VOLUME 103 JANUARY 1990 NUMBER 3 HARVARD LAW REVIEW THE CONSTITUTIONAL CONCEPT OF PUBLIC DISCOURSE: OUTRAGEOUS OPINION, DEMOCRATIC DELIBERATION, AND HUSTLER MAGAZINE V. FALWELL Robert C. Post TABLE OF CONTENTS PAGE I. HUSTLER MAGAZINE V. FALWELL ........................................... 6o5 A. The Background of the Case ............................................. 6o6 B. The Supreme Court Opinion ............................................. 612 C. The Significance of the Falwell Opinion: Civility and Intentional Infliction of Emotional Distress ..................................................... 616 11. THE FIRST AMENDMENT AND PUBLIC DISCOURSE ............................. 626 A. Public Discourse and Community ........................................ 627 B. The Structure of Public Discourse ............... ..................... 633 C. The Nature of Critical Interaction Within Public Discourse ................. 638 D. The First Amendment, Community, and Public Discourse ................... 644 Im. PUBLIC DISCOURSE AND THE FALIWELL OPINION .............................. 646 A. The "Outrageousness" Standard .......................................... 646 B. The Distinction Between Speech and Its Motivation ........................ 647 C. The Distinction Between Fact and Opinion ............................... 649 i. Some Contemporary Understandings of the Distinction Between Fact and Opinion ............................................................ 650 (a) Rhetorical Hyperbole ............................................. 650 (b) The Distinction Between Judgments and Preference Expressions ....... 652 (c) Subjectivity ..................... ............................... 654 (d) Verifiability ..................................................... 655 a. Toward a Reformulation of the Distinction Between Fact and Opinion ..... 657 3. The Dimensions of the ConstitutionalPrivilege for Opinion ............... 661 IV. DEFINING THE DOMAIN OF PUBLIC DISCOURSE ............................... 667 A. The Domain of Public Discourse in Contemporary Doctrine ................. 667 z. The Content of Speech: Matters of Public Concern ....................... 667 (a) The Normative Conception of "Public Concern". ..................... 670 (b) The Descriptive Conception of "Public Concern". .................... 672 HeinOnline -- 103 Harv. L. Rev. 601 1989-1990 602 HARVARD LAW REVIEW [Vol. 103:6o 2. The Manner in Which Speech Is Disseminated: Of the MedialNonmedia Distinction and Other Conundrums .................................... 674 3. The Failure of Contemporary Doctrine ................................. 678 B. An Alternative Conception of the Domain of Public Discourse ............... 68o V. CONCLUSION .............................................................. 684 HeinOnline -- 103 Harv. L. Rev. 602 1989-1990 ARTICLE THE CONSTITUTIONAL CONCEPT OF PUBLIC DISCOURSE: OUTRAGEOUS OPINION, DEMOCRATIC DELIBERATION, AND HUSTLER MAGAZINE V. FALWELL Robert C. Post* Hustler Magazine v. Falwell is the most recent in a long line of first amendment decisions in which the Supreme Court has extended constitu- tional protection to outrageous or offensive speech. In this article Professor Post analyzes the theory behind this protection. He argues that speech is defined as outrageous by reference to norms of community life. In the culturally heterogeneous environment of the United States, however, first amendment doctrine functions to facilitate communication among commu- nities, so that a common democratic and public opinion may be formed. For this reason first amendment doctrine demarcates a distinct realm of public discourse that is neutral with respect to the norms of specific communities. Professor Post demonstrates how several important themes in the Falwell opinion follow from this separation of public discourse from community values. In particular he contends that the separation illuminates Falwell's rejection of "outrageousness" and "bad motive" as criteriafor the regulation of public discourse, as well as its reliance upon the curious and muddy distinction between fact and opinion. Professor Post notes, however, that the constitutional concept of public discourse is inherently unstable, because speech that violates community norms of civility is perceived as irrational and coercive, and hence as incompatible with public deliberation. Thus first amendment doctrine suspends legal enforcement of the very norms that make rational deliberation possible. Professor Post labels this the "paradox of public discourse," and argues that the paradox accounts for the jagged and uneven course of first amendment doctrine. The article concludes with a discussion of the various methods by which the domain of public discourse may be defined. T HE recent "revival" of the view that politics should be understood as a "deliberative process"' raises significant questions for first amendment jurisprudence. It invites reconsideration of the function * Professor of Law, School of Law (Boalt Hall), University of California at Berkeley. This paper has improved immeasurably from the comments and insights of others. I would especially like to thank T. Alexander Aleinikoff, Edwin Baker, Mel Eisenberg, Cynthia Fuchs Epstein, Marc Franklin, Kenneth Karst, Seth Kreimer, Sheldon Messinger, Paul Mishkin, Hanna Pitkin, Terrance Sandalow, Ferdinand Schoeman, Philip Selznick, Jerome Skolnick, Rodney Smolla, Bernard Williams, the participants of the Columbia Legal Theory Workshop, and the partici- pants of the Michigan Legal and Political Theory Workshop. I Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1541 (i988). HeinOnline -- 103 Harv. L. Rev. 603 1989-1990 HARVARD LAW REVIEW [Vol. 1o3:6Oi and extent of constitutional protection for public speech. Professor Frank Michelman, an astute participant in the revival, has for ex- ample convincingly argued that public deliberation cannot achieve its purposes if it is "considered or experienced as coercive, or invasive, '2 or otherwise a violation of one's identity or freedom." Although the United States Supreme Court has increasingly fash- ioned first amendment doctrine around the concept of what it calls 3 "public discourse," it has developed the concept in ways that seem plainly incompatible with Michelman's point. Emblematic is the Court's 1988 opinion in Hustler Magazine v. Falwell, in which Chief Justice Rehnquist used the notion of "public discourse" constitutionally to immunize from legal regulation speech that was justifiably experi- enced as profoundly invasive and violative of identity.4 During the last two Terms the Court has explicitly and forcefully reiterated this approach: "in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide 'ade- quate "breathing space" to the freedoms protected by the First Amendment.'"s The purpose of this Article is to assess the justification and struc- ture of the concept of public discourse that underlies these strong conclusions. It uses the Falwell decision as a specific focus for anal- ysis. Part I appraises torts like defamation and the intentional in- fliction of emotional distress, which form the basis of the Falwell case, and illustrates how they regulate communication in order authorita- tively to enforce a particular kind of community life. The first amend- ment doctrines invoked by Falwell prohibit this enforcement within the realm of public discourse. Part II then explores the theory of public discourse that justifies this prohibition. That theory, in brief, turns on the demarcation of a distinct realm of speech within which legal application of the ordinary norms of community life is consti- tutionally suspended. This suspension ensures that in the culturally heterogeneous environment of the United States, public debate can proceed within an arena that is legally neutral with respect to the norms of particular communities. It also creates an arena within which new forms of community life can be exemplified and advocated. But the suspension is conceptually and socially unstable, because speech that contravenes community norms is experienced as coercive 2 Michelman, Law's Republic, 97 YALE L.J. 1493, 1527 (1988). 3 See, e.g., Hustler Magazine v. Falwell, xo8 S. Ct. 876, 881 (1988); Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682-83 (1986); Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802 (i985). 4 See Falwell, io8 S. Ct. at 880-82. 5 Boos v. Barry, 1o8 S. Ct. 1157, 1164 (1988) (quoting Falwell, xo8 S. Ct. at 882); see also Texas v. Johnson, io9 S. Ct. 2533, 2544 (1989) (holding mere offensiveness insufficient to justify suppression of speech). HeinOnline -- 103 Harv. L. Rev. 604 1989-1990 1990] CONSTITUTIONAL CONCEPT OF PUBLIC DISCOURSE 605 and violative of personal identity, and hence as incompatible with constructive public debate. Part III demonstrates how the first amendment doctrines employed by the Falwell opinion follow from its conception of public discourse. The constitutional separation of public discourse from community life illuminates why Falwell rejects "outrageousness" and illicit motivation as grounds for the regulation of public speech. 6 It also explains why Falwell turns on the curious and muddy distinction between fact and opinion, 7 for the Article argues that statements of fact are those which claim to be true regardless of the standards that define community life, whereas statements of opinion are those which claim to be true on the basis of the standards of a particular