To Whom Does Free Speech Belong?

When I talk to students about free speech issues, one of the major objections to America’s conception of free speech is that it favors the rich and powerful, thus perpetuating the status quo.  This is a fair and important objection.  In this post, I will address the reasons that I ultimately find this objection conceptually and empirically unsatisfying.  Each of these reasons deserves its own blog post, so I want to just begin this conversation by outlining my thoughts here.


First, the First Amendment does, to some degree, work in tandem with a free market (although one certainly doesn’t need to be an economic libertarian to agree with strong free speech protections).  Written in libertarian terms, the First Amendment prevents the government, in most cases, from interfering with the marketplace of ideas or redistributing speech rights.  The fear of government power to dictate which ideas are worthy of expression means that we all have an equal ability to speak, but we all do not have the same platform to speak.  Because the free market creates disparities in wealth and status, there are more avenues through which, for example, Kim Kardashian can express her message.  The New York Times has a much greater voice than I do, and I, as a teacher, have a larger audience than some.  Companies and individuals can create speech endorsing particular candidates (although direct contributions can be more limited, money to produce speech receives greater First Amendment protections), and this leads to disparities in speech about politics.

The First Amendment must also necessarily draw sharp distinctions between government as speaker and private citizen as speaker, safeguarding private individuals’ ability to control the speech on their own property.  When the government sets up a forum for private speech, it must allow all viewpoints access (an egalitarian application of the First Amendment).  However, the government may also set up a venue for a particular speaker.  In those cases, protesters cannot shout down the invited speaker.   Shouting down speech in a forum dedicated to that speech isn’t a free speech right, so marginalized protesters may have less of a voice than established, invited speakers.  Similarly, private parties may host whatever speech they want on their own property.  If, in my house, I want only posters supporting Hillary Clinton, that is my right.  The government cannot intervene.  This requires the government to protect my property rights neutrally, without regard to the speech I accept or reject on my property, resulting in some individuals, with larger platforms or more property, being able to host more of the speech they like.

Acknowledging all of this, I still believe these rules create a coherent First Amendment system that can be justly applied by the government (and also adopted by private universities in some cases).  I believe this because keeping the government out of the business of redistributing speech rights or equalizing speech access also ensures that free speech is a voice for the powerless.  A libertarian conception of the First Amendment, written into its text, means that the majority, though legislation, policies, or administrative action, cannot stifle minority voices.  The government, or the most powerful in any context, cannot dictate which viewpoints are and are not acceptable.  This gives voice to the weakest, most disaffected members of society in any given context.

Some viewpoints or speakers may not have as large of a platform, but our current conception of the First Amendment means that no one can be prevented from having a platform.  And with more and more spaces available for speech, the more willing listeners one garners, the more one can communicate his or her message.  The Internet, a hugely democratizing speech platform, allows us to reach so many, regardless of our wealth or power.  (Keeping the government away from Internet speech is important, and Net Neutrality raises interesting questions about who are the private speakers on the Internet- a blog post for another day.)

As long as there is a place for protest that doesn’t essentially veto a speaker, free speech rights can accommodate everyone.  Distinguishing between speech and vandalism, or speech and disrupting speech, ultimately allows for speech to flourish without everyone shouting at once, which ultimately becomes the same as silence.  So long as the government must create some venues where everyone has equal access to speech, such as a student activities fee at a public university or the space at a public park, then we can all hear who we’d like to hear.  Protesters can congregate near designated speech, allowing their voices to be heard, without dominating another speaker’s event.  And in our private lives, we choose whom we want to hear, but we cannot force others not to speak to willing recipients or change the distribution of private choices made between speakers and listeners.  These rules allow willing audiences to connect with willing speakers while also giving more marginalized speakers the ability to communicate.

The government can create laws banning unpopular, harmful, or immoral conduct, but it cannot suppress individuals from continuing to advocate for those activities.  The First Amendment is thus also an engine for changing the status quo, rather than simply preserving the status quo for the rich and powerful.  What is considered obviously true by the majority of society changes from generation to generation, and that is why the biggest First Amendment evil is the government censoring viewpoints that most everyone finds disagreeable.  Free speech, as Justice Holmes so eloquently said, is part of the American experiment; it’s how we learn and progress as a society.

The First Amendment does not benefit everyone equally at all times, but it means that the government cannot deny free speech benefits to anyone.  Everyone has the opportunity to have his or her voice heard; no one can wholly veto another person’s speech; and we all have the ability to connect with willing listeners.  Free speech plaintiffs are often the politically unpopular, members of religious minorities, members of civil rights boycotts, or journalists publishing a controversial story.  The process of applying the First Amendment may not lead to equal communication by all in its results, but it benefits powerless groups far more than allowing greater governmental control.