The Adversary First Amendment: Free Expression and the Foundations of American Democracy - Hardcover

Redish, Martin H.

Hardcover

ISBN 10: 0804772150 ISBN 13: 9780804772150

Verlag: Stanford University Press, 2013

Inhaltsangabe

The Adversary First Amendment presents a unique and controversial rethinking of modern American democratic theory and free speech. Most free speech scholars understand the First Amendment as a vehicle for or protection of democracy itself, relying upon cooperative or collectivist theories of democracy. Martin Redish reconsiders free speech in the context of adversary democracy, arguing that individuals should have the opportunity to affect the outcomes of collective decision-making according to their own values and interests.

Adversary democracy recognizes the inevitability of conflict within a democratic society, as well as the need for regulation of that conflict to prevent the onset of tyranny. In doing so, it embraces pluralism, diversity, and the individual growth and development deriving from the promotion of individual interests. Drawing on previous free speech scholarship and case studies of controversial speech, Redish advances a theory of free expression grounded in democratic notions of self-promotion and controlled adversary conflict, making a strong case for its application across such areas as commercial speech, campaign spending, and anonymous speech.

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Über die Autorin bzw. den Autor

Martin H. Redish is the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of Law. He is the author of Wholesale Justice (Stanford, 2008) and The Logic of Persecution (Stanford, 2004).

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The Adversary First Amendment

FREE EXPRESSION AND THE FOUNDATIONS OF AMERICAN DEMOCRACY

By Martin H. Redish

Stanford University Press

Copyright © 2013 Board of Trustees of the Leland Stanford Junior University
All rights reserved.

ISBN: 978-0-8047-7215-0

Contents

Preface....................................................................
ix
1. Introduction: The First Amendment and American Democracy................
1
2. Adversary Democracy and American Political Theory.......................
6
3. Cooperative Democracy and Public Discourse: The Flawed Free Speech 
Theories of Robert Post and Alexander Meiklejohn...........................
28
4. Commercial Speech and the Twilight Zone of Viewpoint Discrimination.....
75
5. The Anticorruption Principle, Free Expression, and the Democratic 
Process....................................................................
122
6. Adversary Democracy, Political Fraud, and the Dilemma of Anonymity......
151
7. Conclusion: The Optimistic Skepticism of the Adversary First Amendment..
176
Notes......................................................................
185
Index......................................................................
237

Excerpt

CHAPTER 1

Introduction: The First Amendmentand American Democracy

The assertion that democracy and free expression are inextricably intertwinedin a symbiotic relationship should hardly be controversial. Democracycould not exist in any meaningful sense absent a societal commitmentto basic notions of free expression, nor could free expression flourish ina society uncommitted to democracy. It is therefore not surprising thatamong the most prominent and widely accepted theories of the FirstAmendment are those that explain the Free Speech Clause as either catalystfor or protection of democracy itself. These democratic theories ofthe First Amendment posit that speech receives constitutional protectionbecause it is essential to a functioning and legitimate democracy. Differentdemocratic theories of the First Amendment suggest competing explanationsof exactly how free speech advances or defends democracy. Some suggestthat free speech facilitates the informed decision making that self-rulerequires. Others argue that free speech furthers democracy by allowingindividuals to recognize themselves as self-governing. Still others simplyconclude, without elaboration, that democracy would be "meaningless"without the freedom to discuss government and its policies. Every democratictheory of the First Amendment, though, in one way or anotherviews free speech as a means to a democratic end.

Of course, democracy itself is an amorphous concept, both historicallyand theoretically. Despite the concept's simple translation to "ruleby the people," political theorists since Aristotle have advanced competingtheories of democracy that are inconsistent, if not contradictory. Tosay that the First Amendment advances "democracy" without more, then,is to say much less than First Amendment scholars often assume. Still,"democracy" is not so empty a referent that it is impossible to evaluatewhether so-called democratic theories of the First Amendment are indeeddemocratic.

The goals of this book are threefold: first, to demonstrate that theform of democratic theory that appropriately characterizes the Americangovernmental system—both normatively and descriptively—is adversarydemocracy; second, to establish the inescapable linkage between that formof democracy and the philosophical foundations of the First Amendmentright of free expression; and third, to explore the implications of the frameworkfor specific issues of free expression of current importance. Specifically,doctrinal issues to be examined include the protection of commercialspeech, the constitutional right to anonymity, and the validity of the so-calledanticorruption principle as a limitation on the constitutional right offree expression in the context of the electoral process.

Any democratic theory must encompass two principles. First, democratictheories must respect the principle of self-rule. They may differabout what it means, precisely, for the people to govern themselves, butthey must at least accept the basic premise that democracy requires self-government.Otherwise, democracy would incoherently collapse intoauthoritarianism. Democratic theories, as a result, must respect the principleof epistemological humility. In other words, they must assume thatno determinate "truth" or "good" exists, apart from what the electorateor those accountable to it determine. Democratic theories must thereforecommit such substantive valuations to the people to decide through democraticprocedures. Epistemological humility is a direct outgrowth of theprinciple of self-rule: The people cannot be self-governing if some externalconcept of truth or goodness coercively determines their decisions.

Second, democracy must mean that government follows the self-governingdecisions of the people—either because the people themselvesmake and implement their decisions or because the people's elected representativesare accountable for doing so. Again, democratic theories can differover how exactly this occurs, particularly in a representative democracy.The point, though, is that democracy must at least assume that authority is"controlled by public opinion, not public opinion by authority." This secondprinciple overlaps with the first: Public opinion must be autonomousfrom government to check government. As a result, any democratic theorymust prohibit the government from managing public opinion, whetherby overt coercion or by the indirect manipulation that comes with forcinga people to be ignorant. In the words of Thomas Jefferson, "If a nationexpects to be ignorant and free ... it expects what never was and neverwill be."

A number of respected free speech theorists have understood democraticautonomy in its collective sense. Alexander Meiklejohn, for example,believed that democracy is simply a "compact" among individuals to governin pursuit of the common good. Robert Post likewise begins withthe premise that "democracy is not about individual self-government, butabout collective self-determination" and ends with the conclusion that"democracy requires individual autonomy only to the extent that citizensseek to forge 'a common will, communicatively shaped and discursivelyclarified in the political public sphere.'" Thus, both theorists ultimatelyunderstand democracy largely as a cooperative pursuit in which individualscollectively "plan[] for the general welfare" or "forge a common will." Itis therefore appropriate to characterize each theory as positing a "cooperative"ideal of democracy.

Yet, as much as democracy includes this potential for societal cooperation,it must also embrace the inevitability of competition, among bothcompeting ideologies and competing interests. For democracy to reflectboth the political realities of a large, heterogenous, and pluralistic societyand the normative values that underlie the precept of self-government,it must be grounded in the centrality of diversity and potential competitionamong the backgrounds, statuses, values, needs, and interests of thecitizens. The assumption that all of these competing backgrounds, values,needs, and interests may be forged into a cooperative pursuit of some notionof the...

Details zur Ausgabe

• Verlag: Stanford University Press
• Erscheinungsdatum: 2013
• Sprache: Englisch
• ISBN 10: 0804772150
• ISBN 13: 9780804772150
• Einband: Gebundene Ausgabe
• Anzahl der Seiten: 238
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: preigu; mail@preigu.de; ; Lengericher Landstr. 19; Osnabrück; 49078; Deutschland