Support for the First Amendment


An interesting post over at the Cato blog about public support for free speech in the United States.  The author concludes that:

In the abstract, Americans continue to support First Amendment freedoms. In concrete cases, majorities still often oppose the exercise of such freedoms. Citizens United vindicated the First Amendment in a specific case that a majority does not support. This gulf between principle and application has been and continues to be common among Americans.

This reminds me of Noam Chomsky’s point.  If you believe in freedom of speech, you believe in freedom of speech for the views you don’t like just as much as for the views you do.



9 Responses to “Support for the First Amendment”

  1. Jesse Says:

    I am doubtful about the value of some of the polling on the Citizens United decision. The poll numbers shift depending on how the question is framed (e.g., in the Argus Reid poll support for such restrictions appears to crater when the question says “express themselves” as opposed to “spend freely”). Notice also that when a reference to the bailout is added in the Argus Reid poll, support for restrictions soars across all categories.

    We should do a post about the Citizens United decision at some point. In the meantime, this short video puts Citizens United in some context:

  2. Udayan Mukherjee Says:

    Its interesting though that some of the backlash against the decision must be coming from people who are at least ambivalent to the content, if not active beneficiaries of it. Obama and his crew are a case in point. I’d bet its because most people don’t even support free speech in the abstract. Such a position would require a positive response to a question like “Should the government ever, anywhere prevent you from speaking your mind?”.

    Its unfortunate that people tend to vindicate things in general which are really just summations of their views in particular cases. The ‘concrete case’ tail wags far too many ‘abstract case’ dogs.

  3. Jesse Says:

    I think that it is often unhelpful and unfair to interpret support for a specific restriction on expression as an indication that someone has some abstract objection to freedom of expression. This is one of the reasons that the Chomsky quote in the post above is problematic.

    For example, it wouldn’t surprise me (in fact I think it quite likely) that Chomsky would disagree with the Citizens United decision. I think Citizens United was correctly decided. However, I think that most of the people who are unhappy about the decision disagree with it on the basis that they don’t think that the First Amendment means what the majority says it does. The problem with the Chomsky quote is that it escalates the nature of the dispute in ways that I find implausible (e.g., I think it would be absurd to say that the minority in Citizens United doesn’t agree with free speech in general).

    To give another example, I don’t think a school that requires its students to wear a uniform is in breach of NZBORA. (I haven’t read the specific poll question referred to in the Cato Institute post, but this probably puts me in the same category as the 74% of respondents who answered yes to the question about restricting what public school students can wear in class). Someone might disagree with me and make various arguments about why school uniforms are inconsistent with NZBORA. We could debate that back and forth. However, I would find it extremely unpersuasive if the person I was debating with declared: “so you don’t support free speech at all then.”

  4. Udayan Mukherjee Says:

    I agree Jesse, but I was trying to hint at the fact that vindicating something ‘in the abstract’ is much more powerful than is sometimes let on. You (and I) disagree with Chomsky (and the court minority). One of the key issues we disagree on must be about what it really means to uphold free expression. We can’t both be right about that, and to say that both side agree that free speech is good in general serves only to loosen our grip on what ‘good in general’ actually denotes.

    If someone thinks free speech is good, but only insofar as it is instrumental to good outcomes it sounds empty to me. What are the good outcomes? There is surely something to that question which underpins political disputes of this kind.

  5. Jonathan Says:

    Jesse I agree with your point that in the literal sense the Chomsky quote is unhelpful in that it can elevate disputes about the extent of the right to free speech into a more substantial dispute.

    However, I think it does highlight one point that comes through in the polling – it is often easier to support rights in principle than to support the outcomes of particular cases involving the application of those rights. As Udayan points out, that kind of support can seem increasingly hollow over time when one disagrees with more and more applications of a right in particular cases. Of course all those disagreements might relate to a disagreement over the extent/definition of the right. But if that is the case, it indicates that the extent of support for the broad proposition is quite limited because the parties to the disagreement have quite different understandings about what they are supporting.

  6. Jesse Says:

    Udayan and Jono: you both raise good points.

    As you say, if a person adopts a highly utilitarian view of when free speech should be protected, then you eventually get to a point where it’s questionable whether he or she really believes in free speech. Likewise, a person who professes to support free speech, except when they happen to dislike the speech in question, can’t credibly say that they have a respectable theory of free speech.

    However, I think that the debates between the intellectually respectable camps of free speech theory should be viewed as different approaches to interpretation and both camps should at least try to engage with each other’s arguments (e.g., it is worth thinking about the relationship between election spending and election outcomes even if it isn’t crucial to our legal analysis of the compatibility of spending limits with freedom of speech). Otherwise the debate really begins to break down.

    Stanley Fish had an interesting piece in the New York Times on this potential problem:

    “The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords.”

  7. Udayan Mukherjee Says:

    It is of course important to explore the relationship between election spending and election outcomes, and the results are obviously relevant to our desire to build a well-oiled deliberative democracy. But even if it was shown conclusively that money wins elections, I personally still wouldn’t support spending restrictions on corporations or people. I don’t feel that electoral integrity should really be so central to our conception of a free society.

    Fish’s article was interesting as a primer to First Amendment jurisprudence, and I agree that consequentialist and deonotological views are irreconcilable. But Fish goes on to affirm that he is a consequentialist. I think he’s wrong. But I might be wrong about that. In either case I don’t see how we can resolve the debate without having it.

    I understand your concern about the potential for the discourse to quickly descend into a mess when such fundamental questions are asked. Perhaps I am a bit too quixotic but I reckon its possible for public discussion to be clear and calm. May I ask how else you might suggest changing people’s minds?

  8. Will corporations rush to increase spending in US elections? « Today's Dissent Says:

    […] to free speech.  There has been something of a Chicken Little response to the decision, as the video in Jesse’s comment below points […]

  9. Jesse Says:

    Udayan, I agree that there are important high level jurisprudential debates to have as well as debates about the specific rationales for particular campaign regulations.

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