I. Consequentialist Theories of Freedom of Expression

One family of theories attempts to justify a right of freedom of expression by pointing to various good consequences that such a right will bring about. The most often invoked good consequences of this sort that freedom of expression is supposed to produce are truth, autonomy, and virtue.^[248] I take up these three consequentialist goods in turn.

A. The Promotion of Truth

One common Justiflcation advanced on behalf of freedom of expression is that such freedom is instrumental to the discovery of truth. Freedom to disseminate new information and to criticize prevailing views is necessary for eliminating misconceptions of fact and value.

Although this Justiflcation is frequently criticized as resting on a philosoph­ically naive realist view about facts and values, that criticism is off the mark. The Justiflcation for free inquiry as a means for discovering truth is not tied to any particular metaphysical view about fact or value.

The real problem with this Justiflcation is not in what it assumes about the nature of truth but in what it assumes is the best procedure for obtaining truth. In domains in which obtaining truth is the principal value - for example, in legal proceedings - expression is regulated and circumscribed. Even in the area of scientific inquiry, professional Journals refuse to publish claims that the editors believe are not properly substantiated, and faculties and laboratories refuse to employ those who hold what in the opinion of the faculties and laboratories are outlandish views.²

² Robert Post points out that it is only within specialized environments, themselves quite regulated, that we can say that “truth-seeking” is the function of the freedom of expression that remains in the space left by the regulations:

There is thus a disturbingly large gap between the actual shape of our constitutional law and doctrinal rules that seem to express the theory of the marketplace of ideas.

The social practices necessary for a marketplace of ideas to serve a truth-seeking function are perhaps most explicitly embodied in the culture of scholarship inculcated in universities and professional academic disciplines. Certainly this culture is what Charles Sanders Peirce had in mind when he advocated “the method of science” as a preferred avenue toward truth, a method that he explicitly contrasted with the “method of authority” which employs the “organized force” of the state to suppress “liberty of speech.” In this limited sense there is deep insight in the Court's often repeated observation that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.'” The augmentation of knowledge within professional academic disciplines does not flow merely from the fact that ideas are formally free from official censorship, but rather from the fact that this freedom is embedded within what John Stuart Mill once called a “real morality of public discussion.” In the absence of such a morality, it is merely tautological to presume that truth is what most people come to believe after open discussion.

It is thus inaccurate to infer that the theory of the marketplace of ideas requires that the First Amendment protect all speech that communicates ideas. Instead, the theory requires the protection

Moreover, it is a mistake to assume that truth is something quantifiable, so that we can assess alternative regimes based on how much “truth” each produces. There is no single thing called Truth that we can obtain, either absolutely or in varying degrees. To ask whether a regulation promotes or impedes Truth is to ask a question that is essentially meaningless, like asking how many individual things there are in the universe. All regulations, and all failures to regulate, produce different environments, and each environment reveals some truths and obscures others.

Of course, the truthseekers might want to see the question posed differently. Instead of posing the question in a way that invokes Truth, one might pose a specific truth-seeking question: say, whether a specific regulation promotes or impedes a scientific truth.

One should concede that there are specific truths - “right answers” to specific truth-seeking questions. One should concede that some of those specific truths can be viewed as particularly important to obtain. These concessions having been made, it would follow that if (1) a governmental regulation interferes with the search for the answer to a particular question - a particular truth - and if (2) obtaining the answer to that particular question is viewed as very important, then (3) the regulation is unjustified unless (4) the other values served, or “truths”

only of speech that communicates ideas and that is embedded in the kinds of social practices that produce truth. The Court's failure to offer doctrinal articulation of the social prerequisites of truth-seeking is a significant source of the gap between doctrinal rules attempting to embody the theory of the marketplace of ideas and the actual shape of our First Amendment law.

Society consists of myriad forms of social practices, and speech is constitutive of almost all of these practices.

To implement accurately the theory of the marketplace of ideas, therefore, doctrinal rules would have to confine the scope of their application to those domains of social life where the prerequisite forms of social organization for a functioning marketplace of ideas either were present or could constitutionally be conjured into existence. Exactly where the theory could appropriately be applied, of course, would be highly debatable, but I suspect that under any fair construction the scope of its application would be quite narrow.

Robert Post, “Reconciling Theory and Doctrine in First Amendment Jurisprudence,” in L. C. Bollinger and G. R. Stone, eds., Eternally Vigilant: Free Speech in the Modern Era (2002) 153, 163-4 (footnotes omitted). And see James Boyd White, “Free Speech and Valuable Speech: Silence, Dante, and the ‘Marketplace of Ideas,” 51 U. C. L. A. L. Rev. 799, 812 (2004) (pointing out that “when we really do believe that speech can advance truth... we normally do not free it from constraint, but instead... regulate it”). See also Steven D. Smith, “Believing Persons, Personal Believings: The Neglected Center of the First Amendment,” 200 U. Ill. L. Rev. 1233, 1246-7. As Smith points out, it is doubtful that “the communicative free-for-all that prevails in, say, political campaigning or the advertising of competing products [is] well calculated to help voters or consumers apprehend the truth in these matters.” Id.

For example, one might believe that forbidding the publication of the Pentagon Papers^[249] substantially obstructed the search for the truth about U.S. in­volvement in Vietnam, and that the “truths” and other values served by keeping the Pentagon Papers secret were less important than the truth about that in­volvement. If one subscribes to this belief, then one would have condemned any attempt to restrain the publication of the Pentagon Papers, even though, because of other values that would be implicated, one might not have allowed citizens to search the Pentagon looking for those papers, or one might have punished those whose thievery was responsible for their publication.

The problem with the “quest for truth” as a theory of freedom of expression in the “specific truths” sense is that one cannot extrapolate from the quest for specific truths to any recognizable general theory of free speech. The quest for specific truths demonstrates only that some expression does help answer some questions that are relatively important, and that regulation of expression some­times will be unjustified. Other expression contributes little toward answering some questions; some activities other than expression contribute a great deal toward answering some questions; and answering some questions is less impor­tant than, and occasionally is downright destructive of, other values that even avid specific-truth seekers would want to protect or maximize.

This last point is crucial. The corollary of the proposition that some freedom of expression in some environments is conducive to discovering some truths that are worth the harms that the expression causes is that in many instances freedom of expression may lead to error rather than truth, even in the long run, or that the long run may be too long given the harms the expression causes in the short run. And not all truths are equally important.

Freedom of expression thus promotes the search for some truths and impedes the search for others; and in the former cases the truths at issue will sometimes be worth the costs of the expression and sometimes not. The promotion of truth cannot provide the basis for a general right of freedom of expression. At most, it can support specific (and not unbridled) rights of freedom of expression in certain types of environments.

B. The Promotion of Autonomous Decisionmaking

Various theorists have suggested that freedom of expression promotes individual self-rule, individual self-development, and political self-rule. To the extent that we can characterize these theories as based on the general value of autonomy, they seek to maximize autonomy rather than to treat it as some absolute or near-absolute side constraint.

The autonomy these theories seek to maximize, however, is not affected only by regulations aimed at communicative impact, that is, by regulations designed to prevent audiences from learning certain information or hearing certain argu­ments or opinions. Autonomy also is affected by any regulation that affects the information and opinions one receives - that is, by all governmental regulations. All of government’s regulations affect the ideas that individuals receive - those regulations directly affecting access to information, and those affecting access to the indefinite diversity of media of communication, including private property in others’ possession, that are useful for communicating generally, communi­cating certain ideas, or communicating ideas in a particular form. Hence, all government regulations influence individuals’ self-rule and self-development. And, of course, the interests that government balances against speech - such as security of person, security of property, and protection of privacy - all affect autonomy values. In other words, autonomy is on both sides of the balance in a typical freedom of expression case because one’s autonomy is surely compro­mised, not only when government deprives one of facts and good arguments, but also when it fails to prevent speakers from lying to one, lying about one, revealing one’s shameful secrets, threatening one, shocking one into seclusion, taking one’s intellectual property, persuading others to harm one, and so on.

Thus, these consequentialist autonomy theories all require some sort of bal­ancing mechanism. Balancing is required so that government can, for example, decide whether allowing Able to burn Baker’s dollar bill without Baker’s con­sent (in order, say, to protest inflation in front of a particular audience and with a particular communicative effect) advances autonomy more than not allowing Able to do so (with the resulting benefits of protecting security of property while permitting whatever speech would result if property allocations were undisturbed).

Consequentialist autonomy theories require that expression be assigned a “proper value” in furthering autonomy. They likewise require that other values be assigned “proper weights” relative to autonomy. Surely “expression” has some value, and surely the value of “expression” varies with the truth and importance of its message. Therefore, these theories require some government agency - ultimately courts or legislatures - to assess expression for its truth, importance, and so forth, as well as to balance the value of “expression” against other values. In sum, consequentialist autonomy theories require violation of evaluative neutrality.

Finally, none of these consequentialist autonomy theories can justify the special treatment of expression. If autonomy is important, why is autonomy re­garding expression more important than autonomy regarding conduct? It cannot be because expression is harmless and conduct potentially harmful. Expression can cause all sorts of harms, as we have seen, many of which themselves reduce autonomy. Moreover, conduct not intended to express ideas nevertheless gener­ates ideas - what the conduct is like, whether it is valuable, and so forth. Indeed, restrictions on nonexpressive conduct may be more intellectually stultifying and thereby reduce autonomy more than restrictions on expression. Moreover, what in terms ofpromoting autonomy justifies elevating the freedom to receive and assess ideas over the freedom to act on them? As Steve Smith puts it,

The challenge now is not to justify restraints on government: it is easy enough to appre­ciate that government often interferes with choice - or that some people acting through government will sometimes interfere with the choices of other people. The basic diffi­culty now is to explain why one category of choices that people in fact value deserves more respect from the law than most other kinds of choices receive.... [D]ifferent peo­ple surely regard different kinds of choices as more important or more fundamental to their self-conception or life projects. Sojustifications asserting the central importance of choices involving expression or religion to autonomy, by in effect telling people which choices are most important to them, seem inconsistent with the value of autonomy itself.^[250]

C. The Promotion of Virtue

Some have argued that the most cogent justification for a right of freedom of expression is that it is conducive to the cultivation of certain virtues that are essential to the success of liberal democracy. In particular, freedom of expres­sion leads to development of tolerant attitudes towards others’ beliefs as well as to becoming thick skinned about critical, insulting, and offensive statements.^[251] Tolerance and a thick skin are in turn vital to life in a modern pluralist democ­racy, with its competing visions of the Good, its differing standards of civility, and its competitive economy and politics. Without a high incidence of toler­ant attitudes and thick skins among their citizens, pluralist societies would be riven with civil strife and could not maintain their liberal democratic character. Freedom of expression assists in the development of these essential virtues, or so the argument goes.

I shall not assess the descriptive claims of this theory, though I am not sure that freedom of expression is the cause rather than the effect of tolerance and cognate virtues. What I do argue, however, is that these “virtue theories” fail as general theories of freedom of expression. For one thing, they are radically overinclusive. Tolerance could be cultivated by forcing people to endure, say, insulting speech, or offensive speech; permitting speech that incites crime, ruins reputations, infringes intellectual property rights, invades privacy, deceives, and so on has no obvious connection to tolerance or becoming thick skinned. With the possible exception of invasions of privacy, the harms such speech causes are not primarily psychic.

These theories are also radically underinclusive, as this last point illustrates. For tolerance and other virtues can be cultivated equally well by forcing people to endure nonexpressive conduct. Perhaps we could learn to tolerate really loud noises, slaps to the face, forced child marriages, and different aesthetic tastes - consider old cars parked in our neighbors’ yards, or the cutting down of old growth forests and their replacement with plastic trees.^[252]

In short, there are lots of ways to cultivate tolerance and thick skins. We do not need to permit harmful or even psychically harmful speech in order to do so. Religious liberty might work as well. And surely there is lots of nonexpressive conduct that we are presently intolerant of but which we could learn to endure.

D. Do Consequentialist Theories Have the Right Shapefor Justifying a Human Right of Freedom of Expression?

The foregoing discussions have attempted to demonstrate the shortcomings of the usual consequentialist theories of freedom of expression - those that posit truth, autonomy, or virtue as the goal for the attainment of which freedom of expression is instrumental. Truth (in the form of particular truths) is sometimes served and sometimes disserved by freedom of expression, and it is often served as well as disserved by freedom of action. Autonomy is the same. And the cultivation of tolerant virtues cannot itself support any particular instance of freedom of expression.

Beyond these criticisms of particular consequentialist theories, and reflected in them, are two more general points. First, any consequentialist theory will be hostage to the facts. Whether a particular rule immunizing certain expression from governmental sanctions will promote good consequences, however spec­ified, will almost assuredly vary from time to time and from place to place. It may even be the case that a freedom of expression doctrine that produces good consequences in the United States will not do so in Canada and vice versa. And if that is true of nations so close geographically, linguistically, technologically, demographically, and politically as the United States and Canada, then it is surely true of nations that are far less alike in these regards. And if it is true synchronically across similar nations, then it is probably true diachronically, even within one nation. For these reasons, consequentialist justifications for a human right of freedom of expression - one that is the same for all people wherever and whenever located - look hopeless.

Consequentialist justifications of a human right of freedom of expression are problematic for another, though related, reason. The protection that they afford the individual speaker and listener is not justified out of concern for them and their moral entitlements as individuals but is rather justified by how granting them the right will promote public welfare. Although it is possible that one’s conception of human rights has this indirect consequentialist form, on most understandings, I suspect, the individual’s human right has a primary and not derivative status.^[253]

II.