Rob Kar: Fried says liberty is the central value, but how far does it extend? He didn’t hear much about democracy. Maybe restrictions on liberty are okay if self-authored, but then we need a careful definition of that process.
Fried: He has a political theory, not so much a First Amendment-specific theory. It’s important to begin with what liberty is and why it’s important. He thinks it extends all the way. That doesn’t answer the question of restrictions – only allowed when necessary – just puts the shoe on the right foot.
Baker: Fried uses precisely the notion of liberty Nozick uses. There’s a structure, in which freedom exists. Rawls was all in favor of freedom to work – the question is whether a person laid off by GM would like to be at dinner with us. Possibly, but the structure doesn’t allow that. Seana Shiffrin described a movement to make work more meaningful, and that’s really appealing. The issue is how to think about freedom in getting there.
Weinstein: Let’s call Fried’s view Lochner rather than making free speech jurisprudence more incoherent. To Baker: You haven’t given enough weight to listeners’ interests. The state’s reason for banning cigarette ads may be insulting, based on a lack of trust in the listener’s reaction.
Baker: He distinguishes formal and substantive autonomy. The First Amendment is about formal autonomy. Lots of information is useful to us but we don’t get it – it would be useful if people shared many secrets, for example. The information we get comes from our economic structure, not naturally. Government structures society; it would be paternalistic to say that citizens can’t choose to organize society in particular ways.
Redish: Baker’s argument isn’t just about commercial speech but also corporate noncommercial speech. He has a myopic view of what a corporation is. It’s a Jacksonian innovation – helping the common man compete with monied interests, allowing individuals to join for self-realization. Speech is always an attempt to advance one’s own interests by persuasion. Also, he underestimates the harm of taking corporate speakers out of the mix. Liberty requires information and opinion to be meaningful. If we take out the only party with an incentive to communicate information, we’re creating an externality.
Seana Shiffrin: Even if she’s overoptimistic, lots of noncorporate market actors act morally, and we might want to protect them against forced self-refutation. She wants to look across contexts – we shouldn’t insulate the First Amendment from contract law and corporate law. We should encourage market actors to think of themselves as moral actors. Some of her argument is particularly directed at Baker, asking what it would be like for a market agent to accept his account. She thinks it would be detrimental, because we should encourage people to take advantage of degrees of freedom for moral action.