by Martin H. Redish. Stanford, CA: Stanford University Press, 2013. 235pp. Cloth. 45.00 ISBN: 978-0-8047-7215-0.
Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College Strauber [at] Grinnell.edu
This book is a re-working of some essays about free speech published since 2007 by Martin Redish, the prominent First Amendment law school scholar. The revisions revolve around two political theoretical principles which Redish explains were originally (only) implicit in those essays but now should be considered explicitly as both foundational for his own work and also as indispensable for any treatment of free speech as a means to two democratic ends: (1) self-rule (variously conceived) alongside adherence to the dictum of “epistemological humility” (there is no truth or public good independent of self-governing procedures) and (2) public opinion autonomous from government control that limits policy-making authority.
For Redish, these ends are consistent with free speech as a means to protect and preserve “self-realization,” which Redish associates with a “process-based libertarianism” (p.178), and the modern political theory of “adversary democracy” (citing, Mansbridge, 1980). He ambitiously characterizes those two principles and their (complex) association with (Hobbesian) self-interest as constituting “the only theory that is descriptively consistent with the political system we presently have and have always had since the nation’s founding” (p.17).
The arguments that follow unabashedly advocate the political virtues of “self-interest, “selfishness,” and “skepticism about altruism” as the underpinning for a “cynical” rejection of any alternative conceptions of government and policy-making based on civic republicanism or the “cooperative pursuit of the common-good” (pp.176-77). For Redish, communitarian or cooperative conceptions of democracy should be construed as abhorrent because they truncate or suppress what should otherwise be salient concerns about individual autonomy, the inevitability of political competition amidst competing ideological, interests and values, and the integrity of those individualistic and interest-driven concerns about free speech and democracy.
Redish’s enthusiasm for this political theory does not blind him to a theoretical role for social cooperation. Redish insists that any role for social cooperation must arise from arguments about choice-making by individuals who are driven by the exigencies of political competition and self-interest rather than from arguments that stipulate or deterministically require cooperation (which would then necessarily suppress individuality and which are the handmaidens of paternalism). For Redish, theoretical arguments about the [*496] possibility of social cooperation as solely a by-product of choice are sufficient to claim that his version of a democratic theory should not be understood to “NECESSARILY degenerate into a base form of possessive individualism” (p.177, emphasis added) and should be identified “with the developmental theories of John Stuart Mill” (p.9).
The goals of this book are then to defend the descriptive and normative pedigree of this democratic theory; to explain the purported inexorable logical and conceptual linkages between this theory of democracy and the philosophical foundations of a right of free expression; and to reconnoiter the implications of those linkages for pertinent case-law issues. Inevitably, some public law scholars will consider whether these goals are compromised by the assertion that there is only one theory that is descriptively and normatively consistent with the political system we presently have and have always had since the nation’s founding. Or whether these goals are compromised by virtue of political science literatures that tackle normative and empirical weaknesses of any (Redish-like) theory of political motivation and behavior that is based solely on “narrow” self-interest or that does not take into account the descriptive and normative relevance of altruistic and cooperative motivations for political theory and analysis. And there will be those who are skeptical of the very idea of “epistemological humility,” holding that substantive values are intrinsic to any conception of the public good.
Be all that as it might be, the intellectual dynamism of Redish’s defense of those goals makes this book worthy of attention and of political science-oriented assessments of its strengths and weaknesses.
The brief introductory chapter characterizes the interdependence of free expression and democracy and sets out those two foundational principles, their link to adversary democratic theory, and his opposition to “cooperative” theories of democracy. The brief concluding chapter provides a precise summary of what is set out in the first chapter and subsequently developed; therefore introductory and concluding chapters could profitably be read together for signposts. (Material from that last chapter was used for the paragraphs above).
The second chapter defends advocacy democracy as grounded in a commitment to individual development, equal power to affect the outcome of decision-making, security from domination when in the minority, (Kantian) individual dignity, democratic equality, and constitutional separation of powers. A discussion of the strengths, weaknesses, and implications of six options for understanding the common good situates adversary democracy as the most logical, realistic, and consistent conception for protecting individual autonomy (as a combination of prisoners’ dilemma considerations and the idea that the pursuit of individual self-interest is not exclusive of concerns about the pursuit of the common good).
The chapter then proceeds to defend adversary democracy as the single best means for understanding constitutional theory as the embodiment of liberal individualism, the rights of the [*497] individual versus governmental authority, and the rejection of the pursuit of the common good and civic virtue. According to Redish, the practical pay-off of this constitutional theory for the First Amendment is that it alone consistently and coherently promotes doctrines that would sustain democratic competition among individual interests, the dissemination of information, private deliberation, the development of individual faculties, potentially increase regard for other viewpoints as well as respect for the dignity of opponents, and encourage active democratic participation.
Consequently, Redish’s positive argument is that all speech regulations must be subject to strict scrutiny in order to protect all speech that facilitates: (1) individual decision-making; (2) lawful advocacy; (3) the ability to maintain and develop individuality and capacity for political participation. The fervent negative argument is that the putatively intrinsic and inexorable linkages between adversary democracy and the philosophy of the First Amendment make the more communitarian or cooperative theories “inherently irrational (or on occasion, ideologically manipulative)” (p.4). Of course, scholars who are skeptical of claims that any single theory of democracy or single set of free speech first principles can encompass the interconnections between democracy and free speech will have to suspend their skepticism in order to appreciate the ensuing chapters that reconnoiter the conceptual and doctrinal implications of those positive and negative arguments.
The third chapter is, on the face of it, a comprehensive arraignment of Alexander Meiklejohn’s listener-oriented defense of free speech (to protect the listener’s ability to receive information) as a means to cooperative democratic ends, and law scholar Robert Post’s speaker-oriented defense of free speech (to promote self-governing citizens) as a means toward its version of democratic ends. Redish’s goal is to emphasize the negative arguments in order to persuade readers that “understanding the serious flaws in both theories will underscore the normative and descriptive superiority of the adversary form of democratic theory and the adversary version of free speech that grows out of it” (pp.28-29). Those flaws primarily revolve around internal inconsistencies contingent on (a) being one-sided versions of free speech (eliding concerns about the speaker or listener respectively), (b) ignoring the ostensible political realities of self-interested driven politics and the normative commitment of any democratic society to individual integrity, and (c) failing to appreciate the epistemological significance of epistemological humility for democratic autonomy and First Amendment doctrines. (The concluding chapter provides a nice summary of the implications of these flaws for free speech doctrine).
The next chapter covers Redish’s arguably signature contribution to free speech theory: a defense of a jurisprudence treating commercial speech as fully protected speech. Regardless of whether readers will be persuaded by Redish’s point of view they should find the arguments robust on their own terms. The epistemological commitment behind these arguments is Herbert Wechsler’s “neutral principles” [*498] (1959). Redish deflects the criticisms of Wechsler and “neutrality” to stipulate that, to be “neutral,” First Amendment jurisprudence must be grounded in “the deep constitutional structure underlying the words of the First Amendment… [and] applied consistently in all cases” (p.82).
Redish argues that this “viewpoint neutrality” for commercial speech ought to be understood as “the logical outgrowth of the nation’s original commitment to democratically based rule” (p.106). However, he acknowledges that, despite its grounding in deep structure, what is and is not viewpoint discrimination is unavoidably difficult to determine. Within that context, the recommendation is that claims “internal” to First Amendment (adversary-driven) values should be interpreted as clearly on the neutral side line-drawing, whereas line-drawing based on political, social, economic, moral, or religious criteria, ostensibly wholly external to First Amendment values, is clearly non-neutral.
In that regard, line-drawing that comprises viewpoint discrimination is characterized as typically belonging to three categories: (1) “rationalist” or normative line-drawing that is illegitimate because internal criteria are applied inconsistently, and line-drawing external to deep structure that is (2) “intuitionist” and illegitimate because criteria are undefended or vague, or (3) that is ideologically-driven and illegitimate because criteria manifest opposition to the speaker’s ideological or political affiliations.
Redish also explains that matters are complicated in relation to commercial speech to the extent that arguments against fully protecting it can (also) fall into the “twilight zone” of viewpoint discrimination (p.112). Such arguments are neither normative nor ideological but arise from the “ideological either” (p.112) of hostility to commercial processes or the commercial practices of the speaker. Redish’s dramatic, and what for many will be deeply contentious, conclusion is that twilight zone arguments that would protect forms of nonpolitical economically motivated expression but not commercial speech can only be construed to be either (intentionally or unintentionally) intellectually inconsistent or simply hostile to capitalism and the role of commercial speech there (p.114) (a hostility Redish asserts is just one step removed from what motivated limits on Communist expression) (p.121).
The following chapter is a blistering critique of law scholar Zephyr Teachout’s defense of an “anti-corruption principle” (i.e., limits on officeholders’ speech because it is motivated solely on the basis of self-interest rather than the public good). The critique can be read as such or as a tacit critique of Justice Stevens’ dissent in CITIZENS UNITED V. FEC (which cites Teachout’s defense of the principle). Redish’s critique takes the reader through arguments about constitutional text and history, practical political implications for interest group politics, and adversary democratic values to the conclusion that the principle is fatally flawed. Redish discreetly avoids saying that about the dissent, and instead confines himself to the observation that he is puzzled by how anyone could find the principle worthy of commendation and relieved that the Court refused [*499] Teachout’s “ideological” gambit for the sake of principled adjudication.
The penultimate chapter addresses a less known facet of free speech and corruption: a speaker’s right of anonymity as a sub-set of a right to remain silent. Redish considers this right in relation to trade-offs between fears of political retaliation or reprisal and advancing adversary democracy values on the one hand and the potential for political or ideological fraud and limits on a listener’s right to fully evaluate the character of (anonymous) speech on the other hand. The chapter guides the reader through a survey of the significance of a right-of-anonymity as a facet of a right-to-silence, connections between a right-of-association and a right-of- anonymity, harms associated with anonymous speech, and the conflicts between speakers’ and listeners’ rights in trying to regulate those harms. The conclusion is that the trade-offs pose a tragic dilemma for First Amendment adjudication punctuated by the apparent need for regulations that would necessarily have to chill speech in order to protect against fraud and listeners’ access to information to make informed choices.
This chapter’s treatment of adversary values and trade-offs could prompt public law scholars and graduate students to consider whether a political science approach to law and politics could lead to similar conclusions about dilemmas, either in principle or in relation to consequentialist considerations, for commercial speech, the anti-corruption principle, or other free speech issues not considered by Redish. This possibility, and any questions about the form and content of Redish’s political theory and its logical or conceptual linkages to the First Amendment, would only reinforce the extent to which Redish has made free speech scholarship richer by his efforts to forcefully remind readers of the preeminence and gravity of values such as individuality, epistemological humility, and viewpoint neutrality.
Mansbridge, Jane J. 1980. BEYOND ADVERSARY DEMOCRACY. Basic Books.
Mansbridge, Jane J. ed. 1990. BEYOND SELF-INTEREST. The University of Chicago Press.
Meiklejohn, Alexander. 1948. FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT. Harper.
Post, Robert C. 1993. “Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse.” COLORADO LAW REVIEW 64: 1109.
Post, Robert C. 1995. CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT. Harvard University Press.
Post, Robert C. 1997.“Equality and Autonomy in First American Jurisprudence.” MICHIGAN LAW REVIEW 95:1517
Teachout, Zephyr. 2009. “The Anti-Corruption Principle.” CORNELL LAW REVIEW 94:341.
Wechsler, Herbert. 1959. “Toward Neutral Principles in Constitutional Law.” HARVARD LAW REVIEW 73:1. [*500]
CITIZENS UNITED V. FEDERAL ELECTION COMMISSION, 558 U.S. 310 (2010)
Copyright 2013 by the Author, Ira L. Strauber