An extraordinary political realignment is occurring today: liberals and left-wing thinkers are now urging wide-ranging government regulation of speech. This shift away from what was once a virtually absolutist position favoring the unfettered exchange of information and ideas is already visible in the proliferation of campus speech codes and in the strong support that feminists have given to anti-pornography legislation. But attempts to limit expression in the name of multiculturalism or feminism are neither the most profound nor the most alarming indication of change. Although an organization like the American Civil Liberties Union (ACLU) for the most part still adheres to the older understanding of the First Amendment, growing numbers of liberals now support government supervision of speech, even when the fashionable categories of gender and race are not at stake.
Most of the advocates of the new and more jaundiced look at the First Amendment can be found on university and law-school faculties, but again, far more is at risk than the future of open inquiry on campus. The push to regulate speech comes at a moment when the silicon and fiber-optic revolutions are offering consumers a broad new range of information conduits, ranging from interactive cable television to wireless fax transmissions. To what extent should the government exercise control over the information that flows not only over old and tested channels of communication, but over these new channels as well?
In both cases, the answer of some on the Left is that it should do so to a great extent. One leading exponent of the new censorship is Morton Horwitz of the Harvard Law School. Horwitz is a pioneer in critical-legal studies, a watered-down Marxist philosophy in which legal and moral norms are seen as emanations of class interests. In the November 1993 Harvard Law Review, Horwitz deplores what he calls the Supreme Court’s “laissez-faire” approach to speech. Denouncing the Court’s decision in R.A.V. v. City of St. Paul, which struck down a provision criminalizing hate speech, he likens the reluctance of the current Court to infringe on the right of free speech to its predecessors’ benighted aversion, earlier in the century, to government regulation of business. The very use of this comparison amounts to a sea change, for the Left has hitherto regarded free speech not only as inviolable but as wholly distinct from lowly property rights which are, and in its opinion should be, subject to a vast apparatus of government regulations and controls.
Horwitz, by contrast, openly rejects the notion that the judiciary is required to extend First Amendment protection to all regardless of the content of their speech. Indeed, he attacks today’s Court for favoring what he calls the “universalization of the freedom of speech,” because such an “abstract” doctrine prevents social change. In his view, a model for progressive First Amendment jurisprudence can be found instead in a series of decisions by courts during the Warren era favoring the rights of labor unions, minorities, and “dissidents.” From these he draws the “practical” point that the First Amendment should be seen not as a vehicle for ensuring uninhibited debate, but as a tool for helping disadvantaged groups gain redress. In fact, Horwitz would appear to favor laws regulating expression if the end result serves to advance the political agenda of certain designated groups.
Where Morton Horwitz offers a legal justification for censorship, Stanley Fish, a professor at Duke University and a literary critic who has applied postmodernist literary theories to law, provides a philosophical foundation to underpin it—and a breathtakingly explicit one at that. In the title essay in his recent book, There’s No Such Thing as Free Speech: And It’s a Good Thing Too,1 Fish argues that free speech “is not an independent value, but a political prize,” and any distinctions which the courts have drawn between protected and unprotected expression are “malleable.” Like any other idea, concept, or argument, the principle of free speech is, for Fish, “inherently nothing” but one more noise in the “din and confusion of partisan struggle.”
That being so, it is impossible in Fish’s view for the courts to fashion neutral principles that will protect speech without discriminating on the basis of what is being said. The very purpose of his essay, he candidly states, is to free the “liberal Left” from that illusory concept, adherence to which can prevent it from achieving its goals. While the only policy prescription Fish openly draws is that hate speech be forbidden, his argument offers a rationale for unlimited restrictions on speech to promote the political interests of the Left.
The arguments of Horwitz and Fish are both to the Left of mainstream liberalism, but enthusiasm for government control of speech is by no means limited to their particular precincts. Cass Sunstein, a liberal constitutional-law scholar at the University of Chicago who is occasionally mentioned as a future Clinton choice for the Supreme Court, has also argued in support of regulation. In his latest book, Democracy and the Problem of Free Speech2 Sunstein maintains that just as increased government control was necessary in the 1930’s to promote social welfare, more government regulation of speech is necessary today to promote the optimal dispersion of information in a democratic society.
What we need, Sunstein says, is a “New Deal for Speech.” A well-functioning democracy cannot be sustained if its communications industry is constitutionally immune from regulation; the capricious pressures of the market prohibit the presentation of a diversity of viewpoints, promote “entertainment values” rather than serious discussion of the news, and encourage a “sound-bite” journalism that fails to provide political candidates and public-policy advocates with sufficient airtime to convey their ideas to the public. To overcome this market failure, Sunstein invokes no less an authority than James Madison in arguing that government should impose whatever regulatory measures may be required to ensure that a fully informed citizenry can carry out its democratic responsibilities.
Such, in very brief summary, are the arguments of the First Amendment revisionists. As I have argued elsewhere,3 they are shaky on both constitutional and philosophical grounds, and the assumptions behind them are easily challenged. But the more interesting political question is: whence this sudden enthusiasm on the Left for abandoning free speech in favor of government regulation?
After all, commitment to free speech has long been a centerpiece of modern liberalism, and it is a commitment which, these days, would seem to have paid off handsomely. The concerned citizen, if he likes, can spend his entire waking day glued to C-Span, engrossed in the unexpurgated speeches of his elected representatives. Or he can surf the Internet, enjoying instant and even interactive access to public-policy debates with exponents of every old and new idea ever advocated on heaven or earth. Why, in a world where the sources of public-policy information are more varied, more ubiquitous, and less expensive than ever before, is the Left suddenly inviting government intervention?
The answer is straightforward. Elements on the Left have begun to oppose a free market in ideas for the same reason that inefficient, failing companies favor government regulation of their product market: they fear competition and hope to retard it.
Up until the late 1970’s, liberals and leftists alike were confident that the tools of social science and the broad dissemination of its findings could be employed, by means of massive government intervention, to transform society in a progressive direction. This confidence, however, has been thoroughly undermined by recent developments. On the hard Left, the moral bankruptcy and collapse of Communist regimes have discredited the ideas of “scientific” socialism. Among democratic socialists, the sclerotic condition of welfare states in Europe and elsewhere has made it increasingly difficult to argue that egalitarian policies are compatible with growing, flourishing economies. And for liberals here at home, the dismal consequences of Great Society programs aimed at alleviating the condition of the urban poor are visible to anyone with eyes to see.
Social science itself has shifted in a way that undermines the Left. Researchers in psychology, anthropology, linguistics, and economics are increasingly discovering, as the historian Carl N. Degler notes in his recent In Search of Human Nature: The Decline and Revival of Darwinism in American Social Thought, that much of human behavior is rooted in biology rather than in social convention. This conclusion has political implications that are deeply discomfiting to liberal opinion, with its commitment to the precept that human beings are largely at liberty to remake society as they will. If human nature is substantially shaped by biology, the scope for successful social engineering is necessarily curtailed.
These considerations may seem unduly abstract and even academic, yet they find expression in all sorts of public ways and at every level of public consciousness. Even the runaway success of Rush Limbaugh cannot be fully explained without reference to the collapse of liberal verities and the rise of a conservative counterculture in the marketplace of ideas.
Similarly, the Left opposes school vouchers at least in part because they pose an impediment to its exercise of centralized control over the consciousness of the young through multicultural curricula, such as the “Children of the Rainbow,” and other forms of indoctrination.
In short, many on the Left now prefer to create a system of information dispersion which can be captured politically rather than take their chances with a regime where citizens choose to listen to ideas only if they find them a persuasive explanation of the world or otherwise valuable.
In light of their ebbing faith, it is no longer surprising that some on the Left are seeking to lay the groundwork for a speech regime that would serve as a life-support system for their own antiquated, disproven, and increasingly unpopular ideas. That they are willing in the process to jettison a central precept of their own faith, and a cornerstone of our constitutional arrangements, is a measure of an extremity born of desperation.
1 See the review by Daniel J. Silver in COMMENTARY, February 1994.
2 Reviewed by Daniel E. Troy in COMMENTARY, January 1994.
3 “The Partial Republican,” William and Mary Law Review (Summer 1994).