Brandishing the First Amendment: Commercial Expression in America

3. Why Protect Speech? Four Fundamental Interests

chapter 3 Why Protect Speech? Four Fundamental Interests [T]he problem of maintaining a system of freedom of expression in a society is one of the most complex any society has to face. —Thomas I. Emerson, Toward a General Theory of the First Amendment The quest for a comprehensive theory to explain the First Amendment’s scope and purpose has been a popular activity of twentieth-century legal and political thinkers. As soon as we begin talking about theories of the First Amendment, it seems clear that we also need a theory of law identifying the legitimate sources of legal authority and interpretation. Some say it is not possible to come up with a single unifying theory of the First Amendment, because it has been applied to too many disparate cases to be able to reconcile them under a single analytical framework.1 But even if no single theory is satisfactory, courts need some sort of method for deciding the cases brought under the amendment. To this end, it is useful to consider what might be excluded under any theory. To do that, I needed to look to the theory with the broadest scope: Thomas Emerson’s Toward a General Theory of the First Amendment2 offers that scope. Preliminary Matters To understand why commercial expression should not be given full First Amendment protection, we should examine why any speech ever gets it; what does the First Amendment’s prohibition that “Congress shall make no law . . . 52 abridging freedom of expression” really mean? Freedom of expression is never really totally “free.” Protection for expression often costs someone something, even if it is only the discomfort of hearing disagreeable opinions.3 So protection for freedom of expression starts with the possibility that sometimes it will mean protection of offensive or otherwise socially repugnant speech.4 It could hardly be otherwise. Freedom of expression is not worth much if it is only the freedom to say what is already socially or politically acceptable.5 As much as, culturally, we often speak as if freedom of expression in the United States is wide-open and absolute, this is clearly not the case. Many disputes have speech components that we do not necessarily view as First Amendment cases. As freedom of speech comes into con›ict with other values —like the right to be left alone, quiet enjoyment, autonomy, property, security , and so forth—the general public is often fairly sanguine about suppression of speech in aid of one of these other goals. For instance, we typically think parents not only have the right to control their children’s expression but a duty to do so in some circumstances (like talking in church). We take it for granted that employers should be able to ‹re employees for insubordination or disloyalty or to control employees’ self-expression with respect to dress, hairstyle, and the like.6 Exercise of autonomy over one’s business or property seems appropriate to most Americans. Thus, perhaps not surprisingly, the Supreme Court has been relatively sparing in recognizing particular areas of speech as protected by the First Amendment. And it has done so without the bene‹t of a consistent theory about the scope and purpose of the amendment, even though, as noted, this has been the subject of decades of scholarly study and commentary. At the outset, courts’ task in interpreting the First Amendment is complicated by its brevity and ambiguity. “Plain meaning” offers little help as an interpretive device, given that the meaning of the words “Congress shall make no law . . . abridging freedom of expression” is not very plain. Even at the most fundamental level, trying to de‹ne what constitutes “expression” turns out to be incredibly fraught. A Limit on Government Nevertheless, one of the most fundamental limitations on the interpretation of the First Amendment is its wording. The phrase “Congress shall make no Why Protect Speech? / 53 law” is understood to act as a limitation on government rather than a re›ection of a governmental duty to protect freedom of expression. The First Amendment does not provide an af‹rmative right to freedom of expression per se, as, for example, is found in Article 10 of the European Convention on Human Rights (“Everyone has the right to freedom of expression”).7 The difference is a very subtle one, to be sure, because Article 10 also indicates by its wording that the right to freedom of...