Some Realism about Pluralism: Legal Realist Approaches to the First Amendment– Part I
Originally published in 1990 Duke L.J. 375
Copyright 1998 by Jack M. Balkin. All Rights Reserved.
Some Realism about Pluralism:
Legal Realist Approaches to the First Amendment
by J.M. Balkin*
I. IDEOLOGICAL DRIFT AND THE CHANGING CONCEPTION OF FREE SPEECH
A few years ago, in my home town of Kansas City, Missouri, I found myself in a very uncomfortable position politically. The local chapter of the Ku Klux Klan asked the local cable company, American Cablevision, if they could show what was essentially a racist propaganda series, “Race and Reason,” on the public access channel. They were told that the public access channel was available only for locally produced shows, and they responded by asking if they could air a locally produced show saying basically the same things, called “Kansas City Live.” American Cablevision was concerned about the reaction of the neighbors (they’re located east of downtown Kansas City in an all black neighborhood), and they complained to the City Council. They asked if they could be let out of their franchise contract in which they were granted a monopoly in the city in exchange for providing a public access channel. After a very public and emotional debate, the City Council finally voted to abolish the public access channel and substitute a “community access” channel. This meant that American Cablevision had editorial discretion concerning whether or not to allow any particular speaker on the channel and what they could or could not say. Needless to say, the Klan was not permitted to broadcast under the new regime, and in fact American Cablevision began to exercise its new authority toward other groups who had participated in public access programming before the changeover. And, not too surprisingly, the City’s decision led to litigation that was ultimately settled out of court in the Klan’s favor.(1)
Just before the City Council vote, the local board of the American Civil Liberties Union of Western Missouri asked me, along with a former colleague, Joan Mahoney, to write a memo to the City Council explaining why their action would violate the first amendment and expose them to liability. We did so, and the memo was a straightforward exposition of first amendment doctrine. What made me uncomfortable was that on the other side of this dispute were not the usual opponents of the ACLU nor was it a question of the Kansas City establishment versus the guardians of freedom and enlightenment. On the other side of this controversy was the Reverend Emmanuel Cleaver, a liberal city councilman who is one of the leaders of the black community in Kansas City.(2)
And this situation got me thinking: The left in the United States used to be solidly united around the overriding importance of protecting speech from governmental interference – proclaiming the necessity of protecting the speech we hate every bit as much as the speech we love.(3) It’s not that way anymore. An important realignment of political beliefs and attitudes is occurring in the United States. It is a sea change that may prove to be something rich, but at least for now is certainly something strange. I am an ardent advocate of the freedoms guaranteed by the first amendment, yet all around me I see the American left abandoning its traditionally libertarian positions, often for reasons I sympathize with. This change in the conception of the principle of free speech is one of the subjects of this Article.
Let me offer a set of recent examples of left arguments about free speech. At first glance they all appeared isolated, but I think they share an underlying logic. I present these arguments in what I believe to be their strongest versions, although I do not agree with them in all respects. Nevertheless, I believe that the general form of analysis they offer is very important indeed, even if I would reach different conclusions by employing it. That form of analysis is the other major subject of this Article. The first example of left arguments involves the newly expressed disappointment with the free speech principle when it is used to protect racist speech that promotes racial stereotypes and racial oppression.(4) As Professor MacKinnon tells us, if we view first amendment values as a system, so that a victory for free speech anywhere is a victory for free speech everywhere, then the same view applies to racism – a victory for racism anywhere bolsters racism in society in general.(5) And this is, of course, the argument for abolishing the public access channel in the Kansas City Cablevision case. Since we, the public of Kansas City, subsidize the cable channel, we are actually making it easier for racists to communicate their message. We thus make it easier for them to spread racist dogma, gain converts, and foster racial oppression and racial violence. One might respond that we subsidize streets and parks too, so does that mean we should close off access to public forums for racist speech? Yet I think that if we really wanted to take this line of reasoning all the way, we would say yes, that when the government grants access to racist groups to use streets and parks for racist speech, it is to that extent subsidizing racist speech. In fact, we might add, when the state declines to allow suits for intentional infliction of emotional distress or other forms of racial harassment, it is permitting racists to harm minorities. Indeed a number of legal scholars have begun to argue in precisely this way.(6)
In fact, as I shall argue later on, many mainstream scholars have used this type of argument before, and accepted it before, although not in the context of speech.
The second line of arguments involves the radical feminist critique of pornography, and in particular, the work of Catherine MacKinnon and Andrea Dworkin. MacKinnon and Dworkin have argued that the free speech defense of pornography is largely a sham because there is no real free speech for women in a country in which women are relegated to the particular gender roles that society gives them.(7) Patriarchy is so embedded in the societal conception of free speech that it has become invisible, and what appears to be the speech of women in pornographic films, for example, is actually expression that is forced upon them by males.(8) More generally, patriarchy constructs a world in which pornography looks indistinguishable from speech, and in which women’s speech is not their own but is constructed for them. Hence, Dworkin suggests that rather than listening to the speech of women in a male-dominated society, we should listen to their silence. The silence of women is the trace or evidence of their oppression.(9)
The third line of arguments is very familiar nowadays, and I think there is a wider consensus among left thinkers that these arguments represent a genuinely left position, or rather, more people on the left agree with these arguments than with the arguments about racist speech or pornography. This line of arguments critiques the “money as speech” position taken in cases like Buckley v. Valeo.(10) It argues that regulation of campaign finance is necessary because what passes for free speech is really more like unregulated economic power that is used to influence (and corrupt) the political process.(11) In fact, this position even can become a liberal argument in the Carolene Products/John Hart Ely style(12) – that the political process itself is flawed or defective when large sums of money can be used to influence legislators under the guise of freedom of association, or influence voters under the guise of freedom of speech.
The anti-Buckley argument usually stops short at the limited position of reform of campaign finance (especially the liberal version), but one can take it much further. One could argue that free speech in a situation of radically unequal economic power is not free speech at all because it is skewed by the preexisting distribution of property. That is to say, in our country the power of persons to put their messages across loudly and repeatedly because of their economic power and influence effectively silences other, excluded and marginalized voices. The long term effect of the unequal distribution of power and property is an unequal exposure of particular ideas, and the stifling and co-opting of more radical and imaginative ideas about politics and society. Under this analysis, the paradigmatic example of free speech in our society is not the speaker on the soapbox, or the reasoned exchange of views on the television talk show or in the legislative chamber; rather, it is the endless succession of candidates for the two major political parties who sound exactly alike, it is the endless bombardment of our minds with commercials about shampoo and deodorant, telling us how awful our bodies are and how we have to change them or decorate them in some way in order to become worthwhile people, dictating for us what we really want and do not want. It is the repeated urge to cultural conformity as explained to us through the latest fashion statements on “Dallas,” “Dynasty,” or even MTV. In short, the paradigmatic example of free speech in this country is the parroting of values created for us by those groups and persons who have sufficient money and clout to monopolize our attentions and ultimately our very imaginations.
These different criticisms of first amendment law seem widely separated and distant from each other. I suggest, however, that they all have something in common. They all involve techniques first used by the legal realists in the 1920s and 1930s to deconstruct the ideology of the sacred right of freedom of contract.(13) The only difference is that now the attack, the assault on the citadel if you will, is directed at the sacred right of free speech.
The legal realist critique of freedom of contract argued that when the employer and the employee contracted for the employee to work sixty hours a week in a bakery, this was only formally a relationship of free contract. It was actually the very opposite of free exchange because of the preexisting economic status of the parties. In fact – and something like this actually appears in the preamble to the Wagner Act(14) – the legal realists argued that only through the regulation of employment contracts could one approach a truly free exchange of labor. Note the similarity to the MacKinnon/Dworkin approach – among other things, MacKinnon and Dworkin argue that when a woman appears in a pornographic movie, this is not the woman’s real speech. Rather, it is speech forced upon her through a system of patriarchy. More generally, the lack of protest by women and the particular gender roles that men and women have in society are not chosen, but rather are imposed through a psychosexual equivalent to a “lack of bargaining power” created by the dominant male ideology. Just as the exchange between employer and employee looks free but is actually coerced, so the speech of women and of other groups is not free but is actually the result of social forces beyond their control.(15) Just as the Wagner Act was necessary to counter economic inequalities, so the dismantling of the social forces of patriarchy through regulation of pornography is appropriate in order to vindicate women’s true rights of free expression.
A second legal realist critique argued that to the extent one protected the right of freedom of contract, one actually infringed on some other right that might be equally valuable. One could not justify this result by claiming no infringement was taking place, or by invoking a distinction between public and private infringement or between government action and inaction. The government was ultimately responsible for the distribution of power and wealth in society when actors made use of its rules of contract, property, and tort, which in turn defined the economic system.(16) Thus, no articulation and protection of rights could be politically neutral – any definition of rights necessarily defined the rights of others. No regime of contract, property, and tort was unregulated or free of governmental policy or government intervention – there were only different possible regimes and different choices about which persons to benefit at the expense of others. This is also the argument for regulation of racist speech: To the degree that the state protects the free speech rights of racists, the state affirms that the rights of minorities to be free from certain forms of racial oppression do not count. If the government is unwilling to allow common law causes of action for racial insult, that reluctance is in itself an admission that the state is responsible for the balance it strikes between speech rights and the perpetuation of racism – the state has chosen to value the expressive liberty of racists over the feelings of their victims.(17) Put another way, this argument is really the familiar legal realist argument that the public/private distinction between direct state abridgement of rights and private abridgement collapses in particular contexts. This argument has simply been extended from the realm of contract and property rights to the realm of speech rights.(18)
Finally, the legal realists argued that one could not disregard the effect of economic status on the exercise of economic rights, and that neither the existing distribution of economic power nor the effect of that distribution on economic bargains were pre-political.(19) But the same thing might be said of the right of freedom of speech in two senses: First, the right of political participation is no less affected by differences in economic power than is the right of economic participation. There is nothing natural, or (in modern post-Lochner terms) nothing fair, about the results of a process in which some have vastly more political clout because of vastly more economic clout. This is the critique of Buckley v. Valeo.
Second, and perhaps more important, the very desires and beliefs of persons in society are no more natural, no less skewed, by the maldistribution of economic and political power. To dissolve the public/private distinction in this particular context is not only to make government responsible for the citizen’s ability to speak; it is also to make the government responsible for the values imposed and implanted in each citizen. This argument is implicit in Dworkin’s and MacKinnon’s attack on pornography as sustaining or giving comfort to male hegemony. Yet this is the point at which the legal realist critique of governmental responsibility begins to devour itself and its liberal premises. For now the problem is how we are to know what set of values should be imposed if our values are themselves infected by preexisting social constructs.(20) This critique attacks not only the old style liberal belief in neutrality as between different perspectives, but also the newer and more sophisticated liberal belief in an essentially non- preferential attitude of fairness towards competing groups, all of whom want to instill their values in the hearts and minds of others. A critique that emphasizes the state’s responsibility for the production and reproduction of values is hardly new. It is implicated, for example, in the problems that modern liberal thinkers now face in trying to explain why creationist parents should not be able to prevent secular education of their children when that education conflicts with their religious beliefs.(21)
My argument so far has been that recent left critiques of traditional liberal first amendment doctrine bear a striking similarity to the legal realist critique of the favored right of laissez-faire conservatives, free contract. In one sense, it was inevitable that the skeptical acid of legal realism eventually would leak out and consume sacred rights other than contract. The question is, why did it happen now, and what does the future hold for the heretofore blissful marriage of the left and the first amendment?
To answer these questions, we need to examine a bit of history. It is important to remember that for most of America’s history, protecting free speech has helped marginalized or unpopular groups to gain political power and influence. The first amendment normally has been the friend of left wing values, whether it was French emigres and Republicans in the 1790s, abolitionists in the 1840s, pacifists in the 1910s, organized labor in the 1920s and 1930s, or civil rights protesters in the 1950s and 1960s.(22) We should remember too that during the ACLU’s early years the organization represented mainly draft resisters and labor organizers, whom Roger Baldwin saw as, and intended to be, the main beneficiaries of his work.(23) So the historical connections between left politics and free speech in this country are obvious. However, it is also important to remember that the alliances between particular conceptions of rights and a particular political agenda are always contextual, always situated in history. Everyone is familiar with positions that originally were espoused by radicals and later became mainstream or even conservative positions. The radical ideas of the day often become the orthodoxy of tomorrow, and, in the process, take on a quite different political valance. I refer to this phenomenon as “ideological drift.” Although this drift can move either from right to left or left to right, the most common examples are comparatively liberal principles that later serve to buttress comparatively conservative interests.
For example, laissez-faire was a liberal argument before the Civil War, as liberals like Jefferson, Jackson, and Van Buren tried to avoid the granting of corporate charters and other special governmental benefits to monied interests in the Northeast.(24) By the 1890s, as we all know, laissez-faire had become a conservative argument because by that time American business was developed sufficiently that it needed government assistance less than it needed to avoid governmental regulation. The primary interest of American business was not gaining special benefits, but rather avoiding redistributive regulation at the hands of voting majorities of the middle and lower classes – majorities created by the Jacksonian movement for universal manhood suffrage.(25) Thus, ironically, the conservatives of the 1890s adopted the liberal laissez-faire argument of the previous era, and generally the left has been committed to various forms of redistributive social and economic regulation ever since.
A similar transformation, I suspect, is overtaking the principle of free speech today. Business interests and other conservative groups are finding that arguments for property rights and the social status quo can more and more easily be rephrased in the language of the first amendment by using the very same absolutist forms of argument offered by the left in previous generations. Here’s a quick quiz: What do the Klan, conservative PACs, R. J. Reynolds Tobacco, and the conglomerate that owns the holding company that owns the manufacturer of your favorite brand of toothpaste all have in common? They can all justify their activities in the name of the first amendment. What was sauce for the liberal goose increasingly has become sauce for the more conservative gander.(26)
This social transformation is not yet complete, and indeed, I suspect, it probably never will be as complete as the transformation of political views regarding laissez-faire between 1830 and 1890. For example, 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.
These developments are quite serious, and they signal a profound upheaval in legal theory, which will at first be felt most strongly on the left, but, if previous history is any guide, will gradually affect the mainstream view of free expression in American law. The skeptical and deconstructive aspects of the legal realist critique of property and contract rights were quite disruptive in previous generations and took a great deal of time to be accepted. If, as Professors Peller and Singer tell us, we are all legal realists now,(27) we have only recently become so with respect to the first amendment.(28)
The rest of this Article discusses some of the theoretical issues that face us as the legal realist critique of rights is assimilated into first amendment law. I raise these issues not because I have clear-cut solutions in every case, but rather to make the reader think about first amendment problems in different ways. It is important to understand that this project has both a conservative and a transformative purpose. When one offers a new perspective, one should always remember that some objects remain unchanged even when viewed from widely different angles. So it is with free speech. The application of legal realist methods to the first amendment may confirm that the balance of expressive liberties and other social interests should remain unchanged in many situations. On the other hand, a different perspective may reveal previously unrecognized unities in seemingly conflicting legal doctrines or goals. Conversely, new perspectives may show us that two situations we thought were indistinguishable in principle are, in fact, quite different. In any event, in our efforts to reconceptualize the problems of modern first amendment law, we should always keep in mind why the principle of free speech is important to us – because it protects dissent, egalitarian participation in public and private forms of social power, individual conscience, and individual autonomy. As the legal realists would no doubt remind us, these concepts themselves are fuzzy, and their exact contours cannot be determined in the abstract. Thus, ironically, fleshing out a theory of the first amendment is the only way we can truly come to understand what the first amendment means to us.
The goal of this Article, then is not to call for a total transformation of first amendment jurisprudence. Rather, it seeks to shake up the analytic picture a bit in order to stimulate more creative arguments and reconceptualizations. Indeed, the actual modifications to doctrine that this Article suggests – higher scrutiny of content-neutral regulations, greater guarantees of access to the mass media, greater judicial restraint in challenges to campaign finance reform, and a reinterpretation of the captive audience doctrine to permit regulation of face-to-face racial and sexual harassment and harassment in the workplace – do not depart greatly from arguments often made about the first amendment. My suggestions do not, however, fit easily within the libertarian theory of the first amendment traditionally offered by left-liberals. That is why I have moved to a different approach – to preserve what I believe is good about current first amendment protections, while justifying reforms I feel are equally important.
This approach, too, is in the spirit of legal realism. For the legal realists, although arguing that demarcations of property and contract rights were in no sense natural or required by the concepts of property and contract themselves, were not arguing for wholesale restructuring of the American economy. They were laying the theoretical groundwork to justify the reforms of the New Deal and the emergence of the regulatory and welfare state. Although their conservative opponents viewed them as communists, anarchists, or worse, they were nothing of the sort. From our perspective, we see them as preserving economic freedom by readjusting its contours and boundaries. Yet in order to do this, they had to foresake a libertarian conception of economic freedom that had been adopted by liberals of a century before and to which conservatives now fiercely clung.
Thus, I offer a legal realist approach not only as someone interested in theory, but also as someone who identifies and sympathizes with the goals of progressive politics. From what I have said above, it seems clear to me that more conservative forces soon will overtake and appropriate the libertarian approach to first amendment law that progressives have used so effectively in the past. Of course, this would not be the first time such an appropriation has occurred. The most recent example is the appropriation of the anti-discrimination principle by the right as a means of combating affirmative action.(29) Just as an easy-to-apply principle of neutrality in racial distinctions at first served, and later thwarted, the forces of change, so the libertarian conception of the first amendment will soon become co-opted.
Events are rapidly overtaking us. The paradigmatic first amendment cases of the 1930s, 40s, and 50s concerned attempts by state and federal governments to punish seditious speech and unpopular dissent. These are situations for which the libertarian conception of free speech was well-designed. Yet the paradigmatic free speech issues of the 1970s, 80s, and 90s are quite different. They are questions of how to provide effective media access for unpopular groups, how to check the spread of corruption and manipulation of the political process, and how to balance the interests of free expression against a national commitment to eradicating racial and sexual discrimination. Finally, they raise questions of how to protect the expressive rights of unpopular groups from abridgement through manipulation of government taxing and spending programs – products of the very regulatory and welfare state that New Deal liberals fought to establish.
If progressive scholars cling to libertarianism because we cannot think of any other way to conceptualize first amendment problems, because we have no other voice in which to speak, we shall meet the same fate as progressives of the late 19th century, victims of what Clinton Rossiter called the “Great Train Robbery of Intellectual History,”(30) in which laissez-faire conservatives appropriated the words and symbols of Jeffersonian liberalism – liberty, opportunity, progress, and individualism – and gave them an economic and decidedly reactionary reinterpretation.(31) As one who believes that language structures and determines thought, I think it is imperative that progressive scholars begin to experiment with new ways of talking about the problems of free expression. We must find our own voice, we must find a new voice, before it is too late. Otherwise we shall find the progressive tools of an earlier era turned against progress, and the goals of a more humane and egalitarian society thwarted in the name of the first amendment.
II. THE VICTORY OF DEMOCRATIC PLURALISM
I want to begin by placing modern debates about the first amendment in a particular historical context. I apologize in advance for painting with a fairly broad brush, and for simplifying historical movements that are considerably more complicated than I present them here. I want to return to two constitutional moments – two supposedly great constitutional victories for liberals in the United States. The first is the jurisprudential revolution of 1937, and the second is 1969, the year in which Brandenburg v. Ohio(32) was decided.
The revolution of 1937 marks the end of classical constitutional jurisprudence and ushers in the modern era. It was the moment at which constitutional law caught up with developments that had been occurring in common law and statutory law for some time as a result of the influence of progressive jurisprudence and its successor in interest, legal realism.
We normally think of 1937 as a year in which the Supreme Court’s institutional role changed radically and decisively – that henceforth courts would not interfere with social and economic legislation – and I do not wish to dispute that orthodox interpretation, which I shall in fact depend upon a bit later. Nevertheless, 1937 also involved a change in the substantive conception of liberty, which is every bit as important as, and in fact goes hand in hand with, the change in the Court’s institutional role. This linkage is why we can say that 1937 is the year that constitutional law caught up with progressive jurisprudence and legal realism.
Put very briefly, legal realist critiques of common law doctrine argued that abstract concepts like “will,” “liberty,” “contract,” or “property” could not, in and of themselves, produce determinative answers to questions of economic rights and duties. Economic rights and duties were always in conflict. Moreover, the legal realists argued, the goal of the law was to allocate rights and duties equitably, not simply on the basis of abstract or formal equality, but with sensitivity to the factual context in which rights and duties were exercised. Hence the notion of unequal bargaining power arising from differences in property and social status was of immense importance to the legal realists, whereas under the classical (late 19th century) conception of law this issue was largely irrelevant as long as the formal equality of the parties to a transaction was preserved. Similarly, for the legal realists, individual economic transactions had to be judged in their larger context, not only in terms of their effects on the power of the parties, but also in terms of their cumulative effects on third parties and, indeed, upon the nation as a whole.(33)
It is not difficult to see how these views of private law are related to a transformation in constitutional jurisprudence. After all, the Lochner Court’s jurisprudence was based upon the idea that there was a relatively coherent and determinate right of liberty of contract. To be sure, this liberty was subject to reasonable restrictions within the police power of the state, but such restrictions had to be related to a public interest in aid of common law rights, rather than simply a transfer of power from one group to another. The Court saw itself as the guardian of individual rights, standing ready to prevent an overweening state from sacrificing private rights to satisfy majoritarian desires. However, once judges accepted the arguments of legal realism, it was clear that there were property and contract rights on both sides of any issue of state regulation of economic liberty. To vindicate one group’s rights was to diminish another’s, and vice-versa. Having lost faith in common law categories as the benchmark for determining whether one person’s liberty was infringed or another’s was justifiably protected, it became difficult to argue that strict judicial scrutiny of social and economic legislation was warranted. Rather, it was thought that issues of economic freedom should be left to legislatures and administrative agencies, who could study these matters in their larger social context and determine the allocation of rights and duties that best served the public interest.
Under this new way of thinking, social and economic liberty takes on a new meaning. It comes increasingly to be viewed as an instrumental value to be parceled out for the public good. This result was no doubt easy to accept for persons with a utilitarian cast of mind. It was less acceptable for deontological theorists, but they could comfort themselves with the notions that these rights were not in fact fundamental, or that to the extent that they were fundamental, it was the substantive right rather than the formal right to economic liberty that counted; protection of formal liberty at the expense of substantive liberty was hardly a better state of affairs.
An interesting transformation of the rhetoric of economic rights occurs as well. As the concept of economic liberty ceases to encompass a clearly defined private sphere of activity, the kind of arguments one hears in its defense change. Slippery slope arguments against regulation (i.e., that there is no principled way to justify a particular alteration of contractual or property rights) lose much of their force, since issues of economic liberty increasingly are seen as contextual and dependent on relatively specific factual situations rather than on grand principles of economic right. Of course, people would still make slippery slope arguments against the regulatory and welfare state, but these arguments carry less and less weight. Rather, the major arguments for old-fashioned economic liberty are increasingly phrased in terms of good or bad consequences. One no longer rests content to argue that sacred rights of liberty are being violated. Rather, one tends to argue that deregulation is more efficient, that government handouts sap individual initiative and skew incentives, and so forth.(34)
I believe that this sort of rhetoric generally accompanies a loss of faith in the fundamental nature and coherence of an abstract liberty. When one knows in one’s heart that liberty of contract is essential, fundamental, and an inalienable right of humanity, it becomes easier to say with a straight face that the introduction of the minimum wage or child labor laws surely will lead us down the road to totalitarianism. I do not mean to suggest that the United States no longer sees itself as a capitalist country, or that we no longer think it important to protect economic liberty and private property. It is rather that the dominant ideology in this country sees economic rights as much more a matter of give and take than did the ideology of a hundred years ago. We (and by “we” I mean persons ascribing to that dominant ideology) recognize, or rather we accept, in a way in which previous generations did not, that we can shift the boundaries of our economic rights a great deal and still say that we respect private property and economic freedom in this country. We have abandoned, to a considerable degree, the belief that economic liberty must take this form rather than that or else it is not truly economic liberty.
At the same time that this change is occurring, issues of freedom and coercion are being reconceptualized through an increased concern with process and democratic legitimacy. It is no accident, I believe, that a loss of faith in classical legal thought’s ability to describe the essential components of economic liberty corresponds to a renewed emphasis on democratic decisionmaking as a means of legitimating state allocation of rights – that is to say, state allocation of power. And, of course, this provides the connection between the legal realist critique of economic rights and the orthodox interpretation of the revolution of 1937, which is phrased in terms of institutional responsibility and authority. The great questions of economic liberty are henceforth to be decided by legislatures and not by courts. If their answers change from year to year and from jurisdiction to jurisdiction, that change is not a loss of liberty but rather a net increase – for now the public, through its elected representatives, shall determine what is in the public interest.
What results from the shift in legal and political thought occurring in the first half of the 20th century, and which, for convenience, I identify as having “occurred” for constitutional law in 1937, is the construction of a vision of politics that we might call democratic pluralism. Its basic contours are familiar – democratically elected legislatures determine the scope of our economic liberties, while the courts protect the integrity of the democratic process through the development of constitutional law. This should remind you of the division of institutional authority in United States v. Carolene Products,(35) and indeed, I would call this case an icon of democratic pluralism. While under classical legal theory one could know whether legislative enactments served the public interest by reference to the concept of the police power (which in turn was derived from traditional common law rights), in the pluralist model the public interest miraculously springs forth from the struggle of various private interest groups.
There is a wonderful irony here. The rise of democratic pluralism accompanies a loss of faith in the ideals of laissez-faire capitalism – that self-interest pursued in economic transactions would inure to the common good. Yet this faith is now replicated by the victorious advocates of democratic pluralism in their assumptions about the structure of political bargains. The public interest is believed most likely to result from the unregulated pursuit of private interests in the legislatures. Whereas previously the courts were concerned with policing the formal equality of the parties in economic bargains, but not with the fairness or wisdom of particular bargains struck, their role now is to enforce formal equality in political bargains and the representative quality of the process that produces them, but not to concern themselves with the fairness or wisdom of legislative enactments.
The contours of democratic pluralism are so familiar that we are likely to think that they were always instantiated in American democracy, and in one sense this is so: Democratic decisionmaking is an essential postulate of American constitutionalism. Nevertheless, democratic pluralism – at least the 20th century version of it – is simply one in a succession of solutions to a recurring problem in constitutional democracy: how to tell whether legislation is enacted in the public interest, or whether it is simply the illegitimate harnessing of public power for private ends. Constitutional theorists throughout American history have proposed a number of different ways of answering this question – by reference to the inherent limitations of government,(36) the protection of vested rights,(37) or the demarcations of the police power (as in the classical period).(38) The theory of democratic pluralism is simply another solution to this age old problem of how to limit the powers of limited government, how to prevent democracy from meaning what it means literally – that is, rule by the mob. The characteristic feature of the solution I call democratic pluralism is its relative agnosticism as to any substantive conception of the public interest. If one thinks of liberalism as requiring neutrality with respect to competing visions of the good, then democratic pluralism is the furthest historical realization of this conception of liberalism; earlier dependence on the notion of the police power is, in contrast, insufficiently fair to competing conceptions of economic justice. In the pluralist vision, the proper scope of economic liberty itself is up for grabs within the framework of the democratic process.
Once one grasps the contours of democratic pluralism, it is not difficult to see why the first amendment comes to occupy a special position in the pantheon of constitutionally protected liberties.(39) Just as freedom of contract was the paradigmatic liberty through which one participated in the marketplace in the classical conception of law, freedom of speech is the paradigmatic liberty through which one participates in democracy in the pluralist conception. Its constitutional instantiation, the first amendment, becomes identified with democratic pluralism itself. Thus, as liberals in the 1930s and 1940s gained power, they focused increasing attention on the protection of speech even as they gave increasingly scant attention to economic rights. They replaced the previous era’s faith in an abstract concept of economic freedom with a pluralist faith in an abstract concept of expressive freedom. To be sure, more conservative thinkers fought them every step of the way, and the left-libertarian conception of the first amendment was in partial eclipse in the courts in the 1950s.(40) Eventually, however, a very pro-speech conception of the first amendment achieved intellectual hegemony. Symbolically, we can say that its coronation occurred in 1969 in Brandenburg v. Ohio,(41) but the basic principles had been assimilated into the mainstream of American law even before this. Brandenburg establishes the dominance of the Holmes-Brandeis vision of first amendment law – that speech cannot be banned simply because it may be politically dangerous or politically convincing – and, more generally, the principle of content neutrality in governmental regulation of speech.(42) These principles were, in turn, necessitated by the pluralist conception of politics that rose to intellectual prominence in the middle of the 20th century.
I have told this story in the way it is usually told, as a great progressive history, in which liberal ideas and values eventually convince and win over the opponents of enlightenment and fairness. Within this portrait of constitutional history, Carolene Products is a great vindication and affirmation of liberal principles, as is Brandenburg v. Ohio for another era. Yet it is an ironic commentary on American liberalism that its basic ideas are accepted in the mainstream – and indeed, even become the orthodoxy of later generations – at the very moment when they have begun to lose their progressive force. The story of how the theory of Carolene Products produced eventual doctrinal stagnation has been told elsewhere.(43) I shall now make a similar argument here – that the success of democratic pluralism and acceptance of the special position of the first amendment occurred just as these intellectual constructs were rapidly becoming obstructions to progressive change. The incorporation and, I would suggest, subtle alteration of the left-libertarian position on the first amendment produced a doctrinal framework that would hinder development of first amendment theory for the 1980s and beyond.
In arguing that democratic pluralism has come to obstruct progressive reform, I do not mean that there is something inherently wrong with “democracy” or “pluralism” as abstract concepts. I mean that their concrete instantiations – how they have actually turned out in practice – have gone astray. This phenomenon is part of what I mean by “ideological drift.” Just as the concepts of “liberty” and “equality” were co-opted by laissez-faire conservatism in the 1870s, so too “pluralism” and “free speech” are slowly being co-opted by the right today. To be sure, there is a progressive and transformative side to pluralism; that is part of the reason it was so attractive to liberals in the 1930s and 1940s. In theory, that aspect of pluralism could be recovered and used to revivify the abstract concept. One could use the concepts of “democracy” and “pluralism,” in other words, to critique the very institutions we claim are democratic and pluralist. One could argue that the real problem is that these institutions are not democratic enough, not pluralist enough. But this strategy would require a much more egalitarian approach to the first amendment than current doctrine allows; and it would surely conflict with the understandings now coalescing around the word “pluralism” – that is, a guarantee of formal equality of access to the political process under conditions of radically unequal economic and social power. In the last analysis, it does not much matter whether we call the more egalitarian vision the “true” form of pluralism or an alternative to pluralism (as it presently exists). I am concerned here to criticize what democratic pluralism has become, not to deny what it could be.(44)
III. CONTENT NEUTRALITY AND THE PROBLEM OF ACCESS
One of the legacies of the success of New Deal liberals in establishing the preferred position of the first amendment is the present-day distinction between content regulation and time, place, and manner regulation. The former was subjected to the highest level of scrutiny, while the latter was subject only to the requirement of reasonableness, provided always that the regulation was content neutral. The content/form distinction in speech was not the only possible solution to the problems of first amendment law. However, in light of the progressive purpose of protecting political dissent and unpopular types of speech, the distinction made a good deal of sense. By conceding the state’s power to balance interests in social order against speech rights where only time, place, and manner regulation was concerned, left-libertarians made more plausible a rigid prohibition against government censorship of content.
The distinction between time, place, and manner regulation and content regulation bears a striking resemblance to the process/substance distinction that figures so prominently in 20th century American law. It also mirrors, at the level of first amendment doctrine, the agnosticism about the public interest that is so characteristic of democratic pluralism. Since no one can know in advance what is in the public interest (at least before the legislature votes), people must be free to speak their minds on any subject and advocate any position, no matter how ridiculous or wicked it may appear to others. Regulation of speech henceforth must be confined to issues of procedure – that is, where and when one may speak – to ensure that debate on the great issues of the day takes place in an orderly manner. Indeed, one even might go so far as to say that the distinction between form and content regulation mimics at a lower level an even grander distinction in liberal political theory – the priority of the Right over individual ideas of the Good. The state is not permitted to elevate any particular theory of the Good over any other, but it is entitled to demarcate the basic structure of rights within which private parties pursue (or, as here, advocate) their own visions of the Good.
Nevertheless, formal guarantees of liberty and neutrality, whatever their original progressive meaning, can serve quite different functions as time passes. If history has demonstrated that a formal guarantee of contractual liberty – with no inquiry into questions of bargaining power and the adequacy of consideration – proved ultimately unsatisfactory (because unjust) and even incoherent (because not truly substantively neutral), repeating the same moves in the area of expressive liberty is unlikely to fare any better. And indeed, what was true for economic liberty has turned out to be no less true for speech several generations later. In the process, the progressive vision of democratic pluralism increasingly has come to serve nonprogressive purposes.
One might begin the analysis of the problems of formal equality in democratic pluralism by pointing out that the ideal of eliminating content based regulation was never realized in practice. This is true even if one views the McCarthy Era cases as deviations from “true” first amendment doctrine. The illusion of content neutrality could only be achieved by viewing certain types of speech as not “speech” – for example, obscenity, commercial speech, and “fighting words.”(45) The very act of carving out these classes was akin to content regulation. Moreover, despite the constitutionalization of defamation and privacy law begun with New York Times Co. v. Sullivan,(46) many common law rules of libel and slander, which were quite directly concerned with content, remained intact. Indeed, even with respect to public figures, inquiry into content by juries was considered completely appropriate once actual malice had been proven, and the falsity of the communication was not only relevant but was essential to the plaintiff’s case. And this is to say nothing of the well-known examples of fraud, perjury, and professional malpractice, which have never been considered “speech” for purposes of the first amendment.
Thus, the division of the doctrinal world into regulations of form (with relaxed scrutiny) and those of content (with heightened scrutiny) required a necessary ideological blindness. To the credit of left-libertarians, it was a blindness with which they were never fully comfortable. Justice Douglas was obviously bothered by what he viewed as the artificial exclusion of obscenity,(47) just as later judges and scholars came to be dissatisfied with the exclusion of commercial speech or an expansive definition of fighting words.(48) For this reason, many of the battles that left-libertarians fought (and won) were battles that sought to break down these categories, and give increased protection to “symbolic” speech, pornography, defamation, or commercial speech.
Even if one forgot for the moment that the firm rule of “no content-based regulation” had been purchased at the cost of clearly content-based distinctions, there was a still more troublesome problem that arose as soon as cases involving time, place, and manner regulation became a regular portion of the dockets of the federal courts. Although the form/content distinction allowed “dangerous” speech to be protected, this guarantee of liberty promised only a formal liberty of speech and only a formal equality of opportunity for its exercise. Yet as is often the case, guarantees of formal liberty and formal equality generally favor those groups in society that are already the most powerful. Guarantees of formal liberty and formal equality generally do not guarantee, and indeed may sometimes even thwart, substantive liberty and substantive equality.
This has proved to be the case in first amendment law. Even as the formal liberty of speech – freedom from content-based censorship – was enshrined in Brandenburg v. Ohio, the federal courts found themselves faced with increasing difficulties concerning the question of substantive liberty. At its inception, this problem was conceptualized as the issue of access to government property or, still more technically, the question of what constituted a “public forum.” And this question, seen as the paradigmatic issue in time, place, and manner regulation, has led to less and less protection of speech.
The public forum cases of the past twenty years have produced exactly what one would expect from a guarantee of formal equality in conditions of substantive economic inequality. They have demonstrated that a low level of scrutiny in cases involving time, place, and manner regulation will produce not only less speech overall, but less speech from the least powerful groups in society.(49) As Justice Marshall pointed out in Clark v. Committee for Creative Non-Violence, most regulators, although not opposed to free speech as an abstract principle, nevertheless like a quiet life.(50) For this reason, they have no incentives to increase access any more than is constitutionally required. And if the Constitution requires less and less, then access will diminish accordingly. The result is that the groups who most need inexpensive or free access (usually the groups most on the outs) are the ones who end up bearing the brunt of content-neutral regulations.(51) The notion that protection of formal equality of economic liberty can lead to unacceptable degrees of substantive inequality has been understood for many years; it should hardly be surprising, then, that a similar analysis applies to the liberty of expression.(52)
As I have noted above, the problem of access traditionally has been viewed in terms of access to government property; this has become the paradigmatic situation in which the problem arises. Nevertheless, another group of cases that have reached the federal courts have been conceptualized as involving the question whether a speaker should have access to what was nominally private property.(53) Interestingly, the pro-access strategy has been to assimilate these cases into the public forum cases. The goal has been to show that there was “state action” after all – that the private property in question was effectively equivalent to the sort of government property that was in turn thought to constitute a public forum.
I believe that this general approach to the issue of access needs to be rethought. I do not mean to suggest that it is not useful in some cases, or that considerable good has not come from it. The public forum/state action debate correctly captures an important idea that the legal realists bequeathed to us in the area of economic liberty – that the distinction between public and private law, and between public and private abridgements of liberty, is both tenuous and socially constructed, and that it can be made to disappear in certain contexts when pressed sufficiently. Nevertheless, I believe that the strategy of showing that private forums are really analogous to public forums is unhelpful in many cases because it simply reasserts the distinction between public and private abridgement of rights in a different way.
The public forum/state action debate assumes that the right of access in the ordinary case is something that one has to government property, and that, absent a showing of “government-like” behavior, private parties do not need to give access to speech to other private parties. The assumption that the public forum and state action cases shared was that one had to show state interference (or its equivalent) with speech in order to demonstrate a restraint on liberty. What this approach neglects is that private restraints on liberty may have been the most serious obstacles to the exercise of free speech rights all along, even in cases that appear at first glance to involve only governmental restraints on liberty. Thus, the problem with the argument that private actors are really state actors is not that it fails to note the similarity of public and private, but that the form of analogical reasoning goes in the wrong direction.
To understand this point, let us go back to the seminal case on public forum law, Hague v. CIO.(54) Hague, like many other public forum cases, involved a group of protesters (here the CIO and the ACLU) who wished to protest particular conditions they disagreed with and sought to gain members and public support through organizing public meetings and distributing literature.(55) Groups such as these have a message to deliver, but where are they to deliver it? If they owned real property, the answer would be simple. They could use their own property as the site of their demonstrations: They could march around their own houses and distribute literature in their own front yards.(56)
However, what is crucial to situations in which protesters seek access to a public forum is that most of the protesters in such situations do not, in fact, own much property. Moreover, one of the most effective places for them to get their message across might be on the largest or most centrally located plots of land in the city, where, we may assume, they own no property at all.(57)
Of course, the possibility exists that the strikers could purchase the right to form a picket line on the land of a centrally located landowner, or one whose property was across the street from a particular employer or government official whose practices they wished to protest. That is to say, they could go into the market and buy rights to the use of another’s property for purposes of expression. However, the central problem in this case is, once again, that the strikers might not have a great deal of property (real or otherwise), and their budget constraints might well prevent this solution to the problem of access.(58)
If there were no guarantee of public forums like streets and parks, and we left the strikers to the vicissitudes of the marketplace, I suspect many would think that their free speech rights had been denied, even though they were formally guaranteed the right to speak. To be sure, a Lochner-era formalist might argue that if one lacks sufficient economic power to purchase a place to protest, this fact alone does not constitute a direct infringement of liberty by the state. Yet just as a legal realist might argue that economic liberty is more than the right to sign contracts of adhesion, we understand that expressive liberty is not simply the right to make noises in the air directed to no one in particular. Nor, we might add, is the freedom of the press simply the right to place particular marks on pieces of paper, which are then never seen or read again. Effective communication, or rather its substantive possibility, is an unavoidable component of the liberty of speech, just as effective bargaining, or its substantive possibility, is an essential component of economic liberty. How effective an exercise of liberty must be guaranteed, of course, is a difficult problem. It is a problem that cannot be solved in the abstract. The legal realists were quite aware of this fact about economic liberty, a recognition that was intimately related to their distrust of conceptualism and formalism. For them, whether one had real liberty of contract was always a matter of degree.
From the foregoing discussion, you can see that the reason why public forums are essential to liberty of expression is that otherwise one’s right to speak would depend upon one’s ability to purchase property rights from private parties. If one had little property, then one would have no liberty in fact, even if a formal right to speak were guaranteed. Thus what appears to be a question of the individual’s rights against the government actually is related to the private power of property owners – a power that in turn results from legal protections afforded to the economic system through the rules of private property and criminal trespass.
The existence of access thus depends upon the state in two senses – first, as the controller of its own property, and second, as the creator and sustainer of property rights that allow private parties to deny access unless they receive compensation. When Justice Black defended the government’s right to deny access in Adderley v. Florida on grounds that “[t]he government, no less than a private owner of property, has the right to preserve the property under its control for the use to which it is lawfully dedicated,”(59) he said more than he knew. One can analogize the government’s “rights” to those of the property owner only because the state has already decided that the owner’s property rights trump any contrary interest of third parties in free expression.(60)
Once we understand that the problem of access is a problem of both private and public power, several alternative solutions present themselves. First, the government could provide a voucher system to subsidize expressive activity. People could use their vouchers to purchase access to private property for communicative purposes. Second, the government could tax all private landowners (and by analogy, other owners of communication-producing properties), unless they agreed to make their property a forum available for expression at certain times. Third, the government could simply alter existing property rights to create an easement that would require private landowners (and other owners of communicative property) to allow protests without compensation.
The fourth alternative is what Justice Roberts actually did in Hague v. CIO. He created “a kind of First Amendment easement” against the government for the use of streets and parks.(61) One might think that this is better than the other solutions, especially a tax or a system of easements on private property. When the government grants access to a public forum, the argument goes, it is not thereby diminishing the property rights of individuals. Moreover, the public forum solution, unlike the voucher system, does not appear to turn the first amendment into a “positive” liberty – a right to wealth or government subsidy akin to welfare rights or education. It preserves the idea that civil rights are essentially negative rights – the right to have government not do something to you.
Nevertheless, this analysis is flawed. Even when a public forum is created, the government is still engaging in a form of redistribution. It is transferring the power of the state to certain citizens who want to use the forum for expressive activity and away from other citizens who want the streets and parks kept clear of demonstrations and protests. Grants of access limit some private interests as much as they empower others. There is no better example of this than Schneider v. State, in which the Supreme Court held that the interest in free speech was so great that a municipal ban on leafletting violated the Constitution.(62) The effect, as Professor Tribe points out, was that the state was forced to subsidize such expressive activity by absorbing the costs of extra litter prevention.(63) Interestingly, Professor Tribe conceptualizes the problem of governmental access as a governmental subsidy for speech. His analysis is quite correct, and we could take it one step further by noting that the governmental subsidy is also a transfer of power away from private individuals as well – for now there are higher taxes, and now one’s cheerful walks through the park will be disturbed by handbills thrust in one’s face and lying beneath one’s feet.
One might insist nevertheless that there is an important difference between the creation of first amendment easements in government property and redistribution from private individuals. If the government grants an easement against a particular piece of private property, then the burden of redistribution falls on a specific individual or a relative handful of individuals. In contrast, the redistribution involved in the creation and maintenance of a public forum is spread in theory over a larger group of individuals, all of whom (for example) use the streets and parks. But this argument does not prove that government does not or should not redistribute for the purpose of guaranteeing expressive liberty. It merely demonstrates that it is in some cases better and fairer to spread the redistributive burden over as large a group as possible. Assigning general tax revenues for a voucher system or creating a uniform system of easements on everyone’s property would satisfy this demand for generality equally well.
The point of this exercise in reconceptualization is simply to note that modern first amendment doctrine has seen the issue of access primarily in terms of access to public property and only in the exceptional case as an issue of access to private property. Moreover, even these exceptional cases must be explained in terms of their similarities to public forums. I suggest that it might be more fruitful in some cases to think of it the other way around. Perhaps we should reconceptualize access to public forums as a special case of access to private forums, in which the government transfers power from one group of private citizens to another by means of control of governmental property, just as it does so through the use of property and trespass laws. What is the advantage of this reconceptualization? The more orthodox view of access tends to discomfit people who think of the first amendment as a negative right – a right to be free from governmental interference. Requests for access look too much like what in one sense they are – requests for affirmative assistance from the government. On the other hand, if one sees the problem of access as essentially a division of power between speech rights of individuals and property rights of other individuals, then the issue of affirmative versus negative rights vanishes, just as it does in the case of defamation. No one thinks of New York Times Co. v. Sullivan as establishing an affirmative right to exploit the reputational “property” of public officials. Rather, it is seen as a balancing of competing private interests in speech and reputation.
Viewed in this way, we should stop trying to show that cases such as Hudgens v. NLRB(64) or CBS v. Democratic National Committee(65) raise the same issues as the public forum cases. For that way of thinking simply reinforces the exclusively public nature of first amendment law by trying to assimilate all of our problems of speech regulation to that model. Rather, we should try exploring why the public forum cases raise the same issues as Hudgens and CBS v. Democratic National Committee – that public expansion or contraction of rights is really an issue of relations of power between private individuals.(66) I thus believe that a legal realist approach to the first amendment involves collapsing the distinction between public and private power in specific contexts, but I suggest we do so in the opposite direction. When we do so we can begin to reinterpret first amendment law in terms not of governmental control, but rather in terms of private power and subordination.(67)
[* Professor of Law and Graves, Dougherty, Hearon, and Moody Centennial Faculty Fellow, University of Texas. I would like to thank Cindy Estlund, Mark Graber, Doug Laycock, Sandy Levinson, Jean Love, Dick Markovits, Martha Minow, Scot Powe, David Riesman, Steve Siegel, Allan Stein, Mark Tushnet, and Mark Yudof for their comments on previous drafts of this Article; my special thanks to Gary Peller, who spent many hours discussing and debating rights analysis and the first amendment with me. Of course, none of them should be held responsible for what I say here.]
1. Missouri Knights of the Ku Klux Klan v. Kansas City, Mo., 723 F. Supp. 1347 (W.D. Mo. 1989); see Farnsworth, KC Abandons Effort to Keep Klan Off TV, Kansas City (Mo.) Times, July 14, 1989, at A1, col. 2; Farnsworth, Council Pays All Legal Fees of ACLU in Klan TV Case, Kansas City (Mo.) Times, Sept. 29, 1989, at B1, col. 1.
2. Farnsworth, KC Abandons Effort to Keep Klan Off TV, supra note 1, at A1, col. 2.
3. The phrase is derived from United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).
4. See, e.g., Language as Violence v. Freedom of Expression: Canadian and American Perspectives on Group Defamation, 37 BUFFALO L. REV. 337 (1988-1989) [hereinafter Language as Violence]; Lawrence, If He Hollers, Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431; Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 MICH. L. REV. 2300 (1989).
5. See MacKinnon, Pornography, Civil Rights, and Speech, 20 HARV. C.R.-C.L. L. REV. 1, 4 (1985).
6. See, e.g., Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling, 17 HARV. C.R.-C.L. L. REV. 133 (1982); Language as Violence, supra note 4, at 359-64 (remarks of Professor Mari Matsuda); Matsuda, supra note 4.
7. C. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 127-213 (1987); Dworkin, Against the Male Flood: Censorship, Pornography, and Equality, 8 HARV. WOMEN’S L.J. 1 (1985).
8. C. MACKINNON, supra note 7, at 180-81.
9. Id. at 140-41, 194-95; Dworkin, supra note 7, at 17-20.
10. 424 U.S. 1 (1976) (striking down limitations on individual expenditures under the Federal Election Campaign Act of 1974); see also First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) (striking down statute prohibiting corporate contributions or expenditures for the purpose of influencing or affecting voter referenda that do not materially affect the property, business, or assets of the corporation).
11. See, e.g., Lowenstein, Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment, 29 UCLA L. REV. 505 (1982); Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 COLUM. L. REV. 609 (1982); Wright, Politics and the Constitution: Is Money Speech?, 85 YALE L.J. 1001 (1976). For thoughtful responses, see Levinson, Regulating Campaign Activity: The New Road to Contradiction?, 83 MICH. L. REV. 939 (1985); Powe, Mass Speech and the Newer First Amendment, 1982 SUP. CT. REV. 243.
12. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 105-34 (1980).
13. The key articles are F. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935); F. Cohen, The Ethical Basis of Legal Criticism, 41 YALE L.J. 201 (1931); M. Cohen, The Basis of Contract, 46 HARV. L. REV. 553 (1933); M. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1927); Hale, Bargaining, Duress, and Economic Liberty, 43 COLUM. L. REV. 603 (1943) [hereinafter Hale, Bargaining]; Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SCI. Q. 470 (1923) [hereinafter Hale, Coercion]; Hale, Law Making by Unofficial Minorities, 20 COLUM. L. REV. 451 (1920). I include Morris Cohen’s work although he is perhaps better described not as a realist but as a sympathetic critic of realism, see M. Cohen, Justice Holmes and the Nature of Law, 31 COLUM. L. REV. 353 (1931) (criticizing overly positivistic and nominalist elements in social science strand of legal realism). However, his critiques of property and contract law have much in common with the realist analyses of Robert Hale and Felix Cohen. An excellent summary of the arguments appears in Singer, Legal Realism Now, 76 CALIF. L. REV. 465 (1988) (reviewing L. KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986)). Professor Peller calls this strand of realism “deconstructive realism.” He distinguishes it from the more familiar version of legal realism, which emphasized discovering the “actual conditions” of law and social life, and thus placed great faith in social science. Peller calls this strand of realism “scientific realism.” Peller, The Metaphysics of American Law, 73 CALIF. L. REV. 1151, 1222 (1985). His article is a brilliant synthesis of American Legal Realism and deconstructive theory, which states in more general form many of the arguments presented here.
14. See 29 U.S.C. § 151 (1988) (characterizing deleterious effects on interstate commerce of “[t]he inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract,” and employers).
15. See Olsen, Feminist Theory in Grand Style, 89 COLUM. L. REV. 1147, 1162 (1989) (reviewing C. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW (1987)).
16. M. Cohen, The Basis of Contract, supra note 13, at 586; Hale, Bargaining, supra note 13, at 627-28. These arguments depended heavily on Wesley Hohfeld’s analysis of rights, which argued that rights were not things that people possessed, but jural relations of private power, whose boundaries were fixed by statute or by common law doctrine. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913); see also Balkin, The Hohfeldian Approach to Law and Semiotics, 44 U. MIAMI L. REV. 1119 (1990); Singer, The Legal Rights Debate in Analytical Jurisprudence from Betham to Hohfeld, 1982 WIS. L. REV. 975; Sunstein, Lochner’s Legacy, 87 COLUM. L. REV. 873 (1987) (recapitulation of legal realist arguments through critique of naturalness of common law baseline).
17. Cf. Delgado, supra note 6, at 172-79; Language as Violence, supra note 4, at 359 (remarks of Professor Matsuda).
18. There is another, less radical, version of this argument that appears in discussions of first amendment rights and state action: It begins with the assumption that the libel laws at issue in New York Times v. Sullivan, 376 U.S. 254 (1964), involved state action because the state’s defamation laws allow injured parties to sue and collect damages from persons who engage in expressive conduct. Under the same line of reasoning one might argue that the refusal of the owner of a shopping center to grant access to protesters also involves state action, see e.g., Hudgens v. NLRB, 424 U.S. 507 (1976), because the property rights of the owners are being allowed to trump the speech rights of the protesters.
19. See Singer, supra note 13, at 487-91.
20. The best recent legal discussion of these problems is M. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA (1983). Dean Yudof emphasizes the government’s role in shaping values and warns of the danger of the manufacturing of consent by means of propaganda and indoctrination. Commentators have pointed out that Yudof’s arguments and concerns suggest that powerful private interests can also manipulate society’s values. See Carter, Technology, Democracy, and the Manipulation of Consent, 93 YALE L.J. 581, 587 (1984); Shiffrin, Government Speech and the Falsification of Consent, 96 HARV. L. REV. 1745, 1750-51 (1983). For an attempt to view the mass media in terms of a “propaganda model,” see E. HERMAN & N. CHOMSKY, MANUFACTURING CONSENT: THE POLITICAL ECONOMY OF THE MASS MEDIA (1988). For an explanation of how business and government interests combine to limit the nature of political and economic reform, see C. LINDBLOM, POLITICS AND MARKETS: THE WORLD’S POLITICAL-ECONOMIC SYSTEM (1977).
21. For a sensitive discussion of the issues, see Carter, Evolution, Creationism, and Teaching Religion as a Hobby, 1987 DUKE L.J. 977. Professor Fish’s commentary on this article argues that liberalism involves its own imposition of liberal values of neutrality in apparent violation of liberal principles. See Fish, Liberalism Doesn’t Exist, 1988 DUKE L.J. 997; see also Rawls, The Priority of Right and Ideas of the Good, 17 PHIL. AND PUB. AFF. 251, 267 (1988) (defending teaching the values of tolerance through public education even to children whose parents belong to intolerant religious groups). For an argument that the battle over creation science masks a struggle for ideological dominance between the traditional values of poor and lower middle class southerners and the secular ideology imposed upon them by the bureaucratic and managerial elites of the New South, see Peller, Creationism, Evolution, and the New South, TIKKUN, Nov.-Dec. 1987, at 72 (1987).
22. For recent histories of free speech, especially in the pre-World War I period, see M. Graber, Transforming Free Speech (in press); Kairys, Free Speech: An Introduction, reprinted in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 140 (D. Kairys ed. 1982); Rabban, The First Amendment in Its Forgotten Years, 90 YALE L.J. 514 (1981).
23. See S. WALKER, IN DEFENSE OF AMERICAN LIBERTIES: A HISTORY OF THE ACLU 21-57 (1990); Kairys, supra note 22, at 158-59; Rabban, The Free Speech League and the First Amendment Tradition (unpublished manuscript) (available from author).
24. See Balkin, Federalism and the Conservative Ideology, 19 URB. LAW. 459, 469-70 (1987); Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LAW & HIST. 293, 318-26 (1985); see also Siegel, Understanding the Lochner Era: Lessons from the Controversy Over Railroad and Utility Rate Regulation, 70 VA. L. REV. 187, 189-92 (1984).
25. See R. MCCLOSLEY, AMERICAN CONSERVATISM IN THE AGE OF ENTERPRISE 21-30 (1951).
26. For arguments that the tenor of modern first amendment law increasingly serves corporate and propertied interests, see Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1386-92 (1984); Tushnet, Corporations and Free Speech, in THE POLITICS OF LAW 253 (D. Kairys ed. 1982).
27. Peller, supra note 13, at 1152; Singer, supra note 13, at 467.
28. As early as 1942, the sociologist David Riesman, then still a law professor, saw some of the implications of legal realism for the first amendment. See Riesman, Civil Liberties in a Period of Transition, 3 PUB. POL’Y 33, 66-67 (1942). Concerned about the power of big business and the strength of anti-union propaganda, Riesman pointed out the unreality of the marketplace of ideas metaphor in a world of vastly disparate economic power. His analysis appears to have been influenced by the work of “deconstructive” realists like the economist Robert Hale. See Rosenberg, Another History of Free Speech: The 1920’s and 1940’s, 7 J.L. & EQUALITY 333, 348-54 (1989). Riesman’s apprehensions about the power of private parties to limit political liberty also inform his better known work on defamation and group libel. See Riesman, Democracy and Defamation: Control of Group Libel, 42 COLUM. L. REV. 727 (1942); Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 COLUM. L. REV. 1085 (1942); Riesman, Democracy and Defamation: Fair Game and Fair Comment II, 42 COLUM. L. REV. 1282 (1942). Nevertheless, as Professor Rosenberg points out, the legal realist inspired analysis of “Civil Liberties in a Period of Transition” did not take root in the intellectual soil of the 1940s. Not only did the article “quickly disappear from free speech discourse,” but by the 1950s Riesman himself had modified his views. Rosenberg, supra, at 362-63.
29. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 520 (1989) (Scalia, J., concurring in the judgment) (“The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, can no more be pursued by the illegitimate means of racial discrimination than can other assertedly benign purposes we have repeatedly rejected.”).
30. C. ROSSITER, CONSERVATISM IN AMERICA 128 (1962).
32. 395 U.S. 444 (1969) (holding that first amendment protects advocacy even of unlawful conduct, except where advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action).
33. In contrast, the classical vision viewed economic transactions as involving exercises of individual rights and only local relations. This vision underlies the Lochner Court’s commerce clause decisions as well as its due process decisions.
34. Although not generally considered a political liberal, Robert Bork, whose theories of constitutional law were in many ways influenced by the majoritarian constitutional rhetoric of 1937, best summed up the new attitude towards economic liberty:
The distinction between rights that are inherent and rights that are derived from some other value is one that our society worked out long ago with respect to the economic marketplace… . We now regard it as thoroughly old hat, passe and in fact downright tiresome to hear rhetoric about an inherent right to economic freedom or to economic property… . The modern intellectual argues the proper location and definition of property rights according to judgments of utility – the capacity of rights to forward some other value.
Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 18 (1971). Of course, in this passage Bork meant to make the same claims about the right of free speech. Id. What is interesting about recent history is that more and more people on the left seem willing to agree.
36. See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).
37. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch.) 87 (1810).
38. See, e.g., Lochner v. New York, 198 U.S. 45 (1905).
39. See Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943); Jones v. Opelika, 316 U.S. 584, 608 (1942) (Stone, J., dissenting), adopted as opinion of the court on reh’g, 319 U.S. 103 (1943) (per curiam); Cahn, The Firstness of the First Amendment, 65 YALE L.J. 464 (1956); McKay, The Preference for Freedom, 34 N.Y.U.L. REV. 1182 (1959).
40. See, e.g., United States v. Dennis, 341 U.S. 494 (1951).
42. Id. at 447-49; see also Chicago Police Dep’t v. Mosley, 408 U.S. 92, 97-98 (1972).
43. See Balkin, The Footnote, 83 NW. U.L. REV. 275 (1989).
44. For a useful summary of the dilemmas produced by interest group pluralism, see Minda, Interest Groups, Political Freedom, and Antitrust: A Modern Reassessment of the Noerr-Pennington Doctrine, 41 HASTINGS L.J. 905, 937-59 (1990). Dissatisfaction with pluralism has spawned two important schools of thought in contemporary legal scholarship – public choice theory and republicanism. Because pluralism is relatively agnostic as to what legislation is in the public interest, one cannot easily tell special interest legislation from legislation that serves or is mistakenly but sincerely believed to serve the public interest. Every enactment may be viewed as having both a naughty and a nice purpose. Indeed, if one thoroughly accepts the agnosticism of what I have called democratic pluralism, there is, quite simply, nothing from which “the public interest” could differ. Conversely, all forms of legislation become special interest legislation. Every civil rights bill, every offer of relief to widows and orphans, can be reconceptualized as self-centered rent seeking with respect to some interest group. Once pluralism becomes the orthodoxy of the day, public choice theory is not far behind.
Conservative thinkers in the law and economics tradition, who retain faith in the relatively neutral value of economic efficiency (which is considered by these thinkers as always in the public interest), can use public choice theory to criticize legislative enactments to the extent that they result in economic inefficiency (which they often do). Miraculously, then, one can reestablish the wisdom of Lochner-era restraints on majoritarian interference with property rights through the very framework of pluralist assumptions that were believed to call this jurisprudence into disrepute.
Not surprisingly, the American left has recoiled from these conclusions. The left, as concerned as the right with the dominance of “special interests,” is nevertheless convinced that protection of welfare and civil rights is different in kind from the unabashed pursuit of lucre through the democratic process. Therefore, it has become necessary for the left to establish a vantage point from which the public interest can be defined and asserted. Hence the attraction of left-liberals to republicanism and other forms of communitarianism, which focus on the need for social solidarity and the potentialities of altruism and assert a public interest separate and apart from the interests of particular individuals or social groups. Although much celebrated by political theorists and historians for some twenty years previously, civic republicanism arrived as a force in legal scholarship coincident with the bicentennial of the Constitution. It appeared to offer yet another way of justifying judicial protection of rights and interests that had so far rested uneasily within the confines of democratic pluralist theory. The movement on the left to recover and transform republicanism – a theory of politics that was, even in its own day, based upon the existence and preservation of rigid forms of social hierarchy – demonstrates how serious the problems of democratic pluralism have become for the left.
45. And indeed, this is what the Supreme Court did in effect in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (describing libel, obscenity, and fighting words as “no essential part of any exposition of ideas”). Putting aside the particular categories actually carved out, I suspect that the basic strategy of Chaplinsky – defining away particular types of speech – was intellectually necessary to the success of democratic pluralism. A theory of formal equality of all speech – including these categories – otherwise could never have gotten off the ground.
47. See, e.g., Paris Adult Theatre v. Slaton, 413 U.S. 49, 70 (1973) (Douglas, J., dissenting); Miller v. California, 413 U.S. 15, 37 (1973) (Douglas, J., dissenting); A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413, 424 (1966) (Douglas, J., concurring in the judgment).
48. See, e.g., Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982) (justifying expanded protection for obscenity, fighting words, and commercial speech under theory that first amendment protects “individual self-realization”).
49. See infra note 51 and accompanying text.
50. 468 U.S. 288 (1984) (Marshall, J., dissenting).
51. Id. at 313-16. For further discussion of the problem, see Baker, Unreasoned Reasonableness: Mandatory Parade Permits and Time, Place, and Manner Regulations, 78 NW. U.L. REV. 937 (1983); Farber & Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 VA. L. REV. 1219 (1984); Goldberger, Judicial Scrutiny in Public Forum Cases: Misplaced Trust in the Judgment of Public Officials, 32 BUFFALO L. REV. 175 (1983); Neisser, Charging for Free Speech: User Fees and Insurance in the Marketplace of Ideas, 74 GEO. L.J. 257 (1985); Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713 (1987); Redish, The Content Distinction in First Amendment Law, 34 STAN. L. REV. 113 (1981); Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46 (1987). Note that the traditional reasons given against licensing schemes in the area of content regulation are also perfectly good arguments against content-neutral, regulatory schemes. Licensing schemes make it easier for regulators to deny access; they lack formality and procedural safeguards; they shift the burden of access to the person seeking a license; regulators have institutional incentives to avoid controversy and social disruption; and regulators also have institutional incentives to find reasons to regulate in order to justify their existence. See Emerson, The Doctrine of Prior Restraint, LAW & CONTEMP. PROBS., Autumn 1955, at 648, 656-60. The fact that courts do not take these arguments as seriously in content-neutral schemes of regulation is simply another consequence of the distinction between form and substance in modern first amendment law.
52. Of course, there is a further connection between the strategy of content neutrality and the resulting substantive inequality that public forum doctrine has generated. In speech, no less than in contract, guarantees of substantive equality require one to treat particular persons differently because of their preexisting status and power. Yet often one of the best ways to identify the stronger or weaker parties is in terms of who they are and what they stand for. This sits uneasily with the requirement of content neutrality.
53. E.g., Marsh v. Alabama, 326 U.S. 501 (1946) (access to streets of company town for distribution of handbills could not constitutionally be denied); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968) (peaceful labor picketing of business enterprise located within shopping center constitutionally protected); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (upholding privately owned shopping center’s ban on distribution of handbills when handbilling was unrelated to shopping center’s operations); Hudgens v. NLRB, 424 U.S. 507 (1976) (overruling Logan Valley); PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) (holding that state constitutional right to enter shopping centers for speech and petitioning did not violate free speech or just compensation rights of shopping center owner). See generally Schauer, Hudgens v. NLRB and the Problem of State Action in First Amendment Adjudication, 61 MINN. L. REV. 433 (1977).
54. 307 U.S. 496 (1939) (plurality opinion).
55. The actual facts of Hague v. CIO are considerably more complicated. They involve the efforts of the Mayor of Jersey City, Frank Hague, to break up the CIO’s organizing efforts by means of an ordinance that prohibited all public meetings in public places without a permit. In essence, Mayor Hague’s strategy was to make it impossible for the CIO to engage in expressive activities anywhere within the city limits. See Hague v. CIO, 101 F.2d 774, 778-80 (3d Cir. 1939), modified, 307 U.S. 496 (1939). The district court’s opinion, Hague v. CIO, 25 F. Supp. 127 (D.N.J. 1938), makes interesting reading if only for its unusual practice of juxtaposing literally pages and pages of short quotations on the subjects of democracy and the rights of free speech.
56. Assuming, of course, that such use of their own property did not create a nuisance. But this is simply another way of stating the point that one’s freedom of expression is limited by private rights created and enforced by the state.
57. Again, the situation in Hague itself was more complex. In Hague, the CIO and the ACLU planned open air meetings and demonstrations in several different places in Jersey City. Many of the organizers came from outside of the state of New Jersey and the city of Jersey City. Fear of outside labor agitators descending upon Jersey City was precisely why Mayor Hague was so determined to use bullying tactics to keep them away. For example, protesters were routinely rounded up by police and deposited outside the city limits. Moreover, in Hague, the Jersey City police even tried to prevent gatherings on private property owned by the CIO by arresting persons found at the CIO headquarters, searching the premises and confiscating circulars and handbills. See 101 F.2d at 778. Finally, I should note that today labor picketing is treated quite differently from other forms of protest, and the actual fact situation in Hague v. CIO itself might be conceptualized differently under present-day doctrines of federal labor law. In my discussion of first amendment issues, therefore, I assume that the nature of the protest does not place it under the more stringent rules regarding labor picketing. For example, imagine that the strikers in our Hague-like hypothetical are protesting in support of the general principles of free speech and political association.
58. There are further problems, of course. The owner of the choicest parcels might be unwilling to bargain at all, perhaps for ideological reasons. It is also possible that there would be problems of monopoly. A landowner might realize that no other landowner had anywhere near as effective a location in which to protest, and seek to extract monopoly profits. Even if there were more than one landowner, or more than one location in which effective picketing could take place, the landowners in the most desirable locations would probably charge more, all things being equal, and thus the strikers might not be able to afford a protest at a level of effectivenes that would make the picketing worthwhile. These possibilities, however, simply reinforce my fundamental point: The effective exercise of speech rights in this case depends upon economic power to purchase property rights. The effectiveness of the protest varies according to the property rights of others because these rights determine the price of access. If market imperfections or high transaction costs make such exchanges even more difficult, this simply enhances the nature of the difficulty and the importance of already owning property suitable for expressive purposes.
59. 385 U.S. 39, 47 (1966) (holding that the state could deny access to entrance of jail and jail driveway for demonstration by students protesting arrest and incarceration of fellow students).
60. As the Supreme Court explicitly held in Lloyd Corp. v. Tanner, 407 U.S. 551, 567-68 (1972).
61. The phrase is Professor Kalven’s. See Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 SUP. CT. REV. 1, 13; Stone, Fora Americana: Speech in Public Places, 1974 SUP. CT. REV. 233, 238. The analogy between first amendment access and traditional property easements, however, already appears in Judge Clark’s district court opinion in Hague in which the court speaks of “an easement of assemblage [in] … parks.” Hague v. CIO, 25 F. Supp. 127, 145 (D.N.J. 1938), modified, 307 U.S. 496 (1939); see also id. at 146, 151.
63. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 964, 998 (2d. ed. 1988).
64. 424 U.S. 507 (1976) (upholding right of private shopping mall owner to exclude labor picketers).
65. 412 U.S. 94 (1973) (first amendment does not require broadcast licensees to sell advertising time to all private groups for expressive purposes).
66. A good example of the interrelation between the scope of public access and the balance of private power is Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983). In Perry, a school district permitted an incumbent teacher’s union to use the employees’ interschool mailboxes while denying access to a rival union. The Court held that the denial of access did not violate the Constitution because the mailbox system was not a public forum. However, the school board’s access policy was actually the result of a collective bargaining agreement with the incumbent union when it defeated the rival union in a representation election. The access policy in the collective bargaining agreement was obviously designed to help perpetuate the incumbent union’s status by making it more difficult for the rival union to communicate quickly and easily with all of the teachers. The Court’s decision, phrased in terms only of the private citizen’s right of access to public property, nevertheless clearly had ramifications for the relative economic and political power of two private parties, namely, the unions.
67. For this reason, I believe that Professor MacKinnon’s work on pornography (although it is not specifically about issues of access to communicative technology) is of great importance to other areas of first amendment law. For MacKinnon has emphasized over and over again that rights to speak involve relations of power between private individuals. Cf. C. MACKINNON, supra note 7, at 155-56 (separation of public and private conceptions of right in first amendment law supports and facilitates domination of women by men and permits men to silence women).