2018 Tanner Lectures, Part 1

I

It is a deep, meaningful honor for me to deliver these Tanner Lectures, especially under the auspices of Clare Hall and of Cambridge University.  It is unlikely anyone here today (except Jean) would know the layers of associations for me that make this particular moment much more significant than the usual lecture I might deliver.  In 1983, Jean and I brought our two young children (ages 5 and 9) here to live and work at Clare Hall during a sabbatical from the University of Michigan Law School.  We discovered what so many others have also, this gem of an intellectual and personal home, set in this magnificent university and charming town, which altogether provides its visitors with a magical, out-of-time experience that stays with one for life.  This special bond was made still more special when I was subsequently honored, in 1999, by Clare Hall as an Honorary Fellow. 

It is also personally important to me that, when I was President of the University of Michigan, which is also one of the sites of the Tanner Lectures, I, too, oversaw the lectures, and Jean and I always enjoyed our annual meeting with the other presidents and spouses of host universities.  In that moveable feast of companionship, we became good friends and admirers of Dame Gillian Beer and her late husband, John.  So, even though I know firsthand from that experience just how difficult it can be to find Tanner lecturers, nevertheless to be asked actually to deliver one, and for it to be with Clare Hall and Cambridge University, makes me feel the pleasures that a former cast member of Saturday Night Live feels upon being asked to return as the host. 

Finally, adding further to the layers of special meaning underlying this moment, is the subject of these lectures—namely, freedom of speech and press.  If anything defines my life’s scholarly work, it is this—trying always to understand this extraordinary human and social development, through the prism of the First Amendment to the United States Constitution.  But it also defines my life in a deeper sense.  My grandmother began working as the librarian in a small-town daily newspaper in the 1930s to support herself and my father (a young boy then) when her husband died prematurely.  My father then followed her and began working at the same paper, first as a paper boy and from there working his way up the ladder.  This was in Santa Rosa, California, and the paper was the Press Democrat, much later becoming for a while a property of The New York Times.  I was born in Santa Rosa and spent many hours at the P.D. (as it was called), absorbing the distinctive smells and whirling activities of producing a daily newspaper.  Later, when I was a teenager, my father became the editor and publisher of an even smaller small-town newspaper in Baker, Oregon.  I worked there as the janitor and the developer of films (among other jobs), breathing, as can only happen in that coming-of-age period, the atmosphere of journalism and the press. 

When I began my career as a young law professor (at age 27) at the University of Michigan, I turned almost instinctively to the First Amendment as my field of focus.  Interestingly, in the strange ways of developing scholarly expertise, the year before, as a law clerk to Chief Justice Warren Burger, I had worked on one of the First Amendment cases involving broadcast regulation.  So, of course, I wrote my first article on what I saw as the puzzle of differential treatment under the First Amendment of newspapers and the new media of television and radio, the former protected against regulation and the latter subject to an approved regime of regulation. 

Following that I undertook a more ambitious goal of understanding the theoretical meanings of First Amendment jurisprudence, especially in the context of protecting extremist speech, which is what I pursued here in 1983 while at Clare Hall and which became a book, The Tolerant Society.  All my subsequent writings and scholarship, and the teaching I do every year, seem solidly rooted in and based on these glorious settings in which I was afforded the gift of pursuing my curiosity. 

Throughout my career I have also been fortunate to have many other connections with the areas of freedom of speech and press.  I have served on the Board of the Washington Post Company, including the time in which the newspaper was sold to Jeff Bezos.  As President of Columbia, I am a voting member of the Board that selects the Pulitzer Prizes, a process I admire greatly.  As an academic leader, in the odd way in which life works, I have had far more than my share of free speech controversies and issues.  And I have been involved in more litigation about the First Amendment than I would care to recount, especially as a defendant. 

All this brings me to the subject of my lectures this afternoon, and to another layer of meaning.  These lectures happen to correspond almost perfectly with the publication of a book my good friend and long-time First Amendment colleague Geof Stone, of the University of Chicago Law School, and I have been working on for the past two years.  It is titled The Free Speech Century, and is published by Oxford University Press, and I will draw on it for these lectures.  We invited 16 scholars and practitioners to reflect on the first one hundred years of First Amendment jurisprudence and to begin to grapple with some of the most significant questions we face now and will continue to face in this next century.  Framed by a dialogue and epilogue between Geof and me, the essays offer reflections and critiques of the first one hundred years of cases, address some specific areas of controversy (e.g., campaign finance, campus speech, national security and publication of state secrets), assess the international implications of First Amendment jurisprudence, and try to come to terms with issues raised by the newest communications technology, namely the Internet and its various platforms and search engines. 

Few people realize that all that we take today as constituting the rights of freedom of speech and press is only a century in the making.  Not until 1919, in that period beset with fears and profound feelings of insecurity arising out of the First World War, the Communist Revolution in Russia, supposed international conspiracies to subvert democracies, labor movements, and immigration and foreigners, did the Supreme Court begin to decide what the fourteen words of the First Amendment—“Congress shall make no law . . . abridging the freedom of speech, or of the press”—actually should mean in practice.  From our perspective today, one has to say it began rather badly.  While the great Justice Oliver Wendell Holmes, Jr., wrote for an unanimous Court in the opening three cases that speech could only be prohibited when the State could establish a “clear and present danger” of some evil within the legitimate powers of the government to do something about, which seemed much more protective than the prevailing “bad tendency” test of the time, the actual application of the new test to the cases before it was shockingly casual, when looked at with modern free speech sensibilities. 

As Holmes said, famously, and of course correctly, free speech does not protect the person who yells fire falsely in a crowded theater—that’s not a very positive way to approach the task of trying to locate the outer boundaries of political discourse.  The most egregious of the three decisions involved the prosecution of the leader of the Socialist Party of the time and its candidate for President of the United States, Eugene Debs.  He delivered a speech in Ohio in which he praised individuals who had (illegally) resisted conscription.  The government claimed this violated the Espionage Act of 1917, which made it a crime willfully to “obstruct the recruiting or enlistment service of the United States.”  His conviction upheld by the Court, Debs was sentenced to ten years in prison, during which he received over one million votes in the presidential election of 1920.  (It would be as if Hillary Clinton were jailed for her speeches.) 

Within a matter of months, however, Holmes began to have second thoughts and to reverse his position.  In a case involving five Russian immigrants who circulated a pamphlet in New York City calling on workers in ammunition factories to strike in solidarity with the Communist Revolution in Russia, Holmes dissented from the decision finding a “clear and present danger” and wrote these famous and eloquent words: “Persecution for the expression of opinions seems to me perfectly logical.  If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.  To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises.  But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.  That at any rate is the theory of our Constitution.  It is an experiment, as all life is an experiment.” 

Within the decade, Justice Louis Brandeis had joined Holmes as one of the most eloquent free speech advocates, most notably in the 1927 case of Whitney v. California. (Anita Whitney attended meetings of the Socialist Party and was part of the group that advocated a moderate, nonviolent platform, while a more radical wing advocated overthrow of the government through revolution.)  Addressing the question of how to conceive of freedom of speech, Brandeis wrote in equally famous language about how “it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”  He went on: “Fear of serious injury cannot alone justify suppression of free speech and assembly.  Men feared witches and burned women.  It is the function of speech to free men from the bondage of irrational fears.”  And: “Those who won our independence by revolution were not cowards.  They did not fear political change.  They did not exalt order at the cost of liberty.  To courageous, self-reliant men, with confidence in the powers of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.” 

These words and thoughts ultimately won the day, in the United States but also in many nations around the world, over the course of the 20^th century.  After another low point in repression and censorship in the 1950s, with the McCarthy era and the then-pervasive fear of a Russian threat to undermine American and Western democracies, where the Supreme Court again succumbed to national panic.  In Dennis v. United States, a majority of the Court upheld the convictions of the leadership of the American Communist Party.

The crowning achievement of the Holmes-Brandeis perspective occurred in the transformative environment of the Civil Rights and Anti-Vietnam War period of the 1960s and into the 70s.  In this epic crucible of national transformation, the Supreme Court decided a series of cases that together compose the modern idea of freedom of speech and press.  The decisions—led by New York Times v. Sullivan (protecting The New York Times against civil liability for running a civil rights advertisement that made false statements about the actions of the police in Montgomery, Alabama) and supported by Cohen v. California (protecting an individual wearing a jacket in a public place with the words “Fuck the Draft” written across the back), Brandenburg v. Ohio (protecting a meeting of the KKK), Pentagon Papers (protecting the New York Times and the Washington Post in publishing stolen government classified documents), Red Lion Broadcasting v. FCC (upholding regulations of broadcasting designed to expand viewpoints), and Miami Herald v. Tornillo (rejecting regulations designed to expand viewpoints in the context of newspapers) and many others —created the most elaborate and speech protective jurisprudence of any nation in history, with, as I have indicated, profound influences around the world. 

A centenary always seems like a natural time in which to step back and consider what has happened over that period and what it all means and should mean in the future.  That is certainly true with free speech and press.  We also live in a moment of enormous social and political change in the United States and across nations, which makes taking stock a necessity more than simply a convenient moment on the historical calendar.  That is the genesis of The Free Speech Century and the topic of these lectures. 

In this first lecture, I want to continue with the summary of the First Amendment experience and, more importantly, offer some observations on how to interpret and understand what has happened.  Then, in the second lecture, I want to turn to the present and future and consider three of the most important questions of this present century: (1) Should the legacy of the last century be continued and what are its prospects given current political and global trends towards authoritarian regimes?  (2) What should be the general approach to dealing with the rising importance of the Internet and its component elements, which are now widely perceived as increasingly dominant in shaping the public forum?  (3) And, lastly, what are we to make of the fact that the modern world is increasingly inter-connected and inter-dependent, yielding problems and issues that can only be resolved effectively through collective international action, with a new truly global communications technology to serve as a global public forum, but with vastly different competing conceptions of free speech and free press in contention?  In other words, how should we think about free speech in a globalized world? 

II

Understanding the last one hundred years of free speech and press in the United States is very much about understanding how we should deal with people who advocate illegal or bad acts, whether they be major, such as overthrowing the government, or more minor, such as taking over (occupying) public or private property.  Context can shape everything, and this is the context that has shaped our thinking about the First Amendment.  There have been many proposed tests for drawing that line.  Besides “Clear and Present Danger”, there is “Bad Tendency,” “Express Incitement,” “Abstract Ideas versus Steeling People to Action,”  “the Gravity of the Evil Discounted by its Improbability,” and, finally, “Directed at Producing Imminent Lawless Action and Likely to Produce Such Action,” this last formulation being the one we live under today.   As I have indicated, the last one-hundred-year history is one of ebbing and flowing of protection, with the courts following the national mood.  Since the 1960s, however, the scope of protection has generally been very strong.

From this, let me fill in the First Amendment map the Court has drawn up for our world of freedom of speech and press. 

As the Court expanded the protection for speech advocating illegality, it also recognized a number of exceptions to freedom of speech and steadily narrowed them over time.  And, so, we have with laws banning obscenity, fighting words, libel, threats, invasions of privacy, and speech bringing about risks of violence and disruption caused by hostile audiences.  The jurisprudence now has many cases permitting and delimiting these exceptions.

Any notion of free speech must also figure out its horizontal dimensions, not only what words and language will be protected but also what nonverbal communications.  Once you realize that all human behavior is or can be “communicative” or “expressive,” you face the dilemma of how far to push the First Amendment interests analyzing government regulation of all conduct.  This problem bedeviled the Court and analysts for decades, producing all kinds of analytically problematic solutions (e.g., the government cannot regulate “pure speech” but it can “action” or “conduct”).  Eventually, the Court settled on an approach that focused on the government’s motive behind the regulation:  If the purpose is to stop messages or viewpoints, no matter what the conduct was, then the First Amendment would be fully deployed.  If, on the other hand, the government’s motive or purpose has nothing to do with the “communicative impact” of the behavior, then the government will be afforded broad (though not unfettered) leeway to regulate.  In practical terms, this means that “free speech” encompasses far more than words or language, written or spoken, and, therefore, virtually all human behavior is at least in theory protected against state prohibition to the extent the state’s motive is in prohibiting ideas “expressed” through that behavior.  The implementation of this approach has required extensive intellectual refinements, adding to the intricacy of First Amendment jurisprudence.

Similarly, and also on the horizontal plane, the Court has faced the question whether to extend the reach of the First Amendment into realms of speech activity beyond the traditional political public forum—namely, those involving commerce and finance, labor and management, the workplace, the home and personal areas of life, and so on.  In general, the decision has been to permit much greater discretion to regulate, while not withdrawing entirely and keeping a First Amendment foot in the door. 

There is also a vertical dimension in First Amendment analysis.  How should we think about everything that might be “relevant” to “speech”?  This can range from having a right of access to information under the control of the government, to a right of access to government controlled spaces (e.g., public streets and parks) for speech purposes, to a right of access to a good education in order to be able to speak and discuss issues more intelligently.  Here the Court has been less forceful in pressing free speech interests against other social interests.  (Streets and parks must be available (the so-called Public Forum Doctrine), but not many other venues; there are only limited rights of access (e.g., to judicial proceedings), etc.)

There are three other dimensions of First Amendment jurisprudence worth special note. 

The first is especially important.  Once you have secured the scope of free speech and press against censorship, you then face the question whether you will leave things at that or whether you will permit (or even require) the government to intervene in the public forum, or the marketplace of ideas, to improve the quality of public discussion.  There are many things that affect how freedom of speech and press actually function:  the allocation and distribution of wealth through the economic system, the nature and distribution of educational opportunities, infamy or fame, discrimination against minorities and certain groups, and effective control over the institutions that disseminate information and opinion.  This is a very rich and complex subject, but the key thing I want to note is that the experience of the last century includes a major public effort of this kind involving the public regulation of broadcast media.  Beginning in 1927 and then 1934, at the origins of this new technology of communication, the Congress established a federal agency empowered to license and regulate the medium consistent with the most general of mission statements, according to the “public interest, convenience, and necessity.”  Out of this system came many public regulations, most notably the so-called fairness doctrine, which required broadcasters to cover public issues and to do so fairly with respect to competing viewpoints.  In 1969, over three decades from the inception of the regulatory regime, in Red Lion Broadcasting v. FCC, the Court unanimously upheld the fairness doctrine and the general system, saying that the public’s right to be fully informed outweighed the interests of the privileged few who happened to control the outlets and that the government had a proper (perhaps even a constitutionally required) role in helping to secure the public’s right to know.  In one of the more fascinating developments in the jurisprudence, some five years later, without ever mentioning its decision in Red Lion, the Court precluded any such public involvements with newspapers and print media (Miami Herald v. Tornillo, 1974).  The ostensible distinction between these two outcomes focused primarily on the physical limitations of the electromagnetic spectrum—the so-called scarcity rationale, which claimed that the extremely limited number of broadcasters physically possible due to the nature of the spectrum justified government intervention, which ignored, however, the fact that economic realities in the newspaper business produced an even more monopolistic outcome in cities across the nation.  (By the 1960s, over 90% of American cities had only one daily newspaper.)  In my view, the “scarcity rationale” was a fiction that covered the desire to permit public intervention in a limited portion of the new highly monopolized mass media in order to ensure and enhance the quality of public discourse.  While this system remains in place to this day, the rising political antipathy to any public regulation of any kind (beginning with the Reagan era) has reduced the significance and scope of broadcast regulation (e.g., the FCC eliminated the Fairness Doctrine in the late 1980s), though has not by any means eliminated it. 

A second area I should highlight is that raised by the Pentagon Papers case, which is illustrative of the willingness of the Court to check government power and to be highly inventive in doing so.  Every nation needs to figure out how to strike the balance between allowing the government to operate with appropriate secrecy and how to ensure that the citizens have the appropriate information they need about their government (which will always be too inclined to act in secret) to exercise their sovereign responsibilities.  Pentagon Papers, and a few accompanying decisions, established a completely unique and, so far as one can judge such things, entirely successful solution to this problem.  Like the dual system of the press/media created by Red Lion and Miami Herald, this was also one based on systemic and institutional judgments of a highly pragmatic variety, not one wedded to simple notions of logic and an insistence that everything alike must be treated alike, without opportunities for experimentation and for taking account of how people and institutions actually function in the real world.  The question asked is, How will this system work in practice? not, What system is logical apart from practice? Without going into this in detail, the solution was this:  The government will have full control over its information, with virtually no formal right of access in the press to this information.  Leakers, if pursued and apprehended, which in practice rarely happened, may be subject to criminal penalties without any First Amendment protections.  The press, finally, even when it knows that it is receiving purloined information from leakers, will have virtually full protection to publish what it chooses.  (It is all even more interestingly ambiguous than this summary suggests, creating the subtle calculations each player has to make in this serious game of national secrecy chess.)  Up until recently, at least, it is fair to conclude that this method of balancing interests has worked, without unreasonable disclosures of classified information and with reasonable publication of classified information important for the public to know. 

The third, and last, general observation I would like to make is really about the range of methods the Court has followed in inserting the First Amendment into areas of government regulation.  Sometimes the Court has simply weighed in in a given area of controversy, in essence, to signal the presence of free speech interests.  (The hostile audience cases are an example of this.)  But sometimes the complexities and doctrinal refinements resulting from the Court having taken extensive cases and issued a number of holdings are remarkable.  This is notably true with respect to the areas of libel and campaign finance, which are labyrinthine in their doctrinal complexity.  It is, in other words, worth bearing in mind how there are different strategies reflected in the jurisprudence.

III

To close this first lecture, I want to make a few final observations that will be important to the subjects of the next lecture. 

It is a vital element of the history of freedom of speech and press in the United States that it has fallen to, or been taken up by, the judicial branch of government. Context is always important, and here the context includes the very special characteristics of the judiciary—lifetime tenure, decisions limited to cases and controversies, the self-restraint and self-education of stare decisis, or precedent, the mandatory norm of principled decision making supported by reason, and the necessity of explanation in detailed opinions, are all critically important.  Of course, we know that standing somewhat apart from the political fray permits, at least in theory, a greater awareness of and resistance to the misleading passions of the moment.  Given all these qualities and other virtues, it is easy to reach the conclusion that lodging the development of the rights of freedom of speech and press in the judicial branch gives you the greatest chance of having the kind of social and political life you seek, despite the risk that this will make other branches perhaps less attentive than they might otherwise be if they bore the primary responsibility for securing these rights.  I share this conclusion, and it is clear to me that, if you seek the most effective law of freedom of speech and press, you should first seek an independent judiciary. 

But I also think that we need periodically to look at what the judges have come up with and ask for more when we think that is needed.  I feel that way about how we have defined and articulated the core purposes of the First Amendment.  Holmes, as we have seen, began the whole venture by linking free speech to the search for truth.  But it was Alexander Meiklejohn in the late 1940s who dismissed that relationship and argued instead for what he portrayed as a much more “practical” relationship between freedom of speech and the responsibilities of self-government.  This democracy rationale took solid control of the jurisprudence in the seminal decision in 1964 of New York Times v. Sullivan and has remained so ever since.  For judges and justices who may always naturally feel a little tentative about introducing broad “values” into constitutional interpretation, saying that enforcing free speech against government regulation is simply fulfilling the more fundamental constitutional commitment to democratic self-government can be appealing.  But it is far too limited.  The role and meanings of the First Amendment are multi-faceted, and should be recognized as such.  There is much more at stake and much more to protect. 

In particular, while the political arena is critically important for free speech, so, too, is the system for the generation and preservation of truth and knowledge.  This system, composed primarily of colleges and universities, but also of journalistic enterprises (which seek understanding far beyond the political sphere) and other institutions (e.g., museums), has yielded more benefits and contributions to modern life than any other, and its autonomy from the violations of improper government interventions is just as important as that of citizens engaged in the activity of self-government.  Seeking truth is not some abstract idea, but rather one with highly practical operations and consequences.  Nor is it just some individual interest.  We have an elaborate system of institutions, with all the corresponding norms and cultures developed over time, specifically designed to perform this social need and public good.  And even though there may not have been as many cases raising threats to this system, there have been some and there are likely to be more, and it is time to recognize this system as both fragile and in need of the shelter of the First Amendment.  Meiklejohn, ironically because he was a lifelong academic, was too narrow in his conception of freedom of speech, and we should not let those notions delimit the scope of the First Amendment. 

And, finally, another area where I believe we have allowed ourselves to be too one dimensional in thinking about the significance of freedom of speech is with the protections afforded extremist speech.  These cases have often arisen in the context of spiraling social fear and panic, leading to grave acts of injustice committed against and the scapegoating of people and groups who are often marginal individuals and relatively harmless dissenters.  This is what both Holmes and Brandeis were trying to address.  Holmes saw how “logical” it is for us to “persecute” people we believe wrong, especially in times of war and national stress.  Brandeis’ comment that “men feared witches and burnt women” graphically captures the breadth of this impulse to unjust intolerance.  None of these feelings that lead us to persecute or to be excessively punitive towards others is limited just to speakers and speech.  Women were burned because of irrational fears of what they might do—namely, casting spells, something that, if it actually existed, would have nothing to do with “free speech.”  But “men” feared bad behavior where there was none and committed crimes out of intolerant minds.  It is that mind we are trying to change, at least when it rears its head in the zone of free speech.

And it is the very generality of our bad impulses that makes insisting that we refrain from giving into them in the realm of speech, perhaps exhibiting extraordinary self-restraint, all the more significant and powerful.  The stopping of censorship in these cases, therefore, is more about our concerns about the reactions to speech than it is with our wanting to protect speech, as such.  To say this is to speak about our character, our self-understanding, and not about protecting bad speech as some unfortunate by-product of our wish for “good” speech.

I have called this the tolerance theory of the First Amendment, and it is one of many facets of this amazing principle of freedom of speech and press that has taken on such extraordinary significance in the first century of its jurisprudential life. 

In so many ways, through this process of creating an elaborate set of doctrines and reactions to the on-the-ground facts of multiple controversies, the value of freedom of speech and press has become more than a legal rule, more than even a constitutional law.  It has become part of the very identity of what it means to be an American.