FESC: First Amendment Theory and Coverage

First Amendment Theory and Coverage
Moderator: Ash Bhagwat
Jane Bambauer, Derek Bambauer      Information Libertarianism
Presenter: Morgan Weiland: Important ongoing debate about
expansion of 1A doctrine to cover commercial and corporate speech.  Critiques existing identification of “new
Lochnerism” as an explicitly redistributive “soft Marxism.”  At its core, the current scholarship is
hypocritical, criticizing the Court for using the 1A instrumentally to
deregulate, but their theories of limits are also based on politics and are
therefore also instrumental.  The authors
purport to offer a politically neutral defense of expansive free speech
doctrine, because the 1A is inherently libertarian. Info = communication or
signals b/t sender/receiver where those communications are or could be useful
to human beings.  Info libertarianism is
oriented towards the listener. Speech is info w/in the scope of the 1A.  Info libertarianism is skeptical towards
regulation of speech and supports regulation of conduct.
Direct regulation of conduct is (1) more effective at attaining
gov’t’s goals, (2) has fewer collateral consequences, and (3) more transparent.  Costs of speech are overestimated and
benefits discounted.  Speech is vulnerable
to intractable political problems: interest groups, gov’t self-promotion, etc.
Info libertarianism mitigates these concerns.
Comments/feedback: 1A theory as libertarian. Paper assumes
that implicit in every theory of free speech is the libertarian insight:
worries about gov’t power. This assertion presents two problems. (1) Not clear
it’s correct; requires more support than provided. (2) Because the claim isn’t
supported, you determined ex ante that the entire field of speech is
libertarian, which neutralizes the ideological approach you subsequently
take.  Could be dealt with in a couple of
ways: distinguish b/t theory and doctrine; doctrine is a stronger candidate for
being deeply libertarian.  Could also
defend the claim that 1A theories are always ultimately about fear of gov’t.
Listener-centered approach is underdeveloped part of 1A
doctrine.  Red Lion & many other cases
discuss this view. There’s a lot of scholarship in the communitarian tradition
that deals with this listener-centered approach; engage w/that, b/c it comes at
listeners from a very different angle.
Use of term “information.”
Talk more about why you distinguish b/t speech and info in the first
place. What work does it do for your theory?
Relatedly, there’s tension in attempt to unite info theory w/the notion
of info described as attached to phenomenology, which reintroduces meaning.
Shannon’s info theory was designed to strip meaning out of info processing, so
there’s a tension.
Broader info libertarianism: Unpack the specific theoretical
contribution of info libertarianism in contrast to other free speech theories.
Morgan Weiland         “Thin
Autonomy” and the Digital Speech Crisis
Presenter: Amanda Shanor: New third tradition in free speech
theory: autonomy justification—thin autonomy, stripping hallmarks of human
autonomy in self-expression and self-creation, leaving only freedom from the
state. This poses a deep threat to the digital era.
Summary: First: dominant historical traditions, negative and
affirmative free speech.  Negative:
individual autonomy rooted in Enlightenment notions of self-expression.
Ascribed. Not just negative liberty against state, but productive/generative.
Affirmative: free expression is a social good wielded by individuals to
accomplish the public good of discourse/democracy.
Second: neo-Lochnerism and thin autonomy.  This new justification for speech protection
comes from commercial speech/corporate political spending as speech cases.
Radically corporate, libertarian version: strips away Enlightenment ideals,
leaving only a naked right against the state.
Not a right to self-constitution.
Flips press right on its head: negative right justification treated the press
as specially protected because it was instrumental to vindicating listeners’
rights; new thin concept treats listeners as instrumental to vindicating
corporate rights.  A one way deregulatory
ratchet.
Third: threat to digital era. Telecom law is poised for a
similar issue as commercial speech/campaign finance. Net neutrality is the new
ground.  ISPs are making third tradition
argument: ISPs are speaking when they load data packets.  That’s a thin autonomy justification divorced
from self-expression and self-realization.
Gov’t defends the first two traditions: data transmission isn’t speech,
but content creators’ and audiences’ receipt are.  Broadband providers are not speaking when
they deliver data, but serving as conduits.
Net neutrality serves important First Amendment purposes to allow
individuals to structure their own political speech.
Questions: (1) How do we recognize thin autonomy when we see
it?  Autonomy right against the state
claimed by corporation—is it just another way of making a corporate speech
claim?  When you see listener rights
invoked instrumentally?  You say that
listener rights can also be used instrumentally to serve thick autonomy
goals.  Paper suggests it might be
nonhuman actor that’s key. (2) Why and on what basis is thin autonomy
unsatisfying? Is it unacceptable b/c of its outcomes?  Or b/c the 1A does and should extend only to
thick autonomy interests?  (3) Can’t
corporations provide the opportunity for self-cultivation by citizens?  Commercial speech: in that context, some
cases we might realistically describe as neo-Lochnerism are brought by
individuals, such as US v. Caronia,
where an individual successfully challenges the FDA’s off-label speech rules.  Reconstituting the individual as consumer in
the third tradition: love to hear more about how the third tradition
reconceives the individual as a consumer.
Jane Bambauer: central tension in papers: theirs defends
thin autonomy because it’s a useful corrective to avoid bad policy—gov’t thinks
it’s getting things right and it’s not.
Insistence that every free speech theory has a libertarian core: maybe
that’s not true, but if we’re going to agree that the 1A is an individual right
then it is true. Even if you take the narrowest free speech theory, the
Borkiest, and protect only core political speech, if what we mean by being
protected is that the state can’t punish an individual for speech, that reveals
that we have some distrust of the political process to get the legal rule
correct.  [So all individual rights are
libertarian?  If I have a right not to be
killed by the state, does the fact that it applies to me as an individual make
it an individual right and not a communitarian one?]
Weiland: On defining thin autonomy: the legal fiction of the
corporate person has limits. We should allow the individualism of the free
speech right to apply to corporate persons, and that doesn’t make sense. We
should assess the nature of the group: reasoning in Citizens United was wrong,
as was the holding. What is their relationship to self-expression? Some groups
have a great claim to self-expression, but not all of them. Doctrine is now
incoherent. Perhaps the Citizens United group gets the same outcome, but not
all corporations.
Tamara Piety: Suggestions re: tone.  [RT: I’m offended at being accused only of
being a “soft” Marxist.  I work out!]  That’s a code word and not fair.  Basic framework of the Lochner charge was advanced by that well-known enemy of capitalism
CJ Rehnquist, in his dissents in Virginia
Pharmacy
and Belotti.  It’s taken time for some of his predictions
to bear fruit, but they did.  A lot of
these objections are coming from corporate law scholars: the corporate law body
of law is in tension w/emerging 1A doctrine.
Defining corporate entities is a very different project in corporate
law!  Not fair to characterize this as
burn-Wall-Street.
Straw man argument about originalism; if you care about originalism,
you should be concerned about current doctrine—not really pure originalism.
You assume what a lot of us are challenging: the
informational status of a lot of commercial speech. If you say it’s valuable,
you assume away the problem.
Intermediate v. strict scrutiny standard: but that’s one of the principal
disputes right now. Intermediate scrutiny became de facto strict over time and
we object to that; now we’re entering to a place w/an uneasy mixture of content
neutrality and Central Hudson, which
has not been overruled.
Jack Balkin: You can’t go far wrong if you try to base a theory on
some idea of freedom. Can we think of info libertarianism as being sufficiently
neutral as to all the things we care about w/r/t speech? Usually we don’t talk
about liberty as neutral; we talk about it as serving some sort of value.
Creating a form of liberty w/ no value associated with it strikes him as too
cautious.  What are the human values
promoted by this tilt towards libertarianism?
When you articulate it, it won’t be in terms of neutrality.  For Weiland: what is the loss in terms of
human values by the retreat to the thin conception?  For example, suppose you happen to be a
critic of neoliberalism.  Might argue
that the thin autonomy conception involves a particular form of risk
assessment/management, capital development to which human is entirely
subservient, subsumed into market metaphors, and that’s a deeply false picture
of what human life is and should be. That’s an objection I get.
Jane Bambauer: nothing is purely neutral, nor are we purely
procedural. Reluctant to name end goals (though she could) b/c we have many
examples where the gov’t’s end goal is not well served by regulating
communications.  [Which assumes that the
gov’t has a single goal, and that a better regulation in service of that goal
is politically possible.  I actually have
a lot of sympathy for the argument that the gov’t should be forced to Hobson’s
choice in many circumstances, though I think that’s generally a better argument
for getting rid of disclosures and doing more flat bans on speech.]
Weiland: Agree w/the affirmative and negative traditions: 1A
is there to ensure that we have opportunity to cultivate ourselves as
autonomous, expressive people. So can corporations provide that opportunity?
Yes, absolutely, but only instrumentally.
In the affirmative tradition we develop ourselves as publics, as
groups.  The single-way ratchet against
regulation prevents a proper balancing of the possibilities.
Bhagwat: negative/positive: one thing going on seems to be
instrumental/political versus individual autonomy/development.  Agree that Fiss, for example, is associated
w/gov’t getting involved and political, positive conception of 1A. But those
two threads can exist apart.  You say
that “getting more information” is not the result of Citizens United and thus
it’s not justified, but why do you think that’s not true?
Weiland: it could be the case that deregulation furthers the
listener’s interest, but it’s not always true as a tautology. Kennedy et al.
assert that listener’s rights are coextensive with every corporation’s speech.
Amanda Shanor          At
the Boundaries of Free Speech: A Theory of First Amendment Coverage
Presenter: Leslie Kendrick: Many questions around free
speech Lochnerism are questions about coverage, not protection: securities
regulation, workplace harassment. Coverage is a sociological concept.  What courts and litigants in a given moment
think it is; lately, that question of what coverage is has been expanding.
Descriptive theory of what courts are doing when they discuss coverage. Social
consequentialism: how cohesive are our expectations about the
reactions/understandings the speech will generate? The more cohesive our
reactions are, the less likely it is to be covered. Workplace harassment: we
understand the effects of harassment on the workplace. Porn/hate speech: those
are w/in the scope of the 1A b/c social cohesion around those is more contested—what
its effects will be are more in question.
Courts should assess the institutional and other values implicated by
expanding or contracting coverage.
Questions: is this really about cohesion?  Nazis in Skokie; we could all have a
consensus prediction about what happens when Nazis march in Skokie and what effects
that will have, and yet it’s protected.  On
the flip side, workplace harassment: the story there bears uncomfortable resemblances
to porn: different views of what porn does, but also potential disagreement
about effects of workplace harassment.
If sex is included in Title VII as a possible poison pill (a contested
account), then it didn’t itself represent any social consensus, nor did the effects
of harassment specifically in the workplace. One could also think of law itself
as a marker of social cohesion: and yet it can’t be the case that having a law
about something signifies the existence of social cohesion.
Speech/conduct divide.
[This troubled me too.  I think
the meaning of the shape of a car is likely to be contested, but that doesn’t
make it within the scope of the 1A.]  It’s
an uncomfortable divide, and the more we try to escape it the more trouble it
gives us. Many of the things that we wouldn’t colloquially call speech are the
subject of regulation and are contested.
Minimum wage laws.  The effect of
a $15/hour wage is contested, but no one would argue that b/c the effects of
such a wage are contested they have a 1A right not to obey.  Speech/conduct divide may be doing work
underneath your concept.
Leslie Kendrick          Use
Your Words
Presenter: Derek Bambauer: Theoretical inquiry separate from
underlying rationales for free speech or claims about coverage, balancing, or
scrutiny. Instead, speech is distinctive relative to other human activities:
more efficient, effective and precise method of communication than any other,
thus likely to possess a unique relationship to the reasons for First Amendment
protection.  Speech as phenomenon:
enables each of us to transcend individual boundaries of time, place,
meaning-making—can represent actual/potential states of being. Speech is power.
Specialness: a brief history of justifications for speech
exceptionalism.  Unitarians: single core
value drives shape of 1A. Pluralists: speech is critical/central to multiple
important values.  Inclusivists:
everything is speech until shown not to be; this is more of a description than
a theory.  Skeptics: those who find
speech’s uniqueness unpersuasive: speech is not meaningfully distinct from
speech or tennis (don’t attend Wimbledon w/these people), but speech claims are
just normative agendas.
Separability from other activities + heightened value/special
connection to underlying values = justification for special treatment for
speech.  Paper doesn’t require 1-to-1
correspondence w/ underlying value, but it is enough for speech to be primus
inter pares.  It’s enough that “speech”
doesn’t describe all activity and that “speech” is special.  Doesn’t address which speech should actually
be protected, or whether there should be “neighboring rights” for
speech-generating behavior.
If speech is special b/c it’s uniquely good at communicating,
we need an underlying theory for why communication is special.  At base, this is a claim about human
specialness: social interaction/advanced cognition are important, and
communication is a platform for that. If communicative efficiency is a
criterion, then many behaviors become speech; forces the theory to become
highly inclusive, outsourcing all the work to the protection issue; or it
requires some other limit.  Words and
other speech aren’t uniquely communicative. Much communication is nonverbal and
not even what we’d call language. The eyebrow flash; the wink; the crossed
arms; the tapping toe.  We also find
signals easily recognizable as words in animals: honeybee dance for location;
warning cries that identify specific predator types. We need to understand
whether all communication is speech and if not why not.
Paper: speech is a complex system of communication.  Complex is a word that needs elucidation, or
risks becoming the 1A version of the epicycle, an adjustment that does a lot of
the work of harmonization w/desired outcome.
Also, simple signals do a lot of work, like flashing your headlights to
signal a speed trap. We can’t resolve the speechiness of draft card burning and
flag burning w/just an idea of complexity.
Wherever the boundary of speech is located, will leave out
certain acts vital to speech generation. Could be relegated to Press clause in
doctrine, but certain means of generating speech are just more effective than
others. Printing press, pencil—classic line drawing problem.
Shanor: does cohesion work?   Harassment is about boundaries, different
types of interpretive communities.
Ultimately my conclusion is that drawing these lines can’t just be socially
descriptive; neutrality is not a thing that exists.  Normative inquiry.  Attempt: highlight social forces.  I think about speech/conduct differently: if
we have a two-tiered system of scrutiny, there always has to be a boundary—a meta-doctrine,
per Mark Tushnet
. Doesn’t think we can get it from speech and conduct;
deeply normative decisions are required.
Hope is to make that a more visible inquiry.
Kendrick: interested in structure of rights, particularly
special rights that operate above whatever rights conduct does generally.
Conceals w/in it questions of how distinctive the activity is and how robust
the protection difference should be; my question is about the first. In our
language of special rights, we tend to frame them in terms of activities in the
world. So we could have a liberty principle or something else that invoked a
value, but instead we talk about “freedom of speech” or “freedom from
unreasonable search and seizure”: described in terms of facts in the world.  Trying to see if you can gain anything by
thinking about speech as a phenomenon separate from the values we think it
furthers.  Then I stab at that by trying
to distinguish speech in its communicative power/efficacy. I resist the idea
that it’s about communication per se. I want to put aside Qs about everything
that could communicate.  Defending the
proposition that speech is different in communicative capacity, not to say that
speech has a monopoly on communications. We have academic disciplines devoted
to speech, specifically language, suggesting that language communicates
differently. Though everything signifies, language is the most effective
signifier.
She’s perfectly willing to concede that animals have complex
systems of communication. We could think this phenomenon has important value
for something—but maybe it only relates to human development, or not; maybe preventing
animals from communicating is a form of cruelty!
Q: Hate speech & harassment don’t differ in social
effects; Eugene Volokh would protect harassment in the workplace.  Nuanced, accurate, efficient: all can be
characteristics of sexual harassment, price-fixing. So it seems there has to be
some greater value beyond speech.
Shanor: Agree that formal analysis can’t answer these
questions; ask functional questions, e.g. about the functioning of the
securities markets.
Kendrick: what I’m describing about speech has no normative
valence; it could be used for good/evil. Speech is very good at insulting
people.  Hard to have hate crimes w/o
language that explains what you’re doing.
Want to disentangle the phenomenon from the normative values served by
the speech; there are certain types of claims you can only make through
language, like all the types of claims we discuss here; all rules for governing
a democracy; any type of abstract or hypothetical thought—speech has a monopoly
on those.
Q: many of the theorists you deal with are actually arguing
about protection, not coverage.  We don’t
protect speech in all cases, so maybe the question of whether speech is especially
good at communicating is beside the point.
If we find parts of speech that aren’t doing the thing that speech in
general can do, then we can regulate it, right?
Q: maybe speech communicates specially b/c we have a choice
to say or not say: b/c we have a choice about integrity. Silence can mean something
too.

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