Veil of Ignorance: Tunnel Constructivism in Free Speech Theory
Copyright 2013 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 107, No. 2 VEIL OF IGNORANCE: TUNNEL CONSTRUCTIVISM IN FREE SPEECH THEORY Andrew Koppelman ABSTRACT—Modern free speech theory is dominated in the courts and the academy alike by a constructivist style of reasoning: it posits a few axiomatic purposes of speech and from these deduces detailed rules of law. This way of thinking can make the law blind to the actual consequences of legal rules and damage both individual liberty and democracy. I develop this claim through a critique of the work of Martin Redish, who has developed the most sustained and sophisticated constructivist theory of free speech. Free speech constructivism is not the only way to understand the First Amendment. It is a fairly recent development, emerging only in the 1970s. The idea of free speech, on the other hand, dates back to Milton’s arguments in the 1640s. This Article identifies the pathologies of constructivism and recovers an older, more attractive free speech tradition. AUTHOR—John Paul Stevens Professor of Law and Professor of Political Science, Northwestern University. This Article owes its inspiration to several years of teaching with Vincent Blasi’s fabulous casebook, Ideas of the First Amendment (2d ed. 2012). Special thanks to Peter DiCola for putting up with my incessant questions about copyright law and scholarship, and to Steve Heyman for unusually detailed and challenging comments. Helpful comments also came from Bruce Ackerman, Matthew Adler, Larry Alexander, Ron Allen, Jack Balkin, Vincent Blasi, Harry Clor, Richard Fallon, Samuel Freeman, Heather Gerken, Sally Gordon, John McGinnis, Tracy Meares, Chris Nofal, John Durham Peters, Jim Pfander, Jed Rubenfeld, Fred Schauer, Scott Shapiro, Jonathan Shaub, Steve Shiffrin, Rogers Smith, Steven D.
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