Journal of Free Speech Law: "Weaponized from the Beginning," by Prof. John Fabian Witt

The Introduction:

Accounts of modern free speech law typically begin in a moment of pragmatic optimism about the value of free speech in a flourishing democracy. In the usual story, which Laura Weinrib helpfully calls "the myth of the modern First Amendment," young progressives like Zechariah Chafee, Felix Frankfurter, Learned Hand, and Harold Laski draw on pragmatist philosophers like William James and Charles Pierce to persuade Justices Holmes and Brandeis of the U.S. Supreme Court that censorship was antithetical to democratic self-government. Holmes announced that the production of more speech served as the best test of truth. Brandeis, championed speech as a guarantor of democracy. Still others believed they had found in freedoms to speak a better way of managing dangerous radicalisms. Leading commentators ever since rest their accounts of the advent of free speech law on one or another variation of a new and hopeful conception of the function of speech in democracy.

Strangely, something like the opposite is more accurate. The distinctive feature of the moment in which modern free speech law arose was but grave new worries about the relationship between free communication and self-government. When Holmes and Brandeis first gave voice to free speech ideas in their famous dissents in the fall of 1919 and 1920, keen observers were coming to terms with a world of distortion and misinformation. Four long years of war propaganda had shown that speech by the powerful could dangerously destabilize public opinion in ostensibly democratic societies. The return to peace, too, had been accompanied by stunning displays of communications power. Storms of racist and nativist public opinion produced a wave of postwar racial pogroms. Employer propaganda smashed postwar strikes in the steel industry and elsewhere. A generation of public relations men left war propaganda efforts, entering new industries like marketing and advertising firmly convinced by their wartime work that information was supremely susceptible to manipulation and control.

At the beginning of modern free speech doctrine, close observers were coming to see speech as more than an indispensable foundation for democratic self-government, though it was that, too. Speech had also become—to adapt Justice Kagan's iconic phrase from a century later—a weapon for democracy's subversion.

Early observers of the World War I-era crisis of propaganda and misinformation did not treat it as a problem of free speech law, or not exactly. Freedom of speech in 1919 had barely been invented as a judicial doctrine; courts would not begin to protect speech against repressive laws until at least the late 1920s and 1930s. Absent a First Amendment to rely on, critics and advocates turned not to free speech doctrine in the courts—or not only to free speech doctrine in the courts—but to mediating institutions that offered bulwarks against distortions in the domain of public opinion.

In what follows, I sketch the views of two key participants in the formation of the free speech tradition in America. Walter Lippmann and Roger Baldwin both began their professional lives in the first and second decades of the 20th century on the left of American politics. Each participated in the formation of the modern First Amendment tradition: Lippmann as an interlocutor in the group of progressive pragmatists around Justice Holmes and Baldwin as founder of the American Civil Liberties Union. Over the course of their long careers, the two men veered toward different positions. Lippmann would become a center-right technocrat and a skeptic of democracy's capacity to rationally manage modern social problems. Baldwin would become the nation's best-known defender of civil liberties, offering a different kind of skepticism about majority rule, one rooted in individual rights against majoritarian control. But in the immediate wake of the war, they offered overlapping and trenchant accounts of the relationship between speech and what Jurgen Habermas would later call the public sphere. Neither man believed that unrestricted communication flows alone would sustain a flourishing domain of public opinion. To the contrary, each man came to see that powerful interests and propaganda campaigns badly distorted the kinds of public information on which democracy depended. Despairing of a solution to the crisis of information in the modern age, Lippmann turned to neutral expertise in the administrative state. Baldwin, by contrast, believed that the labor movement offered a more promising path, one that could rescue democratic values by offering a better ecosystem for the formation of opinion on collective questions. Like many of his generation, Baldwin called this vision industrial democracy.

Both strategies held value a century ago—and still do today. Much of our difficulty with lies and propaganda in early 21st century public opinion resides precisely in the legitimacy crisis of the administrative state and the collapse of the labor movement.

Baldwin's strategy for dealing with distortion in the public sphere is less well known than Lippmann's. In some respects, however, it is more promising as a model for our current moment. Unlike Lippmann, Baldwin never made the mistake of imagining that experts could stand outside the information cycles of the societies they purport to govern. Baldwin's industrial democracy is distinctive because it is to be built on institutions that are unabashed partisans in the struggle for life and in the management of information. Labor unions are not above the fray, they are in it. They are on their members' side. They pass along information that working-class citizens in a mass society can trust because it is in their interest to do so. At the same time, labor organizations' role constrains them from certain kinds of distortions. Unions' institutional interest in preserving the firms with which they bargain tethers them to reality. Labor, in other worlds, is dependent on and invested in rival institutions in a given community. For Baldwin, the genius of industrial democracy is thus that it offers what we might call an endogenous institutional foundation for public opinion formation. Industrial democracy does not rest on the impossible Lippmannian goal of transcending clashing interests through external authority. Instead, industrial democracy makes the interests of workers central to the way information is produced and received in public life.

The stories of Lippmann and Baldwin suggest that our crisis today is not only that new speech technologies like the internet have occasioned evermore dangerous opportunities for distortion of the public sphere. Distortion predated our particular technological juncture. Nor are lies and propaganda chiefly a problem in First Amendment doctrine; they have haunted the democratic public sphere under wildly varying doctrinal regimes. Our crisis today is in large part that key mediating institutions like the administrative state and the labor movement are in decay or even catastrophic decline.

https://reason.com/volokh/2024/04/03/journal-of-free-speech-law-weaponized-from-the-beginning-by-prof-john-fabian-witt/

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