FESC: First Amendment Theory and Coverage

First Amendment Theory and Coverage

Moderator: Ash Bhagwat

 

Jane Bambauer, Derek Bambauer      Information Libertarianism

Presenter: Morgan Weiland: Important ongoing debate about expansion of 1A doctrine to cover commercial and corporate speech.  Critiques existing identification of “new Lochnerism” as an explicitly redistributive “soft Marxism.”  At its core, the current scholarship is hypocritical, criticizing the Court for using the 1A instrumentally to deregulate, but their theories of limits are also based on politics and are therefore also instrumental.  The authors purport to offer a politically neutral defense of expansive free speech doctrine, because the 1A is inherently libertarian. Info = communication or signals b/t sender/receiver where those communications are or could be useful to human beings.  Info libertarianism is oriented towards the listener. Speech is info w/in the scope of the 1A.  Info libertarianism is skeptical towards regulation of speech and supports regulation of conduct.

 

Direct regulation of conduct is (1) more effective at attaining gov’t’s goals, (2) has fewer collateral consequences, and (3) more transparent.  Costs of speech are overestimated and benefits discounted.  Speech is vulnerable to intractable political problems: interest groups, gov’t self-promotion, etc. Info libertarianism mitigates these concerns.

 

Comments/feedback: 1A theory as libertarian. Paper assumes that implicit in every theory of free speech is the libertarian insight: worries about gov’t power. This assertion presents two problems. (1) Not clear it’s correct; requires more support than provided. (2) Because the claim isn’t supported, you determined ex ante that the entire field of speech is libertarian, which neutralizes the ideological approach you subsequently take.  Could be dealt with in a couple of ways: distinguish b/t theory and doctrine; doctrine is a stronger candidate for being deeply libertarian.  Could also defend the claim that 1A theories are always ultimately about fear of gov’t.

 

Listener-centered approach is underdeveloped part of 1A doctrine.  Red Lion & many other cases discuss this view. There’s a lot of scholarship in the communitarian tradition that deals with this listener-centered approach; engage w/that, b/c it comes at listeners from a very different angle. 

 

Use of term “information.”  Talk more about why you distinguish b/t speech and info in the first place. What work does it do for your theory?  Relatedly, there’s tension in attempt to unite info theory w/the notion of info described as attached to phenomenology, which reintroduces meaning. Shannon’s info theory was designed to strip meaning out of info processing, so there’s a tension.

 

Broader info libertarianism: Unpack the specific theoretical contribution of info libertarianism in contrast to other free speech theories.

 

Morgan Weiland         “Thin Autonomy” and the Digital Speech Crisis

Presenter: Amanda Shanor: New third tradition in free speech theory: autonomy justification—thin autonomy, stripping hallmarks of human autonomy in self-expression and self-creation, leaving only freedom from the state. This poses a deep threat to the digital era.

 

Summary: First: dominant historical traditions, negative and affirmative free speech.  Negative: individual autonomy rooted in Enlightenment notions of self-expression. Ascribed. Not just negative liberty against state, but productive/generative. Affirmative: free expression is a social good wielded by individuals to accomplish the public good of discourse/democracy.

 

Second: neo-Lochnerism and thin autonomy.  This new justification for speech protection comes from commercial speech/corporate political spending as speech cases. Radically corporate, libertarian version: strips away Enlightenment ideals, leaving only a naked right against the state.  Not a right to self-constitution.  Flips press right on its head: negative right justification treated the press as specially protected because it was instrumental to vindicating listeners’ rights; new thin concept treats listeners as instrumental to vindicating corporate rights.  A one way deregulatory ratchet.

 

Third: threat to digital era. Telecom law is poised for a similar issue as commercial speech/campaign finance. Net neutrality is the new ground.  ISPs are making third tradition argument: ISPs are speaking when they load data packets.  That’s a thin autonomy justification divorced from self-expression and self-realization.  Gov’t defends the first two traditions: data transmission isn’t speech, but content creators’ and audiences’ receipt are.  Broadband providers are not speaking when they deliver data, but serving as conduits.  Net neutrality serves important First Amendment purposes to allow individuals to structure their own political speech. 

 

Questions: (1) How do we recognize thin autonomy when we see it?  Autonomy right against the state claimed by corporation—is it just another way of making a corporate speech claim?  When you see listener rights invoked instrumentally?  You say that listener rights can also be used instrumentally to serve thick autonomy goals.  Paper suggests it might be nonhuman actor that’s key. (2) Why and on what basis is thin autonomy unsatisfying? Is it unacceptable b/c of its outcomes?  Or b/c the 1A does and should extend only to thick autonomy interests?  (3) Can’t corporations provide the opportunity for self-cultivation by citizens?  Commercial speech: in that context, some cases we might realistically describe as neo-Lochnerism are brought by individuals, such as US v. Caronia, where an individual successfully challenges the FDA’s off-label speech rules.  Reconstituting the individual as consumer in the third tradition: love to hear more about how the third tradition reconceives the individual as a consumer.

 

Jane Bambauer: central tension in papers: theirs defends thin autonomy because it’s a useful corrective to avoid bad policy—gov’t thinks it’s getting things right and it’s not.  Insistence that every free speech theory has a libertarian core: maybe that’s not true, but if we’re going to agree that the 1A is an individual right then it is true. Even if you take the narrowest free speech theory, the Borkiest, and protect only core political speech, if what we mean by being protected is that the state can’t punish an individual for speech, that reveals that we have some distrust of the political process to get the legal rule correct.  [So all individual rights are libertarian?  If I have a right not to be killed by the state, does the fact that it applies to me as an individual make it an individual right and not a communitarian one?]

 

Weiland: On defining thin autonomy: the legal fiction of the corporate person has limits. We should allow the individualism of the free speech right to apply to corporate persons, and that doesn’t make sense. We should assess the nature of the group: reasoning in Citizens United was wrong, as was the holding. What is their relationship to self-expression? Some groups have a great claim to self-expression, but not all of them. Doctrine is now incoherent. Perhaps the Citizens United group gets the same outcome, but not all corporations.

 

Tamara Piety: Suggestions re: tone.  [RT: I’m offended at being accused only of being a “soft” Marxist.  I work out!]  That’s a code word and not fair.  Basic framework of the Lochner charge was advanced by that well-known enemy of capitalism CJ Rehnquist, in his dissents in Virginia Pharmacy and Belotti.  It’s taken time for some of his predictions to bear fruit, but they did.  A lot of these objections are coming from corporate law scholars: the corporate law body of law is in tension w/emerging 1A doctrine.  Defining corporate entities is a very different project in corporate law!  Not fair to characterize this as burn-Wall-Street.

 

Straw man argument about originalism; if you care about originalism, you should be concerned about current doctrine—not really pure originalism. 

 

You assume what a lot of us are challenging: the informational status of a lot of commercial speech. If you say it’s valuable, you assume away the problem. 

Intermediate v. strict scrutiny standard: but that’s one of the principal disputes right now. Intermediate scrutiny became de facto strict over time and we object to that; now we’re entering to a place w/an uneasy mixture of content neutrality and Central Hudson, which has not been overruled. 

 

Jack Balkin: You can’t go far wrong if you try to base a theory on some idea of freedom. Can we think of info libertarianism as being sufficiently neutral as to all the things we care about w/r/t speech? Usually we don’t talk about liberty as neutral; we talk about it as serving some sort of value. Creating a form of liberty w/ no value associated with it strikes him as too cautious.  What are the human values promoted by this tilt towards libertarianism?  When you articulate it, it won’t be in terms of neutrality.  For Weiland: what is the loss in terms of human values by the retreat to the thin conception?  For example, suppose you happen to be a critic of neoliberalism.  Might argue that the thin autonomy conception involves a particular form of risk assessment/management, capital development to which human is entirely subservient, subsumed into market metaphors, and that’s a deeply false picture of what human life is and should be. That’s an objection I get.

 

Jane Bambauer: nothing is purely neutral, nor are we purely procedural. Reluctant to name end goals (though she could) b/c we have many examples where the gov’t’s end goal is not well served by regulating communications.  [Which assumes that the gov’t has a single goal, and that a better regulation in service of that goal is politically possible.  I actually have a lot of sympathy for the argument that the gov’t should be forced to Hobson’s choice in many circumstances, though I think that’s generally a better argument for getting rid of disclosures and doing more flat bans on speech.]

 

Weiland: Agree w/the affirmative and negative traditions: 1A is there to ensure that we have opportunity to cultivate ourselves as autonomous, expressive people. So can corporations provide that opportunity? Yes, absolutely, but only instrumentally.  In the affirmative tradition we develop ourselves as publics, as groups.  The single-way ratchet against regulation prevents a proper balancing of the possibilities.

 

Bhagwat: negative/positive: one thing going on seems to be instrumental/political versus individual autonomy/development.  Agree that Fiss, for example, is associated w/gov’t getting involved and political, positive conception of 1A. But those two threads can exist apart.  You say that “getting more information” is not the result of Citizens United and thus it’s not justified, but why do you think that’s not true?

 

Weiland: it could be the case that deregulation furthers the listener’s interest, but it’s not always true as a tautology. Kennedy et al. assert that listener’s rights are coextensive with every corporation’s speech.

 

Amanda Shanor          At the Boundaries of Free Speech: A Theory of First Amendment Coverage

Presenter: Leslie Kendrick: Many questions around free speech Lochnerism are questions about coverage, not protection: securities regulation, workplace harassment. Coverage is a sociological concept.  What courts and litigants in a given moment think it is; lately, that question of what coverage is has been expanding. Descriptive theory of what courts are doing when they discuss coverage. Social consequentialism: how cohesive are our expectations about the reactions/understandings the speech will generate? The more cohesive our reactions are, the less likely it is to be covered. Workplace harassment: we understand the effects of harassment on the workplace. Porn/hate speech: those are w/in the scope of the 1A b/c social cohesion around those is more contested—what its effects will be are more in question.  Courts should assess the institutional and other values implicated by expanding or contracting coverage.

 

Questions: is this really about cohesion?  Nazis in Skokie; we could all have a consensus prediction about what happens when Nazis march in Skokie and what effects that will have, and yet it’s protected.  On the flip side, workplace harassment: the story there bears uncomfortable resemblances to porn: different views of what porn does, but also potential disagreement about effects of workplace harassment.  If sex is included in Title VII as a possible poison pill (a contested account), then it didn’t itself represent any social consensus, nor did the effects of harassment specifically in the workplace. One could also think of law itself as a marker of social cohesion: and yet it can’t be the case that having a law about something signifies the existence of social cohesion.

 

Speech/conduct divide.  [This troubled me too.  I think the meaning of the shape of a car is likely to be contested, but that doesn’t make it within the scope of the 1A.]  It’s an uncomfortable divide, and the more we try to escape it the more trouble it gives us. Many of the things that we wouldn’t colloquially call speech are the subject of regulation and are contested.  Minimum wage laws.  The effect of a $15/hour wage is contested, but no one would argue that b/c the effects of such a wage are contested they have a 1A right not to obey.  Speech/conduct divide may be doing work underneath your concept.

 

Leslie Kendrick          Use Your Words

Presenter: Derek Bambauer: Theoretical inquiry separate from underlying rationales for free speech or claims about coverage, balancing, or scrutiny. Instead, speech is distinctive relative to other human activities: more efficient, effective and precise method of communication than any other, thus likely to possess a unique relationship to the reasons for First Amendment protection.  Speech as phenomenon: enables each of us to transcend individual boundaries of time, place, meaning-making—can represent actual/potential states of being. Speech is power.

 

Specialness: a brief history of justifications for speech exceptionalism.  Unitarians: single core value drives shape of 1A. Pluralists: speech is critical/central to multiple important values.  Inclusivists: everything is speech until shown not to be; this is more of a description than a theory.  Skeptics: those who find speech’s uniqueness unpersuasive: speech is not meaningfully distinct from speech or tennis (don’t attend Wimbledon w/these people), but speech claims are just normative agendas.

 

Separability from other activities + heightened value/special connection to underlying values = justification for special treatment for speech.  Paper doesn’t require 1-to-1 correspondence w/ underlying value, but it is enough for speech to be primus inter pares.  It’s enough that “speech” doesn’t describe all activity and that “speech” is special.  Doesn’t address which speech should actually be protected, or whether there should be “neighboring rights” for speech-generating behavior. 

 

If speech is special b/c it’s uniquely good at communicating, we need an underlying theory for why communication is special.  At base, this is a claim about human specialness: social interaction/advanced cognition are important, and communication is a platform for that. If communicative efficiency is a criterion, then many behaviors become speech; forces the theory to become highly inclusive, outsourcing all the work to the protection issue; or it requires some other limit.  Words and other speech aren’t uniquely communicative. Much communication is nonverbal and not even what we’d call language. The eyebrow flash; the wink; the crossed arms; the tapping toe.  We also find signals easily recognizable as words in animals: honeybee dance for location; warning cries that identify specific predator types. We need to understand whether all communication is speech and if not why not.

 

Paper: speech is a complex system of communication.  Complex is a word that needs elucidation, or risks becoming the 1A version of the epicycle, an adjustment that does a lot of the work of harmonization w/desired outcome.  Also, simple signals do a lot of work, like flashing your headlights to signal a speed trap. We can’t resolve the speechiness of draft card burning and flag burning w/just an idea of complexity.

 

Wherever the boundary of speech is located, will leave out certain acts vital to speech generation. Could be relegated to Press clause in doctrine, but certain means of generating speech are just more effective than others. Printing press, pencil—classic line drawing problem.

 

Shanor: does cohesion work?   Harassment is about boundaries, different types of interpretive communities.  Ultimately my conclusion is that drawing these lines can’t just be socially descriptive; neutrality is not a thing that exists.  Normative inquiry.  Attempt: highlight social forces.  I think about speech/conduct differently: if we have a two-tiered system of scrutiny, there always has to be a boundary—a meta-doctrine, per Mark Tushnet. Doesn’t think we can get it from speech and conduct; deeply normative decisions are required.  Hope is to make that a more visible inquiry.

 

Kendrick: interested in structure of rights, particularly special rights that operate above whatever rights conduct does generally. Conceals w/in it questions of how distinctive the activity is and how robust the protection difference should be; my question is about the first. In our language of special rights, we tend to frame them in terms of activities in the world. So we could have a liberty principle or something else that invoked a value, but instead we talk about “freedom of speech” or “freedom from unreasonable search and seizure”: described in terms of facts in the world.  Trying to see if you can gain anything by thinking about speech as a phenomenon separate from the values we think it furthers.  Then I stab at that by trying to distinguish speech in its communicative power/efficacy. I resist the idea that it’s about communication per se. I want to put aside Qs about everything that could communicate.  Defending the proposition that speech is different in communicative capacity, not to say that speech has a monopoly on communications. We have academic disciplines devoted to speech, specifically language, suggesting that language communicates differently. Though everything signifies, language is the most effective signifier. 

 

She’s perfectly willing to concede that animals have complex systems of communication. We could think this phenomenon has important value for something—but maybe it only relates to human development, or not; maybe preventing animals from communicating is a form of cruelty!

 

Q: Hate speech & harassment don’t differ in social effects; Eugene Volokh would protect harassment in the workplace.  Nuanced, accurate, efficient: all can be characteristics of sexual harassment, price-fixing. So it seems there has to be some greater value beyond speech.

 

Shanor: Agree that formal analysis can’t answer these questions; ask functional questions, e.g. about the functioning of the securities markets.

 

Kendrick: what I’m describing about speech has no normative valence; it could be used for good/evil. Speech is very good at insulting people.  Hard to have hate crimes w/o language that explains what you’re doing.  Want to disentangle the phenomenon from the normative values served by the speech; there are certain types of claims you can only make through language, like all the types of claims we discuss here; all rules for governing a democracy; any type of abstract or hypothetical thought—speech has a monopoly on those. 

 

Q: many of the theorists you deal with are actually arguing about protection, not coverage.  We don’t protect speech in all cases, so maybe the question of whether speech is especially good at communicating is beside the point.  If we find parts of speech that aren’t doing the thing that speech in general can do, then we can regulate it, right?

 

Q: maybe speech communicates specially b/c we have a choice to say or not say: b/c we have a choice about integrity. Silence can mean something too.