CARACTERÍSTICAS Y CANTIDADES DE CONTAMINANTES

As David M. Rabban explains, attitudes towards freedom of speech underwent a radical transformation after the repression of World War I.273 During this period, the Supreme Court began hearing a significant number of First Amendment cases.274 Thus, a true jurisprudential interpretation of the First Amendment finally emerged. And apart from the wartime exceptions, I argue that the modern Supreme Court’s justification of the First Amendment right to freedom of speech can be sorted into at least two major arguments: 1) the marketplace of ideas; and 2) democratic self-governance.275 Each of these arguments—used at different points and to different degrees—represents the lens through which freedom of speech is understood. They also, therefore, dictate the limitations that the Supreme Court has placed upon this fundamental liberty.276

272 _{Michael Gibson argues that this was due to the then-prevailing view among federal judges that}

the Bill of Rights did not apply to the states. See Michael T. Gibson, “The Supreme Court and Freedom of Expression from 1791 to 1917,” in Fordham Law Review, Vol. 55, Iss. 3 (1986), pp. 263-333.

273 _{See David M. Rabban, Free Speech in Its Forgotten Years (New York: Cambridge University}

Press, 1997). See also Harry Kalven, Jr. A Worthy Tradition: Freedom of Speech in America

(New York: Harper & Row, Publishers, 1988).

274 _{Rabban, Free Speech in Its Forgotten Years, pp. 19.}

275 _{Some have suggested that the Supreme Court also utilizes a third justification for freedom of}

speech: autonomy. See Robert Post, “Reconciling Theory and Doctrine in First Amendment Jurisprudence,” in Eternally Vigilant: Free Speech in the Modern Era, Lee C. Bollinger and Geoffrey R. Stone (eds.) (Chicago: The University of Chicago Press, 2002), pp. 152-173.

However, while this theme is certainly present within the American free speech jurisprudence, it is by no means as prevalent as the other the marketplace of ideas and the argument from

democratic self-governance. Thus, I have omitted it from this analysis.

276 _{See Stanley Fish, There’s No Such Things as Free Speech …and it’s a good thing too (New}

To begin, the classic marketplace of ideas justification for freedom of speech refers to the argument that competition between ideas will eventually lead to the triumph of truth over

falsehood.277 In other words, this theory posits that a process of vigorous debate, populated by a multitude of perspectives and ideas, will ultimately lead to intellectual development progress.278 For such competition to occur, however, people must be willing and able to participate in open, reasoned debate. The freer the public forum in which the debate takes place, the more likely it is that truth will be discovered and adopted. When external, authoritative forces (i.e. the state) try to stifle discussion and authoritatively impose truths from above, they limit the market’s ability to properly do its job.279

This Millian argument that freedom of speech is necessary for a thriving marketplace of ideas is perhaps the Court’s most important and oft-cited justification for its reading of the First Amendment.280 Indeed, the Supreme Court has defended freedom of speech as a means of

277 _{The marketplace of ideas theory has been severely criticized over the years, perhaps most}

notably by those who question the validity of its assumptions. See, for example, Thomas I. Emerson, Toward A General Theory of the First Amendment (New York: Random House, 1966); Alexander Meiklejohn, Free Speech: And Its Relation to Self-Government (New York: Harper & Brothers Publishers, 1948); Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (Ann Arbor, MI: University of Michigan Press, 1960); Alexander Meiklejohn, “The First Amendment is an Absolute,” in Supreme Court Review, Vol. 1961, No. 245 (1961); C. Edwin Baker, “Scope of the First Amendment Freedom of Speech,” in UCLA Law Review, Vol. 25, No. 964 (1978); Stanley Ingber. “Defamation: A Conflict Between Reason and Decency,” in Virginia Law Review, Vol. 65, No. 5 (1979); Martin H. Redish, “Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger,” in California Law Review, Vol. 70, No. 5 (1982); Steven Shiffrin, “Government Speech and the Falsification of Consent,” in UCLA Law Review, Vol. 27, No. 565 (1980); C. Edwin Baker, Human Liberty and Freedom of Speech

(New York: Oxford University Press, 1989); Ingber, “The Marketplace of Ideas”; Frederick Schauer, Free Speech: A Philosophical Enquiry (New York: Cambridge University Press, 1982), pp. 15-34; Willmoore Kendall, “The ‘Open Society’ and Its Fallacies,” in The American Political Science Review,Vol. 54, No. 4 (December, 1960), pp. 972, 977-79; David A. Richards, “Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment,” in University of Pennsylvania Law Review, Vol. 123, No. 1(November, 1974), pp. 45.

278 _{The link between free speech and progress, it should be noted, is not an uncontested one.}

See Isaiah Berlin, “Two Concepts of Liberty,” in Four Essays on Liberty, Isaiah Berlin (ed.) (Oxford: Oxford University Press, 1969), pp. 40-41.

279 _{For a more thorough discussion of the marketplace of ideas theory of freedom of speech, see}

the discussion in Chapter Four.

280 _{The term “marketplace of ideas” can be found in the majority, concurring and/or dissenting}

achieving truth and social progress in several of its most influential and historic First Amendment cases.281 Most notably, Justice Oliver Wendell Holmes’ 1919 dissent in Abrams v. United States

introduced the marketplace of ideas argument into the Supreme Court’s jurisprudence and cemented this concept into the popular imagination.282

Modern American free speech jurisprudence could be said to have begun with Holmes’ dissent in Abrams, in which he waxed eloquently about the battle between truth and falsehood, ultimately concluding that freedom of expression is the best way to encourage the discovery of truth. As described above, the Espionage Act of 1917 had made it illegal to criticize the United States government in any way that might impede the war effort. In this case, the defendants had printed two leaflets that they then distributed by throwing off the top of a building. The first leaflet, signed "revolutionists," denounced the sending of American troops to Russia, and the second leaflet, written in Yiddish, denounced the war and U.S. efforts to impede the Russian Revolution. The defendants were charged and convicted, in a 7-2 decision, for inciting resistance to the war effort and for urging curtailment of production of essential munitions. They were each sentenced to 20 years in prison.

The majority opinion, written by Justice John Hessin Clarke, held that the Espionage Act and its amendments did not violate the First Amendment. However, it is Holmes’ dissenting opinion that has had the most lasting influence in this case. Like Mill, he believed that the truth is rarely—if ever—obvious. The only way to discriminate good ideas from bad ones, Homes

281 _{See, for example, Board of Education, Island Trees Union Free School District No. 26, et al. v.} Pico, by his Next Friend Pico, et al., 457 U.S. 853 (1982); Widmar v. Vincent, 454 U.S. 263 (1981); Gary Davenport v. Washington Education Association Washington v. Washington Education Association, 551 U.S. 177 (2007); Turner Broadcasting System, Inc., et al. v. Federal Communications Commission et al., 507 U.S. 1301 (1993); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980); New York State Board of Elections v. Margarita Lopez Torres, 552 U.S. 196 (2008); Miami Herald Publishing Co., Division of Knight Newspapers, Inc. v. Tornillo, 418 U.S. 241 (1974).

282 _{See Abrams v. United States, 250 U.S. 616, 624 (1919). Abrams has been cited in 429}

argued, is to allow them all an opportunity to battle face-to-face. In such a competition, incorrect ideas should be dismissed, partially correct ideas should be sorted out and the truth should be revealed. As Holmes writes,

The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.283

Thus, Holmes argued that he would rather “be safe, not sorry” when it comes to freedom speech. Not only might any idea potentially constitute (or contain some portion of) the truth, but also even false ideas serve an important purpose, he wrote, in that they help to bring the truth to light.

Holmes argued that no amount of censorship could lead the people towards truth. Instead, he believed that the only way to ensure that truth will emerge is for society to be

structured as an open forum, where different ideas can be expressed, compared and refuted. In other words, there must be a free and open marketplace of ideas. Holmes cautioned that the American people ought to be “eternally vigilant” against any attempts to censor on the basis of content. To the extent that censorship is ever appropriate, he wrote, it is only when “the expression of opinions” may “so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.”284

So despite the broad theoretical defense of freedom of speech in the Abrams dissent, Holmes also reminded readers that the First Amendment is not meant to include everything. In this case, Holmes argued that Abrams’ leaflets did not present a “clear and present danger,” but if

283 _Ibid. 284 _Ibid.

they had, the government would have been justified in silencing speech.285 “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of an opinion where private rights are not concerned,” Holmes wrote.286 And as C. Edwin Baker points out, this limitation does not infringe upon the classic marketplace of ideas theory.287 Remember Mill’s example of the corn dealers, he tells the reader. Even the truest and fairest of opinions may be suppressed if they are expressed under such circumstances as to do harm or incite violence.

This dissent marked a major turnaround for Holmes. Only two years earlier, in Debs v. United States, Holmes had led the Court in ruling against Eugene V. Debs, a leader of the Socialist Party of America, who gave a speech in Canton, Ohio, protesting United States

involvement in World War I.288 Debs, Holmes wrote in his majority opinion, had violated the same Espionage Act that he considered unconstitutional in the Abrams case. And in the 1919 case,

Schenck v. United States, writing for a unanimous court, Holmes argued that the distributor of a circular—which argued that the draft was a major wrong, motivated by capitalism, and ought to be protested against—was not protected by the First Amendment.289 He argued that the character of every act depends on its circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent," Holmes wrote.290

While Holmes continued to utilize the “clear and present danger” test for assessing the constitutionality of speech, he began to adopt a more permissible attitude only shortly after

285 _{This standard was not new to the Abrams dissent; rather, it was a continuation of the clear and}

present danger test that was created by Holmes in Schenk v US, 249 U.S. 47 (1919). However, the Abrams dissent did give this test new meaning.

286 _Ibid.

287 _{See Baker, Human Liberty and Freedom of Speech, pp. 8.} 288 _{See Debs v. United States, 249 U.S. 211 (1919).}

289 _{See Schenck v. United States, 249 U.S. 47 (1919).} 290 _Ibid.

Schenck. Francis Canavan has suggested that this change may be largely attributed to a run-in between Holmes and Zechariah Chafee, Jr.291 In 1919, Chafee wrote an article in the Harvard Law Review, criticizing Holmes’ decision in Schenck for applying the “clear and present danger” test too restrictively. Within a few months of meeting Chafee for tea to discuss their opinions, Holmes had adopted his view, and had used the clear and present danger formula as a positive rule to defend freedom of speech in the Abrams dissent.

And once Holmes began to read the First Amendment right to freedom of speech more broadly, he was not to be stopped. As Ronald Dworkin puts it, although Holmes’ “skepticism made him reluctant to overturn any legislative decision, [and he] was slower to be converted, he was a lion once he was.”292 So with Holmes leading the way, the Abrams dissent became orthodoxy by the 1960’s.

Indeed, as early as 1925, in Gitlow, Holmes—this time writing for the majority—continued with his argument that speech ought to be allowed to compete freely in an open market unless it presents a clear and present danger.293 And two years later, in Whitney v. California, the Court supported a vision of freedom of speech that was not only consistent with Abrams, but also added an additional justification for freedom of speech: democratic self-governance.294

In this case, Charlotte Anita Whitney, a member of the Communist Labor Party of California, had been prosecuted under that state's Criminal Syndicalism Act. The Act prohibited advocating, teaching, or aiding the commission of a crime, including "terrorism as a means of accomplishing a change in industrial ownership… or effecting any political change."295 In a unanimous decision, the Court sustained Whitney's conviction and held that the Act did not

291 _{See Francis Canavan, Freedom of Expression: Purpose as Limit (Durham, NC: Carolina}

Academic Press, 1984), pp. 124-125.

292 _{Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution}

(Cambridge: Harvard University Press, 1996).

293 _{See Gitlow v. New York, 268 U.S. 652, 672 (1925).} 294 _{See Whitney v. California,274 U.S. 357, 372 (1927).} 295 _Ibid.

violate the Constitution, claiming that it did not violate the Due Process Clause or the Equal Protection Clause, and that freedom of speech was not an absolute right. The majority argued "that a State… may punish those who abuse this freedom by utterances… tending to… endanger the foundations of organized government and threaten its overthrow by unlawful means.”296

Nevertheless, it is the concurring opinion, written by Justice Louis D. Brandeis and signed by Holmes, which most clearly portrayed their Court’s growing understanding of the First

Amendment. In this opinion, Brandeis argued that only clear, present and imminent threats of "serious evils" could justify suppression of speech. This is because the liberty of speech is not only the “secret of happiness,” but also

… [F]reedom to think as you will and to speak as you think are means indispensible to the discovery and spread of political truth; that without free speech and assembly, discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.297

Thus, in this defense of freedom of speech, Brandeis presents both justifications that mentioned above: marketplace of ideas and democratic self-governance.

First, Brandeis argued that freedom of expression is “indispensable to the discovery and spread of political truth.”298 In other words, as stated above, he asserted that speech must be allowed to exist in an open forum so that all opinions are given the opportunity to compete. Second, Brandeis wrote that the act of citizen discussion is an important aspect of democratic self-governance. An “inert people” is “the greatest menace to freedom,” he explained. And in

296 _Ibid. 297 _Ibid. 298 _Ibid.

order to ensure that citizens engage in meaningful discourse, speech must be free and open.299 Brandeis also pointed out that freedom of speech is the “secret to happiness” – it is how human beings find fulfillment.300 As a fundamental element of what it means to be human, he argued, speech ought not to be infringed upon.

The argument from democracy stems from the idea that, in a democracy, the people are sovereign. Three implications flow from this principle. First, as a sovereign body, the people must have access to all relevant information if they are to decide which propositions to accept and which ones to reject. Second, an open public forum also allows the sovereign people to express their desires to their leaders. Finally, if government actors really are servants of the people, the people must have some avenues for criticizing them, and even removing them when necessary. Thus, open debate is necessary for proper self-governance.301

This justification for freedom of speech is perhaps most associated with Alexander Meiklejohn.302 In his book, Free Speech: And Its Relation to Self-Government, Meiklejohn suggests that democratic self-governance—and not the pursuit of truth—is the main reason behind the broad freedom of expression that can be found in Article 1, Section 6 of the United States Constitution.303 “The First Amendment is not, primarily, a device for the winning of new

299 _Ibid. 300 _Ibid.

301 _{It is important to note that the Supreme Court’s use of the argument from democracy has been}

frequently revisited and reassessed over the years. See, for example, Thomas I. Emerson, “First Amendment Doctrine and the Burger Court,” in California Law Review, Vol. 68, No. 422 (1980); Kenneth L. Karst, “Equality as a Central Principle of the First Amendment,” in University of Chicago Law Review, No. 43, Vol. 20 (1975).

302 _{Post argues that Meikeljohn’s theory represents only one half of the Supreme Court’s}

democracy argument, and that there are actually two schools of thought. The second school relies on a participatory perspective, claiming that the First Amendment ought to be used to safeguard speech that helps us build a community and expresses authentic self-determination (autonomy of individuals). See Post, “Reconciling Theory and Doctrine in First Amendment Jurisprudence,” pp. 166-167.

303 _{See Meiklejohn, Free Speech. Meiklejohn also describes a second level of free speech}

truth, though that is very important,” he explains.304 “It is a device for the sharing of whatever truth has been won. Its purpose is to give to every voting member of the body politic the fullest possible participation in the understanding of these problems with which the citizens of a self- governing society must deal.”305 In other words, Meiklejohn believes that freedom of speech exists to ensure that all members of the voting public are informed about the issues and procedures that are relevant to their responsibilities as good democratic citizens.