THOMAS WEST ON SPEECH

In a recent article reprinted on Claremont's web site, Thomas West argues that "our speech today is much less free than it was in the early republic," and cites three areas of law that create what he perceives to be our current condition of relative unfreedom: campaign finance law, FCC broadcast licensing, and sexual harassment law. [Just harassment law in general, actually.] He then argues that the regulation of speech under the framers was bounded by three important principles (actually, four): the principle of punishing "clearly injurious speech" only, the rejection of prior restraint, and the requirement that advance notice (through the criminal law) and a jury trial be used in any punishment of speech. The fourth principle was that obscenity could be banned because it interfered with the proper approach to sexuality (must be tied to the family and procreation). According to West, liberals have "rejected" the free speech regime of the founders because it promotes inequality and because it was too restrictive of sexual behavior, but this rejection is unwise and should be reversed.

I like these kinds of arguments in general even when I don't agree with them, in the following sense: constitutional norms are part of an ongoing civic dialogue, and this dialogue should at times strive for simplicity (and will often tend, as Bruce Ackerman has argued, toward the cultural jeremiad). West raises an important question: how can one compare degrees of "freedom" across time? West's argument here is quite subtle, in one sense: freedom can only be understood in the context of an account of human goods and their relationship to the political order. He doesn't say so explicitly, but he is invoking the founding-era distinction between liberty and license. Stated sympathetically, the basic claim here is has two elements, as far as I can tell. First, engaging in "injurious speech" can never be an act of liberty, it can only be an act of license, so restrictions on what can credibly be labeled as injurious speech cannot be restrictions of liberty. Yet restrictions on noninjurious speech in the guise of restrictions on injurious speech are in fact restrictions on liberty (and liberal law professors like Cass Sunstein are prone to this error, according to West; he quotes Sunstein thus: "Left unregulated, the modern media could present serious threats to democracy."). So there must be an authoritative and relatively noncontroversial account of what is "injurious" in order for restrictions on speech to hit the right mark and only limit speech that is truly injurious. "Liberals" err in their account of injury.

Second, the distinction between liberty and license that West alludes to, stated sympathetically, is geared toward the fulfillment of human goods, including, ultimately, the human good of self-rule. The reason why pornography is licentious, on this view, is that there are uncontroversial human goods called procreation and the family; an inability to restrain one's passions in pursuit of these goods will lead to an inability to govern oneself effectively. West is unclear on the extent to which these goods are a matter of concern primarily to the political community as opposed to the individual, but in either case, the good of procreation and the family provides the criterium for distinguishing between speech that can be criminalized because it is licentious and speech that should be permitted because it is an exercise of liberty. "Liberals" want to cast off these wholesome restraints on sexuality and allow everyone to act as they please. Again, this approach puts self-government at risk, according to West:

The Founders would have replied that we are precisely not free to define our own concept of existence and meaning. God and nature have established the "laws of nature and of nature's God," which have already defined it for us. Human beings, Jefferson wrote, are "inherently independent of all but moral law." If men defy that law, they are not free. They are slaves, at first to their own passions, eventually to political tyranny. For men who cannot govern their own passions cannot sustain a democratic government.

There is a lot here, of course. I'm not sure that West is fair in his cursory dismissal of any indication that the modern broadcast media might be different than the print media of old. I suppose that if he were to continue the argument by saying that we need to roll back mass politics and return to the indirect forms of political representation that prevailed during the early Republic, then the distinction between the modern mass media and the print media of old is of no account. West doesn't make such an argument here, though, so in its absence, I am forced to conclude that West thinks that no characteristic of modern politics -- the extreme responsiveness of politicians to public opinion, the mobilization of interest groups, the price of mass political communication, and the consequent influence of both the media themselves and those who provide the cash for access to it -- none of these characteristics gives rise to any serious argument in favor of the propriety and permissibility of federal regulatory power, either in the area of campaign finance reform narrowly, or in the area of the broadcast media more broadly.

For West, attempts to regulate the broadcast media are old wine in new bottles, namely, tyranny in the guise of administrative authority. [Bad metaphor in a sense: new wine bursts old wine skins, and this metaphor is used in the gospels to indicate the need for a fundamental transformation in order to attain salvation. Not quite what I was getting at, but you get my point, I hope.] And it's clear to West which party wants to use these powers: the Democrats. West darkly warns that if and when the Democrats retain control of the White House, the FCC will be used to silence political opponents. He also infers from Democratic support of campaign finance reform that the bill was designed to "make[] it harder for citizens to criticize liberal politicians when they disagree with their policy views." Under the pretense of taking account of the relationship between the modern media and modern politics, then, Democrats have already forged the tools that will facilitate political oppression once they regain power.

According to West, Democrats have pulled off an amazing stunt with respect to campaign finance reform legislation: they have passed a law that will serve to silence their political opponents -- and no one on the Supreme Court seemed to notice! Republican nominees O'Connor and Kennedy missed it. Ginsburg, Stevens, Breyer and Souter missed it (perhaps they're in on the conspiracy?) Rehnquist missed it. And, amazingly: both Scalia and Thomas missed it. This, despite the fact that Scalia's dissenting opinion in the BCRA case (here) produced the very quotes from Democratic lawmakers that West uses to justify his conclusion about Democratic motivations. Contra both West and Scalia (who sees BCRA as a means of incumbent protection, the benefits of which are neutral across parties), there is a more believable story about campaign finance reform that involves not Democratic intentions to silence conservative critics (and, the flip side, conservative Republican unwillingness to acquiesce in such silencing), but genuine concerns about the relationship between ad financing, the appearance of corruption, and the fact that lawmakers spend too much time fundraising and too little time legislating. Once again I recommend Anthony King's Running Scared to any of those who are interested in that argument. Whether BCRA will actually help to alleviate these problems is, of course, another story.

Two more fundamental flaws pervade West's argument, however. Probably the most famous attempt to silence political opponents through speech restrictions occured not in the 20th century, but way back in the 18th. The Sedition Act of 1798 was passed by Federalists, members of the founding generation, far away indeed from the lures of permissive Millian liberalism. In fact, they framed their views in the precise language that West recommends. The Act targets categories of injurious speech, including "false, scandalous and malicious writing" aimed at bringing the government into disrepute or stirring up sedition. The problem that this Act poses for West is that here are the Founders in action, on both sides of a debate about what is now called "core political speech." It is too easy to dismiss the Federalists as mere tyrants. Anti-sedition laws raise a series of profond questions left entirely unaddressed by West's account precisely because such laws involved a central ambiguity in the free speech understandings of the founding generation. Isn't seditious speech by its very nature "injurious"? Why aren't the safeguards of sufficient notice and jury trials enough to counter concerns about government overreaching? West's account is surprising because he is more interested in pornography than sedition, even though sedition laws would seem to be the central example of a stifling of political criticism, supported by significant numbers of the framers -- not to mention myriad courts at the state and federal level well into the twentieth century. Even though the categories of the seditious and the obscene often overlapped in the case law (think of the Masses litigation, for example) I'm even willing to give West restrictions on obscenity if he's willing to give me the permissive political speech regime that is the heritage of the late twentieth, not the eighteenth, century.

On that point, the final major problem with West's account is that he ignores the knotty problem of state-level restrictions of political speech in the founding era. At least as important with respect to the question of whether or not we are "more free" in matters of speech now or in 1787 would bethe question of the relationship between the free speech notions he finds in the federal constitution and the on-the-ground reality in state and local courtrooms. I don't know much about state- and local-level restrictions of speech, but in terms of actual freedom (however measured), I would guess that it mattered more what folks in Boston, Hartford or Annapolis said about restrictions on speech than whatever ideals may have been applied with respect to constitutional restrictions on congressional power. According to Norman Rosenberg, state-level criminal libel prosecutions for political reasons were part of the publishing landscape in the founding and antebellum period. (see Protecting the Best Men, Chapter 5) Did state legislators and judges misunderstand the natural rights-based free speech regime expressed in the federal constitution? At the very least, criminal libel and sedition prosecutions -- and their absence in the twentieth century -- would have to be part of any comparison of freedom now and in the fouding era. West's version of founding era principles does not clearly point in the direction of a rejection of such prosecutions.

Give me the twenty-first century any day!

MORE (2/5): Added a few notes above to clarify some points. NPR this morning (audio file available here) reported that BCRA has been "hardest on Democrats," which is why they are turning to things like party-linked credit cards. So, if West's account of Democratic motivations with BCRA is correct, then they are the either phenomenally stupid -- by supporting a law that actually hurts their chances at regaining power -- or unbelievably crafty -- reckoning that they can better use the allegedly oppressive characteristics of the bill once they do, in fact, retain power. On that level alone I don't buy the [West's] story.