Why Free Speech Is Not Enough

Kevin Lamarque/Reuters
Jeff Sessions being sworn in as US attorney general, with his wife Mary Sessions, President Donald Trump, and Vice President Mike Pence, February 2017

“Civil liberties once were radical.” So begins Laura Weinrib’s important revisionist history of the origins of American civil liberties, provocatively entitled The Taming of Free Speech: America’s Civil Liberties Compromise. In her account, the fight began in the early twentieth century as a radical struggle for workers’ rights and redistributive justice. The central claim was for a “right of agitation,” which its proponents believed predated the Constitution and afforded workers the right to engage in direct collective action to pressure employers for higher wages and better working conditions. To these early civil libertarians, all the forces of the state, and especially the courts, were enemies, allied with business interests and against labor. As Morris Ernst, first general counsel to the American Civil Liberties Union, summed it up in 1935, “The decisions of the courts have nothing to do with justice.”

By 1938, however, Roger Baldwin, the ACLU’s executive director, proclaimed that the ACLU had “no ‘isms’ to defend except the Bill of Rights.” The ACLU had shifted its focus from labor’s struggle for economic justice to a defense of the “neutral” rights of speech and association, rights that could be invoked not just by individual workers and unions but by Henry Ford and big business. As Baldwin put it one year later, “We are neither anti-labor nor pro-labor. With us it is just a question of going wherever the Bill of Rights leads us.”

Sam Lebovic tells a related story in Free Speech and Unfree News. In his account, American constitutional law has favored a classical liberal “freedom of the press,” which stresses the importance of staving off state censorship, over “freedom of the news,” a concept formulated by Franklin Delano Roosevelt, which envisions the state working proactively to ensure access to information against concentrated media ownership. Lebovic argues that the liberal conception of free speech and a free press, founded on the “free marketplace of ideas,” is and always has been inadequate to address the threats to “freedom of the news,” including not just the power of media moguls, but also the consequences of the Internet and the state’s overreliance on secrecy.

Both authors argue that the dominant conception of civil liberties is insufficiently ambitious. They worry that as formulated, civil liberties are as much a tool for the powerful as for the powerless. A “free marketplace of ideas,” Lebovic argues, has the same flaws as “laissez-faire” capitalism; it gives those with greater means the ability to skew debate in their favor. Weinrib characterizes the ACLU’s adoption of this classical liberal conception of free speech as shifting “from the complicated calculus of the ‘right of agitation’ to a streamlined civil libertarianism that was impervious to inequalities in the marketplace of ideas.”

Weinrib, a professor of law at the University of Chicago, and Lebovic, a professor of history at George Mason University, offer important correctives to the celebratory accounts of civil liberties that we so often tell ourselves. Civil liberties are indeed predicated on a liberal conception that prefers “negative” rights against state intervention to “positive” rights to state assistance. Libertarians see the state as a threat to personal liberty, and sometimes fail to acknowledge the extent to which affirmative state intervention may be necessary to ensure that liberties are meaningfully available to the underprivileged masses as well as to the privileged few. The New York Times’s right to freedom of the press may do little to support the right to speak of an unemployed factory worker in the Rust Belt. The Koch brothers’ right to spend unlimited funds on political campaigns makes a mockery of the “one person, one vote” credo of democracy. And following Donald Trump’s election, on a campaign that relied on outright lies and stubborn denials of the truth, does anyone believe that the “free marketplace of ideas” is functioning?

At the same time, the inauguration of Donald Trump has dramatically reinforced the continuing importance of traditional core First Amendment rights. As he planned to decimate their departments, Trump banned government employees in the Environmental Protection Agency and the Department of the Interior from speaking to reporters or posting on social media.

As president-elect, Trump advocated jailing flag burners and stripping them of their citizenship. President Trump has appointed as his attorney general Jeff Sessions, who has shown little regard for the First Amendment, or for civil liberties more generally. And the most potent rejoinders to Trump have come in the form of good old-fashioned dissent: in particular, the women’s marches and airport demonstrations that spontaneously arose across the country. These events underscore that protection of speakers and the press from government interference, what Lebovic and Weinrib dismiss as a “compromise,” may be both more radical and more important than they recognize.

The histories Weinrib and Lebovic tell help explain why we have settled, for the most part, on a negative rather than a positive conception of civil liberties. Implementing a more radical or positive vision risks giving public officials the power to skew debate in the name of “correcting” its deficiencies. In fact, the state affirmatively supports speech in many ways, including through access to public parks and streets for demonstrations, postal subsidies to newspapers and magazines, public universities, tax exemptions for nonprofit advocacy groups, and public radio and television.

But little of this support is provided for constitutionally, so if we are to attain a more egalitarian exchange of ideas, it will likely be through the political rather than the judicial branches. And any such political reform begins with the right to exercise traditional civil liberties. In the Trump era, the liberal version of civil liberties, emphasizing the importance of keeping government out of the speech regulation business, is likely to be more essential than ever.

The idea of “civil liberties” is not nearly as old as one might think. Its emergence largely tracks that of the ACLU, founded in 1920. The Bill of Rights existed long before then, of course, but it had had only a modest effect on American life. For most of our history, the Bill of Rights applied only against federal officials, not against state officials, the primary government agents with whom most citizens interact. And in the early twentieth century, just about the only “liberties” that federal courts protected were those of businesses to exploit workers. In a series of decisions, most notably Lochner v. New York (1905), the Supreme Court struck down protective labor laws as interfering with the “liberty of contract,” which it deemed to be guaranteed by the Fourteenth Amendment’s prohibition on the deprivation of “liberty…without due process of law.” The Court also struck down federal efforts to protect workers and consumers as beyond Congress’s power to regulate “interstate commerce.” And during this period, courts routinely issued “labor injunctions” to bar strikes from interfering with what they considered the common law property rights of employers.

It is not surprising, then, that progressives shared a deep skepticism of constitutional rights and courts in the first several decades of the twentieth century. The ACLU’s precursor, the American Union Against Militarism (AUAM), was devoted not to “civil liberties” but to pacifism. As John Fabian Witt has shown, it was part of a radical “internationalist” movement that saw the nation-state as the cause of war and conflict.* When World War I began, the AUAM created an offshoot, the National Civil Liberties Bureau, to defend those who opposed war on grounds of conscience. At the same time, under Roger Baldwin’s leadership, the AUAM downplayed its call for internationalism, a cause that was viewed as close to treason during World War I. Instead, the group turned to the Bill of Rights as a more acceptable basis for protecting conscientious objectors and those who heralded their courage.

Weinrib picks up the history after this initial transformation, and shows that, once the war ended, the principal focus of Baldwin and his group, which became the ACLU in January 1920, was workers’ rights, specifically the “right of agitation.” Weinrib’s history focuses on the ACLU because, as she puts it, when it came to civil liberties in the interwar years, the ACLU “occupied the field.” Its board included many of the era’s leading radicals, liberals, and progressives, including labor activist Rose Schneiderman, civil rights leader James Weldon Johnson, social reformers Jane Addams and Helen Keller, writers Upton Sinclair and John Dos Passos, and the future Supreme Court justice Felix Frankfurter. It collaborated closely with leading constitutional and political theorists such as Ernst Freund, John Dewey, Harold Laski, Zechariah Chafee Jr., and Alexander Meiklejohn.

Focused on workers’ rights and observing the hostile reception such interests encountered in the courts, the ACLU in its early days modeled itself on the radical Industrial Workers of the World (IWW) and “disavowed law of all kinds.” In 1924, it endorsed a proposal by the progressive presidential candidate Robert LaFollette, from Wisconsin, to limit the power of courts to declare legislation unconstitutional. When it did file lawsuits, it was not with any hope of winning, but simply for the propaganda value of losing. Such losses, it hoped, would reveal the courts as a tool of business interests and motivate the populace to support workers’ “direct action,” which it viewed as the only realistic route to social progress. As Baldwin put it:

Far more effective is this direct action of open conflict than all the legal maneuvers in the courts to get rights that no government willingly grants. Power wins rights—the power of determination, backed by willingness to suffer jail or violence to get them.

Baldwin himself was convicted twice, for refusing the draft during World War I and for conspiring with striking workers in Paterson, New Jersey, in 1924.

As the economy improved, however, support for workers’ rights dropped. Meanwhile, the ACLU branched out from its initial advocacy for workers and pacifists, defending John Scopes in his trial for teaching evolution in Tennessee as well as feminists who sought to provide sex education and access to contraceptives. It began to make more lawyerly arguments in court, focusing narrowly on the factual sufficiency of criminal convictions or advancing narrow statutory interpretations, rather than bold constitutional claims.

And it began to win cases. In Stromberg v. California (1931), the Supreme Court invalidated an anti-Communist law prohibiting the display of red flags. In Powell v. Alabama (1932), the Court reversed the convictions of young black men sentenced to death in summary trials in Scottsboro, Alabama, for allegedly raping two white women. In De Jonge v. Oregon (1937), the Court threw out the conviction of an activist for speaking at a Communist meeting. Baldwin, who Weinrib argues was a pragmatist above all, “began to treat radicalism as a viewpoint rather than a calling,” and the ACLU shifted its emphasis from a narrow preoccupation with labor to defending the expressive rights of all speakers, regardless of their ideological views. At the same time, the organization began to characterize courts not as the enemy but as “the essential forum” for the defense of rights.

Donald Trump
Donald Trump; drawing by James Ferguson

For Weinrib, a critical turning point in the ACLU’s conception of “civil liberties” concerned the question of whether employers should have the right to express anti-union views to their employees in a labor dispute. The sympathies of the early ACLU were entirely with labor: the “right of agitation” was a right of workers, not of their bosses. By 1937, during a dispute between Henry Ford and his employees, the ACLU board found itself deadlocked between those who saw all employer speech in labor disputes as inherently coercive, and therefore unprotected, and those who believed that employers should be free to express anti-union views as long as they fell short of coercive threats. By 1940, the latter position had prevailed, and the ACLU officially objected to a National Labor Relations Board order that prohibited employers from distributing anti-union leaflets to workers.

This, to Weinrib, is the “taming of free speech.” Where the ACLU had initially promoted the rights of workers, it was now defending a more universal conception of rights, available to the strong as well as the weak. But one might more accurately characterize it as reflecting a growing recognition of the importance of protecting speech of all perspectives. If it is to gain widespread adherence, the principle of free speech must be available to all. It’s no coincidence that the ACLU began to succeed and grow as it adopted a more universal conception of civil liberties.

More fundamentally, a conception of speech rights that turns on assessments of which views advance the interests of the weak over the strong, or of whether the marketplace of ideas is skewed by inequality, risks giving state officials the power to censor views they disfavor. The protection of free speech need not rest on a blind faith that free exchange will lead us to truth. It can and should rest on the much stronger corollary proposition, namely that empowering the state to correct perceived deficiencies in the marketplace of ideas is a cure that is worse than the disease. Why would we trust state officials, elected by majorities and generally supported by society’s powerful interests, to make fair decisions about how the marketplace is skewed and which views need to be suppressed or promoted? The best argument for protecting speech is not that the free marketplace of ideas will lead us to truth, but that it is superior to all the alternatives.

Moreover, while it is true that a right to universal free speech can be invoked by the powerful as well as the weak, by business as well as labor, the right is nonetheless more valuable for the weak. By definition, the powerful are able to achieve their interests through the political process. As a result, they are less likely to need constitutional protections. For the weak, however, constitutional protections may be all they have. While “civil liberties” in their liberal form are universal, they are designed to protect those whose interests are not served by the political process. And that gives them radical potential, even if they are available to all.

Freedom of the press, like freedom of speech, also rests on the classical liberal ideal. But in Sam Lebovic’s view, that ideal is challenged by concentrated media ownership, state secrecy, and the Internet. As Lebovic puts it:

First Amendment rights to speech have never been more highly protected, but the free flow of news to the public is far more tenuous, and rests on more fragile foundations. Americans have a well-entrenched right to free expression, but no right to the news.

It is not enough, Lebovic argues, to protect the press from state censorship if a handful of wealthy tycoons and businesses control the most influential media outlets. As he points out, the number of newspapers in the United States peaked in 1909 and has dropped dramatically ever since. The Supreme Court’s first important free press decisions, in the 1930s, “seemed strangely disinterested in the actual operations of a newspaper industry that had become stratified by new hierarchies of wealth and power.”

The First Amendment’s protection against state censorship is also insufficient if government officials can effectively control access to information through the manipulation of secrecy. Overclassification of official documents is a universally recognized problem, but one that thus far has proved immune to remedy. The Freedom of Information Act offers some means of inquiry but contains broad exemptions, and depends for its enforcement on courts standing up to executive assertions of threats to national security, not something most courts have been inclined to do.

Finally, while the Internet democratized the right to speak and publish, it has also given priority to the expression of opinion over serious investigative journalism, and created information silos and echo chambers in which individuals are increasingly exposed only to the views of those with whom they already agree, and to the “facts” of which they are already convinced. Nearly half the public now depends on Facebook for reported news. The Internet is perhaps the best proof yet that “uninhibited, robust, and wide-open” debate, which the Supreme Court has proclaimed to be the First Amendment’s touchstone, does not necessarily produce a well-informed public.

Lebovic is correct that a First Amendment that merely provides a negative right against formal state censorship cannot ensure the quality of debate necessary to produce an informed citizenry. But the challenge is not so much in identifying the shortcomings of the free marketplace of ideas as in proposing a better alternative.

Lebovic’s account of the Hutchins Commission on Freedom of the Press is telling. Funded by a grant from Henry Luce in 1943, the commission, chaired by University of Chicago President Robert Hutchins, included such leading intellectuals as Archibald MacLeish, Reinhold Niebuhr, Charles Merriam, Zechariah Chafee, and Robert Redfield. All members agreed that freedom of the press was at risk, that the laissez-faire approach “no longer does the work,” and that the focus should be on the rights of the reader to meaningful news rather than of the media to speak.

The commission had difficulty, however, agreeing on a solution. Early drafts of its final report favored aggressive government intervention, using antitrust laws, to ensure a diverse press. But as the commission deliberated, Zechariah Chafee of Harvard and others convinced the majority that such intervention, guided by a concern for readers’ rights, would have required government oversight of the “contents, performance, and personal attitudes” of journalists. In the end, the commission’s report warned that “government ownership, government control or government action to break up the greater agencies of mass communications might cure the ills of freedom of the press, but only at the risk of killing the freedom in the process.” In lieu of state action, the Hutchins Commission recommended only that the media adopt and develop their own professional and ethical standards.

Lebovic condemns the Hutchins Commission’s recommendations as “rather limp conclusions.” As he puts it, “the commission prioritized protecting negative liberties: the right to speak without government interference would be protected by law, while the right to receive information would be protected only by moral codes.” But one might say the same of Lebovic’s own prescriptions. Antitrust enforcement is not the answer, he concedes: “The challenge today is not to break apart profitable newspaper monopolies, but to prop up original, independent journalism.” He favors more public support of the press, but worries about how it would be carried out while maintaining state neutrality. And he would require explicit consideration of the public interest in access to information when making decisions to classify government information, a reform unlikely to alter the powerful incentives of government officials to favor secrecy over disclosure.

The central difficulty is that there is an irreconcilable tension between the interests in maintaining freedom of speech and ensuring a more informed debate. “What FDR referred to as the ‘freedom of the news’ cannot be produced simply by protecting the right to speak without government interference.” But at the same time, “the more ambitious and sweeping any state program of press reform, the greater the risk it would pose to classical press freedom. It is hard to promote positive rights without interfering with negative rights.”

Following the election of Donald Trump, whose campaign benefited from demagogic appeals to racism, populism, the empty adulation of celebrity, fake news, and outright lies, it is easy to lament the state of the American marketplace of ideas. Trump proclaimed and tweeted one untruth after another; parts of the media dutifully fact-checked his assertions and reported that they were false. Yet this seems to have had little effect on a large enough proportion of the electorate to win him the presidency.

Still, the alternative to private control of speech and the media is state control. And there is nothing like a Trump presidency to throw into sharp relief the dangers that such a system would pose. Would anyone want Steve Bannon deciding how to correct deficiencies in the marketplace of ideas? Trump has already shown a strong antipathy to press accounts that reflect negatively on his actions, or even that report accurately on the underwhelming crowd at his inauguration. The classical liberal conceptions of free speech and free press may not be enough to produce a fully informed electorate or to redress the social and economic ills that skew public debate. But as a constitutional matter, they remain the single best defense against an overweening state. More than ever, those are the rights and liberties that will now need our support.

  1. *

    John Fabian Witt, “Crystal Eastman and the Internationalist Beginnings of American Civil Liberties,” Duke Law Journal, Vol. 54 (2004).