Can Freedom of Speech Bear the Twenty-First Century's Weight?

Abstract

This Symposium is cast as addressing questions about twentieth century free speech theory. The Conference brochure announces that "[d]uring the 20th century, the Supreme Court articulated at least three major theories that undergird the freedoms of speech and press," namely the marketplace of ideas theory, the self-government theory, and the individual self-realization theory. The brochure claims that these "theoretical models have driven the Court's development and application of... free speech law," and the agenda it sets is to "examine whether these theoretical models remain valid and compelling bases for the continued development of free speech law in... the modem age." More specifically, my fellow panelists and I were asked to consider whether "[i]n light of the mushrooming costs of running a political campaign and other dynamics of the modem election process... free speech theory [should] continue to disfavor campaign spending limits and strict contribution caps." I quote from the brochure because it seemed to me important to try in my comments to answer the question that I was asked to address. And the more I thought about the issue as it was posed for this panel, the more forcefully did it seem to me that the issue as framed implies deep skepticism about the continuing relevance of twentieth century theory. It evinces doubt that twentieth century theory embodies permanent or enduring values. It suggests instead that twentieth century theory has become outmoded-just as have some twentieth century technologies, like rotary phones or the VCR. But as so understood, the issue only intimates the depth of the challenge that the high costs of political campaigns and "other dynamics" of present day politics pose. That challenge is not just to twentieth century marketplace, or self-government, or individual self-realization theories; rather, it is a challenge to political freedom itself and to free political speech in particular. For it is freedom of political speech and the doctrines that the Court developed in the twentieth century to protect that freedom, and not the theories that were offered in support of them, that modem developments put at risk.

My central claim in response to the issue that has been posed for this panel is that free political debate has, in fact, not outlived its usefulness. I concede that free political debate is under siege, as of course I must in view of the pressures that ever-more-insistent calls for ever-more-draconian regulation of campaign finance practices put upon it. But in what follows, I make three brief points in support of my central claim that if freedom succumbs to these pressures, it will not be because it has become "outdated" or that in principle it cannot "bear the weight of 21st century demands." It will be because it will have lost out to the advocates of regulation-or, if you will, of "reform"--in what has been and will continue to be an ongoing battle of ideas and values.