It is extremely difficult to demonstrate a lack of attention to any particular theme within a field of study. So while it is relatively simple to highlight instances in which the legal theory community addresses the issue of social speech, it is much more challenging to show that the majority of legal theorists ignore or avoid social speech. However, in this section, I attempt to do exactly that.
I begin this section by presenting several of the most prominent American legal theory critiques of the Supreme Court’s treatment of the public/private divide within First Amendment right to freedom of speech. While this is not meant to be a comprehensive list, those theories that
I do discuss allow me to explore some key aspects of the constitutional debate regarding the status of non-political, non-public speech. And what I find is that, from the perspective of a theory of social speech, it does not matter whether or not a particular theorist supports the hierarchy of speech. In either case, I explain, she is still extremely unlikely to believe that social speech ought to fall within the realm of public law. I show that, even theorists who believe that the Supreme Court should afford the same protection to private speech as public speech tend to equate private speech with communication about political/public issues, which takes place within civil society. And, as stated above, this only represents one segment of the larger concept of social speech. In order for American legal theory to adequately address social speech, I argue, it would also need to consider speech about personal, intimate issues. And thus far, there are only a handful of American legal theorists who have attempted this endeavor.
To begin, the public/private divide has played a central role in American legal critiques of First Amendment jurisprudence.402 In general, there appear to be two sides to the debate.403 First, there are those who condone the separation between public, political speech and private, non-political speech. These theorists tend to point to the consequentialist justifications of the First Amendment, and thus, they echo the Supreme Court’s rulings that speech, which
contributes to the discovery of truth and the goal of democratic self-governance, merits greater protection than speech, which does not. Second, there are those American legal theorists who condemn the separation between public, political speech and private, non-political speech.
402 See, for example, Meiklejohn, “The First Amendment Is an Absolute,” pp. 245-266; David M.
Rabban, “The First Amendment in Its Forgotten Years,” in The Yale Law Journal, Vol. 90, No. 3 (January 1981), pp. 514-595; Edward G. White, “The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America,” in Michigan Law Review, Vol. 95, No. 2 (November 1996), pp. 299-392; Lillian R. BeVier, “The First Amendment and Political Speech: And Inquiry into the Substance and Limits of Principle,” in Stanford Law Review, Vol. 30, No. 299 (1978); Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” in Indiana Law Journal, Vol. 27, No. 191 (1971).
403 Both sides of the debate tend to agree, however, that the protection of political speech is a
crucial element of the First Amendment. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980), pp. 93-94.
In terms of those who support a constitutional division between public and private speech, there are several scholars whose writings have been especially influential. Henry Schofield, for example, presents a historical justification for limiting First Amendment freedom of expression to public, political speech. Writing around the time of Abrams, Schofield argues that a chief objective of the American Revolution was to abolish English common law regarding freedom of expression, which—as stated above—was largely limited to restricting prior restraint in
publishing.404 Thus, as he explains, the first Continental Congress deemed freedom of the press one of only five invaluable rights, without which a person could not be free.405 The participants in that 1774 Congress believed that the importance of freedom of the press consisted
in the advancement of truth, science, morality, and arts in general, and in the diffusion of liberal sentiments on the administration of government, the ready communication of thought between subjects, and the consequential promotion of union among them whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.406
Schofield claims that this declaration—along with several other early documents regarding freedom of the press—proves that, at the time of the nation’s founding, freedom of expression was thought to be “confined to matters of public concern such as those enumerated… and does not extend to matters of private concerns.”407
Similarly, Thomas M. Cooley also argues that the First Amendment exists to prevent repression of political discussion, only.408 He claims that the First Amendment freedoms of
404 Henry Schofield, “Freedom of the Press in the United States,” in Essays on constitutional law and equity, and other subjects, Vol. II, Henry Schofield (ed.) (Boston: The Chipman Law
Publishing Company, 1921), pp. 521-522.
405 Ibid., pp. 522. 406 Ibid.
407 Ibid.
408 See Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown, and Company, 1868).
speech and press were designed to be more than a mere guarantee against prior restraint.409 But that does not mean that these liberties were meant to apply to all communication. Rather, Cooley states that the purpose of the freedoms of speech and press “has evidently been to protect parties in the free publication of matters of public concern, to keep secure their right to free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon
them.”410 Private speech, on the other hand, is generally outside the scope of freedom of speech. Indeed, Cooley writes that the First Amendment only applies to private speech if there is a public policy reason for protecting that communication.411
Similar accounts of the distinction between private and public speech in First Amendment abound in early twentieth century legal theory.412 And it is important to note that, within these theories that respect a difference between public and private speech, it is almost always the former kind of communication that receives the highest First Amendment protection.413 Indeed, it
409 “Conceding, however, that liberty of speech and of the press does not imply complete
exemption from responsibility for everything a citizen may say or publish… it is still believed that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications” (Ibid., pp. 421).
410 Ibid., pp. 421-422. 411 See ibid., pp. 440.
412 For more examples, see Thomas Schroeder, “The Meaning of Unabridged Freedom of
Speech,” in Free Speech for Radicals (New York: The Free Speech League, 1916), pp. 37-44; Ernst Freund, The Police Power: Public Policy and Constitutional Rights (Chicago: University of Chicago Press, 1904).
413 Several legal theorists have argued that, to the extent that one does distinguish between types
of speech, the highest level of protection will necessarily go to political speech. See, for example, Robert Post, “Participatory Democracy and Free Speech,” in Virginia Law Review, Vol. 97, No. 477 (2011); James Weinstein, “Participatory Democracy as the Central Value of American Free Speech Doctrine,” in Virginia Law Review, Vol. 97, No. 491 (2011); Francis Canavan, “Freedom of Speech and Press: For What Purpose?” in American Journal of Jurisprudence, Vol. 16, No. 1 (1971), pp. 125-126; William W. Van Alstyne, Interpretations of the First Amendment (Durham, NC: Duke University Press, 1984), pp. 40-42.
is extremely rare that private speech is afforded any explicit constitutional protection under these schemes.
One notable exception can be found in Schauer’s essay, “‘Private’ Speech and the ‘Private’ Forum: Givhan v. Western Line School District.”414 While Schauer appears to accept a distinction between private and public speech, he does not believe that the former is necessarily less deserving of First Amendment protections than the latter. He points out that the free speech theories that form the foundation of the First Amendment—marketplace of ideas and the
principles of democratic self-governance—“are directed more toward the interests of society, and also to the interests of the listeners, than they are toward the interests of the speaker.”415
Because these theories “protect speakers only instrumentally in the service of these broader interests,” Schauer explains that it is easy to “imagine granting less protection to private speech.”416
However, as Schauer argues, just because private speech could be viewed as less valuable than public speech in this theory, that does not mean that it should be. He recognizes that “a great deal of political speech takes place outside of the public forum.”417 “To find the ‘true’ forum for political discussion and commentary in this country,” Schauer writes, “we should not journey to the theaters, the parks, or the streets, or read newspapers, magazines, placards, posters, or billboards. Rather, we must go to the pool halls, the factories, the bars, the private offices, the barbershops and the proverbial living room in Peoria.”418 In other words, Schauer believes that, for most people, it is civil society—and not formal political institutions—that provides the background of their political communication.
414 See Schauer, “’Private’ Speech and the ‘Private’ Forum.” See also Steven Shiffrin,
“Defamatory Non-Media Speech and First Amendment Methodology,” in UCLA Law Review, Vol. 25, No. 915 (1978), pp. 561.
415 Schauer, “’Private’ Speech and the ‘Private’ Forum,” pp. 237. 416 Ibid.
417 Ibid., pp. 236. 418 Ibid.
Indeed, Schauer not only argues that political speech in the private sphere allows private citizens to explore issues of governance, but he also suggests that it may serve the same self- expressive and cathartic purposes as political speech in the public sphere.419 Furthermore, Schauer argues that private political speech can even help correct—or, at least, challenge— orthodoxy from the ground up.420 At the very least, he points out that it would be absurd to argue that the First Amendment protects speech criticizing an elected official on the news, but that same speech, if spoken face-to-face, is not protected.421 Thus, he argues that the First Amendment must be read to include private speech.
Nevertheless, even Schauer’s formulation of a First Amendment that distinguishes between public and private speech excludes social speech. While he recognizes the value of
non-public speech, he never addresses the issue of non-political speech. Indeed, private speech, for Schauer, ought to be protected precisely because it is home to a significant portion of political speech concerning issues of the public good. Private speech that involves more personal, intimate issues, on the other hand, seems to be outside the scope of his argument.422 Thus, a great deal of social speech is omitted.
This is even truer for the majority of American legal theorists who accept the
public/private speech divide. To the extent that they consider private speech to be less relevant to the First Amendment than public speech, they are most likely to place social speech on an even lower rung in the hierarchy. In fact, such communication is generally not even mentioned.
Not all American constitutional scholars take this approach, however. By the mid- twentieth century, many American legal theorists had begun to call into question the distinction between public and private speech. For example, both Chafee and Thomas I. Emerson have
419 Ibid., pp. 237. 420 Ibid., pp. 238-239. 421 Ibid., pp. 239.
422 “In all senses other than the subject-matter sense the truly private speech is a two person
face-to-face conversation in a private living room closed to everyone except the two participants [emphasis added]” (Ibid., pp. 235).
rejected the notion that the Supreme Court can differentiate between public and private
speech.423 Steven Shiffrin also claims that, “[a]ny distinction between public or important speech and private or trivial speech may be unworkable.”424 Similarly, Cass R. Sunstein suggests that all speech is essentially public. Just as the New Deal eliminated the notion that there is a private sphere, which is immune from government regulation, he argues, free speech theory should do the same. Sunstein believes that legal theorists ought to reject the notion of private speech, and instead, accept that there are actually two classes of public speech – one that the state must leave unregulated.425
Even Meiklejohn, who began his career by arguing that the Constitution protects some speech more than others, eventually found the division between public and private speech unsustainable.426 Initially, Meiklejohn had argued that there were two kinds of speech, each of which was protected under a different portion of the Constitution. First, there was the right to absolute freedom of speech—discussed above—which can be found in Article 1, Section 6 of the United States Constitution. This portion of the Constitution, Meiklejohn explained, protected that speech, which contributed towards the proper functioning of self-government. Second, there was the more limited right to freedom of speech, which was justified by the Fifth Amendment’s due process clause.427
Meiklejohn noted (regretfully) that the Supreme Court often merged these two
justifications for freedom of speech into one. “With some hesitation and uncertainty,” he claimed, the Supreme Court “has thrust aside the ‘privileges and immunities’ clause of the Fourteenth
423 See Zechariah Chafee, Jr., “Book Review,” in Harvard Law Review, Vol. 62, No. 891 (1949);
Emerson, The System of Free Expression.
424 Shiffrin, “Defamatory Non-Media Speech and First Amendment Methodology,” pp. 936. 425 Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: The Free Press,
1995), pp. 35-38. Sunstein argues that all speech should be regulable. However, while there is a very strong burden placed on government when it wishes to police “political speech,” there is a less severe burden of justifying regulation of non-political speech. See ibid., pp. 132-137.
426 See Meiklejohn, “The First Amendment Is an Absolute,” pp. 245-266. 427 See Meiklejohn, Free Speech, pp. 35-38.
Amendment and has chosen, in the state field, to protect but freedom of speech of the First Amendment and that of the Fifth, under the due process clause which is taken directly from the latter.”428 According to Meiklejohn, this meant that certain opportunities for public speech were being blocked, and democratic self-governance thereby suffered.
Eventually, Meiklejohn came to realize that it was, indeed, very difficult to distinguish between public and private speech. He had defined public, First Amendment-protected speech as communication that is related to the collective self-determination of a free people. But as he conceded, this does not apply only to speech regarding government processes. “[T]here are many forms of thought and expression within the range of human communications from which the voter derives the knowledge, intelligence, sensitivity to human values,” he wrote.429 Specifically, Meiklejohn was referring to four spheres of communication: education; philosophy and science; the arts; and public discussions of public issues. He argued that, to the extent that these types of communication tend to bear upon public issues, they are relevant to democratic government. Thus, the division between public speech and private speech fell apart.
This does not mean, however, that Meiklejohn, and those who, like him, reject a division between public and private speech, mean to incorporate all social speech into their theories of freedom of speech. The more private kinds of communication that these theorists wish to absorb into the category of protected speech are worthwhile largely because they contain political ideas. But what of that social speech, which involves only personal and intimate issues? Again, this kind of speech is left out of the debate. That is, except to the degree that certain free speech theories are deemed almost absurd in that their broad understanding of protected speech could be construed to apply to all communication – even the very personal.430
428 Ibid., pp. 60-61.
429 Meiklejohn, “The First Amendment Is an Absolute,” pp. 256.
The one thing that all of these free speech critics discussed in this section have in common is that they each take it for granted that freedom of speech applies more to certain kinds of speech than others. By accepting the Supreme Court’s premise that freedom of speech is justified, not as a good in itself, but for its ability to result in social goods, these legal theorists also acknowledge that speech, which does not further these social goods, is less deserving of the First Amendment’s protection.431 And while they may disagree about exactly which kinds of speech contribute to these social goals, nearly all American legal theorists concur with the Supreme Court that political, public speech is at the heart of the purpose of the First Amendment. This is generally true in relation to private speech, but it even truer in relation to social speech. Plenty of theorists may worry about the Court’s distinction between public and private speech, but the question of where social speech might fit in to a theory of freedom of speech is hardly ever broached.
Having performed a search of American law reviews and journals, I found that the terms “political speech” and “public speech” have appeared in at least 998 and 997 articles,
respectively. The term “social speech,” on the other hand, has only come up in 92 American law review articles. And of those 92 essays, the vast majority of authors are not referring to social speech, as I have defined it, but rather, to “serious” social speech. This serious social speech is merely a corollary to political and religious speech. Whereas purely political speech may involve issues of government and governance, this version of social speech covers that communication, which concerns social issues of public importance. Essentially, to the extent that the term “social speech” has been utilized in these American law review articles, it is as the branch of political speech, which deals with issues like abortion, gay marriage, marijuana legalization, etc. Used in
431 Of course, there is a minority of First Amendment scholars who believe freedom of speech is,