordinates the hearer, ignores the speech target, and demonizes the government regulator, reflects the nation's existential struggle during the twentieth century against totalitarian challenges from the left and right; its own failure during the McCarthy years to live up to its First Amendment
ideals; the political and social forces of the labor, civil rights, and anti–Vietnam War movements; and a libertarian reaction against intrusive (and bumbling) government of any kind. But the wheel turns. A steady diet of speaker-obsessed deregulatory free-speech doctrine has begun to expose its costs to Madisonian democracy and to the larger social partnership between speakers and hearers that supports it. The time may be ripe for a modest political shake-up in Mr. Madison's First Amendment neighborhood.

TAMING ARISTOCRATIC SPEAKERS

The structure of Madison's First Amendment reminds us that the speaker is—and should be—first among equals. Without free speakers, Madison's democratic machine never gets started. It's no coincidence that Madison begins his poem by celebrating the conscience and expressive power of the autonomous speaker, turning to the rest of the communicative community—hearers, conduits, speech targets, and regulators—only after the speaker has been celebrated and granted pride of place. But first among equals doesn't mean overweening tyrant. After all, half of the First Amendment—press, assembly, and petition—is about the rest of the neighborhood. The challenge is to find a way to respect the primacy of the speaker while preserving the dignity of everyone else.

I believe we can learn from Madison's recognition that respect for private property is a crucial guaranty of political freedom. The Contracts Clause and the Fifth Amendment's Due Process and Takings Clauses
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are designed to ensure that government does not unfairly appropriate valuable assets belonging to members of the community. The hope is that by ensuring that even dissenting, politically weak, and unpopular individuals receive protection for their property, something close to a power equilibrium will emerge between the individual and the state.

Perhaps that lesson can be applied in Mr. Madison's neighborhood to block already privileged speakers from appropriating valuable assets belonging to other folks in the neighborhood. For
example, when in corporate or commercial speech settings the Supreme Court authorizes an otherwise unprotected corporate speaker to “borrow” the right to know belonging to hearers, the Court should make sure, first, that hearers are willing to lend their rights; and, second, that the borrowed rights will actually be used by corporate speakers to benefit their true owners, the hearers. Thus at the point where an otherwise unprotected speaker is relying on borrowed hearer rights, First Amendment doctrine should shift its priorities from speaker to hearer. In the commercial speech context, the Supreme Court gets the hearer-centered doctrine right most of the time, protecting truthful commercial speech about lawful options that will be of use to hearer/consumers in making efficient market choices, but declining to protect speech that is either useless or detrimental to consumers.
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That's why commercial speech urging the performance of an unlawful act is unprotected. That's also why egregiously false and misleading commercial speech lacks First Amendment protection. Finally, it's why government commercial speech regulators are given regulatory breathing room in order to ensure that the hearers' interests remain paramount.

But the Court got it dead wrong in
Citizens United
and other cases in the corporate electoral speech area, where large profit-making corporations, lacking free-speech rights of their own, are permitted to borrow the hearers' right to know, and then are allowed to bombard hearers with false, misleading, and overwhelmingly one-sided speech. Despite its hearer-borrowed nature, the corporate speech doctrine is relentlessly speaker centered, with not a hint of concern for the interests of hearers except as a rhetorical flourish designed to further enable privileged speakers. It's time to turn “borrowed” corporate speech rights into a hearer-centered doctrine. That would mean limits on corporate speech that's objectively false and misleading or that encourages hearers to engage in unlawful or harmful behavior, such as violent video games sold to children. It would mean limits on the corporate electoral speech that currently forces hearers to absorb massive amounts of corporate propaganda that they do not wish to hear.

A free-speech doctrine that takes hearers into account would also involve thinking about when an otherwise unprotected speaker should be allowed to borrow the rights of others in the first place. For example, much speech depicting the violent torture and rape of women or the torture of animals falls outside most people's definition of “the freedom of speech.” But when the neighborhood speech regulator tries to suppress it, she is often met by the argument that the poorly drafted regulation might also be used to outlaw hunting videos, Dante's
Inferno, Swan Lake
, or
Romeo and Juliet
. That's how the purveyors of animal snuff videos and kiddie porn usually get off. The unprotected speaker borrows the rights of future protected speakers and deploys the borrowed rights to extract an undeserved windfall. In settings where potential future speakers are unlikely to be able to defend themselves effectively, allowing unprotected speakers to borrow their rights today in order to destroy a flawed regulatory scheme that may be deployed against weak protected speakers tomorrow may well be a good idea. That's how the Warren Court often protected civil rights demonstrators. But when the potential future targets of a flawed regulatory regime are powerful speakers fully able to assert their own rights, or when the protected future speech is of no discernible social value, why allow today's unprotected speaker to borrow the rights of tomorrow's speakers at the expense of everyone else in the neighborhood?

TAKING HEARERS SERIOUSLY

Madison's First Amendment is not just about speakers. It envisions a social partnership between committed speakers and informed hearers, both of whom are entitled to be viewed as autonomous human beings vested with dignity, and both of whom are crucial to the proper functioning of choice-dependent institutions like democracy. A First Amendment jurisprudence that gave more than lip service to the dignitary and instrumental interests of autonomous hearers would move the needle closer to Madison's conception of a
partnership between speakers and hearers, and away from the current master-servant relationship.

Let me be clear. I am not suggesting that we treat hearers as weak and malleable beings unable to defend themselves from rapacious speakers without help from a paternalistic state. That path empowers government speech regulators to overthrow the speaker and, in the name of protecting weak hearers, to substitute themselves as the dominant force in Mr. Madison's neighborhood. Both the fuck the draft and flag-burning decisions were correct in refusing to go down that dangerous road.

I
am
suggesting, though, that First Amendment doctrine should recognize that hearers as well as speakers are entitled to be treated with dignity. As strong, autonomous beings, hearers do not require paternalistic protection against most offensive, distasteful, or even hostile speech. But when demonstrably false speech inhibits the proper functioning of choice-driven institutions or when speech is particularly corrosive of a hearer's dignity, is destructive of a hearers' right to equal treatment, and/or threatens to drown out alternatives, the definition of “the freedom of speech” should reflect proper concern for the hearer. For example, a politician consciously lying about receiving the Congressional Medal of Honor does not help our institutions of democratic choice work better. By vesting the liar with greater respect and persuasive power than he deserves, such a lie makes it harder for an autonomous hearer to make an informed choice about whether to support the liar's positions. Maybe the Court's decision in the Medal of Honor case is consistent with such a hearer-sensitive approach. Maybe that's what the Court meant by suggesting that the lie was not intended to induce specific behavior in reliance on it. But inducing specific behavior on the basis of a lie is not the only way a hearer's dignity can be violated. The undeserved deference and respect that the liar inevitably extracted from his immediate audience, to say nothing of the distress caused to actual winners of the medal for heroism when the lie was exposed, should have counted in the Court's legal calculus. Maybe the outcome would have been the same, but it
should have been a much closer case. If we are concerned that the members of the motorcycle gang would use a ban on lying as a wedge to control speech they don't like, why not limit the penalties, rather than elevate the lie to protected status?

Likewise, a family burying a son lost in defense of the nation has earned a dignitary right to a moment's repose from the rantings of religious bigots, even when the rantings take place on a public sidewalk just out of earshot of the funeral. Once again, the Court seemed to nod in that direction when it stressed that the demonstration couldn't be seen or heard from the church. But actual disturbance at the church or grave site isn't the only way the speakers inflicted unnecessary pain on the grieving family. The family's contemporaneous knowledge that the funeral ceremony was being hijacked, just out of earshot, by demonstrators boisterously linking the young soldier's death to toleration of homosexuality at the very moment the young man was being interred imposed gratuitous pain on a family that deserved better. Perhaps even when the interest of the family as involuntary hearers is put into the balance, the case comes out the same way, but the Court's wholly speaker-centered opinion does not even acknowledge the dignity of the grieving family. If we are concerned that huge damage recoveries would risk deterring worthwhile speech, why not regulate the remedy by limiting damages, instead of insisting that speech so destructive of a hearer's dignity is fully protected by “the freedom of speech”? In short, why should the folks in Mr. Madison's neighborhood tolerate a steady diet of useless, potentially harmful speech just because they live in terror of the local motorcycle gang? Can't the gang be rehabilitated or disarmed?

REHABILITATING THE NEIGHBORHOOD MOTORCYCLE GANG

The modern First Amendment is shaped by an almost pathological mistrust of government's ability to regulate speech fairly. For many on the right, mistrust of government and hostility to regulation is a natural reflex, reflecting a worldview where government is always
viewed with profound skepticism. For many on the left, more than a century of persecution of labor organizers, civil rights workers, and economic radicals has led to a belief that it is necessary to strip the government of virtually all power to regulate speech in order to prevent government officials from censoring speech that questions the political, social, and economic status quo.

The Supreme Court's pervasive mistrust of government speech regulation is reflected in the three elements of First Amendment strict scrutiny, which is triggered whenever the government seeks to regulate the flow of verbal speech (“pure speech” as opposed to “communicative conduct”). Once the Court unleashes strict scrutiny, the government must demonstrate: (1) a “compelling” governmental interest in regulating the speech immediately, (2) that the regulation will actually advance the government's compelling interest, and (3) that “less drastic alternatives” do not exist for dealing with the government's concern. It is a rare government regulation that survives strict scrutiny. Justice Kagan has perceptively suggested that the strict-scrutiny formula is really designed to police the government's good faith.
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If the proffered government interest allegedly justifying censorship doesn't seem all that compelling or immediate, if the censorship program isn't likely to solve the problem or isn't the only way to cope with it, a whiff of suspicion is created that the government's real motive is to suppress the speech at issue. Under strict scrutiny, such a “whiff of suspicion” is fatal.

The Court's intense mistrust of government also underlies the five procedural hurdles that can derail an effort to regulate speech.

       
1.
  
Prior restraints on speech
, as opposed to subsequent sanctions, are deemed particularly dangerous because they tempt government censors to cover up wrongdoing and prevent unwelcome information from surfacing at all.
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That's why the Supreme Court refused to let the government block publication of the Pentagon Papers, even though five justices indicated that anyone who leaked the documents might be subject to criminal prosecution.

       
2.
  
Overbroad speech regulations
that purport to ban both protected and unprotected speech can be a cover for improperly motivated or overzealous censorship and may frighten speakers away from gray areas.
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That's why the poorly drafted ban on animal-torture videos was invalidated.

       
3.
  
Overly vague speech regulations
are invalidated because the Court fears that they provide local officials with too much discretion, tempting them to use their ill-defined power to advance their own views at the expense of a disliked speaker.
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That's why so many poorly drafted statutes banning civil rights demonstrations were invalidated during the 1960s.
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