OUR DEMOCRATIC FIRST AMENDMENT

Vol. 32 No. 5 (May 2022) pp. 57-66

OUR DEMOCRATIC FIRST AMENDMENT, by Ashutosh Bhagwat. New York: Cambridge University Press, 2020. pp.174. Paperback $29.99. ISBN:978-1-108-72367-1.

Reviewed by Andy Carr, Department of Politics, The New School for Social Research. Email: carra943@newschool.edu.

In his recent book, Ashutosh Bhagwat seeks to explain the origins of OUR DEMOCRATIC FIRST AMENDMENT and offer guidance for how its “cognate” democratic rights can be revived today. The book responds to the sense of a decaying American civil society, of a breakdown in civic associations, and “American political and social life” in our era of digital pile-ons and “fake news” claims (pp. 118–119). The book combines a sweeping, compelling review of the First Amendment’s “democratic rights”—emphasizing the mutually interdependent qualities of speech, press, association, assembly, and petition rights from their common law origins through the arc of American constitutional history—with a prescriptive argument for revitalization. The argument underscores civic and other forms of association as a means for breaking through partisan and increasingly siloed information and communication networks online, as well as for a “Wikipedia”-like model of collaborative truth-seeking. As such, OUR DEMOCRATIC FIRST AMENDMENT is a half-success. By reintroducing readers to the democratic purposes and interrelated natures of First Amendment rights, Bhagwat provides great, thoroughly researched insights for contemporary scholars and practicing lawyers alike. The prescriptions, however, feel comparatively tossed off. They are riddled with hazy empirical assertions and fall far short of grasping the seriousness of risks to Americans’ First Amendment rights – and to American democracy.

The book is organized into two main parts: Part I (Chapters 1, 2, 3, and 4) addresses the historical origins of the First Amendment and its early development as an interlocking set of “cognate” rights, while Part II (Chapters 5, 6, and 7) focuses on Bhagwat’s suggestions for encouraging “friendly, meaningful cross-partisan exchanges” as a means of restoring civil society and vibrant free speech (p. 138).

From the outset of Part I, Bhagwat’s recurring focus on the “cognate” rights quickly comes into view and upends some conventional wisdom in at least two senses. First, he notes that “the modern consensus is a major departure from deep and abiding earlier conflicts” dating back to the earliest colonies and the “framing generation” of early American leaders (pp. 13-14). The “modern consensus” refers both to contemporary doctrine’s “absolutist” view of free speech in particular (Price 2018), as well as the general tendency toward treating each enumerated right in the First Amendment’s text as severable from the others. Indeed, the First Amendment’s authors “paid little attention to the Speech Clause” in their own time, focusing much more on freedom of the press as demanding protections from government intrusion (pp. 14–16).

Chapter 1 immediately sets about theorizing two of the “most familiar” freedoms enumerated in the First Amendment – the freedoms of speech and of the press (p. 13). Bhagwat begins with the latter, swiftly tracing press freedom’s conceptual history from common law origins through Blackstone’s commentaries to the earliest years of America’s constitutional republic. That historical perspective is clarifying; Bhagwat’s explanation of the Sedition Act of 1798 especially elucidates early divides over the scope of freedom of the press, as well as between the Federalists and Democratic-Republicans over the emerging nation’s simmering tensions with post-Revolutionary France. The Act in question infamously “permitted prosecution [of publishers] for mere criticism of the government,” essentially resurrecting “common law seditious libel” and resulting in controversial convictions, including then-Congressman Matthew Lyon of Vermont (p. 20). Bhagwat argues, however, that Democratic-Republicans’ withering critiques of the Sedition Act, and the fallout from cases like Lyon’s, ultimately “laid the theoretical foundations for modern freedom of speech and of the press” (p. 21). Among other things, their arguments helped cement the Press Clause’s more contemporary meaning: beyond merely circumscribing prior restraints or colonial-era licensing schemes, they reaffirmed the links between popular sovereignty and vigorous defense of the press to inform the people about their government. Although today the term “press” may extend beyond the meaning it had in 1800, the underlying logic remains compelling in a modern republican democracy.

Freedom of speech, conversely, entered the Bill of Rights in a somewhat unclear manner. As Bhagwat puts it, “Sometime between 1776 and 1789 freedom of speech obviously became [a] sufficiently well established an idea” for it to be added to the First Amendment, yet “there are no indications of how or why that happened” (pp. 26–27). In addition, for years after the Constitution’s ratification, attention to that right remained marginal at best: early Supreme Court Justice Joseph Story, writing in his 1833 COMMENTARIES ON THE CONSTITUTION, cited both the Free Speech and Press Clauses together, but “his actual discussion [was] only about freedom of the press” (p. 27). When read together with the other elements of the First Amendment, however, the Free Speech Clause’s vital aims come into focus – along with Bhagwat’s overarching argument (and the title of the book). The free flow of information, ideas, and arguments between people is necessary to democracy, as are today’s somewhat less-discussed freedoms under the First Amendment, like assembly and petition. Free speech remained of marginal consideration among most leading jurists until World War I, and even then, only became a central concern long after an initial backlash to the notorious Espionage and Sedition Act cases involving pacifists and political dissidents in 1919, notably including SCHENCK V. UNITED STATES and ABRAMS V. UNITED STATES; later GITLOW V. NEW YORK; and, finally, 1927’s WHITNEY V. CALIFORNIA. This “great triumvirate” showed how Justice Oliver Wendell Holmes’s evolving views on freedom of speech—especially the importance and interdependence of speech with democracy—presaged capacious modern views that would dominate Supreme Court jurisprudence over the decades to come.

Unlike the Free Speech and Press Clauses, the Assembly Clause and right of association (Chapter 2), along with the Petition Clause (Chapter 3) “have been essentially lost to modern constitutional law,” and so, are given significant historical review and reinvigoration for our “modern democratic politics” (p. 43). Assembly, like the Free Speech Clause, has a limited drafting history in records from the states or the federal constitutional conventions, but not a nonexistent record – indicating, Bhagwat argues, textually reading assembly and petition as a single right ought to be rejected (p. 46). Critically, the pro-democratic intention is as clear for assembly as in the preceding clauses, given the original phrasing of drafts. Earlier versions framed the Assembly Clause as protecting citizens’ rights to gather so as “to consult for their common good,” as well as to “instruct their representatives” of their views. The less-descriptive text of the First Amendment appears to have opted for “brevity, at the price of clarity” in omitting these purposes, but nothing in the drafting history suggests the underlying aims were replaced or rejected (pp. 46–47). Set in even broader historical context, Bhagwat concludes, the “right of assembly was widely respected during the early Republic as an essential element of citizenship in a system of popular sovereignty,” perhaps “the primary form of political participation” (especially before landholding requirements for suffrage were abolished), and so “more fundamental to democratic self-governance than either free speech or even a free press” (p. 53).

The chapter then pivots to the right of association – one drawn from, but not provided explicitly in, the Constitution’s text. Unsurprisingly, association has a somewhat convoluted jurisprudential history. Before the 1950s, it most often was explained as deriving from the Assembly Clause. In 1958, however, the Supreme Court instead explained that it derived from the Free Speech Clause, being necessary to an efficacious freedom of speech (pp. 54–55). In one of the book’s most compelling passages, Bhagwat argues that the “associational right” ought to be seen as a distinctive one, albeit linked to the other democratic rights of the First Amendment in ways similar to their own interconnections. Associations, Bhagwat explains, “play myriad roles in individuals’ lives which are supremely important to their identities as citizens,” like when they serve as “venues within which [they] can jointly develop and strengthen their values and beliefs,” and that this independently important function should be viewed as part of the First Amendment’s bundle of pro-democratic rights (pp. 56–57). Though association can amplify speech and expressive conduct, enhance “effective petitioning of government officials,” and complement the other democratic rights made explicit in the text (p. 57), it ought to be kept analytically and conceptually separate from speech alone, Supreme Court doctrine notwithstanding.

The last right enumerated in the First Amendment and “undoubtedly [its] most obscure” is covered in Chapter 3: The Petition Clause. The irony of this “forgotten” right, per Bhagwat, is that it is also “by far the most ancient and generally uncontroversial of the rights in the First Amendment,” traced back at least to the Magna Carta in 1215 (p. 67). Petitioning evolved from a late-Medieval practice that allowed “private wrongs or disputes” to be brought “to the attention of authorities,” such as property disputes, into a route for the public “to address public concerns” and to “seek general legislation or changes in policy” (p. 69). From the seventeenth century onward, the “public” oriented form became predominant and traveled to the British colonies of North America, where it flourished. Petitions became an endemic feature of colonial politics, resistance to the monarchy, and “one of the main justifications for the colonies’ Declaration of Independence” (p. 70). During the early decades of the American Republic, it remained a vital, frequently used right; thousands of petitions were sent to Congress through the start of the nineteenth century alone, covering many policy domains. As national divides over slavery deepened, however, competing petitions from abolitionists and pro-slavery Southerners made the right almost moot: Competing claims inflamed tensions between congressional leaders and were rendered unactionable, and in practice, “a policy of effectively ignoring petitions” became ubiquitous anyway. Petitions did not die off—millions of Americans still sign, share, and submit them at all levels of government today—but their political value at the federal level ceased well over 150 years ago. In part, OUR DEMOCRATIC FIRST AMENDMENT aims to revive this manner of citizens’ “voice” in government.

By the start of Chapter 4, Bhagwat’s argument already has been brought into focus: The “histories and purposes of the five great democratic rights of the First Amendment—speech, press, assembly, association, and petition—separately” support American democracy (p. 81). However, this Chapter fills out the main thesis of these “democratic rights” as cognate rights that function together in support of a specifically American vision of “democratic citizenship.” Bhagwat’s theory builds on (while critiquing) Alexander Meiklejohn’s earlier work on town halls and referendums as exemplars of participatory democracy (Meiklejohn 1960). Moving through later works by Robert Post and Cass Sunstein in similar form—finding these latter authors overly focused on speech to the exclusion of other First Amendment freedoms—Bhagwat then arrives at his “kaleidoscopic” view of rights. Their interrelationships define them, despite retaining distinct purposes and effects. “Indeed,” Bhagwat explains, these interrelationships are “so deep that sometimes they blend together, creating a kaleidoscopic effect,” as when one examines speech and assemblies/associations (advocates have greater power to convince others when working as a group), or assemblies/association and petitioning (since the latter “is almost inevitably a group activity,” especially in a large, diverse society) (pp. 90–91). Bhagwat offers the 1965 Selma March as one of several powerful real-world illustrations of the kaleidoscope of democratic rights: Marchers, protesters, and speakers embraced all of the democratic rights simultaneously (p. 92).

Chapter 5 introduces readers to the present-day, jumping from America’s founding principles to the “age of Twitter.” Here, Bhagwat begins to lay out the problems facing the First Amendment’s democratic rights today. The “Internet era” is a through-line and recurring focus of attention, given that it has diluted the distinctiveness of the press and made communication cheaper and faster for far more people. “In the Internet era,” he asserts, “the costs of entry into the ‘media’ have collapsed to almost zero” (p. 103). But ease of communication—and the mass-coordination of communication among or through politically motivated groups—leads to well-known problems like echo chambers, the “collapse of even a basic factual consensus” among Americans, the blurring of expertise and celebrity, information overload, and more (pp. 104–112). At this juncture, Bhagwat pivots to his prescription for the “dysfunctions” in our system of democratic rights, arguing we should resolve our “crisis of truth and falsehood” (p. 112) through leveraging the strengths of associations. Bhagwat prescribes crowdsourcing the truth, since “we are almost always smarter, stronger, and more effective acting in groups,” with some ground rules for participating in a decentralized system of evaluating information (pp.. 113–114). The extant, real-world model for this crowdsourcing is Wikipedia. Bhagwat grants that the “Wiki model” and its nonprofit, rule-bound approach (including commitments to “objectivity and neutrality”) can be susceptible to “intentional manipulation of articles” and “inevitable trolls” (p. 115) but argues it nevertheless should be taken seriously. The rest of the chapter elaborates on how the Wiki model might be enhanced in service of democratic aims, including bringing “nonpartisan and ideologically diverse groups” in as subject matter experts to present important factual information, so long as participants can engage in a spirit of cooperation (p. 117).

Chapter 6 turns to the necessary intermediate steps between our present online information environments and Bhagwat’s Wiki model, no less than a call for reviving American civil society and associational life. Borrowing from Alexis de Tocqueville’s renowned observations of Americans in the early nineteenth century, Bhagwat underscores the importance of involving “ordinary citizens in civic and political” associations, emphasizing how even non-partisan or apolitical organizations can inculcate a rich civic environment (p. 120). The diversity of citizens’ associations and groups historically encompassed abolitionist and mutual aid groups, local councils and parties, religious groups, and unions. Explaining the much-discussed decline of civic or “associational” life during the last few decades, though, lumbers into overly worn territory. Robert Putnam’s BOWLING ALONE (2000) offers the descriptive and explanatory basis for that story – though none of the various critiques of Putnam’s work, nor even any of the later research approvingly building upon it, is mentioned here. Surely, formal membership and active participation in associational life has declined, but no attention is paid to how inequality, longer work hours, and pervasive economic precarity both drive such declines and may prevent Bhagwat’s hopes for an “associational revival” (pp. 134–135). Such hopes are pinned to apolitical, informal or locality-based gatherings—book clubs, parent–teacher associations, even just friend groups regularly meeting to chat over a few beers—which are hardly objectionable. But the imperative of organizing and engaging in these groups, apparently, is an individual one; little is said on what policies or collective actions could spur their revitalization. Like the Wiki model before, the state disappears from view, leaving vaunted “ordinary citizens” to pull together through sheer force of will. Even before the overlapping political, economic, and public health crises that have dominated life since 2020, this is an oddly na├»ve view.

Finally, Chapter 7 narrows again, focusing on the relevance of assembly and petition today. Looking at the 2017 Women’s March on Washington and others around the country, Bhagwat argues for such movements as a model of effective assembly and petition. The “sea of people” at the National Mall (or elsewhere) simply cannot be replicated through online petitions or social media campaigns; mass assembly’s power, symbolic and real, can drive real change, raise the stakes for politicians who may want to ignore dissent, and can transform “the participants themselves” in positive, participation-encouraging ways (p. 142). Other benefits of in-person association, juxtaposed with online communications, might be how they encourage “dialogue and civility” (p. 143), though again, Bhagwat’s mere assertion here feels specious, seemingly lacking any cogent theorizing of protest escalation, violence, or violent state responses to mass movements. Bhagwat’s closing pages note the “troubling…modern law and practice” which allow “law enforcement to convert their own biases into a restrictive, on-the-ground reality for would-be protesters,” including vastly greater power of today’s police departments “to control public behavior” (p. 150). Yet, this observation gets buried beneath caveats and narrowing adjectives to maintain milquetoast “objective” distance from the messiness of actual politics. As the final paragraphs wind down and Bhagwat avers, among other things, that there “is nothing like confronting thousands of people at the doorstep to your office to force a government official to sit up and take notice” (p. 157), the gap between Bhagwat’s writing and everyday realities of a systematically dysfunctional federal government feels irreconcilable.

By the last pages of OUR DEMOCRATIC FIRST AMENDMENT, readers may feel they have just finished two disjointed, shorter books that have been hastily stitched together. The prescriptive elements of the work lack the rigorous historical research of Part I; worse, they fundamentally confuse key aspects of contemporary American society, online and off. Nonetheless, the first several chapters are not overshadowed by the last. Bhagwat’s valuable contribution rests in an accessible summation of the historical bases for a “democratic” First Amendment composed of mutually reinforcing rights. He accomplishes this recapitulation of democratic theorizing with clarity and economy of language. Bhagwat, in fine, addresses nothing less than “the deeper theory of citizenship upon which the First Amendment is built” as a cohesive whole (p. 81). For constitutional scholars, OUR DEMOCRATIC FIRST AMENDMENT crafts a template for First Amendment analysis, necessarily demanding that we scrutinize the simplistic account of its constitutive rights, particularly those treating such rights as discrete, isolated phenomena. Even for legal realists and other critics of formalistic interpretation, understanding these connections among “democratic rights'' offers imperative lessons. Their “kaleidoscopic” quality must be accounted for: speech is necessary to facilitate assembly (e.g., “informing potential participants,” publicity), and in forming or maintaining associations (e.g., communicating “views and values'' to potential colleagues in an association, thus helping “identify their commonality”) (p. 82), and so on. Given recently passed or pending state legislation designed to obstruct disfavored political opponents or entire modes of critical expression, reaffirming certain foundations could hardly be more vital.

Unfortunately, as Bhagwat’s own attention shifts from the founding-era and early American history toward our present milieu, his arguments become increasingly lacking in comparison. The most frustrating recurring issue is an assertion of some controversial or still-debated statement as a basic fact – and OUR DEMOCRATIC FIRST AMENDMENT is bursting with them.

The whole of Part II’s main prescriptive argument—favoring an “associational revival”—rests on shaky foundations. Four shortcomings deserve particular attention. The first, largest concern is Bhagwat’s use of Wikipedia as inspiration for models of association-based, mutual expertise-driven sharing of information and analysis. Despite the book’s appraisal of Wikipedia’s nonprofit model, transparency, governing principles, and success as a “widely trusted source of information” (pp. 112–114), extensive academic and popular criticism of Wikipedia’s accuracy goes unmentioned (see, e.g., Graham 2015). It is easy to see how the model can propagate questionable or even outright dangerous falsehoods, rather than offer an opportunity for “crowdsourcing” truth. Nonetheless, such risks of domination by a few interested parties in certain domains—among the exact problems Bhagwat aims to overcome—are downplayed or omitted entirely.

Second, sundry generalized empirical claims are asserted without supporting evidence. Among other examples are Bhagwat’s blanket assertions that the term “media” is now “meaningless” in the Internet era (p. 103); that we no longer “need to rely on the institutional media anymore to access information” (p. 104); that “we can all be the press if we so wish” (p. 105); that pre-Internet media gatekeeping, despite problems, at least precluded “really nutty” unscientific ideas from attaining “mass circulation” (p. 110); that climate scientists’ objectivity and authority unraveled because they took increasingly “activist” stances (p. 117); and that “ideological diversity” among “nonpartisan, unbiased” individuals and associations who report information (a core premise of the book’s prescriptive argument) is either necessary or sufficient for providing high-quality information to the public (p. 118). The supposition beneath these cited passages—that America’s civil society is collapsing—appears to be mostly extrapolated from one twenty-year-old source (pp. 125–129). Any of these claims could buttress OUR DEMOCRATIC FIRST AMENDMENT if they are empirically sound, but all are contestable.

Third, Bhagwat’s honest effort to present objective perspective repeatedly drifts into disconcerting “both sides” framing or false equivalences. Within the first few pages of OUR DEMOCRATIC FIRST AMENDMENT, readers are provided a list of “incidents” meant to capture today’s risks to “the spirit, if not the substance, of the First Amendment” (pp. 1, 3). These include, without qualification or assessments of relative seriousness, wildly disparate cases: then-candidate Donald J. Trump’s promise to “’open up our libel laws’ in order to make it easier for politicians to sue news media organizations”; the silencing of Senator Elizabeth Warren by Republican colleagues after she “impugned the character” of then-nominee for U.S. Attorney General, Jeff Sessions; the removal of Democratic California State Senator Janet Nguyen from the floor of the legislature by the chamber’s Democratic leadership “on the grounds that she was violating parliamentary rules” during a speech criticizing late State Senator Tom Hayden; the passage of a 2017 Arizona Senate bill permitting prosecution of organizers when the protests they plan result in “violence”; a pair of college campus incidents, including “violent” protests against far-right “provocateur” Milo Yiannopoulos and the “conservative writer” Charles Murray, at U.C. Berkeley and Middlebury College, respectively; and the exclusion of critical news outlets from White House press briefings (pp. 1–3). What lesson is drawn from these vignettes? Bhagwat concludes that “Together they strongly suggest that Americans,” left and right, “need to become reacquainted with” the First Amendment (p. 3).

This is a jarring introductory framing, particularly given the author’s eminence among First Amendment scholars. At the outset, any willingness to entertain distinctions among speakers, audiences, venues, or broader social contexts must be jettisoned for such a list to hang together. Each example shares one underlying normative concern: some statement by a speaker (or intervention by one or more listeners) “violates the spirit…of the First Amendment,” but they share nearly nothing else in common. In some, the speakers are powerful, either possessing or credibly seeking high(er) office, so their words carry a censorious risk for important groups like the press and against dissenting voices among Americans generally. Conversely, other cases involve powerful officials censuring only modestly less-powerful officials – or involve college students’ protests against high-profile, highly controversial speakers coming to their elite campuses. Why are these instances held in equipoise, all somehow emblematic of present-day threats to the First Amendment? While an argument linking these disparate subjects together might be made, none appears.

Finally, the roles of power and distributions of power are marginal at best throughout the text. These are conceptually broad subjects, but critically relevant for analyses of the First Amendment, especially the clauses addressing free speech and association: variable distributions of power across different classes of speakers; different forms of power held by such actors, such as financial and economic power, cultural and political influence; even the power over discrete decisions by, say, content moderators or corporate executives deciding on the policies they implement. Beyond these general concepts, there are the known correlates of power established widely in social science scholarship: Race and ethnicity, income and wealth, and gender. These familiar considerations of power have been central to wide swathes of legal scholarship. Where are these concepts in OUR DEMOCRATIC FIRST AMENDMENT? Where does the substance of political contestation, of power being exercised, appear? Disappointingly, this book ostensibly meant to address shortcomings of democratic engagement appears to contain no intelligible conception of politics at all.

In moments when Bhagwat’s discussion comes closest to reckoning with power (and power inequalities) in American law and politics, the book tends to swerve back toward smoother terrain. For example, the “great triumvirate” of interwar-era First Amendment cases generating still influential ideas—i.e., ABRAMS, GITLOW, and WHITNEY—provided an opportunity for such an analysis (pp. 37–39). All three involved defendants positioned broadly on America’s political left, such as Mr. Gitlow’s “violent radical speech” (referring to his sparsely read “manifesto” addressed to the radical flank of America’s Socialist Party) or the activism of peacenik Communist Anita Whitney (p. 38). If these cases reflect anything more than soon-moribund prosecutorial tactics or some mere blip in twentieth-century jurisprudence, then issues of power, competing political and ideological positions, and the highest Court’s handling of these concerns must be considered.

However, they were no mere jurisprudential blip. Extending from the 1920s through the Warren Court of the late 1960s, some contemporary scholars argue, a line of First Amendment cases consistently has disfavored those on political left, defined broadly (see Kairys 1998). At the same time, speech doctrines quickly began subsuming competing rights – if not overriding them in toto (see Shiffrin 2016). From these perspectives, Bhagwat’s treatment of the “triumvirate” cases’ minority opinions feels specious: Whether Justice Brandeis strikingly captured the “democratic theory” of the First Amendment in his WHITNEY concurrence is less pertinent than the traces of the majority opinions’ appalling ideological valence apparent in much later cases. Bhagwat’s efforts to highlight inconsistencies in cases over the ensuing few decades are laudable, but they are woefully incomplete, even from characteristically liberal and civil-libertarian perspectives. With decades of influential critiques of the “marketplace” lore and “communicative market” metaphors well established (see Ingber 1984), continuing to rely on those tropes needs justification.

As a work of legal history, Part I of OUR DEMOCRATIC FIRST AMENDMENT stands out as an exceptional review of the First Amendment’s principles and their interdependent purposes. These passages provide great value for theorists, scholars, and practitioners – and especially for students of American politics, constitutional law and history, and the Bill of Rights. The remainder of the work—its prescriptions and attempts to confront today’s controversies without addressing political realities—would have benefitted from the same level of care.

CASES:

ABRAMS V. UNITED STATES, 250 U.S. 616 (1919).

GITLOW V. NEW YORK, 268 U.S. 652 (1925).

SCHENCK V. UNITED STATES, 429 U.S. 47 (1919).

WHITNEY V. CALIFORNIA, 274 U.S. 357 (1925).

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Shiffrin, Steve. 2016. WHAT’S WRONG WITH THE FIRST AMENDMENT? New York: Cambridge University Press.


© Copyright 2022 by author, Andy Carr.