Few notions are as destructive of human welfare as “freedom.” The problem lies in the word’s siren-like allure combined with its clay-like malleability. Who doesn’t want freedom? It’s one of those words that chiefly calls to mind its opposites: slavery, obedience, constraint, “a boot stamping on a human face forever — forever.” Whatever freedom might mean, surely it’s something we’d far prefer to the alternatives. That is until we reflect on the suffering and atrocity, not to mention more minor corruptions, inflicted in freedom’s name.
There are three domains, three kinds of markets, in which the concept of freedom has in recent times been unleashed as a kind of apex predator of the law. Two of them, economic markets and government, have since been exposed as far more complex than starry-eyed libertarians or collectivists wanted to admit. In one of these, the marketplace of ideas, this predator still roams free, destroying laws that can be characterized as regulating speech. Under the guise of freedom, the modern interpretation of the First Amendment tends to perpetuate a laissez faire market for speech replete with market failures and catering to powerful interests, just like the judicial enforcement of freedom to contract kept in place the lopsided, failure-filled laissez faire economic market that preceded the Great Depression. That is the real story of Citizens United. All of this has happened before, and all of this will happen again.
The Free Speech Talisman
In the United States, the freedom of speech is venerated as our highest ideal, maybe our greatest achievement, and perhaps even constitutive of what it means to be an American. Our nation professes to have adopted lock, stock, and barrel Evelyn Beatrice Hall’s characterization of Voltaire’s speech ethic: “I disapprove of what you say, but I will defend to the death your right to say it.” And so, we have upheld the rights of Neo-Nazis to march through a town inhabited by many holocaust survivors and to display the swastika as proudly as they would like. We have struck down a statute that attempted to criminalize sexually explicit images that appear to feature, but do not actually feature, minors. We have famously upheld the right of Hustler Magazine to make fun of televangelist Jerry Falwell by stating that his sexual debut was with his mother in an outhouse. The freedom of students to protest the Vietnam War by wearing black armbands. The freedom of civil rights activists to criticize harshly and even if slightly mistakenly the state police. The freedom to burn the U.S. flag.
These cases, and many others, stand for the idea that we are truly free to express ideas that are inimical to others. Here is a bit from the influential dissent of Justice Oliver Wendell Holmes, Jr. in Abrams v. United States:
[W]hen 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.
Holmes asserts not only that speech and ideas are bandied about in a marketplace but that our Constitution requires that market to be free. The Darwinian selection of The Best is made possible by judicially protected laissez faire. This idea has held on, won out, and delivered to us the line of free speech cases trumpeted in books and films for protecting the powerless and the unpopular.
Even as he wrote the words above, Holmes was also in the dissenting minority in cases striking down congressional regulations of economic markets. Fourteen years earlier, Holmes had dissented from the now-infamous decision of the Supreme Court, in Lochner v. New York, to strike down a New York law prohibiting bakery employees from working more than ten hours in a day. There, he wrote that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” And in a case decided four years after Abrams, the speech case above, Holmes dissented when the Court struck down of a minimum wage law on grounds that it unconstitutionally interfered with the “freedom of contract.” Holmes believed the Court should defer to legislatures adopting a non-laissez faire theory of economics, including those which, and here he quoted a law review article, “freedom of contract is a misnomer as applied to a contract between an employer and an ordinary individual employee.”
Throughout this period, a number of influential scholars were busy attacking courts for their formally pro-freedom but substantively pro-business agenda. The legal realists, as they are known, included figures like Robert Hale, who along with Wesley Hohfeld pointed out that freedom in a legal sense is a relative concept. My “freedom” to do something necessarily means, roughly, that someone else is disabled from stopping me. You don’t, then, add freedom to a society by refusing to regulate private transactions. Rather, logic dictates that one needs some additional, moral principle to evaluate which kinds of freedoms and whose freedoms to choose over others. These and other scholars established that, rightly or wrongly, many courts had promulgated law that was cloaked in the language of neutrality and freedom but in fact favored the freedom of the wealthy by aggressively protecting their “rights” to coerce the less well off. Spurred by the economic disaster that was the Great Depression, strong empirical evidence that laissez faire sometimes fails massively, the case for market regulation prevailed — at least in the Supreme Court. Ever since, Congress and the states have been pretty much unrestrained by the courts in their ability to regulate markets. No longer is “freedom” used uncritically to prohibit market regulations intended to correct failures or to redistribute in the interests of fairness or to prevent undue suffering.
Over the years, economists have added criticisms of markets that are interior to market ideology. By that, I mean that they have described a number of circumstances in which markets fail to deliver efficient results, where the voluntary participants are made objectively worse off by their participation, under pretty much any moral theory you choose to apply. Market failures occur for many reasons, including, for example, the wasted expenses necessary to complete a transaction (transaction costs), monopolies, and the fact that individual behavior is often allowed to affect others without their consent through payment (e.g., pollution, an example of an unpriced externality). It’s not important now to understand all of these, but the point is that an unregulated market can sometimes bring terrible results, even if we measure results by aggregate wealth alone. For one example scenario, see Garrett Hardin’s Tragedy of the Commons (skip down to Tragedy of Freedom in a Commons) describing how rational, unregulated herdsmen grazing cattle in a common pasture might be locked into a losing game of putting cow after cow on the increasingly degrading lands despite all recognizing the insanity of the situation.
More recently, legal scholars have started to be more systematic in analyzing the case for market regulation, or deviations from laissez faire, in terms of the predictable irrationality of the human brain. Economic transactions can be inefficient, in the sense that they make the actors involved jointly worse off, because of their refusal to ignore sunk costs, their predictable overoptimism, loss aversion, and other psychological curiosities. (Both law and economists and behavioral law and economists are concerned with more than just market regulation and apply their techniques in many areas of the law. I recognize that. What I’m not aware of, though perhaps it exists, is a systematic study of the failures of speech markets.)
Just as it was with economic markets, the dream that free political systems can deliver great results if only the voters are free to express their preferences at the ballot box has been discredited. The market for votes is as infected with endemic problems as the market for dollars. Here, the dominant critique is known as public choice theory and has as its objects special interests, rent-seeking, the capture of regulators by regulated parties, and the like.
My point here is only that freedom, defined as the relative absence of regulation, counting on voters to regulate with their votes, sometimes fails within governments, just as the absence of regulation can lead to failing markets. This is well known, well described, and non-controversial. People dispute the extent, the qualities of the problems, the appropriate solutions — sure. But laissez faire as a theory of political and economic market regulation is a dead letter, while the sources of problems in these markets and the search for solutions is hopping.
When Holmes extolled the virtues of a free marketplace of ideas, he was writing against a majority that approved of a ban on core, political (though revolutionary in the midst of a war) speech. It was a little like extolling the virtue of freedom in an economic market to decry a government’s outright seizure of an average person’s modest home. Rhetorical defense of a libertarian position in one case is understandable. But Citizens United seems to me a sort of endpoint, at which Holmes’s marketplace model has hit upon its ultimate expression. If you’re not familiar with it, the ruling struck down a federal statute preventing corporations and unions from spending corporate money to advocate the election or defeat of political candidates.
No matter how apparently broken the market, market participants, in whatever form, have the constitutional freedom to work it out themselves. As Justice Kennedy wrote, to uphold an earlier Supreme Court decision allowing such regulation would “interfere with the ‘open marketplace’ of ideas protected by the First Amendment.” And as Justice Scalia said, defending the decision at a meeting of the South Carolina bar, “I don’t care who is doing the speech — the more the merrier. People are not stupid. If they don’t like it, they’ll shut it off.” And just like that, just like Lochner before it, the freedom of the individual is the sword the Court wields to block attempts to rescue a failing market.
Now, there are ways to attack the kind of thinking embodied in Citizens United that take issue with the very conception of the freedom of speech as a free marketplace. Alexander Meiklejohn, writing in 1948, attacked the marketplace of ideas approach, taking Holmes’s dissent in Abrams as a focal point. For Meiklejohn, conceiving of the freedom of speech in market terms was mistaken from the start. Rather, the right model was the town hall meeting, at which each citizen could speak his mind and be heard. The freedom of speech is about not the “words of the speakers, but the minds of the hearers.” It is not an unregulated, noisy clash of ideas, but an organized but free airing of them, calculated to enlighten the listener.
Markets not only diffuse means of production but they diffuse purposes. For the libertarian speech advocate, the freedom of speech includes the freedom to disagree about the purposes speaking to one another should serve. As I said above, I believe that the marketplace view has held out against such attacks and rules judicial intuitions across the land. But that’s not a stopping point, only a starting point.
What I would like to see more of is the “free speech legal realist.” Broad considerations of freedom allow, perhaps even subconsciously, courts to sweep under the rug the consequences of their interventions. But markets can and do fail. Implicit in saying that is that there are some criteria of success, or purpose. There need not be only one. As with economic markets, there could be patterns of transaction that deliver poor results under any conceivable rationale.
Our political campaigns are an example of the failure of the speech market to live up to our ideals. I am certain some will argue that the problem with campaigns is that there is too much regulation. But surely we can detect the hint of the failure of laissez faire by observing just how awfully electioneers make use of the freedom they already have. Can anyone honestly look at the body of campaign speech and at the polling evidence concerning how people consume that speech and reach decisions and fail to say that the open exchange of ideas has failed to lead to more informed decisionmaking? Modern political campaigns, like all other advertising, sell emotion: fear, identification, hope, purpose. The more money you have to secure broadcast to the masses, the more of it you can shovel. As Dahlia Lithwick ably points out, it’s actually Stephen Colbert who is doing the best work laying out for all to see the ways that the market in campaign speech is a mess. Though his medium is hilariousness, his role is not unlike Upton Sinclair’s in writing The Jungle, which exposed just how unfree and miserable life as a cog in the laissez faire free market could be. Sinclair wrote of the brokenness of the economic market then protected by the Supreme Court, while Colbert lampoons the speech market now protected by the Supreme Court.
My purpose here is only to provoke the more careful, internal study of speech markets and their failures. Do people assume the relative volumes of speech on either side they encounter reflect the volumes of support in the public? Do transaction costs (here, collective action problems) prevent coalitions of large groups with somewhat milder preferences from securing limited media space that is easily secured by smaller groups with more intense preferences and access to capital — and do voters draw the correct inferences from the presence of the latter and the absence of the former? Do certain emotional cues play on biases that listeners themselves would like to overcome? Are listeners as prone as our media to believing that anytime there are two opposing assertions the truth lies in the middle, incentivizing extreme speech by candidate proxies? Is there a tragedy of the commons at work with negative and non-substantive campaign speech, a sort of game that drives the participants to a discourse no one would choose — the slavery occasioned by freedom? What other psychological quirks of the human brain are exploited by speech in a free market in ways that drag us all down?
Some evidence that regulations intended to ensure higher signal to noise could be fruitful, other than the common sense of one subjected to typical campaign speech, is the effect of deliberative polling. But I don’t intend to lay out the case here.
As with economic markets, the failure of the speech market does not automatically imply the superiority of regulation, for government failure is also possible. I call only for an honest appraisal, a search for truth concerning this marketplace or ideas. When does it go wrong, and why? No more hiding behind a “freedom” that has us collectively in chains.
While I have read a great many First Amendment cases and a decent amount of its scholarship, I’m not immersed in free speech academia. That’s ok by me, as the blog gives me a chance to scrawl some of these kinds of ideas down and to converse outside the normal research process — and to do so without worrying whether others might have gotten there first. A friend pointed out to me this morning that, as is very often the case, Cass Sunstein has grappled with a version of this particular idea for a long while. See here, for example.
Ideally, something like blogging could reduce the space between idea and publication to near zero, and the continued, dialogic form, rather than armies of research assistants and pre-publication review, will converge to the idea’s best expression. More on that in later posts. So please drop me a note if you know of anything that might advance any of the conversations I enter here — whether they replicate what I’ve said or contradict it.