Northwestern University Law Review

Fall 1988/Winter, 1989

Symposium: Law and Social Theory

*54 FREEDOM OF COMMUNICATIVE ACTION: A THEORY OF THE FIRST AMENDMENT FREEDOM

OF SPEECH

Lawrence B. Solum [FNa]

Law Review; Lawrence B. Solum

I. Introduction

II. The First Amendment Freedom of Speech: A Hermeneutic Approach

A. Justice Black and Protestant Theology

B. Originalism and Schleiermacher's Hermeneutics

C. Gadamer's Hermeneutics and Law as Interpretation

D. Theory and Tradition: Habermas' Critique of Gadamer's Hermeneutics

III. The Quest for a Theory of Free Speech

A. The Search for Truth

B. Self-Government

C. Autonomy

D. Self-Realization

E. A Plurality of Principles

F. Some Lessons for a New Theory

IV. The Theory of Communicative Action

A. Speech and Communicative Action: The Theory of Speech Acts

B. The Distinction Between Communicative Action and Strategic Action

C. Discursive Justification: The Ideal Speech Situation

D. Communicative Ethics: Discursive Will Formation

E. Lifeworld and System

V. A Theory of Freedom of Communicative Action

A. Scope of the Freedom: Communicative Action and Not Strategic Action

B. Content of the Freedom: Three Principles

C. Problems Applying the Model of the Ideal Speech Situation

D. Justification Revisited: Integrating Existing Theories

VI. Application to Problems in First Amendment Doctrine

A. Distinguishing Communicative Action from Strategic Action

B. Realizing Equality of Communicative Opportunity

C. Tension Within the Theory: Libel of Public Figures

VII. Conclusion

A. Explaining First Amendment Decisions: Reconstructive Science and Judicial Intuition

B. Freedom of Communicative Action: The Tension Between Ideal Theory and Realization

C. Legal Thought As Social Theory: Implications for the Theory of Communicative Action

Words are deeds. [FN1]

*55 I. INTRODUCTION

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law . . . abridging the freedom of speech." [FN2] This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jurgen Habermas' theory of communicative action can serve as the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a coherent justification for the freedom of speech.

Habermas' theory takes as its point of departure the speech act theory developed through contemporary analytic philosophy and linguistics. The central theme of speech act theory is that speech is action; communication coordinates individual behavior through achieving rational understanding. An important corollary is the proposition that communication is intersubjective; speech acts involve both speakers and listeners. In addition, the theory of communicative action makes a distinction between communicative action--oriented to the coordination of behavior through rational agreement--and strategic behavior-- the use of speech to manipulate, *56 coerce, or deceive. I argue that a theory of free speech can incorporate this distinction to mark the boundaries of the right to free speech: freedom of speech is freedom to engage in communicative action, not strategic action. Another component of Habermas' theory is the ideal speech situation, in which rational agreement may be reached because distorting factors are excluded; this ideal situation serves as the basis of a principle of equality of communicative opportunity that can give the freedom of speech its fundamental content. Habermas' theory of communicative action provides the basis for my reinterpretation of the first amendment freedom of speech as the freedom of communicative action.

This Article has two aims. My first aim is to develop a theory of the meaning of the first amendment from the theory of communicative action. In pursuit of this first goal, the Article assumes a perspective that is internal to the practice of American constitutional law. [FN3] I argue that Habermas' theory has substantial power to explain and justify first amendment doctrine. Indeed, it is my view that a theory of freedom of speech based on the theory of communicative action, more so than any other theory, provides the best justification for the first amendment while simultaneously providing the best fit with the existing case law.

In addition to the development of a theory of the first amendment, this Article has a second aim: From the point of view of the practice of social theory, [FN4] the current Article is a "thought experiment" designed to test and elaborate Habermas' theory of communicative action. I explore various objections to and ambiguities in the theory of communicative action by taking up the attitude of a participant in the practice of legal interpretation who adopts the theory of communicative action as a practical principle for institutionalization of discourse in the public sphere. It is my hope that this thought experiment will have value in the enterprise of understanding, clarifying, and extending the theory of communicative action. For example, this Article responds to the suggestion that the theory of communicative action should be reformulated as a theory of institutionalized discourse "in the public sphere of a participatory *57 democracy." [FN5]

Part II of this Article begins with a hermeneutic approach to the problem of interpreting the first amendment. Part III explores and criticizes existing theories of the freedom of expression. The theory of communicative action is explicated in Part IV; the implications of that theory for the freedom of speech are explored in Part V. Finally, Part VI applies the results to specific problems in first amendment doctrine, and Part VII draws some conclusions about the implications of this exercise for both first amendment doctrine and the theory of communicative action. [FN6]

II. THE FIRST AMENDMENT FREEDOM OF SPEECH: A HERMENEUTIC APPROACH

This Part explores the problems associated with interpreting the first amendment to the Constitution of the United States. These problems in legal hermeneutics [FN7] serve as a dual introduction to the relationship between the first amendment and the theory of communicative action. The discussion of legal interpretation both (1) establishes the need for a new theory of the freedom of speech and (2) introduces an important line of development in social theory that has its origins in theories of scriptural interpretation and runs through Hans-Georg Gadamer's philosophical hermeneutics to Habermas' theory of communicative action.

The major theme of this Article is the development of a theory of the first amendment freedom of speech from the theory of communicative action; in relationship to that theme, the aim of Part II is to counter three possible arguments for the proposition that no theory of the freedom of speech is required, or even legitimate. [FN8] The first argument is that *58 the first amendment has a plain meaning that does not require a theory for its interpretation; I deal with this view in Section A of this Part. The second argument is that the first amendment should be interpreted in accord with the specific intent of its framers; I deal with this view in Section B. The third argument is that because the meaning of the first amendment is relative to the many particular interpretive traditions in our pluralistic culture, there can be no single true theory of the first amendment; I deal with this final objection in Section D. Section C presents an affirmative argument from hermeneutic theory for the proposition that a theory of free speech is required for the practice of judicial interpretation of the first amendment.

The account of hermeneutic theory that follows is, of course, much condensed. I present only portions of the history and contemporary development of hermeneutics that illuminate the theory of legal interpretation and Habermas' theory of communicative action.

A. Justice Black and Protestant Theology

The first amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." [FN9] The problem of interpretation can be expressed as follows: what does this constitutional text providing "freedom of speech" mean, and how is it to be applied? In this Section of the Article, I argue that the plain meaning of the constitutional text alone cannot serve as an adequate basis for understanding and applying the first amendment freedom of speech.

Justice Black sometimes spoke as if there was no problem associated with interpretation of the first amendment freedom of speech. [FN10] The constitutional text is self-interpreting, the Justice apparently maintained, [FN11] when he said:

The beginning of the First Amendment is that 'Congress shall make no law.' I understand that it is rather old-fashioned and shows a slight naivete to say that 'no law' means no law. It is one of the most amazing things about the ingeniousness of the times that strong arguments are made, which almost convince me, that it is very foolish of me to think 'no law' means no *59 law. But what it says is 'Congress shall make no law . . . . ' I believe that [the Amendment] means what it says. [FN12]

The first amendment, apparently, is no more difficult to interpret than the clause requiring that the President be at least 35 years old. [FN13] If the first amendment guarantee of the freedom of speech has a plain meaning that can be read off the constitutional text and applied to concrete cases with determinate results, then lawyers and judges would have no need for a theory of free speech; theories simply would not answer any relevant questions.

Justice Black's "plain meaning" view of the free speech clause is analogous to Martin Luther's theory of biblical interpretation. "Luther's position is more or less the following: scripture is sui ipsius interpres. . . . The text of the scripture has a clear sense that can be derived from itself, the sensus literalis." [FN14] Both Black and Luther were challenging accepted traditions of interpretation: in Black's case, the Supreme Court's authoritative interpretations of the first amendment; in Luther's case, the Roman Catholic Church's authoritative interpretation of scripture. Both Black and Luther attacked the existing interpretations by appealing to the plain meaning of the text.

Not even Martin Luther, however, would have supported the theory that each individual passage from the Bible has a plain meaning that can be gleaned without the aid of some interpretive method. Some passages, if considered in isolation, are ambiguous or obscure. Likewise, the text of the first amendment may be too indeterminate to be understood in isolation. What does speech mean? Are movies, radio programs, picketing, or campaign expenditures speech? The text refers only to Congress, but the first amendment has been interpreted to apply to state legislatures as well as executive and judicial action. [FN15] Justice Black says that "no law" means "no law," but no one seriously maintains that the Constitution invalidates a law forbidding incitement to mutiny on a naval vessel [FN16] or falsely shouting "fire" in a crowded theater. [FN17] These problems cannot be resolved by an appeal to a self- interpreting constitutional text. [FN18]

Protestant theological hermeneutics resolves the analogous problem *60 of biblical interpretation with the device of the hermeneutic circle: [FN19] the meaning of each individual passage of scripture is gleaned in light of the meaning of the Bible as a whole. "For it is the whole of scripture that guides the understanding of the individual passage: and again this whole can be reached only through the cumulative understanding of individual passages." [FN20]

As applied to interpretation of the first amendment, the appeal to the hermeneutic circle is only partially satisfactory. When the first amendment is read in light of the Constitution as a whole, some ambiguities may be resolved, but others surely remain. The Constitution as a whole, encompassing a broad spectrum of provisions ranging from the minimum age requirements for federal officials to the vote for eighteen year olds, does not seem to possess a single theme or consistent message that provides precise answers to the central questions of first amendment interpretation: what does freedom of speech mean, and how is it to be applied?

Thus, the plain meaning account does not obviate the need for a theory of the freedom of speech. Indeed, Luther's appeal to the hermeneutic circle as the method for preserving the autonomy of scripture in biblical exegesis was based on the assumption that there is a coherent principle that unifies the text and thus permits ambiguities in individual passages to be clarified. Such a coherent principle is precisely what a theory of the freedom of speech attempts to provide for the first amendment. An alternative or supplement to the plain meaning account of the meaning of a text--be it scripture or constitution--is to look to the intentions of its authors. This approach is examined in the next Section.

B. Originalism and Schleiermacher's Hermeneutics

Protestant theology challenged the authority of Catholic dogma by positing that scripture had a plain meaning and that ambiguities could be resolved by reading a problematic part in light of the meaning of the whole. The difficulty with this approach is that it too makes a dogmatic assumption; it assumes that scripture constitutes a unity, that is, that there is a meaning of the whole which illuminates the meaning of each part. [FN21] This assumption was challenged by Friedrich Schleiermacher.

In contrast to Protestant theology, which held that comprehension *61 of plain meaning is the norm, Schleiermacher begins with the premise that misunderstandingis the usual state of affairs, not only in scriptural interpretation, but in everyday conversation. [FN22] For Schleiermacher, understanding a text or speech requires an understanding of the intentions of the author or speaker. The text must be placed in the context of the author's life and the history of the time in which it was written. Because we lack direct access to the intentions of those with whom we converse or whose works we read, understanding is always problematic.

Schleiermacher's theory has its constitutional counterpart in originalism, the theory that the Constitution ought to be interpreted in accord with the intentions of the framers. [FN23] Originalism has been criticized in a number of ways. [FN24] I do not attempt to recapitulate the scholarly debate; rather, my approach is to relate Gadamer's criticisms of historical intentionalism as a hermeneutic theory to some criticisms of originalism in constitutional theory.

Gadamer does not criticize Schleiermacher on the ground that intentions are irrelevant to interpretation. Rather, Gadamer observes that our understanding of original intent is necessarily conditioned by our own situation and concerns. Thus, our description of an author's original intent necessarily reflects our perspective. [FN25] Gadamer's point can be illustrated by recalling some of the many difficulties that scholars have raised with originalist attempts to reconstruct the original intentions of the framers of the Constitution.

First, as a historical matter, the intentions of the framers were at the least ambiguous and complex. Historical research has revealed a complicated set of intentions animating the first amendment. [FN26] Indeed, one purpose of the authors of the constitutional text may have been to frame a *62 document that is capable of growth through interpretation. [FN27] Jefferson Powell, for example, has forcefully argued that the founding fathers did not plan that their intentions should control constitutional interpretation. [FN28] In the case of the first amendment, the generality of the constitutional language makes it especially difficult to believe that the founders intended to freeze any particular intentions as the meaning of the constitutional text.

Second, the notion that constitutional meaning can be constructed out of intentions is problematic for more general reasons. The difficulties can be illustrated in a series of questions: (1) Whose intentions are to count? This question suggests a host of possible answers: (a) the intentions of the drafters of the first amendment itself, (b) the intentions of the members of Congress who voted to propose it to the states, or (c) the intentions of the members of the state legislatures that ratified the Bill of Rights. Given the many different possible "authors" of the first amendment, subsidiary questions arise: What if there were conflicting intentions? How should the conflicts be resolved? (2) What sort of intentions should be used? Again there are many possibilities: (a) abstract intentions about the principles underlying the first amendment, or (b) concrete intentions about the application in particular cases. What if more general intentions conflict with more specific ones? (3) What psychological states count as intentions? Are hopes, predictions, or convictions intentions? [FN29]

The difficulty of answering these questions supports the conclusion that the original intentions of the framers of the Constitution are more accurately described as "constructed" than as "discovered." This point illuminates the cogency of Gadamer's objection to Schleiermacher's intentionalist hermeneutics. The complex series of choices that must be made in order to construct an "original intention" behind the first amendment underscores the impossibility of entering the minds of the framers and understanding the first amendment precisely as they understood it. To understand, says Gadamer, is to understand differently. [FN30] We necessarily understand the first amendment differently than did its framers, because we have a different set of experiences and concerns.

C. Gadamer's Hermeneutics and Law as Interpretation

To appreciate Gadamer's own position and its implications for legal interpretation, I explicate two ideas that are central to Gadamer's hermeneutics: first, the priority of truth over method, and second, the role of tradition. After these notions are developed, I explore the relationship *63 between Gadamer's hermeneutics and Dworkin's theory of legal interpretation. The results of this effort are used to explain the role of theory in the interpretation of the first amendment.

1. Gadamer on Truth and Method.--Thus far, my account has not included the point of Gadamer's criticism of Schleiermacher's intentionalist hermeneutics. Gadamer believes that Schleiermacher went fundamentally wrong by elevating a particular method of interpreting a text over the attempt to grasp the truth of the text. Thus, Gadamer believes that both traditional Catholic dogmatics and Protestant theology shared a fundamental assumption that is a prerequisite to real understanding. Both assumed that the Bible communicated a truth that was to be applied in contemporary situations. [FN31] Schleiermacher turned to historical intentions because he rejected this assumption. Similarly, an originalist who rejects the assumption that the first amendment reflects true principles of freedom of speech turns to the intentions of its framers as a substitute.

The case of legal interpretation illustrates Gadamer's point even more clearly than does theological hermeneutics. Although it may be plausible to treat scripture as an object of purely historical study with no claim to truth and no applicability to our contemporary situation, it is much more difficult to marginalize the first amendment in this fashion. The judge who interprets the first amendment must apply it; a judge is required to operate on the assumption that it conveys a truth with contemporary relevance. Gadamer believes that this explicit requirement of application in legal interpretation exemplifies an implicit feature of all interpretation: understanding a text requires one to apply the text to one's own situation. This is what Gadamer means when he says that legal hermeneutics has exemplary significance. [FN32]

2. Gadamer on Tradition.--Tradition plays a crucial role in Gadamer's account of hermeneutics. For Gadamer, tradition both conditions and enables understanding. He develops this point through a critique of what he calls "the enlightenment prejudice against prejudice." Against the enlightenment notion that prejudice is a barrier to understanding, Gadamer maintains that prejudices, literally "pre-judgments," are productive of understanding. Without prejudgments about meaning, interpretation could never get started. Gadamer maintains that there is no neutral vantage point from which a text can be understood independently of any tradition or prejudice. We always read a text from a historically situated vantage point that consists of prejudgments constituted by our tradition, our cumulative heritage of interpretations. Such prejudgments can be confirmed or contradicted by the text. The process of *64 checking one's prejudgments against the text is captured by the hermeneutic circle as reinterpreted by Gadamer: readers project a meaning for the whole of the text and understand each part in light of that projection, revising the interpretation of the whole in light of each bit of evidence, and so on. [FN33]

Gadamer's hermeneutic theory provides more than a basis for rejecting the plain meaning or originalist arguments against the need for a theory of the freedom of speech. As applied to legal interpretation, hermeneutics can provide a positive account of the nature of a theory of freedom of speech in the interpretation of the first amendment. This point can be made by examining Ronald Dworkin's theory of law as interpretation in light of Gadamer's hermeneutics.

3. Dworkin's Theory of Law as Interpretation.--Dworkin's theory of law as interpretation is implicitly premised on the notion that the structure of legal interpretation as practiced by judges as lawyers is captured by the hermeneutic circle. [FN34] Thus, judges approaching the first amendment must construct a theory of its meaning. In Dworkin's terminology, the principle of freedom of speech is a "contested concept" of which there can be many "conceptions." A theory of the first amendment specifies a conception of the freedom of speech; the theory is then deployed to give content to the first amendment as it is interpreted and applied in specific cases. [FN35] The choice between available theories can be made by appealing to two criteria: fit and justification.

The first dimension is the dimension of fit. [FN36] A good theory of the first amendment must fit the existing practice, that is, it must be consistent with the text of the first amendment, the structure of the Constitution as a whole, and judicial decisions interpreting the amendment. Of course, no theory is likely to fit perfectly. Some cases may turn out to be mistakes, that is, wrongly decided. The Constitution is the result of political compromise and a long series of amendments. Some provisions, like the provisions protecting the institution of slavery, may also be mistaken. Given this caveat, however, a theory does not qualify as a sound specification of the concept of the principle of freedom of speech of the first amendment if it does not adequately account for a very substantial *65 portion of the cases and constitutional text. The more cases and text which the theory "fits," the better the theory is as an interpretation.

The second dimension might be called "justificatory power." Dworkin's explanation might be that the second dimension evaluates the ability of the theory to make of the first amendment the best that it can be. [FN37] Thus, the more powerful the justification a theory provides for the first amendment, the better it is as an interpretation. In a sense, justificatory power is an extension of the concept of fit, but in a much wider or more general sense than simply fitting the cases and text. The better the theory fits our general convictions about political or moral matters, the greater is its ability to justify the freedom of speech as a constitutional guarantee. [FN38]

The notions of fit and justification are illuminated by comparison with Gadamer's theory of hermeneutics. The dimension of fit is related to Gadamer's observations about the role of tradition in interpretation. We necessarily understand the first amendment from within a tradition of interpretation; that tradition is embodied in the opinions rendered in first amendment cases. [FN39] The dimension of justification is related to Gadamer's account of the role of truth in interpretation. We understand the first amendment as conveying a truth about how we ought to conduct our affairs. A theory of free speech is an attempt to make explicit the truth (or principle) communicated by the first amendment.

Although there are many objections to Dworkin's theory of judging, [FN40] I accept his core notions that judicial decisions must rely on a theory that fits and justifies the existing law as an approximation of the perspective internal to legal practice.

D. Theory and Tradition: Habermas' Critique of Gadamer's Hermeneutics

This Section begins with a final objection to the idea of a theory of the first amendment--the objection from relativism. In order to answer that objection, I introduce Habermas' critique of Gadamer's hermeneutics.*66 This critique provides the metatheoretical foundation for my effort to develop a theory of free speech. This Section also has a secondary purpose: it recapitulates an important line of development in Habermas' thought which led to his theory of communicative action.

Gadamer argues that we always understand from within a tradition. There is no transcendental viewpoint (outside of any interpretive tradition) from which an interpretation can be seen as the correct and final interpretation. Gadamer's argument could be used as the basis for ametatheoretical objection to any claim to have produced the theory of the first amendment. There is no such entity as the theory that is true to the exclusion of all other theories, it might be argued. Instead, the argument continues, there are a plurality of theories, each of which is true for the tradition within which it was formed. Indeed, in our pluralistic culture, which is constituted by a multiplicity of traditions, there are a plurality of theories of free speech. Because there is no Archimedean standpoint outside of this plurality of interpretive traditions, there is no basis for forming a judgment that any one of the many theories is better than any other.

Habermas and Gadamer engaged in an extended debate over the implications of hermeneutics for social theory. [FN41] In the course of this debate, Habermas developed a critique of Gadamer'shermeneutics. [FN42] The brief summary which follows uses this critique as the basis for an answer to the metatheoretical argument against the very possibility of developing a single correct theory of free speech which was sketched above.

Habermas acknowledges the validity of much of Gadamer's theory of hermeneutics. He argues, however, that Gadamer's view of the role of tradition in producing understanding has a conservative bias. While Gadamer is correct to see understanding as arising from a traditional consensus on meaning, he overlooks the possibility that the traditional consensus is the irrational product of systematically distorted communication. [FN43] The argument that all traditions stand on an equal footing because no person stands outside of a tradition ignores the real difference between a tradition which achieves consensus through manipulation, *67 force, or coercion, and a tradition in which consensus is based on reasoned discourse. Not all traditions can make equal claims to truth and right.

In order to make good on this criticism of Gadamer's relativism, Habermas is required to offer a theory of rational consensus. The theory of communicative action which Habermas produced to fulfill this requirement is explored in depth in Part IV of this Article and is adumbrated in the following passage:

A critically enlightened hermeneutics that differentiates between insight and blindness incorporates metahermeneutic knowledge of the conditions of systematically distorted communication. It connects understanding to the principle of rational discourse, according to which truth would be guaranteed only by that consensus which was produced under idealized conditions of unconstrained communication free from domination and which could be maintained over time. [FN44]

It is important to note that Habermas' notion that rational consensus can be achieved under conditions of unconstrained communication does not assume an Archimedean standpoint that is outside of any tradition. We begin the effort to forge a rational consensus from within our tradition and attempt to achieve a consensus with others who begin from within their traditions. [FN45] The point is that an agreement is rational only if it is not the product of force or deception.

In the context of my effort to develop a theory of the freedom of speech, the point is that rational discourse offers a method for differentiating between better and worse theories. If I can demonstrate through rational argument that existing theories are inadequate and that a superior theory exists, then the enterprise of theory construction is not doomed to failure by metatheoretical relativism. The relativist does not have an a priori argument that demonstrates the impossibility of producing the best theory of free speech. [FN46] Rather, theoretical relativists can prove their point only by entering into discourse about the various theories.

My effort to develop a theory of the first amendment begins with existing theories of the freedom of speech. Some of the theories that follow have played a direct role in the interpretation of the first amendment by the courts. Other theories have had a less direct influence on the judicial process or appear indirectly as implicit assumptions. Together the theories form an essential part of the legal tradition that is productive of *68 our understanding of free speech. My attempt to build a new theory of the freedom of speech starts from within this tradition.

III. THE QUEST FOR A THEORY OF FREE SPEECH

This Part examines four prominent theories of the first amendment. There have been other attempts to explain and justify the freedom of speech, [FN47] but these theories--the marketplace of ideas, the view that free speech is essential for self-government, the theory that free expression is essential for listener autonomy, and the contention that self-realization requires freedom of speech--have been most central to our understanding of the first amendment.

My aim in this Part is not to provide a comprehensive critique of all existing theories of free speech; rather, my more limited goal is to demonstrate that there is sufficient doubt about each of the major theories to motivate my examination of the theory of communicative action as an alternative. In the course of my exploration, I emphasize those strengths and weaknesses of existing theories that illuminate the theory of communicative action as a theory of free speech.

A. The Search for Truth

1. The Marketplace of Ideas Metaphor.--Perhaps the most influential theory of the freedom of expression is captured by Justice Holmes' language in Abrams v. United States: [FN48]

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. [FN49]

This view--freedom of expression is valuable because it leads to the discovery *69 of truth--was a theme in the early defense of free speech by John Milton [FN50] and played a prominent role in the account offered by John Stuart Mill. [FN51]

The marketplace of ideas metaphor suggests that truth is most likely to emerge when all opinions are expressed openly and competing opinions are juxtaposed in debate evaluated by large audiences. The test of this open marketplace, according to the metaphor, is a better mechanism for sorting truth from falsehood than would be the evaluation of a single individual or government. [FN52]

Holmes' argument that freedom of speech advances the search for truth is ambiguous and can be interpreted in a number of ways. Two interpretations, corresponding to two theories of truth, are the most plausible. [FN53] The first interpretation is based on a correspondence theory of truth; the second is based on a consensus theory of truth. In the remainder of this Section, I argue that the conventional articulations of the two interpretations both fail to provide a satisfactory account of the freedom of expression. [FN54]

2. Interpreting the Metaphor: A Correspondence Theory of Truth.--According to a correspondence theory of truth, a proposition is true if and only if the content of the proposition corresponds to an existing state of affairs. [FN55] If an adversary process facilitates the sorting of those propositions that do correspond with reality from those which do *70 not, then freedom of speech would be instrumentally valuable in the discovery of truth. [FN56] Conversely, if oversimplifying rhetoric triumphs over truth in open debate, then free speech might actually hinder the emergence of truth-as- correspondence. Thus, a crucial link in this first interpretation is the contention that truth prevails over falsehood in open debate.

On the correspondence view of truth, this link itself is an empirical hypothesis subject to verification. The question is whether it is the case that truth prevails more frequently in a society which respects a free speech principle than in one that does not. We might postulate that in academic and scientific discourse, the prevailing practice and historical experience tend to confirm the crucial link. But it is one thing to contend that open debate leads to truth among a select community of scientists and academicians, trained for rational discourse, and quite another thing to contend that this is also true among the general public.

It is not evident that, given current conditions, truth-as-correspondence prevails over falsehood more often in societies with freedom of speech than in societies without this freedom. History provides many examples of falsehood prevailing over truth. [FN57] Experience with the mass media and contemporary politics suggests that simplistic or comforting messages may be more likely to generate a consensus than complex or disturbing ones. Moreover, some points of view hardly seem represented in the national media and hence would seem not to have a chance to compete in the marketplace, whether they be true or false. A major difficulty with the argument for free speech from its instrumental value in promoting truth-as-correspondence is that it makes our continued commitment to freedom of expression dependent on an empirical proposition of doubtful validity. [FN58]

A second difficulty concerns the priority of truth as a social value. The strength of the freedom of expression depends, at least in part, on the strength of its justification. A strong version of the argument from truth-as- correspondence requires that the search for truth be at or near the top of the hierarchy of social values. But the quest for knowledge, important as it may be, is not clearly the top priority as measured by either existing institutional arrangements or individual preferences. If truth is only one value, competing with many others, then the freedom of expression may be nothing more than one of many generally observed principles, rather than an overriding principle. The truth-as-correspondence interpretation of the marketplace metaphor fails to justify a right *71 to freedom of speech as a trump that invalidates government action in the pursuit of other legitimate social goals. [FN59]

3. Interpreting the Metaphor: A Consensus Theory of Truth.--There is another interpretation of the marketplace metaphor grounded on the correspondence theory of truth. C.S. Peirce, the pragmatist philosopher, expressed the consensus theory as follows: "The opinion which is fated to be ultimately agreed upon by all who investigate is what we mean by truth." [FN60] This theory of truth avoids the empirical link in the argument for free speech--a link required in the truth-as-correspondence interpretation; truth is defined (or analyzed) in terms of the process of open debate. Truth is the consensus that emerges from a process of open discussion; falsehood is what is rejected by such a process. [FN61] The link between free discussion and truth becomes tautologous.

The truth-as-consensus interpretation of the marketplace of ideas metaphor may well have met approval from Holmes himself; he was much influenced by the pragmatists. [FN62] This view of truth can be seen as skeptical. We have no direct means of determining the correspondence between our propositions and what is really real; therefore, the best we can do is to define truth as a process. [FN63]

The truth-as-consensus interpretation is open to several objections. Initially, the consensus theory of truth may rest on a "category mistake"; the theory appears to confuse the meaning of truth with the methods for arriving at true statements. [FN64] No matter how universal the agreement about the truth of a proposition, a proposition is not true unless the correspondence condition is met. That this is a feature of our ordinary use of the concept of truth can be verified by the following thought experiment. Imagine that everyone agreed that the earth were flat. The proposition, "The earth is flat," would nevertheless not be true if the earth were really round.

In addition, the truth-as-consensus interpretation has a certain question- begging quality. If free speech is defined as a prerequisite for truth, then how can the role of free speech in promoting truth provide any justification for a right to free speech? Put another way, it is not clear, on the truth-as- consensus view, that free speech leads to more desirable results than does unfree discussion. My point is that if truth is nothing more than the result achieved through free speech, then there is no more reason to value truth than there was to value free speech in the first *72 place. [FN65]

Furthermore, the notion that the strongest opinion in the marketplace of ideas is true seems to conflict sharply with some of our particular judgments about truth. If a strong majority consensus on the propositions of Nazi ideology, including the opinion that Jews were subhuman, had emerged from conditions of relatively free speech during the late Weimar Republic, would that make those propositions true? [FN66] If the wealthy and powerful can propagate their opinions more effectively than the poor, does that make their views more likely to be true? [FN67] Our intuitive answer to these questions is no. We do not believe that the ability of powerful groups simply to achieve a consensus validates their claims to truth or right.

Thus, the truth-as-consensus interpretation of the marketplace of ideas theory of the first amendment also fails. This is not to say that there is no connection between truth and consensus on one hand and a viable theory of the freedom of expression on the other. Indeed, Part IV argues for a theory that maintains that there is a relationship between a legitimate consensus and truth and right. But the view that truth means nothing more than consensus is inadequate and cannot serve as the basis for a coherent theory of free speech.

B. Self-Government

1. The Metaphor of the Town Meeting.--A second theory of the freedom of expression emphasizes the special role of free speech in a democracy. The argument is associated with Alexander Meiklejohn, [FN68] whose intellectual influence on courts and theorists has been profound. [FN69] Meiklejohn's view is informed by the metaphor of the town meeting:

[T]he traditional American town meeting . . . is commonly, and rightly, regarded as the model by which free political procedures may be measured. It is self-government in its simplest, most obvious form. . . . Every man is free to come. They meet as political equals. Each has a right and a duty to think his own thoughts, to express them, and to listen to the arguments of *73 others. The basic principle is that the freedom of speech shall be unabridged. And yet the meeting cannot even be opened, unless, by common consent, speech is abridged. A chairman or moderator is, or has been, chosen. He "calls the meeting to order." . . . His business on its negative side is to abridge speech. . . . [D]ebaters must confine their remarks to "the question before the house." If a speaker wanders from the point at issue . . . he may be and should be declared "out of order." He must then stop speaking . . . . The town meeting . . . is a group of free and equal men, cooperating in a common enterprise, and using for that enterprise responsible and regulated discussion. It is not a dialectical free-for-all. It is self-government. [FN70]

My investigation of the self-government theory of the first amendment emphasizes this crucial role that the metaphor of the town meeting plays in shaping the theory.

The fundamental conception of the self-government theory is that in a democracy the people are sovereign; the people are the rulers, not the ruled. [FN71] The theory maintains that the right to freedom of speech must encompass two essential prerequisites to effective democracy. First, participants in the process of self-government must have access to information relevant to their decisions. [FN72] If citizens are denied access to data, opinions, criticisms, or arguments that are relevant to a decision they must make, then the result may be a bad decision. Second, citizens must be able to communicate their desires and opinions to government officials. [FN73] If citizens are denied an opportunity to make their wishes known to their elected representatives, the majority is unable to govern effectively.