- Toward Flawlessness
These reflections are inspired by reading Rebecca L. Brown's contribution to this Symposium, which is entitled, "Confessions of a Flawed Liberal." So since this essay is in some ways an attempted response, I would like to call it "Aspirations to Liberal Flawlessness" or just "Toward Flawlessness."
The question is whether it is a form of apostasy from the liberal creed to think (a) that the Constitution might permit (or indeed require?) the legal limitation of hate speech, and/or (b) that federal or state law may constitutionally limit financial contributions and expenditures in electoral campaigns in a significant number of instances. It could be argued that both propositions represent the abandonment of basic liberal positions on the importance of the broadest possible scope for the freedom of speech.
Speech and Equality
The basic conceptual problem arises from an apparent contradiction between two liberal values. What we seem to confront — both on the question of hate speech and also on the question of "money as speech" — is a clash between two sets of values that most liberals have always held in the highest esteem: on the one hand, the values of the freedom of speech and on the other hand the values of equality.
In the history of the Supreme Court these two sets of values came to maturity at approximately the same time. The Court's decision in Brown v. Board of Education, the great school desegregation case of 1954,1 brought the theme of equality to the forefront of popular, political and scholarly attention for the first time in the history of the Supreme Court — notwithstanding earlier partial steps in cases involving racially restrictive land covenants,2 segregation in graduate education,3 and racially restrictive party primaries.4 (Of course, the Court had long since turned away from using the equal protection clause to protect businesses against regulation — by asserting, for example, the "equality" of manufacturers and agriculturalists — in such cases as Tigner v. Texas in 1940.5 ) It is often said that equality was the principal Leitmotiv of the Warren Court — an assessment that owes as much to the reapportionment cases, such as Baker v. Carr6 and Reynolds v. Sims,7 as it does to Brown. But for the anchoring of equality as a prime liberal achievement of the Supreme Court, the post-Warren Court development of gender discrimination jurisprudence — from Reed v. Reed8 to the VMI case9 — also plays an essential part; and the Court's recent decision in Lawrence v. Texas10 may eventually take its place, as well, in any roll call of the major steps in the liberal jurisprudence of equality.
It was only ten years after Brown — in New York Times v. Sullivan11 in 1964 — that the Supreme Court made absolutely clear that it was according serious weight to the freedom of speech as a fundamental constitutional value. This development was confirmed in 1969 in Brandenburg v. Ohio,12 which drew together earlier notable contributions by Justices Holmes, Brandeis and Harlan, and Judge Learned Hand, in order to formulate a test that considerably narrowed the circumstances in which "inciting" speech could be constitutionally punished. Slightly later cases like Cohen v. California13 (Harlan again) and the Pentagon Papers Case14 (Black, Douglas, Brennan — but not Harlan) represented further confirmation of the central role that freedom of speech had finally assumed in the jurisprudence of the Supreme Court.
For liberals, it is an important fact that the decision of New York Times v. Sullivan marked a majestic moment in which the values of speech and the values of equality coincided and reinforced each other: the speech that was protected in Sullivan was speech that was directed toward overcoming racial discrimination. The same thing could be said about several other important cases of the Civil Rights era, such as NAACP v. Alabama15 and NAACP v. Button.16
The problems that we face today, in an attempt to secure a flawless liberalism, arise because these two values perhaps most prized by liberals — speech and equality — seem to weigh on separate sides of the scale in a number of contemporary constitutional problems. In hate speech...