Leonard Halpert’s Commentary on Jack Balkin’s Hugo Black Lecture

The Knight Professor of Constitutional Law and the First Amendment at Yale Law School, Jack M. Balkin, will speak on “The First Amendment is an Information Policy,” during the 20th Annual Hugo L. Black Lecture on Freedom of Expression. The event will be held at 8 p.m. March 23 in Memorial Chapel.

The annual event is endowed by a gift from Leonard S. Halpert ’44, Esq. Halpert has provided the following commentary:

What are Professor Balkin’s views as to the parameters of freedom of expression, legal as set by the First Amendment, and by societal pressures and norms?

To understand his outlook properly as to the boundaries of free speech, first it seems useful to know his concept of interpreting the Constitution. His views are set forth in articles appearing in law reviews and texts.[1]

“First, we should be faithful to the text of the Constitution, its text, its underlying principles; second, we should understand that the Constitution is a democratic instrument and that we believe in democratic constitutionalism; and the third is that the Constitution is a work in progress, something that we work toward to make better, something that we work toward to redeem in history.”[2]

He confronts head-on the running conceptual battle between two competing approaches to interpreting in the Constitution when courts decide issues before them. They are “original meaning or originalism” and “living constitutionalism”, which he states are compatible positions. In fact, they are two sides of the same coin.[3]

Balkin believes a “properly understood living Constitution” provides a sound theory of constitutional construction. He rethinks the relationship between originalism and living constitutionalism, and argues that the two approaches, when properly understood, are compatible rather than opposed. This compatibility helps us understand how legitimate constitutional change occurs in the American constitutional system, and such compatibility achieves originalism or central purpose: setting up a basic structure for government, making politics possible, and creating a framework for future constitutional construction.[4] He calls this originalism “framework originalism”, which views the Constitution as an initial framework for governance that sets politics in motion, and that must be filled out over time through constitutional construction. In implementing the Constitution, later generations must remain faithful to the basic framework, which requires fidelity to original meaning but not the original expected application of the text. This permits a wide range of possible future constitutional constructions that implement the original meaning and that add new institutional structures and political practices not inconsistent with it.[5]

“[Framework originalism] implies something different from what most advocates and critics of living constitutionalism have assumed. It is not primarily a theory about how judges should interpret the Constitution. First, it is not a theory of constitutional interpretation—in the limited sense of ascertaining constitutional meaning, but a theory of constitutional construction—that is, the process of building institutions of government and implementing and applying the constitutional text and its underlying principles. Second, it is not primarily addressed to judges but to all citizens. Third, it does not give detailed normative advice about how to decide particular cases. Rather, it explains how constitutional change occurs through interactions between the political branches and the courts, and why and to what extent this process is democratically legitimate.”[6]

“Today people generally associate ‘living constitutionalism’ with judicial decisions; but the political branches actually produce most living constitutionalism. Most of what courts do in constitutional development responds to these political constitutional constructions. Courts largely rationalize, legitimate, and supplement what the political branches do, creating new doctrines along the way.”[7]

“People have often spoken of living constitutionalism as if it were an interpretive approach or method that judges could and should consciously follow, so that if judges employ it, they will arguably produce better or more just decisions. Critics have argued, to the contrary, that living constitutionalism gives judges discretion to impose their personal preferences. But my account does not offer particularized advice to judges, or give them suggestions that would better constrain them. It is an account, to borrow a phrase, of the processes of constitutional decision making, and their basis in democracy and in the ideals of popular sovereignty.”[8]

As expressed by Balkin, the key concept in support of “living constitutionalism” is the “key values” that lie behind the Constitution’s words:

“Constitution-makers from the American Constitution to the present day have also included rights guarantees that sound in the vague and abstract language of principles. This choice of language makes little sense if the purpose of constitutionalism is to strongly constrain future decision-making. It makes far more sense if the goal is to channel politics, by creating a set of key values and commitments that set the terms of political discourse, and that future generations must attempt to keep faith with. Abstract rights provisions are valuable even if their contours are not fully determined in advance. They shape the way that political actors understand and articulate the values inherent in the political system; they shape the beliefs of political actors about what they can and cannot do, what they are fighting for and what they are fighting against.”[9]

“The system of living constitutionalism does not depend on judges of impeccable character any more than it depends on the good character of legislators and Presidents. Indeed, as critics of the federal Judiciary often remind us, the members of the federal Judiciary may not be wiser or more moral than the political process itself. Even so, the Framers of our Constitution recognized that multiple institutions that compete with and check each other can add to the legitimacy of the political system. Different institutional roles foster different role moralities and perspectives. The clash of these positions restrains all of the participants in the constitutional system.”[10]

“In sum, living constitutionalism is primarily a theory about the processes of constitutional development produced by the interaction of the courts with the political branches. It is a descriptive and normative theory of the processes of constitutional construction. It explains how change occurs and it gives an account of why that process is democratically legitimate, or at least more legitimate than the alternatives. To understand living constitutionalism, therefore, we need to understand constitutional construction. And we must begin not with courts—which usually react and respond—but with constitutional constructions by the people’s elected representatives.”[11]

FREEDOM OF EXPRESSION

Balkin does not fight the old battles of the boundaries of free speech. As with most scholars, his present concerns are with the protection of freedom of expression in cyberspace.

“For some time now, I have been thinking about how our understandings of the First Amendment are likely to change in a digital age. Gradually, I have come to the conclusion that we face a transition of enormous irony. At the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the First Amendment seems increasingly irrelevant to the key free speech battles of the future. Or, more precisely, the judge-made doctrines that I teach in my First Amendment classes seem increasingly irrelevant.

“The key values that underlie the First Amendment seem as important as ever: the protection of individual freedom to express ideas, form opinions, create art, and engage in research; the ability of individuals and groups to share their views with others, and build on the ideas of others; and the promotion and dissemination of knowledge and opinion. All these values remain as important in a world of blogs, search engines, and social software as they did in an Enlightenment era dominated by printing presses, pamphlets, and town criers. What has changed, however, is the technological context in which we try to realize these values.

“In that context, the most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. We probably could not have achieved the degree of freedom of speech we enjoy in this country without the judicial elaboration of constitutional values in the twentieth century. In the twenty-first century, however, the future of the system of free expression will require other sources of assistance. And in the twenty-first century, the values of freedom of expression will become subsumed under an even larger set of concerns that I call knowledge and information policy. To explain why, I offer a few examples that, at least on the surface, have little to do with the judicial doctrines of the First Amendment, but a great deal to do with freedom of speech.”[12]

He offers a few examples that, in his view have “at least on the surface, little to do with the judicial doctrines of the First Amendment, but a great deal to do with freedom of speech.”[13]

Debate as to “network neutrality”.

“Today, increasing numbers of Americans access the Internet through network providers, either DSL companies or cable companies. These companies act as conduits for the speech of others. Hence, we depend on them for access to other speakers, just as we depend on traditional telephone service. However, network providers are not currently subject to non-discrimination regulations like the common carriage requirements that apply to traditional telephone service. This creates several possible dangers. First, network providers might want to favor the content and applications of some speakers and businesses over others. They might block access to disfavored sites and services or permit access to end-users only if these sites or services pay a special fee. Second, many end-users regularly visit certain heavily trafficked sites like eBay, Google, or sites that use considerable bandwidth. Network providers might seek to charge these sites money to ensure that their traffic flows smoothly to end-users. Third, network providers might want to give a traffic advantage to their content partners or to their own content, reserving a fast track for favored content partners—like movie studios or television networks—who want their streaming media to flow uninterrupted to consumers; conversely, network providers would not protect the flow of content (or even slow down content) from non-partners, competitors, amateurs, and end-users.

“The principle of network neutrality holds that, in general, network providers may not discriminate against content, sites, or applications. Putting the principle into practice is more complicated than it might at first appear. One version of a network neutrality rule (there are many) would state that network providers cannot discriminate against content, sites or applications except where necessary to keep the network running properly; however, they may charge their own broadband customers (for example, residential and commercial customers) different prices for different levels of service.

“The goal of network neutrality is to keep digital networks open for many different kinds of content and for many different types of applications and services that people may devise in the future. What does the debate about network neutrality have to do with the First Amendment? It is worth noting that under current First Amendment doctrine, at least, the Constitution does not require network neutrality. Network providers like Comcast are not state actors. Rather, the decision to require some form of network neutrality is a regulatory choice that affects how technology is deployed. That choice might be imposed by FCC regulations, or by Congressional legislation, but it is unlikely to flow from a judicial interpretation of the First Amendment. In fact, there is an argument that network neutrality rules actually violate the First Amendment, because they keep network providers from using their communicative property as they like. However, I do not think this argument succeeds; network neutrality rules treat network providers as conduits for the speech of others and regulate them in their capacity as conduits. If network neutrality violates the First Amendment, it is hard to see why common carrier obligations for phone companies—which are also treated as conduits for the speech of others—do not violate the First Amendment as well.

“Thus, at least under current doctrine, the First Amendment does not really say much about network neutrality one way or the other. And yet, whether network providers can discriminate against content, sites, and applications touches on important free speech values. Vast numbers of Americans now communicate with each other through broadband access, and we can expect that the percentage of communication through these digital networks will only increase over time. Network providers offer an indispensable service to the general public that makes much public (and private) communication possible. If network providers could discriminate against content and services flowing through their networks, they would be the most powerful censors in America. And because we live in what is effectively a cable-phone duopoly for broadband services, market competition would not necessarily counteract this censorship.

“But the debate over network neutrality is about more than whether network providers can discriminate against certain types of content or services. It is likely that in most cases large corporations will not discriminate against communications because of their politics or their moral tone (although there have been well-publicized exceptions). Rather, most network discrimination will be for economic reasons—to favor business partners and protect incumbent business models.

“Thus, the debate over network neutrality is really about the best way to spur competition and promote innovation. Defenders of network neutrality rules argue that digital networks will generate more useful applications in the future—and thus help people generate and distribute more information—if digital networks remain as neutral as possible between different kinds of content and applications. A non-discriminatory Internet decentralizes the sources of innovation because everyone can create Internet services and applications without having to obtain permission from broadband companies. Why should promoting innovation matter to people who care about freedom of speech? A system of free speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression. The infrastructure of free expression includes the kinds of media and institutions for knowledge, creation, and dissemination that are available at any point in time. It also concerns the kinds of opportunities that are available for people to create and build technologies and institutions that other people can use for communication and association. People could create these new applications because the structure of the Internet allowed this sort of experimentation without getting anyone else’s permission in advance. By choosing a regulatory scheme that lets the Internet function more or less as a general data transport system, we open up possibilities for a wide variety of new applications and services that can let people share information and opinions, build things together, and form online communities.”[14]

“To be sure, advocates of network neutrality have often made their case before the public by talking about the dangers of network censorship. Yet the larger question in the debate over network neutrality is innovation policy. That question has enormous implications for media access and for future opportunities to speak, listen, share information, and associate with others.”[15]

Intermediary liability, and the privilege created by section 230(c)(1) of the Telecommunications Act of 1996.

“[S]ection 230 has been one of the most important guarantors of free expression on the Internet in the United States. Section 230(c)(1) provides that ‘people who deliver Internet traffic, like broadband companies, cannot be held liable for the traffic that flows through their networks’. Even more important, people who operate websites or online services on which other people provide content, like chat rooms, blogging services, website hosting services, search engines, bulletin boards, or social networking sites cannot be held liable for what other people say when others use these networks, services, or sites. This privilege [does not apply] to alleged infringements of intellectual property rights. Section 230 is a rule of intermediary liability. It gives Internet intermediaries like network providers and online service providers a privilege against certain lawsuits based on content provided by third parties. It is not required by First Amendment doctrine. Yet it has had enormous consequences for securing the vibrant culture of freedom of expression we have on the Internet today. The reason is that Section 230 has protected the conduits and online service providers from being sued for the speech of strangers that they carry. Section 230 is by no means a perfect piece of legislation; it may be overprotective in some respects and underprotective in others. But it has been valuable nevertheless. Much speech on the Internet is anonymous, it may be difficult to locate the person who is speaking, or the person may be overseas. If plaintiffs are upset by what somebody says online, it is far easier to sue the online service provider who let them publish the speech on their site, or the network provider who let the traffic through. Not only are these entities likely to have deeper pockets, they are also probably easier to find.[16] Equally important, intermediary liability produces a phenomenon called collateral censorship: Threats of liability against party A (the conduit or online service provider) give them reasons to try to control or block the speech of party B (the online speaker).

“Sometimes it is perfectly sensible to hold people liable for other people’s speech. The print version of the New York Times may be liable for the speech of other people that it publishes, including that of its reporters, columnists, and even its advertisers. Similarly, book publishers are liable for the statements of authors they print. Network providers and online service providers, however, do not operate the same way as newspapers and book publishers. Large numbers of strangers send traffic through ISPs and large numbers of people will make use of various online services. To return to the example of the New York Times, the online version, NYT.com (as opposed to the ‘dead tree’ version), hosts a number of different blogs and interactive features that allow subscribers to respond to the editors and commentators by posting their own thoughts and ideas.

“The problem with the strategy of collateral censorship in the Internet context is that it simultaneously leads to too much censorship and too little innovation. Book publishers have a vested interest in the work of their authors, and newspapers have a vested interest in the work of their journalists. But if A is not affiliated with B, A lacks strong incentives to defend B’s speech and every incentive to prevent lawsuits. As a result, to avoid liability, A will tend to censor a lot. Indeed, A may not allow anything that A has not written, created, or heavily edited to be posted. The same is true for online versions of newspapers and magazines, which now allow readers to respond by posting comments. Without Section 230, many website operators would simply disable these features. But beyond the problem of collateral censorship, there is also the question of incentives for innovation in creating new forms of information services and online media. If I am considering creating an online service that allows people to post things or publish them on my server or website, I will probably think twice if I could be sued for whatever is posted or uploaded. Without something like the Section 230 immunity, it would be very risky to create social software that allows others to blog or publish, much less create a social networking site. The wide range of participatory media and applications that characterize the Internet today would be at continuous risk of lawsuits. As a result, much of the Internet’s freedom and many of its manifold possibilities for communication and association would be chilled.

“I have offered two examples where free speech values get protected not through judicial elaboration of constitutional precedents, but through regulatory and technical decisions. But this is not simply a story about technology. Law plays an important role in creating incentives for technologies to be built in one way rather than another, thus facilitating certain types of business models and public participation. The Internet’s largely open networks and legal rules, like Section 230, have helped ensure a remarkably diverse ecology of applications, services, and content. Nevertheless, the most important decisions will not be made by courts construing the Constitution; they will be made by legislatures, administrative agencies, technologists, entrepreneurs, and end-users.

“[C]ensorship remains a problem [and] is as likely to come from private entities that control telecommunications networks and online services as from the government. Moreover, concerns about network censorship are actually part of a larger set of issues: the deep connection between free speech values and innovation policy. In the examples of network neutrality and intermediary liability, we best serve free speech values by decentralizing and promoting innovation, by letting lots of different people experiment with a wide variety of new ways of communicating, sharing information, associating, and building things together.

“[M]y central point: The rise of digital networks as a dominant technology for speech in our age transforms the way we should think about the First Amendment and the principles of freedom of expression. First, the digital age makes increasingly clear that the point of the free speech principle is to promote not merely democracy, but something larger: a democratic culture. What is a democratic culture? It is a culture in which ordinary people can participate, both collectively and individually, in the creation and elaboration of cultural meanings that constitute them as individuals. It is democratic because people get to participate in the production of culture through mutual communication and mutual influence. Democratic culture invokes a participatory idea of democracy. The idea of a democratic culture includes the idea of participation in representative self-government, but it is far more than that because the realm of culture is larger than the realm of representative self-government. Digital networks do far more than provide information necessary for democracy in a nation state. First, what people do on the Internet transcends the nation state; they participate in discussions, debate, and collective activity that does not respect national borders and foreign policy. Second, as I noted above, the vast majority of Internet speech has little to do with issues of public concern, but it has a great deal to do with popular culture, with popular mores, and with the everyday concerns of people’s lives.”[17]

The paradigm developed in the 20^th Century “by Alexander Meiklejohn and many other free speech theorists was that the entire purpose of freedom of speech was to provide information necessary for democratic self-government and deliberation about issues of public concern in a large republic like the United States [and] not [for] securing individual autonomy. In Meiklejohn’s words, ‘What is important in a system of free expression is not that everyone gets to speak but that everything worth saying shall be said.’”[18]

Balkin states:

“This vision, however well adapted to the media environment of the twentieth century, seems greatly impoverished in the twenty-first. Broadcast mass media will no doubt remain an important feature of our public life for many years to come. But we need a free speech theory that recognizes that technological changes have made it possible for large numbers of people to broadcast and publish to audiences around the world, to be speakers as well as audiences, to be active producers of information content, not just recipients or consumers. In this way, the digital technologies of the twenty-first century make salient aspects of speech that were always present to some degree.

“The great tension in twentieth-century free speech theory was the increasing protection of the formal freedom to speak against the background of technologies of mass broadcast that reserved practical freedom for a relative few. The tension in twenty-first century free speech theory will be slightly different. New technologies offer ordinary citizens a vast range of new opportunities to speak, create and publish; they decentralize control over culture, over information production and over access to mass audiences. But these same technologies also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world. These two effects—participation and propertization—are produced by the same set of technological advances; they have and will repeatedly come into conflict with each other, as technologies that create new possibilities for democratic cultural participation threaten business models that seek to commodify knowledge and control its access and distribution. Intellectual property and telecommunications law are the terrain on which this struggle will occur, but what is at stake is the practical structure of freedom of speech in the new century.

“This brings me to my final point about the transformation of freedom of speech in the digital age. Protecting free speech values in the digital age will be less and less a problem of constitutional law—although these protections will remain quite important—and more and more a problem of technology and administrative regulation. The two issues I began with, network neutrality and limits on intermediary liability, exemplify this transition. Neither issue is, strictly speaking, an issue of judge-made First Amendment doctrine, and yet both affect the structure of media access and the nature of free expression on the Internet.

“Digital technologies, like the Internet itself, do not have to be structured in any particular way. We can design them so that they promote participation and innovation by large numbers of people. Or we can design them so that they are far less participatory, so that the Internet becomes a locked-down content delivery system designed for large enterprises, like broadcast and cable television are today. Technological design, aided and abetted by intellectual property and telecommunications law, can foster relatively closed, proprietary architectures and standards, or relatively open, easily adoptable ones. The Internet can become a special purpose data transport system like cable television or traditional phone service, or it can remain a general purpose system for moving information that allows lots of different business models and experiments with new services and applications. Free speech values increasingly depend on policies that promote innovation and keep incumbent businesses from blocking new ideas, services, and applications. They depend on regulatory decisions that keep the Internet open, either by limiting liability (as in the case of Section 230) or by discouraging anticompetitive behavior (as in the case of network neutrality rules).

“An increasing number of the issues and controversies that most seriously impact free speech values, I predict, will be technical and regulatory questions like these, rather than questions of judge-made First Amendment doctrine. That is because courts are not institutionally well-suited to address these issues through constitutional law. Although courts will be called upon to interpret statutes and administrative regulations, they cannot design technology themselves or order it to be designed in particular ways.

“This does not mean that constitutional litigation in these areas will cease. But often it will have a very different purpose. Network providers, broadcasters and cable companies will, as they have in the past, invoke First Amendment arguments to resist government regulation, and to protect incumbent business models. First Amendment challenges to media concentration rules are one example. Or consider the argument noted earlier that network neutrality rules, far from being required by freedom of speech, actually violate the First Amendment because they interfere with network providers’ control over their communications technology. This would insert constitutional doctrine into network design in a particularly inflexible and unhelpful way. If courts misconstrue the First Amendment this way, they will not promote free speech values; they will create obstacles to their realization.

“Free speech values, I predict, will increasingly meld with a larger set of concerns about how best to produce knowledge and promote innovation in information technologies and services. Eventually we will come to see free speech values as part of a larger set of concerns that I call knowledge and information policy. Indeed, we will eventually come to see First Amendment law—as judges have constructed it in the twentieth century—as an important subset of knowledge and information policy. Free speech doctrines are surely one method for promoting the growth of knowledge in society and individual freedom in a world increasingly dominated by information technology. But they are not the only means, and in some respects they are very limited indeed.

“In the digital age, judicial protection of First Amendment rights will remain quite important; but if I am correct about the trajectory of future policy debates, our attention will increasingly shift to questions of design—both of institutions and technology—that are largely beyond judicial competence. The key players in ensuring free speech values in the digital age will be legislatures, administrative agencies, and technologists. Indeed, one might summarize many aspects of knowledge and information policy in our Constitution’s original grant of power to Congress to ‘promote the progress of science and useful arts.’ In 1787 the word ‘science’ referred to any organized body of knowledge or learning, including the study of classics or literature, and the ‘useful arts’ corresponded more closely to what we would call engineering or technology. It is also worth noting that the Constitution gives this power to promote progress not to the judiciary, but to the legislative branch. To be sure, the Progress Clause specifies a way to achieve these goals—creating intellectual property—but there is little doubt these days that Congress may encourage the growth and spread of knowledge through other means as well, including grants for scientific research, educational support, postal subsidies, and the creation of libraries. These days, we should read the Progress Clause in concert with the First Amendment; together they set forth an interlocking set of goals and values: to protect the development of knowledge and opinion through securing the freedom of speech, press, petition and assembly, and through policies designed to promote the growth of—and access to—knowledge. The two clauses come from the eighteenth century. But their combination makes increasing sense in the twenty-first.”[19]

CHALLENGE TO FREE SPEECH: LIBERTY’S DOMINANCE OVER OTHER RIGHTS AND LIBERTIES

Balkin sees and “sympathizes with” a “sea change” in the thinking of the libertarian positions of the American “left” and abandoning them with respect to the importance of protecting speech from governmental interference even when it is hateful. “It’s not that way anymore”[20] “This social transformation is not yet complete, and indeed, I suspect, it probably never will be.” I can’t imagine a social context that would change so radically that the left would find it in its best interests to abandon completely its commitment to protecting the speech of unpopular groups. What I do expect will happen, however, is that gradually the left no longer will find the First Amendment its most effective tool for promoting a progressive agenda. That job will fall to other fundamental rights and interests, which occasionally will conflict with the absolutist interpretation of the first amendment that the left traditionally has favored.”[21]

By way of example, he deals at length with areas that have the “absolutist” view of speech protection under siege—hate speech, on-the-job sexual harassment, money and campaign reform, and pornography. He posits whether free speech doctrine protection of speech in denigration of the right of and injury to individuals or important needs of governmental policy in the forgoing areas are still valid in today’s society.

He argues:

“If free speech doctrine is justified through concepts of will and free choice, and if will and free choice are constructed by the system of legal rights and obligations, including the rights of free speech, then there is an inherent problem of circularity. It is true that one always has the free choice to avert one’s eyes when one sees a naked buttock on the screen, [i]n the same sense that it is always true that the weaker party to an unconscionable bargain always has the free choice to walk away or to accept the unconscionable terms. But this “choice” tells us no more about the justness of the duress and coercion involved in the law of free speech than it does for the doctrines of laissez-faire capitalism.

“I believe that if we assimilate the legal realist critique of contract into First Amendment law, we will recognize that the concepts of coerced and non-coerced exposure to speech also exist in a relation of mutual dependence and differentiation. We will recognize that these terms do not preexist the system of First Amendment law but rather are constructed by it, and that defenses of First Amendment liberties in terms of freedom and coercion will prove ultimately as circular as those for freedom of contract did. This does not mean that most of current First Amendment doctrine is wrong, or that we should start rounding up offensive speakers and throwing them in jail. I do suggest we recognize that our protection of free speech rights is protection of a certain type of coercion, of induced harm, and that we should be more sensitive to the existence of this coercion and this harm in specific and limited contexts—for example, direct face-to-face racial and sexual harassment.

“To some extent, we already do recognize the problem of coercion through the fiction of “fighting words”’—that is, words that by their nature are likely to incite an immediate breach of the peace. Nevertheless, the use of the “fighting words”’ doctrine to deal with face-to-face racial or sexual harassment is a very bad idea. It merely disguises and misrepresents what I believe is the real issue in these cases—that is, the harm forced upon an audience in an extreme and unfairly coercive situation. Both the rationale of the original

‘fighting words’ decision, Chaplinsky v. New Hampshire, [315 U.S. 568 (1942)] and the later gloss provided by Brandenburg v. Ohio [395 U.S. 444, 447 (1969)], that unprotected speech must be directed to produce imminent lawless action—are ill-equipped to deal with cases of harassment for precisely this reason. The paradigmatic situation these cases are concerned with is the speaker who so angers her audience that they attack her, or so inspires them that they arise and revolt. These cases do not concern speakers who browbeat their opponents into silence. If in the first two cases we understand that no counter-speech will occur because of the imminence of violence, we also should understand that in the third case no counter-speech will occur because of the directness of the intimidation. Moreover, we should recognize that in the case of the inciting, as well as the harassing, speaker, judgments cannot be clear-cut but are always matters of degree. If there are problems of administrability in the latter case, there are also problems in the former case, which is already comprehended by current First Amendment doctrine.

“The most obvious place in which the Chaplinsky/Brandenburg doctrines of non-protected speech fail us is the case of sexual or racial harassment in the workplace. And here the conflict between the left-libertarian conception of free speech and the progressive agenda of guaranteeing racial and sexual equality is especially pronounced. The most rudimentary Hohfeldian analysis demonstrates that to the extent we allow verbal conduct creating a hostile working atmosphere, we thereby refuse to protect persons from certain forms of private racial and sexual discrimination. Conversely, to the extent that mere words can give rise to liability for employment discrimination, intentional infliction of emotional distress, or other causes of action, we acknowledge that an employer or co-worker can be punished for making such statements.

“I think, in fact, that there are perfectly good ways to defend laws against racial and sexual harassment in the workplace from first amendment challenges. The question of sexual and racial harassment in the workplace ties in quite well with the analysis of captive audience doctrine presented above. Few audiences are more captive than the average worker. It is true, in theory, that one does not have to be subjected to racist or sexist speech on the job—one can simply shield one’s eyes or ears, or failing that, one can decide not to show up for work anymore. But this will mean that one’s employment also will end. Because the will of employees is circumscribed by their need for employment and because employment is yoked together with the hostile work environment, traditional First Amendment claims that more speech is better, and that one need not submit to distasteful speech, lose much of their force. Certainly, if employer-employee relations involve sufficient coercion that we can justify regulation in other contexts, then this coercion does not suddenly vanish when the issue is submission to racist or sexist speech.

“If the workplace involves sufficient coercion to invoke the doctrine of the captive audience, then perhaps the First Amendment problems I have identified above will not prove insurmountable. Indeed, I suggest that we might do well to shift the paradigmatic case of the captive audience from the passengers on the public buses or the child running through stations on the radio dial, to the employee working for low wages in a tight job market who is sexually harassed by her employer or co-worker. This shift in paradigmatic understandings, inspired by the legal realist analysis of will and duress, might do much to set First Amendment law on the right path.”[22]

In this area of law, Balkin emphasizes, “One major concern about sexual harassment law is that employers will restrict employee speech in order to avoid hostile environment liability, thus violating free speech principles.” He argues “that this ‘collateral censorship’ is constitutionally permissible when there are good grounds for vicarious liability. Because employers actively control workplace culture, and because they are better able to prevent hostile environments than individual employees, vicarious liability for employee speech is more justified than in the case of distributors or common carriers. That captive audience doctrine, generally thought to apply only to speech in the home, is actually better suited to workplace speech. Hostile environments are a method of sex discrimination that maintains gender segregation; a hostile environment does its work precisely through making the employee a captive audience. First Amendment challenges to sexual harassment law should not become a defense of employer prerogatives presented in the guise of worker liberties. Without the incentives created by sexual harassment law, employees will not be freed from censorship; they will simply be remitted to the economic and social control of employers.[23]

“When First Amendment challenges are raised to sexual harassment law, civil libertarians should not be diverted from the deeper issues of employer control and employee freedom. We can protect the First Amendment best by following the law as it is written—by awarding damages only in cases where severe or pervasive abuse materially alters employment conditions. But we should also not forget to protect employees—all employees—by working for greater speech rights against their employers than American law has seen fit to give them. For many employees, those are the speech rights that really count.”[24]

“I offer my analysis because I believe that the problems of the future cannot be solved using the intellectual frameworks of the past, no matter how much good they may have done us. Progress in politics and in law is not simply a matter of convincing others to think as you do. It also requires having the courage to change your own ways of thinking when changing times require it.”[25]

CONCLUSION

THE FUTURE OF FREE SPEECH

In the lead-up to the Yale ACS Chapter’s Conference on the Constitution in 2020, Professor Jack Balkin wrote on the future of free speech as follows:[26]

“To understand some of the most important free speech issues of 2020, we must begin by noting that wealth in the American economy will increasingly be devoted to knowledge production. Ownership of information distribution networks and intellectual property will increasingly be major determinants of who has power and money in American society and who does not.

By 2020 the ideological drift of the First Amendment will have proceeded apace, and the First Amendment will have emerged as a major anti-regulatory device, just as freedom of contract did in the gilded age. We have already seen intellectual property emerge as the other major set of rights defended by (and expanded on behalf of) business. However, freedom of speech and intellectual property are in tension with each other, so that new legal theories will emerge harmonizing them in ways that will serve the interests of business enterprises. Some business enterprises will focus more heavily on the defense of information distribution networks (cable, satellite, broadcast, Internet) from regulation, while others will push harder for legal protection of intellectual property rights. Still other business interests will use the First Amendment to defend the accumulation and sale of personal data, arguing that privacy protections violate the First Amendment’s right to collect and distribute information.

“[This] is a positive prediction about how law will be harnessed to serve the interests of economic power. Whenever a new source of wealth emerges in American history, the Constitution will be employed to protect that wealth regardless of the public interest. [W]hat should the progressive response be? It seems to me that progressives must defend the underlying values of freedom of speech regardless of what the actual doctrines of the First Amendment and intellectual property turn out to be in 2020. Those values will only partially overlap with the interests of businesses who make their profits from ownership of distribution networks and the delivery of intellectual property; indeed, in many respects they will run counter to those interests. Moreover, because free speech values and intellectual property are partially in conflict (as well as partially mutually supporting) progressives will also have to make their own way of making them live together and work together.

“Again, the key point is to think in terms of free speech values, not in terms of existing doctrinal categories. Those doctrinal categories are always ‘fighting the last war’, that is, they are always attempting to secure paradigmatic claims from previous struggles about civil liberties, as well as reflecting the compromises and defeats that emerged from those struggles.”

Further:

“In the future, we should focus on several key themes:

(1) Developing and protecting the infrastructure of free expression. Freedom of speech is a product of culture, institutions, and legislative and administrative regulation as well as a product of judicial protections of negative rights. A culture of free expression requires institutions like schools and libraries that promote the dissemination of knowledge and a public sphere where discussion can occur. The infrastructure of free expression has always been partly in private and partly in public hands; in the future it is likely to be increasingly privatized. As a result, progressives should push for regulations and programs that promote education and the free distribution of knowledge and opinion.

(2) Promoting a democratic culture. To a large degree, the progressive agenda in the First Amendment was shaped by the presence of television, a unidirectional form of mass communication that is owned by a relatively small number of persons and that lacks interactivity. The public sphere of 2020 will increasingly be shaped by new media which are interactive, bidirectional, and in which huge numbers of people can participate. The goal of progressives must be to promote a democratic culture, a culture in which individuals have a fair chance to shape the forms of culture that in turn constitute them as individuals.

(3) The role of institutions. In the areas I’m discussing in this posting, free speech values will mostly be secured through the design of institutions, through legislative and administrative regulation, and through the design of technology. As a result, courts will have only a limited role in securing free speech values for new media in the next several decades. This does not mean that the Constitution and constitutional norms are not involved; it simply means that people will have to make constitutional arguments about how to protect the values of freedom of speech in the context of other institutions.

Intellectual property is a good example. It’s very difficult to create a set of judicial doctrines that will adequately protect free speech interests as intellectual property law continues to metastasize. Courts can do something here, but only so much. For example, they cannot create elaborate licensing schemes for all relevant stakeholders by judicial decree, nor can they order that technologies be designed in one way rather than another; that is especially so because technological innovation proceeds regardless of what courts might want to do in the short run.

This means that much of the heavy lifting for the protection of free speech values will have to be done by technologists, legislatures, and administrative agencies. Through technological design and administrative regulation, we must continually push for rules that protect the values of interactivity and of a free and democratic culture. In technology, this means coming up with ever new ways of harnessing individual participation and communal effort. In regulation, it means not allowing large entrepreneurs either to monopolize or block participatory and communal technologies for mass communication.

To some extent, progressives will likely be outgunned by the superior lobbying efforts of business, both at the national and international levels. That does not counsel despair. Rather, it means that progressives must find alliances with a variety of different interests in the business community to help us fight our battles over technological design and regulation. No one should for a moment believe that because the issues are technical and regulatory they do not involve constitutional values. The Constitution lives (or dies) inside the technological and regulatory designs of new media of mass communication.

(4) Educational rights. In Rodriguez, the Supreme Court considered and rejected the idea that the First Amendment was the source of any important rights to educational opportunity.[27] Many things about Rodriguez were misguided, and this was one of them. Freedom of speech means little if people do not have the opportunity to develop their minds. Freedom of speech does not begin when people open their mouths; it presupposes that people have a fair chance to obtain the knowledge and skills that enable them to participate in a democratic society. That is what a democratic culture means.

(5) Government accountability and transparency of power. In the 1970s the Supreme Court refused to extend the free speech principle to rights to know what government officials were doing. (The major exception is access to [some] judicial proceedings.). Possibly judges cannot fashion administrable rules in this area. Even if that is so, that does not mean that free speech value are not implicated. To the contrary, the more we are reminded that lack of government accountability usually leads to abuses of power.”

[1] For example: The Constitution in 2020 (2009), “Fidelity to Text and Principle”, pp. 11–23, and Framework Originalism and the Living Constitution, 103 Northwestern U., L. Rev. 549 (2009). NOTE: ALL FOOTNOTE REFERENCES WITHIN THE DOCUMENTS CITED HAVE BEEN DELETED FROM THE QUOTATIONS THEREFROM.

[2] Comment at ACS BLOG: 2009 ACS National Convention Podcast, 7/14/09.

[3] Framework Originalism and the Living Constitution, 103 Northwestern U. L. Rev., 549 (2009).

[4] Id., pp. 550–551.

[5] Id., pp. 550–551.

[6] Id., p. 550.

[7] Id., p. 561.

[8] Id., p. 602.

[9] Id., pp. 554–555.

[10] Id., p. 585.

[11] Id., p. 566.

[12] 36 Pepperdine L. Rev., pp. 427–428 (2009).

[13] Id., pp. 427–428.