Volume 27 1 Issue 3


Arnold H. Loewy


Arnold H. Loewy


  1. Democratic Theory and the Absolute Freedom to Advocate Ideas

Having begun this essay by analogizing freedom of speech to the right to vote, it is now appropriate to focus on the differences. Whatever else may be said about the franchise, it most assuredly is not absolute. The right to vote is denied to convicted felons, to those under eighteen, to non-citizens, to newly-arrived residents,[1] and to those who failed to register in a timely manner. Indeed, were it not for several constitutional amendments, the franchise would be even more regularly denied.[2] Even those who can vote have severely circumscribed choices. In the absence of write-in pos­sibilities, which are not universally permitted, the voter may well perceive her choice to be between Tweedle-Dee and Tweedle-Dum. Why then should the right to advocate ideas be so absolute?

The difference between the franchise and the freedom of speech is that freedom of speech is a more baseline right. The franchise needs to be limited to citizens because it is the ultimate determi­nant of how we are to be governed. Free speech is a step (or several steps) removed from the electoral process. Speech sets nothing in concrete; at best, it brings a new idea into the marketplace. An alien or a ten-year-old can contribute to the marketplace of ideas. If we do not like what he has to say, we can reject it out of hand. He has not infected the electoral process by his possibly disloyal or immature thought process. This distance from ultimate decision­making justifies extending freedom of speech to more people than receive the franchise.

There are other distinctions between speech and voting that un­derscore the baseline position of free speech in the democratic pro­cess. Elections are single-shot activities that become res judicata once held. At that point, we have, at least tentatively, charted a governmental course. The marketplace of ideas, on the other hand, is ongoing; it never closes. It keeps working, seeking to influence people’s thinking for future elections, or for a myriad of other pur­poses.[3] For this reason, there is no need to regulate the number or quality of participants.

Furthermore, the potential harm from ill-considered speech is less than the harm from ill-considered voting. Once the speech is made and the speaker leaves, we no longer have to take it seri­ously. Ill-considered votes, on the other hand, can seriously affect the way we live. With all of the talk about the pain caused by the Nazis in Skokie, they did no more than threaten to appear in their ugly uniforms.[4] In suburban New Orleans, on the other hand, white supremacist David Duke represented the citizenry in the Louisiana Legislature for several years.

There is one other important reason for granting absolute pro­tection to the advocacy of ideas: the infinite opportunity for others to do the same. In almost every other choice that a legislature makes, if one liberty is granted, something else will be lost. For example, if animal research is limited, some loss in curing and preventing disease will occur. If it is not limited, animals will suf­fer. Similarly, if the right to choose abortion is limited, reproduc­tive liberty and bodily autonomy will be compromised. If they are not limited, fetuses will be killed.[5] Choices have to be made. We cannot have it both ways. With freedom of speech, on the other hand, allowing bad speech does not limit the opportunity for good speech.

I am not suggesting that the first amendment guarantees people the right to advocate whatever they wish, “whenever and however and wherever they please.”[6] [7] Such advocacy may constitute an in­tolerable invasion of privacy, or unduly interfere with legitimate functions of the chosen locale.[8]1 am suggesting, however, that the government may not interfere with the dissemination of an idea in order to totally silence the message. In this regard, the test for free exercise of religion is an appropriate analogue: “[free exercise] em­braces two concepts —freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.”46 Because there is no limit to the number of different ideas that people can advocate, the analogy to the freedom to believe is apt.[9]

One might argue that the analogy is not apt because an uncom­municated belief can cause no harm, whereas advocacy can. The answer is that the only harm that unlimited advocacy can cause is that which was contemplated by creating the freedom in the first place. People may be offended by a Nazi spouting his ugly ideol­ogy, or his speech might induce someone to act violently. These, however, are risks inherent in the First Amendment. In short, al­lowing unlimited advocacy can cause no harm that can legitimately be counted as harm.

By focusing on democratic theory, I do not mean to denigrate the other values served by the First Amendment. I have little doubt that freedom of speech is good for personal self-fulfillment,[10] personal self-development,40 aiding the democratic process,60 checking our government officials,61 providing for orderly change,62 and harmlessly letting off steam.63 But, above all else, the charac­teristic of freedom of speech that distinguishes it from other rights is the government’s absolute disability to control entry into the marketplace of ideas.

  1. “Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means.” Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). See also Thomas I. Emerson,

[1]    Compare Dunn v. Blumstein, 405 U.S. 330 (1972) (invalidating a one year residency requirement) with Marston v. Lewis, 410 U.S. 679 (1973) (upholding a fifty-day requirement).

[2]    The Fifteenth Amendment precludes franchise denial on the basis of race; the Nine­teenth Amendment precludes denial on the basis of gender; the Twenty-Fourth Amendment abolishes poll taxes; and the Twenty-Sixth Amendment protects those as old as eighteen from age discrimination. Arguably, the Seventeenth Amendment, which provides for the direct election of U.S. Senators, is another franchise-enhancing amendment.

[3]    There is no reason to suppose that the First Amendment should be limited to pure political persuasion. See, e.g., Michael J. Perry, Freedom of Expression: An Essay on The­ory and Doctrine, 78 Nw. U. L. Rev. 1137, 1148-51 (1983). Contra Bork, supra note 1.

[4]    Once they won the right to demonstrate, they chose to forgo the right in exchange for a permit to demonstrate in a Chicago park. See Aryeh Neier, Defending My Enemy 169-71 (1979).

[5]   See Arnold H. Loewy, Why Roe v. Wade Should Be Overruled, 67 N.C. L. Rev. 939 (1989).

[6]     See Adderley v. Florida, 385 U.S. 39, 47-48 (1966).

[7]     See Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46 (1987).

[8]     Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940).

[9]    One could argue that freedom to believe should be absolute only when the belief is uncommunicated, reasoning that it would be hypocritical to punish an uncommunicated belief. The Cantwell Court clearly did not intend for “believe” to be defined so narrowly. Rather, it drew the distinction between the right to express a belief, which was absolute, and the right to express it in a particular time, place, or manner, which was not. 310 U.S. at 304.

See Baker, supra note 2.

See Redish, supra note 2.

SeeMeikeljohn, supra note 1.

See Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J. 521 (1977).

SeeEmerson, supra note 3, at 11-15.

SeeSchauer, supra note 3, at 79-80.