Freedom of Expression and the Civic Republican Revival in Constitutional Theory: the Ominous Implications

California Law Review

Freedom of Expression and the Civic Republican Revival in Constitutional Theory: The Ominous Implications

Martin H. Redisht Gary Lippmant

A modified form of civic republicanism has seen a recent revival in constitutionaltheory. The authors critique this "liberal" version of republicanism, specifically, its implicationsfor free expression. Though scholarship on the intersection of republicanism andfree expression is sparse, the authors extrapolatefrom the "communitarian determinative" model and the "external objective" model of republicanism and apply them to free speech. They argue that even those branches of modern republican theory that privilege communitarian self-determination over externally derived truths present extremely disturbing implicationsfor the viability of free speech theory in many of its traditionalapplications.

INTRODUCTION: CIVIC REPUBLICANISM, AMERICAN DEMOCRATIC THEORY, AND FREEDOM OF EXPRESSION With a rush of celebratory rhetoric about the values of civic virtue, communitarian deliberation, and the preference for the common good

t Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University. A.B. 1967, University of Pennsylvania; J.D. 1970, Harvard University. This Article formed the basis for a lecture delivered by Professor Redish as the Lorene Sails Higgins Distinguished Visitor at Lewis & Clark School of Law in March, 1991. T A.B. 1984, Rutgers University; J.D. 1990, Northwestern University. The authors would like to thank Ronald Allen, Randy Barnett, Linda Hirshman, Jane Larson, Gary Lawson, Larry Marshall, Michael Perry, Stephen Presser, and David Van Zandt for their comments on an earlier draft. The Article also benefitted from a faculty workshop at Vanderbilt University School of Law. CALIFORNIA LAW REVIEW [Vol. 79:267 over the pursuit of selfish private interests, modem constitutional theorists have begun a revival of classical civic republicanism.' These theorists are quick to point out, however, that their vision of civic republicanism differs substantially from the form the doctrine assumed at the time of the nation's founding, when it "prominently displayed[ ] mili- tarist, elitist, religious, and sexist sentiments."' The modem version does share with its spiritual parent a belief in "the notion of a common good ... made possible by 'practical reason' "I and a corresponding concern that social decisions not be made in response to narrow, selfishly motivated bargains among legislators and special interests.' The validity of modem civic republicanism is open to question on grounds of both logic and political theory. Once the morally deplorable elements from its past are excised, the classical concept of civic republicanism may no longer be conceptually viable.' More importantly, although the "liberal''6 version of republicanism generally prohibits the pursuit of private interests, it makes some exceptions that are logically difficult to justify on any ground other than simple political or ideological preference.7 Modem civic republicanism also has disturbing implications

1. See, ag., Fallon, Vhat Is Republicanism, and Is It Worth Reviving?, 102 HARV. L. REV. 1695 (1989); The Republican Civic Tradition, 97 YALE L.J. 1493 (1988); Sherry, Civic Virtue and the Feminine Voice in ConstitutionalAdjudication, 72 VA. L. REv. 543 (1986); Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29 (1985); Siegel, The Marshall Court and Republicanism (Book Review), 67 TEx. L. REv. 903 (1989). This revival in constitutional theory follows comparable revivals by such historians as Pocock (J.POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION (1975)) and Wood (G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969)), and political theorists such as Sandel (M. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982)) and MacIntyre (A. MACINTYRE, AFTER VIRTUE (2d ed. 1984)). 2. Epstein, Modern Republicanism-Or the Flight From Substance, 97 YALE L.J. 1633, 1635 (1988); see also Siegel, supra note 1, at 921-22 (discussing Prof. White's characterization of the Marshall Court's modified republicanism as protecting property, liberty, and virtue). 3. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1541 (1988). 4. See ia at 1540, 1541, 1550. As Professor Fallon has written, classical republican theory posited that "there exists an objective public good apart from individual goods." Fallon, supra note 1, at 1698. In the words of one commentator: The burden of the communitarian position is that a healthy liberal society is not an aggregation of rights-protecting and interest-maximizing individuals but rather a community of public-spirited citizens oriented toward the common good. Some communitarians, as a consequence, identify with the tradition of civic republicanism, which they contrast with what they see as the rampant individualism of the liberal tradition. T. SPRAGENS, REASON AND DEMOCRACY 4 (1990). 5. See Kerber, Making Republicanism Useful, 97 YALE L.J. 1663, 1665 (1988) (emphasis in original): "[Tihe absence of the dependent classes-defined by race, gender and property-was essential to the republican view of the world, not an easily correctable accident." 6. Professor Sunstein often refers to the concept of "liberal republicanism." See, e.g., Sunstein, supra note 3, at 1541, 1566-71, 1576. 7. See id. at 1572 ("[S]ocial groups-especially the disadvantaged-should not . . . be prevented from invoking their private interests in the political process."). 1991] FREEDOM OF EXPRESSION

for both constitutional theory and statutory construction.' The implications of the civic republican revival for the theory of free expression have not yet been fully explored. Civic republican scholars have paid only limited attention to such issues'-far less attention than they have devoted to the theories of equal protection,"0 statutory' construction,1 and the right of privacy.12 A detailed examination of republicanism reveals a number of extremely ominous signs for the viability of free speech theory in many of its traditional applications. Ascertaining the impact of civic republicanism on free speech theory is not easy because republicanism is itself an ambiguous concept.' 3 At the very least, civic republicanism implies a belief in the primacy of civic virtue, the pursuit of the common good over private interest, and the value of deliberation.' 4 Civic republican scholars differ, however, in their approach to the definition of the concept of the "common good." On the one hand, the concept may be defined solely by reference to the community's own perceptions, taken as a whole, following deliberation. This "communitarian determinative" model places no external value judg- ments on the collective will of the community. An alternative approach to civic republicanism (the "external objective" model) posits, in Cass Sunstein's words, that "commitment to universalism, or agreement as a regulative ideal, takes the form of a belief in the possibility of settling at least some normative disputes with substantively right answers."' 5 If "substantively right answers" to social conflicts exist, attainment of the republicans' deliberative ideal is to be measured by a comparison of the results of the deliberative process with some objective normative value

8. See generally Fallon, supra note 1 (constitutional theory); Redish, Federal Common Law, Political Legitimacy, and the Interpretive Process: An "Institutionalist"Perspective, 83 Nw. U.L. REV. 761, 775-83 (1989) (statutory construction). 9. The primary direct attention to free speech issues by modem republican theorists came in Sunstein, supra note 3, at 1576-78. See also Michelman, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990). In addition, Professor Robert Post, a free speech theorist who draws on modem republican thought, has discussed the implications of republican theory for one segment of free speech law. See Post, The ConstitutionalConcept of Public Discourse: Outrageous Opinion, DemocraticDeliberation, and Hustler Magazine v. Falwell, 103 HARv. L. REV. 601 (1990), discussed at infra text accompanying notes 144-59. 10. See, eg., Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REv. 1689, 1710-17 (1984). 11. See, e.g., Eskridge, Public Values in Statutory Interpretation, 137 U. PA. L. REv. 1007 (1989); Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989); Sunstein, supra note 3, at 1581-83. 12. See, eg., Michelman, Law's Republic, 97 YALE L.J. 1493 (1988) (using Bowers v. Hardwick, 478 U.S. 186 (1986), as an example in arguing that dialogic-republican constitutional theory inspires stronger judicial protection of individual rights than do other competing theories). 13. See infra text accompanying notes 16-28. 14. See infra text accompanying notes 87-174. 15. Sunstein, supra note 3, at 1550; see infra text accompanying notes 90-130 (describing Sunstein's theory). CALIFORNIA LAW REVIEW [Vol. 79:267 system, which is presumably derived by means external to an assessment of the desires or views of the community as a whole. In contrast to the "communitarian determinative" model, then, the "external objective" model determines the content of "common good" not by neutral ascertainment of the collective popular will, but rather by superimposing a distinct substantive value structure onto the decisions of the populace. Both these models give rise to various conceivable applications to free speech, some more protective than others. For example, one might reasonably infer a belief in the importance of protecting all speech relevant to public decisionmaking, much as Alexander Meiklejohn did long before the modem theory of civic republicanism became scholarly fashionable. 16 Meiklejohn's theory began with the premise that the members of the political community, rather than elected officials, are the true "gover- nors" in a republican society. They therefore need all information and 7 opinion conceivably relevant to their decisionmaking in that role. Meiklejohn expressed little concern over an individual's right to speak, other than as a means of providing information to the community. 18 In that sense, Meiklejohn may be deemed a civic republican and his outlook one of communitarian determinism. Under the speech-protective version of civic republicanism, the government cannot impose restrictions on the expression of viewpoint-at least on issues deemed relevant to the polity as a whole. 9 Only that speech necessary solely for individual development or private use is excluded from protection. On the other hand, the "communitarian determinative" model could logically lead to an extremely unprotective result. By focusing exclusively on the primacy of communitarian values, this model could imply the supremacy of community-developed principles of civility-and a corresponding limitation on the speech of any individual deemed to have breached those principles. For example, juries could punish speakers who have engaged in speech deemed "outrageous" because it violates either communitarian sensibilities or community-determined standards of decency.20 In that case, communitarian determinism has led to an unprotective result. Both these outgrowths of the "communitarian determinative"

16. See generally A. MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE (1960). 17. Id at 26-27; Meiklejohn, The FirstAmendment Is an Absolute, 1961 Sup. Cr. REv. 245, 255-57. 18. A. MEIKLEJOHN, supra note 16, at 26-27, 55. 19. See infra text accompanying notes 136-43 (discussing "speech-protective" model). 20. See generally Post, supra note 9 (discussing how community norms distinguish deliberative from outrageous speech); infra text accompanying notes 175-212 (applying republican theory to "outrageous speech"). 1991] FREEDOM OF EXPRESSION model of civic republicanism undervalue speech because they ignore the degree to which individualism and intellectual pluralism underlie the value of free expression.2' The implications of an alternative model of modern civic republicanism, which we label the "external objective" model, are even more ominous. While the "communitarian determinative" model at least preserves the fundamental democratic ideal of political self-determination at the community level, the "external objective" model appears to superimpose on the community a value structure presumably determined by means known only to the advocates of this civic republican model. As such, it undermines the premise of governmental "epistemological humility" on moral issues, which is central to a system of self-determination.22 The same principle underlies the edict of viewpoint neutrality, widely deemed to be the essential element of modem free speech theory.23 If, however, one assumes the existence of "substantively right answers" to current social issues, and if one further assumes that one can ascertain and implement those answers, the premise necessary for viewpoint neutrality has vanished. After all, if one knows the "truth," there logically remains no reason to preserve the marketplace of ideas.24 Civic republicanism could also threaten free speech in other ways. As Sunstein has argued, civic republicanism disdains the pursuit of wholly private interests at the expense of the broader common good. 25 One might reasonably extrapolate from this preference a gradation of speech protection, based on the nature of the speaker's motivation and interest.2 6 Such a result could dramatically alter our tradition of "interest group" politics and the beneficial free speech principles that have grown from it. Because modem civic republicans have devoted so little attention to

21. See infra text accompanying notes 35-86 (outlining core principles of free speech theory). 22. See infra text accompanying notes 47-53 (outlining concept of self-determination). 23. See infra text accompanying notes 72-79. It should be noted that one of us has previously criticized the narrow focus of scholarship and doctrine on the centrality of viewpoint regulation. Redish, The Content Distinction in First Amendment Analysis, 34 STAN. L. REV. 113 (1981). The point of that critique, however, was not to attack recognition of the dangers of viewpoint regulation, but rather to suggest that viewpoint-neutral regulation may present equally great dangers. Id. at 140. 24. See infra text accompanying note 74. 25. See Sunstein, supra note 3, at 1540 (referring to the "republican belief in the subordination of private interests to the public good"); see also Sunstein, supra note 1, at 31 (arguing that the theory of civic republicanism posits that "through discussion people can, in their capacities as citizens, escape private interests and engage in pursuit of the public good"). 26. Professor Sunstein has drawn just such distinctions in the area of pornography regulation. See Sunstein, Pornographyand the FirstAmendment, 1986 DUKE L.J. 589, 603-04; see also infra text accompanying notes 217-48 (discussing Sunstein's views on pornography). Professor Meiklejohn at one point also suggested that speech designed solely to make money or to promote private interests should not gain first amendment protection. A. MEIKLEJOHN, supra note 16, at 87. CALIFORNIA LAW REVIEW [Vol. 79:267 issues of free speech theory, 27 much of our critique is premised on extra- polation from their political theory. It is nonetheless clear that modem civic republicanism cannot help but threaten core free speech values. Fundamental civic republican philosophy is directly antithetical to the normative precepts that underlie core free speech values: a belief in the intellectual integrity of the individual, and a pervasive moral skepticism about-and fear of-the possibility of a governmental ascertainment of universal moral truth.28 , Since one must comprehend traditional free speech values before exploring civic republican theory's implications for those values, the first Part of this Article will pursue two goals. First we will examine the "traditional" rationale that the modem Supreme Court has employed to explain the first amendment's protection of expression, and second, we will explore the political theory that underlies and is reflected in that rationale. The second Part will consider the general implications for free speech theory of the "communitarian determinative" and "external objective" models. The final Part will discuss specific free speech doc- trines that have been the subject of scholarship by those either part of or sympathetic to the modem civic republican movement. Specifically, this Part will examine governmental regulation of so-called "outrageous" speech and pornography. These discussions will demonstrate the concrete dangers that modem civic republican philosophy poses for free speech theory.

I THE "BASELINE" OF FREE SPEECH THEORY: FREEDOM OF EXPRESSION AS AN OUTGROWTH OF THE COMMITMENT TO SELF-DETERMINATION In order to understand the truly ominous implications of the modem republican revival for fundamental principles of free speech theory, it is of course first necessary to grasp those principles. As might be expected, free speech theorists have differed dramatically over the values and scope of the constitutional protection.29 Some scholars have focused

27. Although Professor Sunstein devoted considerable attention to the issue of free speech and pornography, he did so before elaborating his civic republican philosophy. But see infra text accompanying note 219. While Post purports to draw on modem civic republican theory, he has not himself fashioned a broad theory of modem civic republicanism. 28. See infra text accompanying notes 62-83 (discussing incompatibility of concepts of democratic theory and objective truth). 29. Compare A. MEIKLEJOHN, supra note 16, at 26 (arguing for a town meeting model of speech, in which "[w]hat is essential is not that everyone shall speak, but that everything worth saying shall be said") with Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 990-1009 (1978) (arguing for "liberty model" of freedom of speech, protecting values of individual self-realization, self-determination, and participation in public decisionmaking). 1991] FREEDOM OF EXPRESSION

exclusively on the role that free speech serves in checking government excess, 3° while others have highlighted the facilitative role that speech serves in the conduct of the political process.3 Others, including one of us, have seen development of the individual as the overarching principle.32 Finally, some have seen in the first amendment a conglomeration of developmental and societal benefits.33 Despite this mixture, it is possible to glean from scholarly and judicial writings a certain baseline of free speech theory, without which the concept of free speech would be rendered either trivial or meaningless: the first amendment both reflects and implements a belief in the ability of individuals to judge for themselves the wisdom or persuasiveness of expressed viewpoints. It is our contention that the logical implications of at least certain portions of modem civic republican thought underming this basic principle. Thus, if republicanism were accepted, it would effectively destroy basic free speech protection. Other manifestations of civi6 republican theory do not directly undermine core free speech principles but nevertheless pose a serious threat to important free speech concerns.34

A. Politicaland Free Speech Theory

We contend that censorship of individual expression on the basis of a communitarian-determined perception of the common good simultaneously hinders peaceful societal change through citizen choice and stunts the individual's moral and intellectual growth. Civic republican theorists might respond to our claims by suggesting that to the extent that the implications of civic republican precepts are inconsistent with basic notions of free speech theory, it is the latter that fail the normative chal- lenge. It is our contention, however, that baseline free speech principles are so centrally intertwined with the values that underlie our political structure-popular sovereignty and self-determination-that abandoning

30. See, eg, Blasi, The Checking Value in FirstAmendment Theory, 1977 AM. B. FOUND. RES. J. 521. 31. See, eg., A. MEIKLEJOHN, supra note 16; Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). 32. See, eg., Redish, The Value of Free Speech, 130 U. PA. L. REv. 591 (1982) [hereinafter Redish, The Value of FreeSpeech]; Baker, supra note 29, at 964. Note that theorists starting from roughly the same premise in no way automatically implies that two theories will lead to similar concrete applications of that premise. Compare Baker, Realizing Self-Realization: Corporate Political Expenditures and Redish's The Value of Free Speech, 130 U. PA. L. REv. 646 (198) (emphasizing source of protection) with Redish, Self-Realization, Democracy, and Freedom of Expression: A Reply to Professor Baker, 130 U. PA. L. Rav. 678 (1982) (emphasizing both receipt and source of expression). 33. See, eg., T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1970). 34. See infra text accompanying notes 169-70 (concept of motivation in free speech doctrine). CALIFORNIA LAW REVIEW [Vol. 79:267 the former would be impossible without weakening or abandoning the latter. As one of us has previously argued, the first amendment, much like the concept of democracy itself, is ultimately premised on a belief that individuals are capable of exercising control over decisions that directly affect their lives and morally deserve to do so.35 Such total control is of course impossible within the broad framework of society. However, the next-best solution (from a moral perspective) is some type of majoritarian rule combined with a right to free and open debate for individual members of society, which allows them to contribute to the governing process. Such a theoretical construct views the individual both as an integral whole worthy of respect and as a free and fumctioning citizen in a broader community. In fashioning this theoretical model, we reject the civic republican argument that a belief in individual integrity as an element of both free speech theory and democratic government will necessarily degenerate into base, possessive individualism. 6 As political theorist Thomas Spragens has recently warned, it is improper to confuse the pluralistic libertarianism universally condemned by civic republicans with the liberalism of Locke and Mill. "The pluralist conception of democracy," Pro- fessor Spragens writes, "is more in the tradition of Hume's utilitarian conservatism than of Mill." 37 That is, like Hume, [the modem libertarians] take stability and moderation- rather than like Mill, individual improvement-as the decisive tests of a good polity. Participation, therefore, loses its standing; for participation seems clearly less essential to system stability and moderation than it is to individual development. Indeed, participation can be seen as potentially unsettling if it is too extensive.38 Benjamin Barber's "strong democracy" is the concept of democratic government that we take as a baseline. Modern free speech theory

35. Redish, The Value of Free Speech, supra note 32, at 593-94. 36. Cf Walzer, The Communitarian Critique of Liberalism, 18 POL. THEORY 6, 7-8 (1990) (describing one communitarian vision of liberalism): [Clontemporary Western societies (American society especially) are taken to be the home of radically isolated individuals, rational egotists, and existential agents, men and women protected and divided by their inalienable rights.... The members of liberal society share no political or religious traditions.... Each individual imagines himself absolutely free, unencumbered, and on his own-and enters society, accepting its obligations, only in order to minimize his risks. It should be noted, however, that one modern republican political theorist, unlike many others, recognizes sharp distinctions between "pluralism" and "liberalism." See infra text accompanying notes 104-05 (discussing Sunstein's views on this issue). 37. T. SPRAGENS, supra note 4, at 148. 38. Id. at 148-49. For a critical discussion of the "rational choice" school of democratic theory, which is premised on the assumption of the individual's mechanical pursuit of his own self- interest, see Mansbridge, Self-Interest in PoliticalLife, 18 POL. THEORY 132 (1990). 1991] FREEDOM OF EXPRESSION

appears wholly consistent with this concept. Barber suggests it as an alternative to both a thin, privatist liberalism, "which depicts politics as nothing more than the chambermaid of private interests,"39 and "the republican nostalgia" of modem commentators such as Hannah Arendt.4 Barber rejects the former because, by failing to create persons able to act as autonomous moral agents, a privatist liberalism establishes conditions that can lead to one or another political pathologies.41 He rejects the latter because "[m]odern men and women know too well the dangers of a unitary politics that lays claim to all the human soul and affects to express man's 'higher nature.' "42 According to Barber, "strong democracy" rests on the idea of a self-governing community of citizens who are united less by homogeneous interests than by civic education and who are made capable of common purpose and mutual action by virtue of their civic attitudes and participatory institutions rather than their altruism or their good nature. Strong democracy is consonant with-indeed it depends upon-the politics of conflict, the sociology of pluralism, and the separation of private and public realms of action. It is not intrinsically inimical to either the size or the technology of modem society and is therefore wedded neither to antiquarian republicanism nor to face-to-face parochi- alism. Yet it challenges the politics of elites and masses that masquer- ades as democracy in the West.... [I]t envisions politics not as a way of life but as a way of living-as, namely, the way that human beings with variable but malleable natures and with competing but overlapping interests can contrive to live together communally not only to their mutual advantage but also to the advantage of their mutuality.43 Strong democracy is consonant with the type of liberalism described by political theorist David Held as an "attempt to define a private sphere independent of the state."' It is this form of individualism, not the nondeliberative "free market" model of the modem pluralists,4 5 that we believe the first amendment is designed to foster. According to Held, "liberalism became associated with the doctrine that freedom of choice

39. B. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE 118 (1984). 40. Id. 41. Id at 97-98, 118. 42. Id at 118. 43. Id. at 117-18. 44. D. HELD, POLITICAL THEORY AND THE MODERN STATE 13 (1989). 45. See, e.g., R. DAHL, A PREFACE TO DEMOCRATIC THEORY 63-123 (1956) (political equality is maximized in a system which takes into account intensity of political preference); C. LINDBLOM, A STRATEGY OF DECISION (1963) (arguing that incremental decisionmaking arising from decentralized bargaining in a representative democracy is more effective and more representative than centralized decisionmaking); D. TRUMAN, THE GOVERMENTAL PROCESS (1951) (describing decentralized bargaining among interest groups); see also McFarland, Interest Groups and Theories of Power in America 17 BRIT. J. POL. SCI. 129, 129-39 (1987) (discussing competing theories of American pluralism). CALIFORNIA LAW REVIEW [Vol. 79:267

should be applied to matters as diverse as marriage, religion, economic and political affairs-in fact, to everything that affected daily life. Liber- alism upheld the values of reason and toleration in the face of tradition ' 46 and absolutism." Modem free speech theory, then, is predicated on a society commit- ted to the liberal individualism of Mill, under which voting is "ideally the considered outcome of a process of active deliberation about the facts of public affairs, not a mere expression of personal interest."'47 But it does not follow that an individual's use of her deliberative powers as a means of furthering her own interests is somehow immoral. Control of---or at least influence on-decisions that affect one's life is an essential element of one's human dignity, and thus lies at the heart of the moral rationale for democratic theory. Moreover, this assertion of one's personal interest may be tempered by altruistic or empathetic considerations,4" need not be limited to the economic bargaining of the pluralists,49 and should rely primarily on the processes of thought and deliberation. Of course, if one were to reject the notions of popular sovereignty and self-determination, then the derivative free speech postulates would likely also fall. Since a belief in societal self-determination underlies our entire political system and constitutional structure, however, we cannot reject that belief without simultaneously rejecting the American form of government. Such logic would necessarily constitute a rejection of the first amendment, rather than an interpretationof it. Under present cir- cumstances, then, even acceptance of this position would not justify alteration of the Supreme Court's first amendment doctrine. Numerous well-established philosophical arguments that justify our democratic system reflect the societal commitment to self-determina-

46. D. HELD, supra note 44, at 13; see also C. MACPHERSON, THE REAL WORLD OF DEMOCRACY 35-45 (1966) (arguing for a liberal democratic state organized on the principle of freedom of choice). 47. D. HELD, supra note 44, at 26. 48. The Jewish philosopher Rabbi Hillel rejected any mutual exclusivity of the pursuit of individual interests on the one hand and a communitarian concern for the interests of others on the other: "If I am nothing to myself, who will be for me? And if I am for myself only, what am I" quoted in CHAPTERS OF THE FATHERS 17 (R. Hirsch ed. 1967). In accompanying commentary, Professor Hirsch explains the quotation: It is only through his own efforts that a man can attain spiritual fitness and moral worth, which are the most essential attributes to which he can aspire. Similarly, it is primarily upon himself, his own diligence, his own efforts and his own good sense that man must depend in the process of acquiring and certainly of preserving the worldly goods he needs.... But even though he may have become who and what he is solely by dint of his own efforts, a man must never say: "Since it is solely by my own efforts that I have become what I am, I will use my attainments for myself alone." For it is only when, in selfless devotion, he actively works to create, to establish and to increase the happiness and prosperity of his fellow man that a man begins to become truly human in the image of his God. Id. at 16-17 n.14. 49. See sources cited supra note 45. 1991] FREEDOM OF EXPRESSION tion.5 ° For example, one could argue that the denial of self-determination, at least at the societal level, undermines respect for the members of society;51 that a democratic system is essential to the individual's development and self-fulfillment;52 and that the denial of a voice in decisionmaking ultimately stunts the individual's personal, moral, and intellectual growth.53 Certain political theorists have questioned "[t]he extent to which individuals are 'free' in contemporary liberal democracies." 54 As political scientist Carole Pateman has argued, "the 'free and equal individual' is, in practice, a person found much more rarely than liberal theory suggests." 5 As Professor Held has articulated the position: Liberal theory-in its classical and contemporary guises-generally assumes what has, in fact, to be carefully examined: namely, whether the existing relationships among men and women, working, middle and upper classes, blacks and whites, and various ethnic groups allows [sic] formally recognized rights to be actually realized. The formal existence of certain rights in democratic theory and ideology is, while not unimpor-56 tant, of little value if they cannot be exercised in everyday practice. Professor Held further notes that "[i]f liberals or neo-liberals were to take these issues seriously, they would discover that massive numbers of individuals are restricted systematically-for want of a complex mix of resources and opportunities-from participating actively in political and 57 civil life." The problems to which these scholars point are real ones. The 5 problems were greater, however, prior to the enactment of legislation 1 that has effectively, albeit not completely, increased the influence and equality of these previously subjugated groups. Ironically, this legislation was achieved in large part by citizens exerting power in the political marketplace in order to protect their self-interest, in the classic democratic fashion. The same is largely true of the economically disadvantaged classes: our post-New Deal welfare state structure similarly was implemented through resort to traditional representative democratic processes.

50. At this point in the analysis, one need not make a choice between a communitarian civic republicanism and individualism: both share a commitment to at least some form of self- determination, and thus both are inconsistent with a theoretical rejection of that concept. 51. See M. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 19-22 (1984). 52. Id. 53. Id. 54. See, eg., D. HELD, supra note 44, at 176. 55. C. PATEMAN, THE PROBLEM OF POLITICAL OBLIGATION: A CRITIQUE OF LIBERAL THEORY 171 (1985), quoted in D. HELD, supra note 44, at 176. 56. D. HELD, supra note 44, at 176 (emphasis in original). 57. Id. at 177. 58. See, eg., The Civil Rights Act of 1964, 42 U.S.C. § 2000 (1988). CALIFORNIA LAW REVIEW [Vol. 79:267

We do not in any way intend to dismiss the moral problems caused by the discrimination and poverty currently tolerated within our democratic system. 9 The question the critics of classical democracy need to answer, however, is exactly what the preferable alternative system is. Should we impose a czar, empowered to right all moral wrongs perceived by scholars of the new left, regardless of the will of the populace? That, we imagine, is exactly what Marxist societies have attempted-not with the greatest success, judging by the almost universal simultaneous collapse of the undemocratic Marxist regimes of Eastern Europe. Neo- Marxist attacks on democracy have taken on something of a hollow ring following the international political events of the last two years.60 Thus, while no one rationally could claim that democracy is free from all moral problem or doubt, recent experience reaffirns the wisdom of Churchill's classic assertion that democracy is the worst governmental system- except for all the others.61 These attacks on classical democracy that derive from considerations of distributive justice underscore the mutually exclusive relationship between democratic theory and belief in objective moral truth. At least, the relationship must be mutually exclusive to the extent that one wishes, ex ante, to posit moral truth as a guide for society's political framework. A belief that one can ascertain and impose on society some form of absolute moral truth, derived by a means external to an assessment of public will, is fundamentally at odds with a belief in either societal or individual self-determination. If one believes in the imposition of externally derived moral truth through governmental decisionmaking, the concept of democracy is rendered at best a nuisance and at worst a serious social harm. By definition, a democratic system places ultimate moral and social decisionmaking power in the people. Either because of practical necessity or purposeful design,62 day-to-day decisionmaking may be one or more steps removed from the direct expression of popular

59. See generally Hirshman, The Virtue of Liberality in American Life, 88 MICH. L. REv. 983, 1011-22 (1990) (detailing impact of poverty on participation in political life). 60. In any event, it should once again be emphasized that, whatever one concludes about the comparative merits of political systems based on principles of self-determination on the one hand and substantive precepts of distributive justice on the other, purely as a matter of positive law there can be little question that our political structure is closer to the former system than the latter. The concept of a neo-Marxist first amendment is an oxymoron. Thus, it would be improper to construe the constitutional right of free expression in a manner designed to promote particular substantive principles of distributive justice. 61. "[I]t has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time." W. Churchill, Speech to the House of Commons (Nov. 11, 1947), reprinted in THE OXFORD DICTIONARY OF QUOTATIONS 150 (3d ed. 1979). 62. See G. SARTORI, THE THEORY OF DEMOCRACY REVISITED 282 (1987) (arguing for the practical necessity of representative, as opposed to direct, democracy). However, one might also choose a representative form of democracy as a means of tempering pure majoritarian rule. See generally THE FEDERALIST No. 10 (J. Madison). 1991] FREEDOM OF EXPRESSION will. But unless those making the decisions are somehow representative of and accountable to the populace, the essential attributes of a democratic system are absent. If one asserts both knowledge of objective moral truth and the desire to impose that moral truth on society, then the operation of the principle of direct or indirect self-determination makes no sense, for the possibility will surely exist that whatever majorities are necessary to make moral choices will choose a course opposite to, or at least different from, the externally derived moral truth. One could, we suppose, seek to synthesize objective moral truth and societal self-determination, by viewing the collectivist deliberative process as a means of implementing that moral truth. The "freedom" of society to select only the moral choices some external source has already made, however, is no freedom at all; it would be a "democratic" system only in the same hollow and Orwellian sense that any totalitarian government that holds "elections" with only the government's candidates running can be considered democratic. Hence, if one chooses to adopt a fundamentally democratic system of self-determination, one must logically first reject a belief in the power and ability of government to discerfi and impose binding substantive moral truth apart from the expression, at some level, of popular will.63 Some who believe firmly in the superior moral truth of their substantive value structure could, quite reasonably, oppose committing their values to the democratic process altogether, despite the obvious interference with performance of the self-determination function. The problem, however, is that others may feel equally justified in attempting to foist their own moral choices on society. If we deny the right of our oppo- nents to subject us to their moral choices without some form of plebi- scite, it is difficult to deny to others the same right to resist our imposition through the democratic process. Of course, we might argue that the difference between the two substantive moral structures is that ours is right and theirs is wrong, but they will, quite naturally, say the same. If popular sovereignty is not required to legitimate political choices on a moral level, then any political decision could be taken and legitimated solely by means of having the power to enforce it. Following this logic, democracy could be defended by the Rawlsian construct of the veil of ignorance:" when those of us in the mythical state of nature establish our governmental structure, none of us knows who in society will be a part of which moral faction, or which moral faction will be more powerful. We are, then, sufficiently risk-averse to

63. Cf D. EASTON, THE POLITCAL SYsTEM 222 (1953) (defining democracy as "a political system in which power is so distributed that control over the authoritative allocation of values lies in the hands of the mass of the people"). 64. See J. RAWLS, A THEORY OF JUSTICE 136-42 (1971). CALIFORNIA LAW REVIEW [Vol. 79:267 leave the ultimate moral choice to some form of the expression of popular will, rather than decreeing that the faction with greater physical power will prevail. This "bet-hedging" rationale need not represent a firmly held theory of epistemology so much as an instrumental construct designed to avoid totalitarianism. Thus, the Rawlsian model does not presume ethical relativism. One may simply believe that the government, ex ante, must be guided by such a principle to prevent ideologically based takeovers that undermine the values fostered by self-determination. Indeed, it is presumably this exact reasoning which rationalizes a governmental stance favoring freedom of religion. Surely, one need not personally reject a belief in the objective superiority of a particular religion in order to advo- cate a governmental stance of epistemological humility towards religion in general, for the simple reason that such a stance is essential to the prevention of government interference with the exercise of religious freedom. Application of the principle of epistemological humility to government moral choices implies that the populace has the ability to perceive the "correct" moral choice. But as long as the principle of popular choice is modified at the outset by supermajoritarian constitutional protections of fundamental ethical principles (for example, the prohibitions of slavery and racial discrimination and the guarantee of free expression), the popular choice solution is far preferable to reliance on a test of physical power. The system our nation selected is not based purely on popular sovereignty. Rather, we have developed a complex mixture of popular sovereignty, republican-like procedural hurdles to collective action, and counter-simple majoritarian constitutional limitations. However, existing constitutional limitations on popular sovereignty are not identical to externally imposed substantive moral restraints on societal self- determination. Unlike such external restraints, constitutionally imposed limitations were initially considered and ratified by our society itself. Also, unlike external moral restraints, constitutional limitations are subject to super-majoritarian repeal or modification. 6 Finally, it is important to note that in no instance do constitutional prohibitions on private66 or governmental 67 behavior in any way prohibit debate or discussion about the merits of those prohibitions-a commitment that those who adopt a belief in the implementation of absolute moral truth at the 68 societal level are not likely to make.

65. U.S. CONST. art. V. 66. The primary, if not exclusive, constitutional limitation on private action appears in the thirteenth amendment's prohibition of slavery. Id. amend. XIII. 67. See, eg., id amend. XIV. 68. See infra text accompanying notes 129-30. 1991] FREEDOM OF EXPRESSION

It is this last point that underscores the link between democratic processes and free speech. Core principles of free speech are widely thought to derive from our initial societal commitment to some form of popular sovereignty.6 9 On one level, free speech may be seen as a necessary catalyst for the operation of self-government: effective performance of the self-governing function requires a free flow of information and opinion about all issues potentially up for collective decision. ° On another level, the same normative principles that lead to the commitment to popular sovereignty in the first place71 also logically lead to protection of free speech.

B. Free Speech Doctrine As previously noted, censorship of the expression of opinion stunts the individual's growth as a human being and shows disrespect for the individual's ability to make her own informed decisions. Thus, if one could point to a single principle to which virtually all modem free speech theorists would likely subscribe, at least in its essence, it would be the principle of epistemological humility. "[T]here is," the Supreme Court has said, "no such thing as a false idea." 72 The statement represents the Court's means of assuring that government is prohibited from regulating or suppressing speech on the basis of disagreement with or dislike of the viewpoint being expressed.73 The prohibition of viewpoint regulation represents a free speech corollary to the initial societal commitment to self-determination and to the instrumental construct of epistemological humility. Justice Holmes put it well: Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indi- cate you think the speech impotent ... or that you doubt either your power or your premises.74 Though Holmes' "marketplace" theory has often been subjected to modem scholarly attack,75 it would, we think, be difficult to deny the

69. See, e.g., A. MEIKLEJOHN, supra note 16, at 27 ("The principle of the freedom of speech springs from the necessities of the program of self-government .... It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage."). 70. See supra text accompanying note 19. 71. See supra text accompanying notes 50-53. 72. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). 73. See, e.g., Police Dep't v. Mosley, 408 U.S. 92 (1972) (striking down ordinance prohibiting picketing about certain issues near school). 74. Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J.,dissenting). 75. See, e.g., R. WOLFF, THE POVERTY OF LIBERALISM 11-12 (1968) (criticizing the marketplace-of-ideas argument of John Stuart Mill); Baker, supra note 29, at 967 (same). CALIFORNIA LAW REVIEW [Vol. 79:267 relevance of Holmes' logic to the basic premises of democratic theory. Ultimately, the rationale for rejecting governmental power to regulate viewpoints on the basis of offensiveness or disagreement is that any such power would be inherently boundless. How could a court rationally confine the government's power-by reference to widespread popular opinion? Such a "limitation" would effectively lock in existing societal preferences, which would be inconsistent with basic democratic notions. Or could a court confine the power by reference to the judges' agreement or disagreement with the views expressed? Such a radically unprincipled suggestion, of course, is unacceptable. In short, abandonment of the viewpoint regulation principle would effectively gut any meaningful concept of free speech protection. To be sure, this principle now has numerous doctrinal qualifications. If, in a particular context, expression of a viewpoint is likely to give rise immediately to criminal conduct or serious social harm, regulation might be permissible.76 Similarly, certain limits are justified in order to prevent thrusting offensive expression upon unwilling listeners." In certain restricted environments, the government is given considerably broader leeway to control expression.78 It is certainly conceivable that, in practice, any of these limitations might be abused in such a manner as to threaten the core principle. But at least in its theoretically pure state, the principle disallowing viewpoint regulation stands as the cornerstone of our democratic theory. It is therefore not surprisifng that it also stands as the cornerstone of the Supreme Court's first amendment jurisprudence, as well as the starting point of most free speech scholarship.79 Another principle of free speech that plays an important role in the Supreme Court's modem first amendment jurisprudence is the principle that a speaker's motivation is irrelevant to the level of constitutional protection given to his speech.80 This postulate, though it does not receive quite the same level of universal adherence as the viewpoint regulation

76. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) (freedom of speech does not permit state to forbid advocacy of use of force unless it is directed toward inciting or producing imminent lawless action and is likely to produce such action). 77. See, eg., FCC v. Pacifica Found., 438 U.S. 726 (1978) (radio broadcast entitled "Filthy Words"). 78. See, eg., Bethel School Dist. No. 43 v. Fraser, 475 U.S. 675 (1986) (schools); Greer v. Spock, 424 U.S. 828 (1976) (military). 79. Se. eg., Stone, Restrictions of Speech Because of its Content: The PeculiarCase of Subject- Matter Restrictions, 46 U. CHI. L. REV. 81, 103 (1978). 80. See, eg., Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980); First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978) (both noting that profit-motivated corporations have a fully protected first amendment right to contribute to debate on public issue); see also New York Times Co. v. Sullivan, 376 U.S. 254, 265-66 (1964) ("That the Times was paid for publishing the [challenged] advertisement is as immaterial in this connection as is the fact that newspapers and books are sold .... ). 1991] FREEDOM OF EXPRESSION postulate,"1 derives in part from recognition of the obvious difficulties in deciphering such a subjective factor. Additionally, gradating the level of constitutional protection on the basis of personal motivation might lead to an indirect form of viewpoint regulation. For example, a court's reduction of first amendment protection to speech made in order to promote one's own private economic interests might be considered judicial disdain for a free enterprise system.82 Finally, if one accepts the principle that an important element of the first amendment right is tied to the receipt of information and opinion,"3 then exclusion of expression from first amendment protection solely on grounds of motivation makes little sense. It is also widely accepted that the constitutional protection extends to an individual's chosen manner of expression as well as to the content of that expression.84 Under the "individualist" model of the first amendment, such a conclusion makes perfect sense: an individual's choice of how to express her views is inherently intertwined with the development of the creative and developmental processes that the first amendment is designed to foster. It must be conceded that some restrictions on the manner of expression do not violate the first amendment: one may be constitutionally prohibited from choosing to convey one's message by means of a marching band at midnight in a hospital zone.8" But the Supreme Court has drawn a sharp distinction between permissible and impermissible manner regulations: the latter are premised on popular 8 6 distaste for the chosen means of expression. These postulates of free speech theory may reasonably be grouped together as core principles. The following Part will demonstrate how modem civic republican thought threatens these principles.

81. Professor Baker, for example, has premised his model of free speech theory in part on a rejection of this postulate. See Baker, CommercialSpeeck A Problem in the Theory of Freedom, 62 IOWvA L. REv. 1, 3 (1976). 82. See Redish, ProductHealth Claims and the First Amendment: Scientific Expression and the Twilight Zone of CommercialSpeech, 43 VAND. L. RPv. 1433, 1445-48 (1990); see also Bellotti, 435 U.S. at 785-86 (emphasizing that "[e]specially where ... the legislature's suppression of speech suggests an attempt to give one side of a debatable public question an advantage in exposing its views to the people, the First Amendment is plainly offended"). 83. See, eg., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) (fairness doctrine upheld in part because of public right to receive information). 84. See, eg., Cohen v. California, 403 U.S. 15 (1971) (first amendment protects offensive language in part because more moderate language would not convey the same message). 85. See, eg., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (regulation banning sleeping in certain national parks upheld as time, place, and manner regulation); Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (regulation requiring that solicitation be confined to one part of state fair upheld as time, place, and manner regulation). 86. See, eg., Clark, 468 U.S. 288. CALIFORNIA LAW REVIEW [Vol. 79:267

II THE IMPLICATIONS OF THE Civic REPUBLICAN REVIVAL FOR FREE SPEECH THEORY

The essential link among the modem variants of republican theory is a belief that the pursuit of purely private interests should be eschewed in favor of a focus on the pursuit of a distinct common good and civic virtue.8 7 Beyond this common link, however, there are other theoretical variants that have different implications for free speech theory. For purposes of testing its implications for free speech, civic republican theory may initially be divided into two categories: the "communitarian determinative" and "external objective" models. The latter model, which we associate primarily with Professor Sunstein, posits the possibility of arriving at universal agreement on substantively correct answers through the use of "practical reason."8" The former model, on the other hand, assumes no moral absolutes, but instead places total reliance on communitarian choices as a measure of the common good.89

4. The "External-Objective" Model of Civic Republican Theory Professor Sunstein's republic rests on a foundation of four principles: deliberation, political equality, universalism, and citizenship. 90 Sunstein welcomes "a forum in which alternative perspectives and additional information are brought to bear, problems are occasionally revealed to be systemic rather than individual, second-order preferences may be vindicated, and collective action problems and weakness of the will may be overcome." 9' Deliberation in government comes about when a citizenry engages in "civic virtue,"92 maintaining an active role in discussing and deciding where and how this citizenry should, as a whole, proceed. "[I]n their capacity as political actors, citizens and representa- tives are not supposed to ask only what is in their private interest, but also what will best serve the community in general .... "9' Sunstein argues that the deliberative principle provides a marked and necessary departure from what he perceives is the chief evil mecha- nism in today's American political structure: pluralism. "The function of politics ... is not simply to implement existing private preferences. Political actors are not supposed to come to the process with preselected

87. See supra text accompanying notes 3-28. 88. See generally Sunstein, supra note 3; infra text accompanying notes 90-130. 89. See generally A. MEIKLEJOHN, supra note 16; infra text accompanying notes 131-59. 90. Sunstein, supra note 3, at 1541-42. 91. Id. at 1557-58. 92. Id. at 1541. 93. Id. at 1550. 1991] FREEDOM OF EXPRESSION interests that operate as exogenous variables."94 According to Sunstein, pluralism has led us away from the notion of a level democratic playing field. Malignant preferences have emerged and, because of their dispro- portionately great power sources, taken over.9 Deliberation has broken down, resulting in the corresponding woes of "public choice" maneuver- ing and a decided lack of participation by citizens.96 Sunstein's second principle, political equality, is supposed to enhance the efficacy and assure the legitimacy of the deliberative process. "Political equality, in republican terms, is understood as a requirement that all individuals and groups have access to the political process; large disparities in political 97 influence are disfavored.", Sunstein's third principle is "universalism," or "agreement as a regulative ideal."9 As Sunstein would have it, "[r]epublicans . . . reject ethical relativism and skepticism, and believe that different perspectives are sometimes subject to mediation both in theory and in the real world." 99 Sunstein hastens to add that the republican assumption of a "common good" is not "mystical or tyrannical," 100 and that "the republican position is not that every issue is subject to political resolution."10°1 Moreover, compromises and even some clear win-lose situations will necessarily arise in a deliberative environment. 2 Still, Sunstein clearly expects across-the-board agreement about problems to occur more often than not, yielding objectively satisfactory solutions.103 Sunstein takes great pains to stress that his antipathy toward "pluralism" does not extend to "liberalism." In fact, he repeatedly refers to "liberal republicanism," as if the two terms fit together quite comfortably. 11 Although he acknowledges that some purely liberal tenets (a relatively limited role for government to play, a view of personal entitlements and preferences as "exogenous" to that state, and a conception of self- interest as the chief beneficiary of political protection) are patently incompatible with the tenets of civic republicanism, Sunstein notes that "most of the great liberal thinkers did not take interests as prepolitical. Instead, they placed a high premium on deliberation and discussion, and on the capacity of political dialogue to improve outcomes and to

94. Id at 1548. 95. Id. at 1543-44. 96. Id at 1545-47. 97. Id. at 1552. 98. Id. at 1554. 99. Id. 100. Id. 101. Id. at 1555. 102. Id. 103. Id. 104. Id. at 1541, 1566. CALIFORNIA LAW REVIEW [Vol. 79:267 undermine unjustified disparities in power." ' Sunstein contends that none of the four cornerstone principles of his civic republic is alien to a liberal sensibility. Instead, it is only a matter of fine-tuning.10 6 A strong link between civic republicanism and liberalism is their mutual reliance on a notion of impersonality, or neutrality. This neutrality requires "that certain considerations not be taken into account and.., that political actors offer public-regarding justifications for social outcomes, or for deviations from ordinary norms." 0 7 Sunstein is also "liberal" in the sense that he would close off from debate, even in his openly deliberative imaginary society, several rights that are to be regarded as "preconditions."' 108 Freedom of expression and the right to vote are two of these preconditions;10 9 the protection of minorities is another. 110 The interface that Sunstein perceives between the liberal and civic republican states leads to a host of internal contradictions in his thesis. 1 While his attempt to synthesize the best elements of republicanism and liberalism is commendable, his effort ultimately fails because he is attempting to insert a theoretical square peg into a theoretical round hole. How, for instance, are the value-laden notions of "virtue" and "empathy" to be reconciled with basic governmental "neutrality"? More importantly, Sunstein's belief in the possibility of having society attain objectively right answers is in direct tension with his professed belief in the primacy of the deliberative process. Even if deliberation flows smoothly,' 1 2 as Sunstein believes it can, there is no reason to expect that undesired outcomes will be effectively excluded. 1 3 Thus, one cannot consistently maintain a belief in the value of political freedom and societal deliberation on the one hand and a belief in the ability to ascer-

105. Id. at 1567. 106. Id. at 1567-71. 107. Id. at 1568. 108. Id. at 1551. 109. Id. at 1552. 110. Id at 1575-76. 111. Cf Fallon, supra note 1, at 1731-32 ("Sunstein is so catholic in his enthusiasm to incorporate all good things into his republican model-including rights, equality, virtue, neutrality, empathy, active citizenship and judicial review-that doubts arise about how or indeed if his 'republicanism' hangs together as a self-consistent philosophical position."). 112. It is by no means clear that the deliberative process would function effectively under Sunstein's model. See Fitts, Look Before You Leap: Some CautionaryNotes on Civic Republicanism, 97 YALE L.J. 1651, 1652 (1988). 113. As Professor Macey has persuasively argued: One must wonder . . . why Sunstein is so certain that deliberation will lead to virtue. Deliberation may lead to rationality,but if the deliberators do not begin their conclaves with a predisposition towards virtue, it is not obvious why the discussion necessarily will lead them in this direction. Macey, The Missing Element in the Republican Revival, 97 YALE L.J. 1673, 1677 n.16 (1988) (emphasis in original). 1991] FREEDOM OF EXPRESSION

tain and implement objective moral truth through the governmental process on the other.'14 Under such conditions, the deliberative function is effectively rendered a sham, reminiscent of the degree of deliberative power granted to a jury when the judge grants a motion for judgment notwithstanding the verdict."' The power to deliberate is meaningless if it can reach only one answer. The "freedom" to reach a predetermined substantive outcome is no freedom at all. Although Sunstein seems at times self-contradictory, it is impossible to deny that he unambiguously posits the possibility and desirability of ascertaining both "substantively right" answers" 6 and "objectively bad" preferences." 7 As we critique these conclusions, it is important to emphasize the context in which Sunstein asserts them. Unlike the Rawlsian "bet-hedger," who may personally believe in objective moral truth at some level-but who is willing to adopt a formal stance of epistemological humility at the societal level as an instrumental construct designed to prevent government from degenerating into a totalitarian state' "--Sunstein makes his epistemological assertions directly in a discussion of the collective political decisionmaking process. He begins his analysis with assumptions about the existence of objectively right answers and objectively bad preferences, presumably for the very purpose of deciding how to reach such moral decisions at the political level. While it is unclear how he actually derives his objective moral structure, it is, quite clearly, by some means other than ascertainment of popular preference." 9

114. Though it is admittedly only speculation on our part, a conceivable explanation for Sunstein's seeming inconsistency in simultaneously endorsing both these concepts is the possibility that Sunstein, true to the tradition of "practical reason," believes that a truly deliberative process often could rationally come to only one substantive conclusion. Such an analysis, however, would be defective for failing to recognize the obvious and empirical fact that reasonable people differ on moral issues. 115. See FED. R. Civ. P. 50(a). 116. Sunstein, supra note 3, at 1550; Sunstein, supra note 1, at 29, 31-32. 117. Sunstein, supra note 3, at 1543. 118. See supra text accompanying notes 63-64. 119. See Sunstein, supra note 3, at 1548-49 ("The function of politics . . . is not simply to implement existing private preferences .... The republican belief in deliberation counsels political actors to achieve a measure of critical distance from prevailing desires and practices, subjecting those desires and practices to scrutiny and review.") (footnote omitted). Sunstein emphasizes, however, that "[t]o say this is not to suggest that deliberation calls for some standard entirely external to private beliefs and values (as if such a thing could be imagined). The republican position is instead that existing desires should be revisable in light of collective discussion and debate, bringing to bear alternative perspectives and additional information." Id. at 1549 (footnote omitted) (emphasis added). But the problem for Sunstein's analysis is his apparent assumption-by no means certain, see supra note 113-that the conduct of an elaborate deliberative process will necessarily lead to the substantive result he deems objectively correct. In any event, by asserting that there exist substantively correct answers, Sunstein, supra note 3, at 1541, and by inserting the qualifying word "entirely" before the words "external to private beliefs," he effectively CALIFORNIA LAW REVIEW [Vol. 79:267

Although Professor Sunstein's discussion of the specific implications of modern civic republican theory for free speech is both brief and cryp- tic, 120 it should not be at all difficult to draw several inferences from his epistemological premises. If one is willing to assume, as Professor Sunstein does,121 that there are such things as substantively correct answers and objectively bad preferences for purposes of governmental decisionmaking, it makes sense to allow-if not to require-government to regulate or perhaps suppress speech advocating the "bad" preferences or undermining societal attainment of the "correct" answers. This conclusion is by no means inevitable. One could conceivably believe in objective moral truth, yet still favor free expression on grounds unrelated to the public decisionmaking process. For example, one might posit a belief in the value of individual growth as the rationale for free speech protection.22 However, civic republican scholars in general and "external-objective" theorists in particular are unlikely to place great weight on such a value. First, belief that moral or political truth may be ascertained by means external to the will of the populace removes the most essential element of the individual's personal integrity-free choice. Second, even those civic republican theorists whose analytical models are based on the value of collective self-rule place little or no value on the benefits of free speech to the individual qua individual.123 These theorists are unlikely to support any idea of self-actualization, since in their theory the individual is important simply as a "citizen"-a participant in the process of ascertaining public good. 124 While individual growth could be seen as a means of facilitating the individual's role as citizen,' unless the theory is to collapse into the very Lockean or Millean individualism rejected by civic republican theorists, 126 recognition of this "individual growth" model must be kept to a acknowledges his view that values are, at least in part, derived by means other than the exercise of popular sovereignty. 120. See Sunstein, supra note 3, at 1576-78. 121. See supra text accompanying notes 116-58. 122. See, eg., M. REDISH, supra note 51, at 9-86; Baker, supra note 29, at 990-97. 123. See infra text accompanying notes 131-56. 124. See Sunstein, supra note 3, at 1555-56. 125. See Michelman, supra note 12; infra text accompanying notes 200-07 (comparing Michelman's and Post's conceptions of the individual in society). 126. Sunstein, supra note 3, at 1540. We can see this conundrum, for example, in the serious theoretical dilemma the modem "liberal" republicans face when discussing a constitutionally protected right of individual privacy and autonomy. The "liberal" element in their thinking leads them, instinctively, to the protection of this right. See generally Michelman, supra note 12 (arguing that civic republican theory logically leads to invalidation of the sodomy laws upheld in Bowers v. Hardwick, 478 U.S. 186 (1986)). Their rejection of Hobbesian possessive individualism in favor of a communitarian notion of civic virtue, however, at the very least renders theoretically awkward the moral recognition of such a right of total individuality. In an attempt to escape this dilemma, Michelman rationalizes recognition of a personal right of privacy-autonomy purely on grounds of citizenship: absent such a right, the individual's ability to 1991] FREEDOM OF EXPRESSION minimum. Hence, in the absence of a commitment to a belief in the use of collective will as a means of making moral and social choices, modem civic republicans have little reason to adhere to a belief in the core free speech principle prohibiting viewpoint regulation. While Sunstein pro- fesses a belief in the supremacy of the free speech value, 127 the logic of his thesis belies such an assertion, and his own selective application of the core principle12 8 supports the logical inferences we have drawn from his epistemological premises. We concede that, even though Sunstein posits the existence of externally derived, objectively correct and incorrect preferences, the free speech issue will only arise if the representative organs of government choose to limit speech. In a very narrow sense, Sunstein can thus be seen as advocating the popular sovereignty he ultimately undermines, while we can be seen as actually undermining the workings of popular sovereignty by urging a judicially imposed limitation on the power of the government to restrict speech. Closer examination reveals, however, that neither is the case. External-objective scholars support an extremely selective type of popular sovereignty. 129 They do not adhere to the view that the values of popular sovereignty automatically validate limitations on speech imposed by the representative branches. Instead, they would presumably reject limitations not dictated by their externally derived value structure. For example, if the representative branches, in an accurate reflection of popular will, prohibited any speech advocating abortion, the current wave of perform his role as an active participant in the collective deliberative process will be undermined. Sunstein, supra note 3, at 1505. Of course, if one opts for the "external-objective" model of modern civic republicanism-which, as already noted, ultimately contradicts the classical republican tenet of collective self-determination, see supra text accompanying notes 112-15-then this rationale would disappear in any event. Even under a "communitarian-determinative" model, however, it is difficult to reconcile this logic with the broader notion of communitarian power to establish moral choices. See infra text accompanying notes 131-33 (individual's value in civic republican theory is limited to rights of participation in collective decisionmaking process). More importantly, if accepted, this logic has no stopping point, and thus would eventually consume the essential communitarian premise of civic republicanism. For example, the identical logic would dictate a rejection of governmental regulation of pornography, on the grounds that interfering with the individual's choice of what to see or read would stunt his participatory role as a citizen. In result, then, this approach to civic republicanism would, as a practical matter, be indistinguishable from the Lockean individualism supposedly rejected by civic republicanism. The internal inconsistency of a civic republican recognition of a constitutional right of privacy is ironically underscored by the fact that in upholding the sodomy laws challenged in Bowers v. Hardwick, 478 U.S. 186 (1986), Justice White, for the Court, relied on normative notions of communitarianism. Id. at 196 (1986). For a discussion of how the same logical difficulty plagued Alexander Meiklejohn's civic- republican-like rationale for free speech protection, see infra text accompanying notes 141-43. 127. Sunstein, supra note 3, at 1551; supra text accompanying notes 108-09. 128. For a discussion of Sunstein's approach to pornography regulation, see infra text accompanying notes 213-49. 129. A good illustration is Professor Michelman's suggested distinction between what he deems the impermissible regulation of flag burning and possibly regulable hate speech. See infra note 209. CALIFORNIA LAW REVIEW [Vol. 79:267

"liberal republican" scholars would undoubtedly wish to invalidate the regulation-because it is likely to be inconsistent with their own substantive moral framework. By allowing viewpoint-based distinctions in determining what speech is protected and what is not, these scholars would undermine the effective performance of the self-governing function by skewing the flow of competing opinions to the populace. It is on this basis that we can, seemingly paradoxically, urge counter-majoritarian limitations on popular sovereignty in the name of popular sovereignty. Respected democratic theorists have long recognized that if a democratic system is to continue to function effectively, constitutional limitations must be imposed.13 ° That, in short, is the role played by the constitutionally derived proscription of viewpoint discrimination.

B. The "Communitarian-Determinative"Model of Civic Republican Theory

Since its origins in the Greek city-state, civic republican theory has been based on a fundamental belief in the value of collective self-determination.1 31 Any theoretical structure that relies on the communitarian deliberative process simply as a means of achieving a set of predetermined ideological ends, disguised under the heading of "practical reason," 1 32 therefore conflicts with the key assumption of the traditional republican model. In short, while both sub-models of civic republican theory place supreme value on ascertaining the common good at the expense of the pursuit of purely private interests, 133 the "external- objective" model posits the existence of an objectively derivable common good, divorced from the collective perception of what that common good

130. See, eg., J. PENNOCK, DEMOCRATIC POLITICAL THEORY 307-08 (1979) ("constitutionalism provides a useful, if not an essential, framework and set of constraints for the operation of social pluralism for democratic ends"). 131. See G. SABINE & T. THORSON, A HISTORY OF POLITICAL THEORY 32 (4th ed. 1973) ("The Athenian did not imagine himself to be wholly unrestrained, but he drew the sharpest distinction between the restraint which is merely subjection to another man's arbitrary will and that which recognizes in the law a rule which has a right to be respected and hence is in this sense self- imposed."); see also G. SARTORI, supra note 62, at 286 ("[In Greece, d]emocracy was that system of government (city) in which decisions were made collectively."). 132. See Sunstein, supra note 1, at 31-32. The theory of "practical reason" assumes that there exists such a thing as objectively "sensible" answers to issues, which can and should be universally acknowledged and accepted without the benefit of logical argument. See, eg., Farber & Frickey, PracticalReasonand the FirstAmendment, 34 UCLA L. Rv. 1615, 1626 (1987). See generally Van Zandt, An Alternative Theory of PracticalReason in JudicialDecisions, 65 TUL. L. REv. 775 (1991). Such a mode of analysis, then, fits comfortably with the "external-objective" model of civic republican theory, and Sunstein's reliance on it further underscores the separation of moral truth from societal self-determination in his analytical model. 133. See supra text accompanying note 14. 1991] FREEDOM OF EXPRESSION is, while the "communitarian-determinative" model equates the common good with the collective's own view of that concept. The "communitarian-determinative" model can itself be subdivided, for free speech purposes, into two further subcategories: the "speech- protective" and the "public civility" models. This dichotomy exists because initial acceptance of the communitarian determinative premise does not automatically dictate the value of free speech. The "speech- protective" category, associated primarily with Alexander Meiklejohn,134 places the highest value on the exchange of information and opinion related to public issues, to ensure that the populace exercises its collective governing function most effectively. On the other hand, the "public civility" model, examined in detail by Professor Robert Post, 135 for the most part values the preservation of communitarian sensibilities over the individual's right to communicate.

L The "Speech-Protective" Model Like a true civic republican, Meiklejohn argued that the key to the first amendment is not that every person be allowed to speak, but that everything worth saying be said.1 36 He cared little-at least origi- nally 137-- for any developmental growth that the individual might attain from expressive activity. Accepting Meiklejohn's premise that the value of speech is exclusively related to collective self-government, his logic is at first persuasive. However, even under this assumption, severe practical problems develop when we attempt to divorce the right of the individual to speak from the interest in having everything worthwhile said. Meildejohn explained his logic by drawing an analogy to the classic New England town meeting.1 38 Once someone has expressed a particular position at such a meeting, he argued, there is little point in allowing subsequent speakers to waste time by reiterating it. 139 One problem with this logic is that the cumulative impact of multiple speakers might itself influence the listener's decisionmaking process. The more important fal- lacy, however, is Meildejohn's failure to recognize the substantial differ- ences between a town meeting and the realities of modem life. A town meeting is a self-contained vehicle, at which we can presume that all

134. See supra text accompanying notes 16-19. See generally A. MEIKLEJOHN, supra note 16. 135. See generally Post, supra note 9. 136. A. MEIKLEJOHN, supra note 16, at 26-27. According to Meiklejohn, the first amendment "has no concern about the 'needs of many men to express their opinion.' It provides, not for many men, but for all men." Id. at 55 (quoting Z. CHAFEE, FREE SPEECH IN THE UNrrED STATES 33 (1942)). He believed that "the private desire of the scholar... to study whatever he may please" was not deserving of first amendment protection. Id. at 84. 137. Meiklejohn subsequently modified his stance. See Meiklejohn, supra note 17; infra text accompanying notes 142-43. 138. A. MEIKLEJOHN, supra note 16, at 24. 139. Id. at 25-26. CALIFORNIA LAW REVIEW [Vol. 79:267

those present have been equally exposed to each speaker. 14 In modem society, on the other hand, it is impossible to know when or even whether some or all of the populace has been exposed to a particular communication. We believe it is dangerous to attempt to draw a line of demarcation, determining that at a particular point "enough" has been said on a particular position. Meiklejohn's collectivist logic was also problematic when he attempted to delimit the scope of the speech he believed deserved absolute protection. In order to prevent dilution of protection for truly valuable speech, Meiklejohn urged limiting the first amendment's scope to expression that fosters collective self-government. 141 When challenged, however, Meiklejohn elaborated by extending his concept of "political" speech to such categories of expression as art, literature, and science, because such expression ultimately makes people better citizens and therefore better voters.42 This collectivist rationale for valuing individual development fails to provide a logical stopping point.' 43 All individual expression could arguably be rationalized on facilitation-of- citizenship grounds. As a result, the speech-protective model of civic republicanism, as a practical matter, collapses into classical individualism.

2. The "Public Civility" Model Noting that "[t]he recent 'revival' of the view that politics should be understood as a 'deliberative process' raises significant questions for first amendment jurisprudence,"'" Professor Robert Post has described a republican-like approach to free speech theory that we have labeled the "public civility" subcategory of the communitarian determinative model. Unlike the "external-objective" model, which derives at least certain moral choices by means external to the collective will,' 45 the "public civility" category focuses exclusively on standards of interpersonal behavior established by community will.'46 This category is an outgrowth of modem republican theory 47 rather than a derivation from

140. How these listeners use the information will vary, but at least those present have heard the same speakers. 141. A. MEIKLFJOHN, supra note 16, at 51-57. 142. Meiklejohn, supra note 17, at 263. Meiklejohn was responding to Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup. Cr. REv. 1, 15-16. 143. For a more detailed critique of Meiklejohn's logic, see Redish, The FirstAmendment in the Marketplacea Commercial Speech and the Values of Free Expression, 39 GEo. WASH. L. REv. 429, 434-38 (1971). 144. Post, supra note 9, at 603 (footnote omitted). 145. See supra text accompanying notes 90-130. 146. Post, supra note 9, at 685. 147. Professor Post has suggested that the "conceptualist and ultimately procrustean division of theories into 'republican' and 'liberal' is of little use, and of some detriment." Post, The Perils of 1991] FREEDOM OF EXPRESSION

"individualist" first amendment tradition. Post argues that the interest in public discourse should be seen as "situated in [one corner ofj a triangular space."1'48 The remaining corners, he argues, are occupied by "community, which regulates speech in the interests of civility and dignity," and "organization, which regulates speech in the interests of 149 instrumentally attaining explicit objectives."' Post derives two principles from this triangular structure, which he deems essential to public discourse. One is "critical interaction," which amounts to "[t]he aspiration to be free from the constraints of existing community norms (and to attain a consequent condition of pure communication)," 150 and which is "sustained by the values of neutrality, diver- sity, and individualism."' '15 Post's second essential principle is "rational deliberation," which represents "the aspiration to the social project of reasoned and noncoercive [discussion,]""' an aspiration that is "sus- 53 tained by the deliberative enterprise of democratic self-governance." 1 This principle considers the importance of an audience's response to individual speech-that is, how others experience the speech. Post draws on sociological support for the proposition that "[a] person is a personality because he belongs to a community, because he takes over the institutions of that community into his own conduct."' 54 Thus, to Post, community identity is inevitably intertwined with personal identity. As Post writes, "individual identity evolves from forms of social interaction, [and so] we incorporate into our personality, into our very sense of self-worth and dignity, the institutionalized values and norms to ' 155 which we have been socialized." The practical implications of Professor Post's analysis are both significant and controversial, and therefore will receive detailed attention in subsequent discussion.'56 Purely for theoretical purposes, however, it should be clear that the free speech theory described by Post is concep-

Conceptualism: A Response to Professor Fallon, 103 HARV. L. REv. 1744, 1746 (1990). However, it is clear that Post draws heavily on what is traditionally deemed a "republican" background. Cf Fallon, Post on Public Discourse Under the First Amendment, 103 HARV. L. REv. 1738 (1990) ("Post generates [the] paradox by viewing first amendment doctrine through the lens of 'republican' theory.") (footnote omitted). 148. Post, supra note 9, at 685. 149. Id. 150. Id. at 642. 151. Id. 152. Id. 153. Id. 154. Id. at 617 (quoting G.H. MEAD, MIND, SELF AND SOCIETY 162 (C. Morris ed. 1937)). Post contends that "[t]he imperatives of community life and of bureaucratic organization are powerful, and perpetually encroach upon public discourse." Id. at 685. 155. Id. at 617. 156. See infra text accompanying notes 175-212 (outrageous speech). CALIFORNIA LAW REVIEW [Vol. 79:267 tually aligned with the communitarianism of civic republicanism, 5 7 rather than the individualism of the Lockean model." 8 But Post's analysis is problematic on a number of fronts. Initially, one may reasonably question whether the citation of sweeping, wholly unsupported assertions by sociologists should preempt empirical debate over the individual's relation to society. Moreover, even if one conceded the empirical accuracy of Post's assertions, he may be accused of confusing the descriptive with the normative. It may arguably be true that the individual's self-perception and identity are, under modem conditions, substantially molded by her societal reflection and interaction. But it does not necessarily follow that one who believes in the primacy of individuality should applaud that result. Of course, to the extent Post's assertion is intended to suggest that the molding of the individual's identity by societal interaction constitutes something approach- ing an immutable law of nature, then the normative merits of such a structure are purely academic. At least to a certain extent, however, we do not understand Profes- sor Post to be making such a suggestion, nor reasonably could he do so. While the individual's relation to his society will inescapably affect and shape his personality to a certain degree, unless one were to accept the dubious concept of total determinism,"5 9 surely the intensity of this interaction is a matter of degree, subject to variances, shifts, and alterations. Thus, one who fears the continued expansion of a pall of societal ortho- doxy may well rely on this empirical evidence to urge recognition of an even greater sphere of constitutionally protected individuality.

C. Summary: The Implications of the Civic Republican Gloss on Free Speech Theory Although each branch of modem republican theory has different implications for free speech theory, all share a rejection of the notion that the primary rationale for the protection of free speech is the fostering of individual development for its own sake. In its extreme form, republican theory threatens the core free speech value prohibiting viewpoint regulation. The "external-objective" model threatens the very premise of self- determination underlying the theory of representative democracy. 160 For once one assumes that we may employ the deliberative process as a means of attaining universal agreement on objective moral truth' 6'

157. See supra note 147. 158. See supra text accompanying notes 35-47. 159. See, eg., J. LOCKE, Two TREATISES ON GOVERNMENT (London 1690). 160. See supra text accompanying notes 35-86. 161. See supra text accompanying notes 90-128. 1991] FREEDOM OF EXPRESSION through the use of "practical reason,"1'6 2 then one has laid the logical groundwork for the rationalization of viewpoint regulation.'63 Once one discards the core premise that rejects viewpoint regulation, little remains of the free speech guarantee. Because governmental regulation of viewpoint could be limited only by a wholly unprincipled and subjective judicial judgment as to the moral correctness or wisdom of the viewpoint being regulated, the barrier between citizen choice and governmental usurpation would, as a practical matter, have fallen. The "communitarian determinative" branch of civic republican theory at least retains the comparative advantage of preserving a basic belief in societal self-determination. The impact of the "communitarian determinative" model on the core free speech principle, however, remains problematic. While one branch of that model would ban viewpoint regulation only of speech deemed to be relevant to the collective self-determination process,' another branch privileges the community over individual expression.165 It is only a small logical step to extend this model to rationalize communitarian censorship of substantive viewpoints found offensive by the community.166 All branches of civic republican theory threaten the key principles underlying free speech theory, because of their near-universal' 6 7 dismis- sal of the individual's value-other than as a political spoke in the communitarian wheel. Virtually all civic republican theorists posit a simultaneous belief in the pursuit of the common good and a rejection of the pursuit of purely private interests. Though Sunstein never says so directly, and indeed at one point appears to imply the contrary,'68 it would surely not be unreasonable to infer from these premises a gradation in the level of protection of expression on the basis of the motivation for the expression. That is, one found to be speaking in pursuit of his own personal interests would receive less protection than one attempting to contribute to the pursuit of the common good. If accepted, such logic would profoundly alter the accepted first amendment doctrine that motivation is irrelevant to the level of constitu-

162. See supra text accompanying note 132. 163. See supra text accompanying notes 74-75, 121. 164. This is Meikeljohn's view. See supra text accompanying notes 136-43. 165. See supra text accompanying notes 144-55. 166. See infra text accompanying notes at 208-12. 167. Professor Michelman, in his development of the "jurisgenerative" theory of civic republicanism, does place value on the individual's growth in order to make him a better-functioning citizen. Michelman, supra note 12, at 1532-33. But there is serious question whether, in this respect, Michelman's theory may legitimately be deemed truly "republican." See supra note 126; infra note 209. 168. Sunstein asserts that "[i]n the deliberative process, private interests are relevant inputs into politics." Sunstein, supra note 3, at 1541. CALIFORNIA LAW REVIEW [Vol. 79:267 tional protection. 169 As an example, consider how this approach would treat expression by Michigan auto workers urging an increase in tariffs on Japanese cars. 170 It would be naive to believe that such expression was not heavily tainted with personal economic motivation. Yet to deny or reduce protection to such speech would profoundly reduce the amount of debate conducted in this country, where those with the most to gain or lose often contribute the most heavily. More importantly, civic republican philosophy threatens meaningful individuality or creativity, because it filters such expression through the potentially stifling concepts of "civic virtue" and "common good." One can conjure up images of authoritarian societies in which individuals are forced-either directly or through communitarian pressure-to dress, act, and think alike, and in which any assertion of individuality is viewed as a selfish and dangerous aberration from pursuit of the greater common good. 171 It is all but impossible to envision meaningful individual discourse, thought, or creativity under such conditions. Similarly, it is impossible to imagine that such a society could foster the "human flourishing" which civic republicans proclaim to be their goal.172 For this reason, our conceptions of democracy and freedom are incommensurable with the Athenian view of the individual as nothing more than a citizen. 73 In our world, as Professor Sartori tells us, a man is more than a citizen of a state. In our conception, a human being cannot be reduced to his or her citizenness. For us, a man is not merely a

169. See supra text accompanying notes 80-83. 170. See Redish, supra note 82. 171. One thoughtful commentator has wondered "if there are deep similarities between civic humanists in the academy and the Moral Majority . .. [and] if the republican tradition has an element of hostility to individualism itself, if virtuous citizens are unpleasantly like robots." Herzog, Some Questionsfor Republicans, 14 POL. THEORY 473, 486 (1986). 172. See, eg., A. MACINTYRE, AFrER VIRTUE 137-53 (1981) (discussing the Aristotelean idea that eudaimonia, or "human flourishing," is the end society should seek); Radin, Market Inalienability, 100 HARV. L. REv. 1849, 1877-87 (1987) (the rhetoric of free markets and pluralism does violence to our conception of "human flourishing"). But see J. FINNIs, NATURAL LAW AND NATURAL RIGHTs 23, 88-89, 192 (1980) (arguing that "human flourishing" is only practically achieved when individual autonomy is respected). 173. In this sense, we may trace modem civic republicanism to its theoretical origins in the democratic theory of the Greek city state, where "[a] purely private moral code without reference to the state was inconceivable." W. JAEGER, 1 PAIDEIA: THE IDEALS OF GREEK CULTURE 326 (2d ed. 1945). According to Professor Sartori, [t]he ancients did not, and could not, recognize the individual as a person and, concurrently, as a 'private self' entitled to respect, for the obvious reason that this conception came with Christianity and was subsequently developed by the Renaissance, by Protestantism, and by the modem school of natural law. What the Greek individualistic spirit lacked, then, was the notion of a legitimate private space conceived as the moral as well as the juridical projection of the single human person. Therefore, the Greek experience of political freedom did not and could not signify an individual liberty based on personal rights, G. SARTORI, supra note 62, at 285 (footnotes omitted) (emphasis in original). Sartori notes that Greek democracy "did not respect the individual; rather, it tended to suspect him." Id. 1991] FREEDOM OF EXPRESSION

member of a collective .... Modem democracy is meant to protect the freedom of the individual as a person-a freedom that cannot be entrusted... to the 'subjection of the individual to the power of the whole.' 174 The similarities between our projected vision of the implications of republican thought and the actual republican view of the world can be seen by examining how republican scholars have themselves envisioned the normative application of republican theory to concrete issues of free speech regulation.

III APPLYING REPUBLICAN THEORY TO FREE SPEECH ISSUES: THE CASES OF "OUTRAGEOUS" SPEECH AND PORNOGRAPHY A. "Outrageous" Speech Professor Post explicated the role of the norms of respect and civility in free speech theory in his examination of the interaction of "public discourse" and the torts of defamation, invasion of privacy, and infliction of mental distress.1 75 Together, these issues have been caught in a cross- fire of common law and first amendment analysis since the landmark decision of New York Times v. Sullivan.1 76 Post's analysis of the interaction between each of these torts and the first amendment underscores the sharp distinctions between the Supreme Court's "individualist" approach to free speech issues 17 7 and the more community-oriented model he described. The contrast is highlighted by the different manner in which the two models deal with the issue of "outrageous" speech, as illustrated by the Supreme Court's decision in Hustler Magazine v. Falwell.1 7 At dispute in that case was an utterly mean-spirited and salacious advertisement parody appearing in Hustler Magazine, a notorious pornographic magazine published nationally by the ever-controversial Larry Flynt. In the advertisement parody, renowned religious fundamentalist Jerry Falwell was linked incestuously with his mother in a fetid country outhouse. Falwell's suit was ultimately based on the tort claim of intentional infliction of emotional distress. Falwell had to abandon an initial claim of libel, because of the finding that the parody could not reasonably have 1 79 been understood as purporting to assert a factually true statement.

174. G. SARTORI, supra note 62, at 286 (footnote omitted) (emphasis in original). 175. Post, supra note 9, at 605-26. 176. 376 U.S. 254 (1964). 177. See Post, supra note 9, at 631; supra text accompanying notes 47-53. 178. 485 U.S. 46 (1988). 179. Id. at 49. CALIFORNIA LAW REVIEW [Vol. 79:267

Nevertheless, outrageous speech, he contended, is not protected by the first amendment. 80 Deciding the case in favor of Hustler Magazine, the Court's opinion by Chief Justice Rehnquist reasoned that the right of Flynt to engage in public discourse superseded Falwell's claim of tortious damage.18' As Post states, the holding in Falwell is premised on three principles of "public discourse." First, the protection of such discourse does not turn on the motivation of the speaker.1 2 Second, ideas and opinions about public figures should be safeguarded (as opposed to false statements of fact about public figures, which do not enjoy such protection). 8 3 Third, the outrageousness standard underlying Falwell's claim is too subjective (despite the existence of certain other discrete exceptions, like "fighting words" 18 4 and "offensive" speech broadcast over radio and television8 5 ). Even under this analytical framework, Post finds much to criti- cize. 86 His central criticism of the Falwell decision, however, looks beyond issues of internal consistency to its individualist holding, which failed to address what he considers the underlying values in conflict: the need to place flexible boundaries on the domain of "public discourse;" the need to consider the competing demands for the maintenance of community values; and the need to analyze the interrelationship between 8 7 what he terms "critical interaction" and "rational deliberation."' 1 In his view, the opinion "conceives of neutrality only at the level of ideas, rather than at the more general level of the structures that establish com- munal life." 188 Post's view is predicated on his understanding of the original common law torts of intentional infliction of emotional distress, defamation, and invasion of privacy. To Post, those torts perform a societal function above and beyond their personal function of restoring inherent "respect" to an injured-that is, insulted-plaintiff. 89 Such torts "also enforce those 'generally accepted standards of decency and morality' that define for us the meaning of life" in the community.190 To flesh out this conception of community values, Post turns to sociological writing 9' to support the view that "individual identity evolves from forms of social

180. Id. at 50. 181. Id. at 50-51. 182. Id at 53. 183. Id. at 51-52. 184. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 185. See FCC v. Pacifica Found., 438 U.S. 726 (1978). 186. Post, supra note 9, at 632. 187. See supra text accompanying notes 144-55 (the public civility model). 188. Post, supra note 9, at 632. 189. Id at 616. 190. Id. 191. Id. at 633-38. 1991] FREEDOM OF EXPRESSION interaction, [and so] we incorporate into our personality, into our very sense of self-worth and dignity, the institutionalized values and norms to which we have been socialized."1'92 And those "generally accepted standards of civility and morality," or the "rules of civility," as Post chooses to call them, are the glue that forces personality and community to adhere to one another, because they "embody the very substance and boundaries of community life."19 Accordingly, not just one, but both the reciprocal parts of identity- individual and society-are harmed by outrageous speech directed at a person, such as the advertisement parody in Falwell. To Post, such speech serves to dissolve that glue between personhood and community. The first amendment doctrine of neutrality merely ratifies this unfortu- nate dissolution, Post believes.' 9 4 In Falwell, the Court was true to the neutrality doctrine when it shielded Flynt from community standards, which (when operationalized in the form of a jury verdict) found the Hustler advertisement parody offensive. Still, the Court's shield also acted as a sword, one that slashed destructively not only into Falwell's personal identity, but also into the fabric of society itself. For Post, a "prohibition of the enforcement of civility rules," like that in Falwell, may be "experienced less like the opening to debate of heretofore unquestionable topics, and more like the licensing of heretofore unacceptable patterns of behavior."'' To Post, this result is antisocial in the literal meaning of the term. Ironically, it is the very attempt by the Court to create a public discourse, a neutral meeting ground for the critical interaction of voices from different com- munities in a heterogeneous society, that makes this constitutional inter- vention "problematic, for the observance of civility rules sustains and 196 defines the very personalities of those within a community."' What the decision endangers, Post argues, is not just the health of a community, which must act as "audience" to an individual's speech. Rather, a breach in the civility rules endangers the process of public discourse itself. It is the fact that first amendment doctrine currently privileges critical interaction over rational deliberation that ultimately harms the entire convention of public discourse.'97 Post argues that public discourse would not exist were it not for the civility rules' maintenance of a fundamentally settled social zone in which citizens can critically inter- act.'9 8 Accordingly, Post argues that rational deliberation serves an

192. Id. at 617. 193. Id at 616, 618. 194. Id. at 616. 195. Id at 639. 196. Id. at 638. 197. Id. at 642. 198. Id. at 638-39. CALIFORNIA LAW REVIEW [Vol. 79:267 important corrective function, when a citizen's self-expression is so offensive that it begins to erode the very principles underlying the concept of "citizenry." Nevertheless, in Falwell and other cases that shield offensive speech, the Supreme Court "denies enforcement to the very norms upon which the success of the political enterprise of public discourse depends."1'99 In this sense, Post apparently believes that the preference for civility, dictated by the requirement of rational deliberation, might actually expand rather than divide the pie. Rather than choosing public civility at the cost of public discourse, Post argues that the choice in favor of public civility fosters public discourse. The problems with this analysis, however, are both numerous and severe. The most obvious problem is that we would suffer concrete, unambiguous limitations on public discourse, without any assurance that the sum total would ultimately represent a net gain to public expression. Secondly, implicit in Post's argument is the assumption that society is somehow able objectively to categorize contributions to public debate as "rational" or not. Such an obvious invitation to societal censorship leads us far from the essential premises of democratic theory and the related corollary of free speech. Post makes plain from the outset that his thesis should be understood in light of Professor Michelman's civic republican concept of juris- 2 genesis. 00 That concept would create societal self-determination by allowing people to "give themselves" their own law. The success ofjurisgenesis, however, is premised on broad-indeed all-inclusive-participation. And when an aspect of society is "considered or experienced as coercive, or invasive, or otherwise a violation of one's identity or free- ' ' z dom, 01 members of that society are wrongly excluded from it, thus thwarting the efficiency of jurisgenesis (not to mention its claim to integrity). 20 2 Post, then, is attempting to inject into first amendment doctrine the jurisgenerative spirit of inclusiveness. "Outrageous" speech such as the advertisement parody in Falwell acts for Post much like a sodomy law in Michelman's view: it violates the personal identity of an individual and therefore diminishes a larger societal identity.20 3 Post's civility rules thus

199. Id. at 642. 200. Michelman, supra note 12, at 1502-03, 1506, 1524-32. One possible way of making sense of this is by conceiving of politics as a process in which private-regarding 'men' become public-regarding citizens and thus members of a people. It would be by virtue of that people-making quality that the process would confer upon its law-like issue the character of law binding upon all as self-given. A political process having such a quality is one that, adapting a term of Robert Cover's, we may call jurisgenerative. Id. at 1502. 201. Id. at 1527. 202. Id. 203. Id. at 1532-37. 1991] FREEDOM OF EXPRESSION

attempt to constitute a sort of sociological codification of Michelman's inclusive reach, providing an absolute, if invisible, barrier to all that is "4coercive or invasive" in community life. Further linking his free speech perspective to civic republican theory, Post imagines the new republicanism unfolding into "'a universal community' founded upon a 'common commitment to a moral understanding' which will transform public discourse into the kind of common deliberation traditionally protected by the common law."" Despite this civic republican cast to Post's thesis, it can by no means be regarded as a pure application of jurisgenerative theory to the first amendment realm. An open public discourse is for Post a necessary and valuable ideal, just as jurisgenesis represents such an ideal for Michelman. Yet Post recognizes the possibility that public discourse may be qualified-may be closed off, put "off limits"-when certain speech bubbling up within it is perceived to be significantly offensive to members of the public it serves. Jurisgenesis, on the other hand, is meant to be anything but "qualified"; Michelman's desire is apparently to open up the jurisgenesis process to all who would participate, not to put it off limits. Thus, Post's injunction of offensive speech on behalf of an audience is arguably comparable not to a ban on sodomy laws so much as the sodomy laws themselves: Post would delimit the right of individuals (here, speakers) to communicative self-expression, much in the manner that sodomy laws delimit the right of individuals to sexual self- expression. In the jurisgenerative respect, then, Post's injunction against offensive speech takes a greater toll on society when it muzzles the speaker, rather than when it defends the civility rules; squelching speech actually has the effect of decreasing inclusiveness in the deliberative project. To Post, "neutrality and freedom [are] always limited," due to the "ultimate dependence of public discourse upon community life."205 This, in essence, turns Michelman on his ear, since jurisgenesis for Michelman depends on neutrality and freedom. It should be recognized, however, that Michelman's inherently ambiguous jurisgenesis argument can rationally be construed in either manner when applied to Post's civility rules. How, for instance, would Michelman respond to a citizen who spoke harshly against the concept of jurisgenesis itself? If Michelman were to muzzle such a citizen, he would risk alienating the citizen from the rest of jurisgenerative society. Yet if Michelman allows the speech, it may, in the end, threaten the very exist-

204. Post, supra note 9, at 685-86 (quoting W. SULLIVAN, RECONSTRUCTING PUBLIC PHILOSOPHY 170 (1982)). 205. Id. at 684. CALIFORNIA LAW REVIEW [Vol. 79:267 ence of jurisgenesis. °6 Michelman and Post also have differing perceptions of the development of individual identity in relation to society. Michelman's conception of the individual in society can be termed an "active" conception- that is, citizens' identities are developed uniquely, without a primary developmental relation to community. Only when that identity is assured and self-contained can the citizen join the community for the community's sake. Post's conception of the individual can instead be termed a "passive" one-Post focuses on citizens in their capacity as "listeners," emphasizing how the qualities of personal identity are shaped from without (by societal influences) rather than from within (by impulses of the self). Post's notion of a jurisgenerative public discourse thus derives from an approximation of Michelman's civic republicanism, rather than a facsimile. Indeed, this seems to make Post more of a republican than Michelman, because Michelman's jurisgenesis concept may cut in opposite directions.20 7 By suggesting the possibility of sacri- ficing the individual interest in unencumbered discourse to the community's wholly subjective sensibilities, Post has placed himself squarely within the republican camp. In suggesting the possibility of a choice in favor of communitarian sensibilities,208 Post potentially-if unwittingly-greatly reduces the scope of free expression. The problem is that he never provides a clue as to precisely how far the civility rules may, or are meant to, extend. Even where Post believes that the dictates of civility are clear, such as in the Falwell case, civility rules sweep frighteningly far, with no apparent logical stopping point to prevent the eventual wholesale destruction of speech values. Imagine, for example, an advertisement parody that is not really found to be "offensive" on any realistic basis, but which is nevertheless perceived by a public figure as "invasive," a blow to the core of his or her personal identity. How are we to determine whether this constitutes a

206. The theoretical ambiguity in Michelman's concept ofjurisgenesis can be seen by examining its application to the issue of constitutional protection for homosexual sodomy. While Michelman, relying on the theory ofjurisgenesis, asserts the need to recognize such a right, Michelman, supra note 12, at 1533-36, the Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986), relied on the community's right to preserve its notions of decency as the very basis for rejecting such a right. Id. at 192-94. If one acknowledges that civic republicanism is, theoretically, essentially one form of communitarianism, Michelman's reliance on it as a basis for protecting an individual's right to engage in behavior that deviates from the societally determined standards of "decent" behavior is, to say the least, theoretically awkward. The ambiguities in Michelman's theory are also illustrated in its application to the regulation of flag desecration and so-called "hate" speech. See infra note 209. 207. See supra notes 126, 206. For a discussion of the difficulties of applying Michelman's logic to the free speech area, see infra note 209. 208. It should be emphasized that at no point in his article does Professor Post actually make a choice in favor of the "public civility" model. However, at the very least, he recognizes the choice between the two models as a close and difficult one-a difficulty we fail to see. 1991] FREEDOM OF EXPRESSION sufficient breach of the civility rules to justify a limitation on speech? Is it simply a matter for unreviewable communitarian determination? If so, can a jury realistically be relied upon as a measure of communitarian sensibilities? Could a jury then easily circumvent the first amendment merely by finding that the speech in question violates the community's sensibilities? Could community sensibilities be allowed to spill over into the intersection of viewpoint and manner regulations? For example, under Post's model, could a jury or a legislature, as spokespersons for the community, find that community sensibilities are offended by the burning of the American flag?2' By the display of the swastika?21° By the expression of the view that a fetus is not a life? There appears no logical means by which to apply these various communitarian sensibilities to censorship of an individual's speech. As a result, we would have effectively allowed the equivalent of a "heckler's veto" into the free speech right through the back door.

209. Cf Texas v. Johnson, 491 U.S. 397 (1989). Professor Michelman has recently suggested a possible basis for distinguishing protected flag burning from arguably unprotected offensive speech. Michelman, supra note 9. While he acknowledges the argument "that some speech acts are so antithetical to any serious profession of aspiration toward American political community, and so destructive of movement toward it, that a Constitution depicting that aspiration cannot shelter such acts against the community's prohibition, and at the same time retain the force of apparent moral seriousness," id. at 1362, he expresses confidence that "flag burning is a poor candidate for typifying speech acts of that kind." Id. This is so because [p]aradigmatically, . . . flag burning is not a repudiation of the nation's ideals or of aspiration towards political community. Rather, the flag burner charges the nation with betraying its ideals as the flag burner understands them .... Id. What Michelman does think may be contrary to these notions is subjugative hate speech- "speech that is calculated to aid and reinforce denial of basic human respect, and hence full citizenship, to persons who already know themselves as socially defined by their membership in historically despised, excluded and oppressed groups. If there is some speech to which a constitution supposedly inspired by a vision of political community cannot credibly offer protection, it is that speech." Id. at 1363 (emphasis in original) (footnotes omitted). When the dust settles, all Professor Michelman has done is solipsistically transform the unprotected category of speech from what the majority finds offensive or undermining of community to include solely what he finds meets these criteria. He thus brings himself within the "external-objective" branch of civic republicanism. See supra text accompanying notes 90-130. Surely, the public at large might reasonably conclude that burning the American flag, for whatever reason, is so emo- tionally disruptive to those who believe in the strong emotive-patriotic commitment the flag represents, or so undermining of communitarian unity through common reverence for key national symbols, as to justify suppression. To be sure, such suppression is, ironically, directly inconsistent with the premises underlying the political system represented by that flag. Nevertheless, if one begins with the premise that certain expression may be deemed so offensive or undermining of communitarian values as to lose its protection, flag burning could just as easily fit that description as does the type of hate speech described by Michelman. If the standard is one of offensiveness to the community, the fact that ProfessorMichelman is apparently not so offended is, of course, beside the point. In any event, it should be noted that Michelman does not actually commit himself to an exclusion of protection for hate speech, and at no point does he extend that exclusion to the type of "uncivil" expression involved in Falwell. 210. Cf Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert denied, 439 U.S. 916 (1978). CALIFORNIA LAW REVIEW [Vol. 79:267

Post does attempt to find some stopping points. He writes that "public discourse will probably be impoverished, to some unspecified degree, whenever the enforcement of community civility standards diminish[es] speech about well-known matters. It does not follow from this that speech about well-known but seemingly trivial issues must be included within public discourse." 21' This sentiment, of course, intends to place a ceiling on the infringement of speech that will result from adoption of the public civility model. But this "limiting of the limits" obfuscates as much as it elucidates. "Seemingly trivial"-"seemingly" in what sense? And "trivial" according to whom? After all, it can reasonably be argued that the underlying issues implicated by the advertisement parody in Falwell, however venal and obnoxious, were not "seemingly trivial," because the parody embodied Flynt's quasi-ideological ridicule for what he believed to be Reverend Falwell's hypocritical sense of Christian wholesomeness. Moreover, if community sensibilities dictate censorship of Flynt's ridicule of Falwell, would they similarly penalize Falwell's reference to Flynt as a smut peddler? Could a community organ, under Post's hypothesis, legitimately penalize the former but not the latter, simply because it finds Flynt more offensive than Falwell? If so, one is effectively left with the equivalent of communitarian vigilantism, unrestrained inany meaningful sense by the constitutional protection of free expression. Once one accepts the basic premise that violation of communitarian sensibilities may be grounds for the punishment of expression, it is difficult to find any principled stopping point for application of that premise. 212

B. Pornography Traditional Supreme Court obscenity doctrine21" can be viewed as an outgrowth of the "communitarian determinative" branch of civic republican theory. Indeed, the Court's express reliance on such factors as the speech's offensiveness to the community214 places obscenity doctrine within the bounds of that model. The assumption of the social worthlessness of such expression is essential to the logic of modem

211. Post, supra note 9, at 674. 212. Post's reliance on our common law tradition protecting communitarian values, id. at 638- 39; see also Post, The Social Foundationsof Privacy: Community and Self in the Common Law Tort, 77 CALIF. L. REV. 957, 969-74 (1989), essentially begs the constitutional question. To the extent that common law traditions are found to be inconsistent with the value structure underlying the first amendment, it is clear that, within our legal hierarchy, the latter prevails. See, eg., Time, Inc. v. Hill, 385 U.S. 374 (1967) (privacy); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (defamation). 213. The Court's current obscenity doctrine is embodied in Miller v. California, 413 U.S. 15 (1973). 214. Id. at 24. 1991] FREEDOM OF EXPRESSION obscenity doctrine.21 While such an assumption-indeed, the government's very right to make such an assessment in the first place-may be challenged on traditional "individualist" grounds,216 this factor at least limits the body of restricted speech and reduces the danger to other forms of speech. A new rationale for regulation of pornography, which in recent years has gained favor in certain feminist circles, is more pernicious to free speech doctrine.217 In his commentary on pornography regulation, Professor Sunstein has aligned himself, at least in part,21 with this feminist view. Although his analysis of pornography regulation preceded exposition of his revived republicanism, the temporal closeness of his two analyses and their general intellectual compatibility make it reasonable, we believe, to view his approach to pornography as an outgrowth of his broader commitment to republican philosophy.219 As such, this approach presents a clear picture of the logical impact of this philosophy on concrete issues of free speech regulation. In his analysis of modern republican philosophy, Sunstein stresses that the protection of free expression is generally one of the nondebatable "preconditions" in his civic republic-a precondition, in fact, which would be responsible for those substantive outcomes that he considers "uniquely correct."22 He regards speech protection as vital to society, as well as to his model of rational deliberation.221 However, another precondition is equally vital: the "prohibition of discrimination against blacks and women."2'22 In his earlier discussion of pornography, Sunstein found those preconditions, freedom of expression and the prohibition of discrimination, to be in insoluble conflict. Reasoning from a perspective that effectively, if not explicitly, accords with his civic republican leanings, Sunstein suggested that much governmental regulation of pornography should be found constitutional.223 Conceding at the outset that pornography is difficult to define, Sunstein asserts that it nevertheless can be regulated if it has several dis-

215. Id. at 24-25. 216. See M. REDISH, supra note 51, at 68-76. 217. See, e.g., A. DWORKIN, PORNOGRAPHY: MEN POSSEsSING WOMEN (1981); MacKinnon, Not a Moral Issue, 2 YALE L. & POL'Y REv. 321 (1984). 218. Although he supports regulation of pornography, Professor Sunstein arguably imposes some constraints on regulation not contemplated by feminist theory. See infra text accompanying notes 231-34. 219. Sunstein's article on pornography regulation appeared two years before his work on civic republicanism. However, he has subsequently largely reaffirmed his position on pornography. See Sunstein, Feminism and Legal Theory (Book Review), 101 HARV. L. REv. 326 (1988). 220. Sunstein, supra note 3, at 1550. 221. Id. 222. Id. 223. See generally Sunstein, supra note 26, at 626-27 (arguing that pornography is regulable within traditional first amendment doctrine). CALIFORNIA LAW REVIEW [Vol. 79:267 tinct features. It "must (a) be sexually explicit, (b) depict women as enjoying or deserving some form of physical abuse, and (c) have the purpose and effect of producing sexual arousal."22 Sunstein acknowledges that this definition derives in part from the feminist perspective on pornography, exemplified by the works of Catherine MacKinnon and Andrea Dworkin225 and embodied in proposed legislation in Minneapo- lis, Cambridge, and Los Angeles, and in the adopted legislation in Indi- anapolis found unconstitutional by the Seventh Circuit.226 By focusing solely on the depiction of "women as enjoying or deserving some form of physical abuse," Sunstein's approach to pornography regulation differs dramatically from traditional obscenity doctrine. Rather than allowing regulation solely because such speech is found not to contribute to the marketplace of ideas, this approach focuses on what is considered the offensiveness or falsity of an underlying message. According to Sunstein, pornography "both sexualizes violence and defines women as subordinate to men."2'27 Rape is featured, "explicitly or implicitly, as a fundamental theme."2'28 In that sense, Sunstein's pornography regulation logic fits quite comfortably with his "external- objective" model of modern civic republicanism. The equality and integrity of women is clearly one of Sunstein's objective moral truths.229 Nothing, apparently, turns on the collective's own moral sense of this issue. In accordance with the logic of suppression that flows from the assumption of absolute moral truth,230 Sunstein appears to rationalize regulation of pornography on the basis of the "external-objective" model. Perhaps in light of both the doctrinal 231 and theoretical 232 difficulties such blatant viewpoint regulation raises, Sunstein "excludes the vast range of materials that are not sexually explicit, even if they do contain implicit rape themes. The requirement of sexual explicitness is thus a means of confining the definition. '233 Sunstein also "requires that the appeal of the materials be noncognitive, ' '234 another limiting device. As a result of these limitations, Sunstein has blended traditional

224. Id at 592. 225. See A. DWORKIN, supra note 217; MacKinnon, supra note 217. 226. Booksellers v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd mem. 475 U.S. 1001 (1986). 227. Sunstein, supra note 26, at 592. 228. Id. 229. See Sunstein, supra note 3, at 1553. 230. See supra text accompanying notes 63-64. 231. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) (inciteful speech regulable only where there exists imminent threat of violence); Sunstein, supra note 26, at 602. 232. Sunstein, supra note 26, at 592. 233. Id 234. Id Professor Schauer had earlier developed this theory, when he argued that "the prototypical pornographic item shares more of the characteristics of sexual activity than of communication." F. SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 181 (1982). 1991] FREEDOM OF EXPRESSION obscenity doctrine with the "external-objective" approach, and in doing so has destroyed the internal logic of his rationale. Initially, it is incoher- ent simultaneously to justify regulation because the message conveyed by pornography is false on the one hand and "noncognitive" on the other.235 Both, of course, cannot be true of the material sought to be regulated. Secondly, Sunstein provides no logical basis for regulating expression that "sexualizes violence and defines women as subordinate to men" only when it is both sexually explicit and has "the purpose and effect of producing sexual arousal." Could not expression that meets neither of these criteria cause the societal harms Sunstein fears? Sunstein's answer is that the additional requirement of these two factors brings pornography within the doctrinal ambit of the Supreme Court's conception of "low- value" speech, to which the Court has traditionally provided either 23 reduced236 or n0 237 protection. 8

235. Sunstein acknowledges this apparent contradiction. Sunstein, supra note 26, at 607. He responds, however, that "an argument along these lines is based on a misconception of what entitles speech to the highest form of protection. Child pornography, for example, may reflect an ideology, but this did not compel the Court to hold ...that child pornography is constitutionally protected." Id. On several fronts, however, Sunstein's response misses the point. Initially, that child pornography may be regulated in no way provides logical support to Sunstein's assertion that pornography is noncognitive and therefore regulable. To be sure, Sunstein could argue that pornography may be regulated because of the danger of harm it may cause, though Sunstein himself recognizes the problem with this argument. See infra text accompanying note 240. But any such danger is a totally independent issue; it has absolutely no relevance to the argument that pornography may be regulated because it is noncognitive. In any event, his analogy to child pornography is fatally flawed. The government may regulate child pornography not out of fear that people exposed to it will be persuaded that subjugating children in this manner is a good idea. Rather, regulation is permissible because the very act of preparing the child pornography directly causes unacceptable harm. See New York v. Ferber, 458 U.S. 747 (1982). Thus, the rationale for regulating child pornography would logically not extend to a fictional work describing acts of child pornography, while Sunstein's logic would lead to suppression of such work. Sunstein's argument also would seem to allow a governmental prohibition of expression advocating the legalization of child pornography. In such a situation, the fear relied upon to justify regulation would be analogous to Sunstein's argument supporting regulation of pornography-the fear that people will, by exposure to it, begin to believe that the subjugation of women is a good idea. There should be little doubt, however, that a legislative prohibition on advocacy of the legalization of child pornography would be an unconstitutional regulation of viewpoint. 236. See, eg., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980) (commercial speech). 237. See, eg., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words). 238. Sunstein argues that "most categories of low-value speech... amount in some respects to an ideology.... But that fact does not justify a conclusion that courts should accord such speech the highest level of constitutional protection." Sunstein, supra note 26, at 607; see also Sunstein, Low Value Speech Revisited, 83 Nw. U.L. REv. 555, 559 (1989). However, he fails to explain why this fact should not lead to this conclusion. For an argument that it should, see M. REDISH, supra note 51, at 60-86. More importantly, Sunstein has failed to establish that the Court, which has relegated those categories of expression to "low-value" status, actually acknowledges that they convey an ideological position. To the contrary, the Court's traditional-albeit arguably flawed-rationale for recognizing speech as "low-value" in the first place is that "such utterances are no essential part of any CALIFORNIA LAW REVIEW [Vol. 79:267

The difficulty with this construct, however, is that even in those "low-value" categories the Court has never justified regulation by ques- tioning the substance of a message being conveyed. Indeed, in the obscenity area the Court has made efforts to distinguish permissible obscenity regulation from impermissible viewpoint regulation.239 Unless Sunstein can demonstrate some reasonable basis for distinguishing, for regulatory purposes, between erotic and nonerotic speech urging the subjugation of women, his distinction is as irrational as the regulatory exclusion only of alternate examples of pornography. In an attempt to distinguish the pornography regulation he advocates from classic viewpoint regulation, Sunstein seeks to align his rationale with the logic of the advocacy-of-unlawful-conduct cases. Under this reasoning, pornography is regulable, not because of disagreement with any substantive message it conveys, but because it either directly or indi- rectly advocates criminal violence against women. But as Sunstein acknowledges, the link between pornography and actual sexual violence is at best unproven. 2' More importantly, even if one could conclusively establish some connection, regulation would still fail the Supreme Court's test of temporal imminence, required precisely to avoid substantial interference with public debate.241 In fact, when advocacy of unlawful conduct is found to be indirect, rather than direct, the logic of free speech dictates that the constitutional demand for temporal imminence be even greater to justify suppression.242 Otherwise, government will be

exposition of ideas." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). Indeed, when such "low-value" expression as commercial speech intersects with ideological expression, the Court has been careful to prevent viewpoint discrimination. See, eg., Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980). The same is true in the regulation of obscenity. See infra text accompanying note 239. For a persuasive attack on Sunstein's theory of "low-value" speech, see Alexander, Low Value Speech, 83 Nw. U.L. REv. 547 (1989). 239. Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684 (1959). 240. See Sunstein, supra note 26, at 599-600. 241. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (holding that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action") (citations omitted). Sunstein argues, however, that "[u]ncertainty about the nature and extent of the link [between pornography and sexual violence] . . . hardly counsels inaction," because "[i]n the context of carcinogens... regulatory action is undertaken in cases in which one cannot be sure of the precise causal convection between a particular substance and causes--even when the regulation is extraordinarily costly. Pornography may be at least as harmful as many carcinogens currently subject to regulation." Sunstein, supra note 26, at 600-01 (footnotes omitted). He therefore concludes that "[tihe analogy is close." Id. at 601. Unbelievably, in purporting to draw a close analogy between the regulation of carcinogens and pornography, Sunstein has completely ignored the fact that the latter is expression and therefore at least arguably falls within the protections of the first amendment right of free speech, while the former does not. 242. This is the lesson of Judge Hand's highly respected position in the famed Masses decision, Masses Pub. Co. v. Patten, 244 F. 535 (S.D.N.Y.), rev'd 246 F. 24 (2d Cir. 1917). See Ely, Flag 1991] FREEDOM OF EXPRESSION invited to employ the concern over the advocacy of unlawful conduct as a guise for the suppression of unpopular views.2 43 In the case of pornography, the "advocacy" of criminal acts against women is, at best, indirect, since the mere depiction of a rape no more constitutes advocacy of the real-life performance of that act than a graphic murder mystery constitutes advocacy of murder. In any event, acceptance of Sunstein's link between pornography and harm would fail to justify the confinement of pornography regulation to either sexually explicit or erotic material, 2' since expression advocating the sexual subjugation of women could conceivably lead to the very same harms even without meeting these criteria. Sunstein further attempts to rationalize pornography regulation by pointing to the motivation of the pornographer, which, he asserts, is not to convey a message but simply to titillate-presumably for purposes of commercial gain.245 While such logic fits well with the broader civic republican framework Sunstein has fashioned, 46 it is wholly inconsistent with the long-established constitutional precept that a speaker's motivation is irrelevant to the level of protection given the speech.247 Adoption of Sunstein's reasoning could logically lead to a reduction in first amendment protection for anyone found to have a purpose for her expression unrelated simply to conveying a message. Thus, a writer whose sole or primary goal was financial gain would lose first amendment protection. The same could be true for anyone who makes her living from expressive activity. The true danger of Sunstein's rationale for pornography regulation is exemplified by his characterization of one of pornography's harms as "the role it plays as a conditioning factor in the lives of both men and women. Pornography acts as a filter through which men and women perceive gender roles and relationships between the sexes."248 With this argument, Sunstein reveals the real viewpoint-based logic of his theory. In effect, Sunstein is arguing that pornography should be suppressed because it gives rise not to criminal conduct, but simply to attitudes that have led or will lead to substantive moral or social results he finds immoral or distasteful. As a result, both the private and public decisionmaking processes will occur not through free and open debate, but

Desecration:A Case Study in the Roles of Categorizationand Balancing in FirstAmendment Analysis, 88 HARv. L. REv. 1482 (1975); Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine:Some Fragments of History, 27 STAN. L. REv. 719 (1975). 243. See, eg., Debs v. United States, 249 U.S. 211 (1919). 244. Sunstein, supra note 26, at 592-93. 245. I at 607. 246. See supra text accompanying notes 87-130. 247. See supra text accompanying notes 80-83. 248. Sunstein, supra note 26, at 601. CALIFORNIA LAW REVIEW [Vol. 79:267 through external manipulation of the flow of information and opinion. In this sense, his argument represents a classic illustration of the civic republican "exteral-objective" model's impact on free speech protection. We should emphasize that our rejection of the republican and feminist logic for pornography regulation in no way implies any level of moral agreement with or acceptance of the underlying position arguably conveyed by the material those theories seek to suppress. But that is the very point of the constitutional ban against viewpoint regulation. Ulti- mately, these theories of regulation have as their primary concern the shaping of societal attitudes about the role and position of women. If, consistent with the epistemological assumptions of the "external-objec- five" model, those supporting such regulation firmly believe in the absolute moral truth of their position, the suppression of the contrary view, as Holmes told us, 49 makes perfect sense. But once one crosses such a bridge, one can justify regulation of viewpoint on any issue, simply by appeal to absolute truth-an absolute truth that will, purely as a factual matter, be determined by those in power. Thus, while Professor Sunstein attempts-unsuccessfully, as a logical matter-to confine the reach of the permissible level of viewpoint regulation he urges, no logical means of preventing the spillover into other areas of public debate presents itself. Indeed, under the logic of the "external-objective" model, such viewpoint regulation would appear quite reasonable when applied to any issue for which the creators of this model believe there exists absolute truth.

CONCLUSION "Shall I project a world?" wonders Mrs. Oedipa Maas, heroine of Thomas Pynchon's celebrated novel The Crying of Lot 49.21o The "projection" of a world, the transformation of one's personal ideal, impulses, and values into an external structure that others in society are meant to visit and inhabit, is a familiar temptation for scholars. Unfortunately, the projectors of such worlds too often "stack the deck" from the outset, reserving the privilege of control for themselves and thereby denying to the would-be new inhabitants any potential for true autonomy. With their recent reconstruction-or "projection"-of civic republicanism, modern theorists "stack the deck" in this way. According to these theorists, citizens in a republic should participate in the decisionmaking process and seek a common good with objectivity and openness. Yet some modern republican theorists' belief in relatively easy and abso-

249. See supra text accompanying note 74. 250. T. PYNCHON, THE CRYING OF LOT 49, at 59 (1966). 1991] FREEDOM OF EXPRESSION lutely correct answers cuts fatally against the essence of deliberation. Deliberation is impossible when answers are presented to the polity as prerequisites not to be questioned. Apart from its intrinsic flaws, modem civic republicanism threatens severe consequences for many areas of American constitutional law. These consequences are especially dire when the new republican ideology extends to the freedom of expression guaranteed by the first amendment. If, as the modem civic republicans would have it, the interests of society are allowed to precede the interests of the individual in the political realm, then the tastes of an audience may outweigh and overcome the (previously) constitutionally protected right of a speaker. To the extent that modem republican theory asserts the existence of certain externally derived, objectively "right" values, it threatens the core element of first amendment jurisprudence---viewpoint neutrality. Even those branches of modem republican theory that eschew such externally derived values in favor of a belief in the value of communitarian self-determination present serious threats to free expression. For such theories are much too willing to sacrifice the individual's interest in creativity and development to the often stifling sweep of communitarian sensibilities. Thus, while the normative debate over the merits of civic republicanism continues to rage, one need look only to the impact of republican theory on free speech values to see the dangers of the current revival.