Posted: July 16, 2014
A review of Freedom of Expression: Purpose as Limit, by Francis Canavan
n an observation demonstrating his marvelous insight, Alexis de Tocqueville noted the tendency in America for political questions to turn into judicial questions. We could say today that judicial questions tend to turn into constitutional questions because of the increasing flexibility of constitutional terminology. The power of judicial review makes sense, however, only if its exercise is shaped by an understanding of the relationship of particular constitutional provisions to each other and to the Constitution as a whole.
It is in the area of free speech (or freedom of expression as it is now denominated) that the very possibility of such understanding is denied. Freedom of expression is viewed by many as an absolute, overriding end in itself: To invoke the First Amendment is to end the discussion.
The consequence of this view has been a general disarray in First Amendment jurisprudence. The substance of expression is absorbed into form: If it communicates, it is protected, notwithstanding the content of the communication. The protection of all expression, without any further justification other than that it is expression, cuts off any inquiry into the purpose of the expression and its relation to the ends of constitutional government. Thus, for example, it has been seriously urged that nude dancing, hair styles, and sleeping in the park each constitute protected forms of expression.
In its own ironic way, the view that freedom of expression is an end in itself has become the new orthodoxy. There is a special indignation reserved for those who believe that there are other principles to be considered in addition to freedom of expression. For example, when the president of the University of South Dakota refused to provide funds for a female mud-wrestling exhibition, there was an outcry at the university about interference with the students' First Amendment rights. (One suspects that had a faculty member offered to be part of the exhibition, there would also have been the charge that academic freedom had been infringed.) The President's response that female mud-wrestling was not compatible with the university's mission seemed like a non sequitur to the First Amendment advocates.
The attempt to bring discussion of freedom of expression back within the framework of a comprehensive understanding of constitutional government is the intention of Francis Canavan's Freedom of Expression: Purpose as Limit. Father Canavan argues that the definition of the freedom should start from the purposes it is intended to serve and its relation to the other purposes which the Constitution also intends to achieve (p. 2). He wishes to reestablish its roots in constitutional government by raising a fundamental question about freedom of expression: Why do we have it and what are we trying to accomplish by it as a people (p. xii)? Canavan believes the meaning of the freedom is molded by its intended purpose of serving the political needs of an open and democratic society (p. 3). Freedom of speech opens the channels by which the consent of the governed is ascertained. There are, in addition, social goals which go beyond the political realm. As Justice Felix Frankfurter said: "Freedom of expression is the well-spring of our civilization. . . . For social development of trial and error, the fullest possible opportunity for the free play of the human mind is an indispensable prerequisite" (p. 5).
The purpose of freedom of speech not only furnishes a justification of the freedom, it also provides a limitation on certain abuses of the rights which are antithetical to its purposes.
If a freedom is guaranteed for the sake of a certain end, those uses of the freedom which make no contribution to that end or are positive hindrances to its achievement, are abuses of the freedom and cease to enjoy the protection of the guarantee, unless the effort to suppress the abuses would be an even greater hindrance to the end. (pp. 6-7, emphasis in original)
Abuses are thus to be tolerated as a matter of judgment, not because the right is absolute or because there is no principled distinction between use and abuse of the right (p. 6).
Contemporary First Amendment scholars generally believe, however, that the threat of government suppression or regulation of expression always poses a greater harm than the harm which might result from abuses of the freedom. "The only acceptable solution to the problem, according to this view, is to absolutize the guarantee and to protect all utterances and publications without discrimination, so long as they remain in the realm of expression and do not pass over into the area of conduct" (p. 7). This view was advocated on the Court by Justices Hugo Black and William O. Douglas.
Although the Supreme Court has never fully embraced the Black-Douglas view that freedom of expression is an absolute right and an end in itself, neither has it embraced the alternative position that the freedom should be analyzed in light of its intended purposes. Instead, the Court acknowledges, on a case-by-case basis, certain limitations on freedom of expression. While preferable to the absolutist approach, this approach is not so much a view of the First Amendment as it is a way to avoid having a view on the First Amendment. The Court's inability to articulate standards which are based on an understanding of the purposes of freedom of speech is at the root of the contemporary disarray in First Amendment jurisprudence.
Some scholars have claimed that freedom of expression is deeply rooted in our history and that there is a traditional literature of freedom of thought and expression which supports the view that the right is an end in itself. Canavan devotes the major portion of his book to a consideration of this claim. Canavan examines the views of John Milton, John Locke, Benedict Spinoza, Tunis Wortman, John Stuart Mill, Walter Bagehot, Harold Laski, Zechariah Chafee, Jr., and Alexander Meiklejohn, and considers that their writings do not support the view of freedom of speech and press as an end in itself.
For Milton, Locke, and Spinoza, the defense of freedom to speak and publish was also a defense of free inquiry into moral and political truth. Milton defended "bad books" on the ground that immoral books could serve a moral end, because knowledge of good depends on knowledge of evil (p. 48). Freedom from prior restraint was a means to this moral end; to sever the means from the end, and thus to view the freedom apart from its purpose, Canavan argues, is to distort Milton's position (pp. 52-53). Locke's argument for toleration was directed primarily to freedom of religion, but extended to seeking the truth (p. 70). Like Locke, Spinoza urged freedom in matters of religious opinion and the free use of reason in every aspect of human life (pp. 76-77). Spinoza, however, went beyond Locke in advocating freedom of opinion as a means of fostering political discussion and educating people as citizens (p. 76).
The foremost treatise on freedom of speech and press in early America was by Tunis Wortman, a New York lawyer. He argued that public opinion must be the ruling power, but that public opinion had to become enlightened. Freedom of thought was indispensable to "the progression and happiness of mankind" (p. 83). Wortman's belief in the power of reason to arrive at moral and political truth was the foundation of his argument for freedom of speech and press.
Of the authors in Canavan's survey, John Stuart Mill probably is the closest to viewing free speech as an end in itself: what one thinks does not concern others, and speaking is inseparable from thinking (p. 88). Yet individual freedom is not wholly without standards, according to Mill, because he assumed that freedom would be used for individual self-improvement. Canavan concludes that the moralism implicit in Mill's assumptions and his evasion of the tougher questions make it unlikely that he would have supported an unrestricted freedom of the kind advocated today (p. 100).
The other writers surveyed by Canavan argued strongly for freedom, but again not without limits. Bagehot believed that liberty of discussion was necessary for good government, but he conceded that "[n]o government is bound to permit a controversy which will annihilate itself: it is a trustee for many duties, and if possible it must retain the power to perform those duties" (p. 109). Laski argued for broad political and social freedoms; however, he appeared to assume that "social criticism of the kind that is amenable to rational discussion is to be expected only from the Left" (p. 121). Those who have wealth, power, and privilege cannot be expected to be open minded about public policy (p. 123). Thus Laski's defense of freedom was not necessarily a defense of freedom for all. Zechariah Chafee, Jr., whose views on the First Amendment influenced Oliver Wendell Holmes, Jr., was a professor at the Harvard Law School. He did not, however, "propose expression as an end in itself, detached from the rational and moral purposes it served. Expression, to him, was for the sake of discussion, and discussion was for the rational pursuit of truth" (p. 134). While Alexander Meiklejohn had strong libertarian views, he did not advocate freedom of expression without restriction. He argued in favor of a two-tier approach: absolute freedom in the consideration of matters of public interest, and no undue regulation on other kinds of expression. For this expression, the freedom was a "relative constitutional right that may be abridged for sufficient public reason" (p. 139).
Canavan concludes from his survey of the literature that the writers "argued almost exclusively in terms of reason, truth, and moral and political development" (p. 143). It is not certain whether the view of freedom of speech as an end in itself would have made any sense to them. Nevertheless, these writers were often enlisted by contemporary liberals such as Justices Black and Douglas and Professor Emerson to the cause of absolute freedom. This conscription of the liberal tradition of freedom of speech was done in order to obscure the radical nature of the current trend in First Amendment jurisprudence. One of the most valuable contributions of Father Canavan's book is to make clear the arguments of those who have reflected and written in the cause of freedom properly understood. Canavan's survey also provides further evidence of the tendency of contemporary liberalism to transform itself into something wholly different from the intellectual roots.
The trend in contemporary First Amendment jurisprudence is to reject all limitations on expression. Consider, for example, the following sentence written by Justice Lewis Powell. "Under the First Amendment there is no such thing as a false idea." The logical fallacy of this statement is readily seen by expressing the statement in its more complete form: Under the First Amendment the only true idea is that there is no such thing as a false idea. Justice Powell's statement is an example of the inroads which skepticism and relativism have made in First Amendment jurisprudence. The exercise of human reason becomes a purely private matter. No one is accountable for his views, no matter how ridiculous. The result of skepticism and relativism is to regard freedom as a "value" or an individual "preference." As Canavan argues, "the liberal temptation is . . . to lapse into radical skepticism and moral relativism in order to leave the individual free to set his course by whatever standards he chooses" (p. 145). This ultimately undercuts the importance of freedom of speech because its best defense is that it makes possible the apprehension of truth, goodness, and beauty by the human mind and heart (p. 146).
The view that reason is essentially private also has consequences for First Amendment jurisprudence. It engenders a preference for a strict rule forbidding limits under any circumstances rather than imposing limits in some cases through the exercise of prudential judgment. Judgment is regarded as inherently faulty because it represents merely the prejudices of the decision maker (p. 149). Moreover, an abstract rule allows the judiciary, which has proven to be amenable to the arguments of activist lawyers, to wield power over elected officials.
Equally important is the power this gives the judges to reject popular judgments on these questions. It is worse, in the view of judges, to have juries making judgments than politicians (see, e.g., Miller v. California, 413 U.S. 15, 37  [Douglas, J., dissenting]). Ironically, juries have traditionally been considered the natural defenders of popular liberties (p. 149). Part of the expansion of judicial power in the area of constitutional law has been at the expense of juries because they are believed to be untrustworthy in the defense of civil liberties. This reflects a general distrust of all popular judgments on political questions (p. 150).
Canavan proposes the restoration of judgment in First Amendment cases. By judging in the light of the purpose of the freedom, Canavan believes that one can work with imprecise terms like "obscenity," "defamation," or "advocacy of violent overthrow" to determine whether limitations on expression are reasonable (pp. 150-51). Canavan believes the argument that the public always goes too far, contemptuously dismisses the common sense and judgment of ordinary men and women, and attempts to substitute abstract doctrine in their place (p. 150). Society thereby becomes conceptualized in a series of "bloodless categories" (p. 25). Canavan's focus on purpose therefore helps to restore concrete considerations to constitutional analysis.
Father Canavan's fundamental questions about the purposes of free speech point the way to recovery in this area. Constitutional law without clearly articulated purposes is a prescription for disaster. It promises to undermine the democratic process by giving legislative and executive powers to an unelected and unaccountable judiciary. Moreover, this judiciary is continually advised (by what Richard Morgan terms "the rights industry") that the people cannot be trusted to protect civil liberties. Judges can serve the public interest by guarding constitutional rights, but only when they draw their authority from the Constitution and its purposes. As Canavan warns: "[W]hen the purpose of freedom is forgotten, freedom cannot long survive" (p. 40).