Redistinguishing “Ought” from “Is,” or Why I Like the World Less Than Marvin Does

Let me be the latest to thank Marvin, for making an outstanding contribution to First Amendment scholarship that gives us this prime occasion for discussion, and Danielle, for making the discussion happen.

I want to take issue with an important part of Marvin’s argument.  Because I’m going to be contrary, I first want to emphasize not just my deep admiration for Marvin’s article but my enthusiastic agreement with what I see as his most important point – what he calls the “ought” point.  By contending that we should construe the First Amendment as mandating some measure of public access to the means of communication, Marvin is advancing a long tradition of scholarship and activism that treats the First Amendment not just as a prohibition on government censorship but also as a charter of democratic public discourse.  Marvin offers an especially smart, thorough, and contemporary take on that position, for which we should all be grateful.

My differences with Marvin go to the “is” part of his argument.  I don’t think First Amendment law has done nearly as much to advance access to the means of expression as Marvin suggests.  In fact, I think the law emphatically favors the negative liberty model that he seeks to marginalize or diminish.  I first want to sketch the basis for my contrary view on this point.  I’ll then briefly explain why I think the disagreement matters.

Marvin points to several levels or instances of First Amendment law as embodying some version of the access principle that he and I advocate.  My problem with a lot of his examples – the Court’s decision allowing states to mandate free speech in shopping malls; regulations governing access to the Internet; and I’d throw in here the Court’s decisions upholding the fairness doctrine and must-carry regulations – is that they aren’t First Amendment law.  They’re government actions that advance free speech, which is important, but they don’t use the First Amendment to enhance access.  The most interesting of these cases to me, the shopping mall case, just says that property rights don’t bar a state from imposing free speech norms on certain, big private concerns.  But when the Supreme Court faced the question whether the First Amendment required shopping centers to tolerate expressive activity, the Court said no.  So yes, First Amendment law sometimes steps out of the way of voluntary government efforts to advance speech interests over other interests.  For me, that doesn’t contradict or even complicate the negative liberty paradigm.

Marvin’s biggest example of his better First Amendment in action is the public forum doctrine.  Although I agree with Tim that the public-private distinction complicates any effort to reason outward from that doctrine, it’s still Marvin’s strongest example in my view.  As Marvin points out, the principle that government must endure free expression in (at least) traditionally open public spaces has been very important for the Occupy protests.

My problem with the public forum doctrine is that, contrary to Marvin’s argument, I do think it’s merely an exception to the Court’s prevailing tendencies on free speech – a weak and increasingly disfavored exception.  From the very beginning of modern public forum analysis, in the 1970s, the Court has hacked away at the doctrine.  It doesn’t give you the right to camp out in public parks to protest homelessness, or post political signs on municipal utility poles, or solicit donations for your church in airport concourses.  Those are just some restrictions the Court has recognized; Tim’s book talks about other, practical constraints courts have permitted law enforcement to impose, like shunting protesters at big political events into remote “free speech zones.”

All of this is getting worse.  If memory serves, the Supreme Court hasn’t handed down a significant public forum decision favorable to free speech rights in at least 15 years.  (I suppose you could count Snyder v. Phelps, the military funeral case, but Snyder doesn’t actually present the issue we’re talking about. )  What the Court’s First Amendment decisions have been doing almost exclusively for the past couple of decades, and predominantly for the past four, is advancing the negative liberty paradigm.  The most important example of this phenomenon, for me, is campaign finance regulation, where the First Amendment saves moneyed interests from government “censorship” that is at least arguably motivated by the very access principles Marvin and I favor.  But even in the increasingly rare cases where the Court in recent decades has invoked the First Amendment to benefit dissident or underfunded speakers, it has done so under the negative liberty model.

Why, if I’m right about any of this, does it matter?  Marvin’s “is” argument, among other things, represents a strategic gambit: You should accept his (our) normatively preferred view of the First Amendment, in part, because it already holds substantial sway in the world.  I don’t think it’s a sound strategy.  I think that First Amendment doctrine is generally in pretty appalling shape; that the doctrine’s problems run deep; and that those problems reflect a thoroughly reactionary legal and political philosophy.  I wish I either agreed with Marvin’s strategy or could propose an alternative that offered as much hope as he believes in his “is – ought” transposition offers.  But the best approach I can come up with is to keep beating the bad doctrine with intellectual and activist sticks until it breaks and opens up space for us to build something better.

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