The Second Generation of Civil Libertarians

Alexander Meiklejohn and Thomas Emerson, the leading academic defenders of free speech in the 1950s and 1960s, clearly offered civil libertarian conceptions and justifications of freedom of expression. Neither jurist wholly endorsed Chafee's teachings, and both contributed significantly to libertarian theory. Nevertheless, while Meiklejohn, Emerson, and their contemporaries presented sophisticated variations on the themes of Freedom of Speech and Free Speech in the United States, their books are best understood as developments within civil libertarianism, rather than as distinctive defenses of expression rights. The leading members of the second generation of civil libertarianism accepted the basic premises and structure of Chafee's analysis of the constitutional meaning of free speech, even as they refined his analysis in many important areas.

Meiklejohn's Free Speech and Its Relation to Self-Government (1948) and Emerson's Towards a General Theory of the First Amendment (1963) both endorsed sociological jurisprudence's insistence that contemporary social conditions govern the interpretation of constitutional guarantees. Freedom of speech, Meiklejohn declared, "is not a Law of Nature or of Reason in the abstract." First Amendment analysis "requires careful examination of the structure and functioning of our political system as a whole to see what part the principle of free speech plays here and now in that system." Following Chafee, Meiklejohn asserted that Americans were only bound by the original principles that inspired passage of constitutional guarantees, not by the particular standards that eighteenth-century jurists thought would adequately protect those rights. He contended that the framers' "adoption of the principle of self-government . . . is still transforming men's conceptions of what they are and

how they may best be governed." "It is not even required," Meiklejohn stated, "that the meaning of the Constitution shall be in the future what it has been in the past. We are free to change both by interpretation and by explicit amendment."13

Emerson similarly asserted that analysis of the First Amendment must reflect present social needs. "Any study of the legal doctrines and institutions necessary to maintain an effective system of freedom of expression," he asserted, "must be based upon the functions performed by the system in our society." While Emerson thought "historical evidence reveals that the colonists viewed the essential functions of freedom of expression much as we do today," he maintained that standards of constitutional protection must be adjusted to fit modern conditions. Contemporary legal analysis had to look “to the underlying principles sought to be achieved by the Constitution, in terms of their current applicability." Thus, Emerson concluded that "whether [the system of free expression] will continue to grow and adapt to new circumstances, or lose its stability and be abandoned, depends on whether we, like the colonists, are daring and have faith in our capacity for progress."14

Meiklejohn and Emerson shared the early civil libertarian vision of a democratic society. Both contended that democratic and economic institutions were essential components of a functioning system of free speech. Emerson asserted that state officials had "to maintain the basic conditions that a system of free speech requires in order, not just to exist, but to flourish." Echoing Dewey and others, he called for state promotion of the positive liberties that fostered healthy public debate. "Conditions in a modern democratic society," Emerson insisted, "demand that a deliberate, affirmative, and even aggressive effort be made to support the freedom of expression."15 His works emphasized that the benefits of free speech would be realized only if "the economic structure . . . provide[d] a certain standard of material welfare, shared broadly by all elements of the population."16 Meiklejohn urged government to "engage in that positive enterprise of cultivating the general intelligence upon which the success of self-government so obviously depends." Like Chafee, he maintained that elected officials were obligated to establish forums for persons to publicize their opin-

ions. "In every village, in every district of every town or city," Meiklejohn declared, "there should be established at public expense cultural centers inviting all citizens, as they may choose, to meet together for the consideration of public policy."17

Meiklejohn and Emerson did challenge the particular standard that Chafee believed justices should apply in free-speech cases. Both rejected the clear and present danger test in favor of a rule that legislators could never regulate speech. "As makers of the law," Meiklejohn contended, citizens had "an absolute freedom" of speech.18 This meant that no substantive policy goal could trump an otherwise valid assertion of a free-speech right. "When men decide to be self-governing," Meiklejohn declared, "the search for truth is not merely one of a number of interests which may be 'balanced' on equal terms, against one another." Rather, "the attempt to know and to understand has a unique status, a unique authority, to which all activities are subordinated."19 Emerson agreed that maintaining the system of free expression was constitutionally more important than promoting any particular social or economic policy. "Individual and societal interests in freedom of expression," he argued, "must be preferred over other individual and societal interests."20 Thus, First Amendment rights could not be sacrificed in the name of other public goods. Expression could "not be restricted either for the direct purpose of controlling it or as a method of obtaining other social objectives." "The attainment of such other objectives," he insisted, "is to be achieved through regulation of action."21

Although claims that speech can never be restricted seem inconsistent with pragmatism's insistence on always balancing competing social interests, both Emerson and Meiklejohn defended their principles on the same instrumentalist grounds that Chafee used to defend the clear and present danger test. Each jurist argued that absolutely protecting free speech was the best practical means of advancing the general social interest. Meiklejohn maintained that his absolute standard of judicial protection was not derived from "a sentimental vagary about the natural rights of individuals" but constituted "a reasoned and sober judgment as to the best available method of guarding the public safety." After "measur[ing] the dangers and

the values of the suppression of the freedom of public inquiry and debate," he declared, Americans had decided that the "destruction of freedom is always unwise."22 Emerson similarly derived his full protection doctrine from weighing social concerns. "The decision to put into operation a system of free expression," he contended, was based on "a major balancing of interests." Embodying the communal decision that social interests would best be furthered if speech were always protected, the First Amendment meant that judges deciding particular cases were "not free to reopen this prior balancing."23

Meiklejohn and Emerson also apparently challenged Chafee's belief that the First Amendment protected debate on matters of public interest. Meiklejohn seemingly narrowed the constitutional meaning of free speech. In his view, political commentary was the only form of expression that legislatures could not regulate. Constitutional advocacy rights, he declared, were limited to "the freedom of those activities and thought by which we govern." Meiklejohn proclaimed that "the First Amendment is concerned, not with a private right, but with a public power, a governmental responsibility." The function of free speech, he insisted, is "to give to every voting member of the body politic the fullest possible participation in the understanding of those problems with which the citizens of a self-governing society must deal."24 Expression that merely promoted individual goals, however, was constitutionally indistinguishable from those activities legislatures could regulate as they saw fit. Speech "directed toward our private interests, private privileges, private possessions" was only protected by the Fifth Amendment's requirement that governmental actions respect due process.25

Emerson appeared to broaden Chafee's conception of the precise role free speech played in contemporary society. "Maintenance of a system of free expression is necessary," he declared, "(1) as a method of assuring individual self-fulfillment, (2) as a means of attaining the truth, (3) as a method for securing participation by the members of the society in social, including political decision-making, and (4) as a means of maintaining the balance between stability and change in the society."26 While the last three values are aspects of the social inter-

est in debate on matters of public importance, "self-fulfillment" seems to be a purely personal interest. In contrast to Chafee, who deemphasized purely individual interests in speech, Emerson specifically asserted that "the right to freedom of expression is justified first of all as the right of an individual purely in his capacity as an individual."27

When examined closely, these disagreements are either semantic or well within the structure of civil libertarian argument. Thus, while Chafee declared that "it is shocking" that Meiklejohn would "deprive [art and literature] of the protection of the inspiring words of the First Amendment,"28 Meiklejohn actually offered the same analysis of literary speech that Chafee had previously presented; to be fair to Chafee, however, Meiklejohn's earlier works did seem subject to his criti cism.29 Both thinkers emphasized the political function of many artistic forms of expression. Just as Chafee declared that "poems and plays and novels" contributed to "the satisfactory operation of self-government," so Meiklejohn proclaimed that "the people do need novels and dramas and paintings and poems, 'because they willbe called on to vote.' "Because "literature and the arts" provided persons with a "sensitive and informed appreciation and response to the values out of which the riches of the general welfare are created," Meiklejohn insisted that such works "must be protected by the First Amendment." These forms of expression, he concluded, "have a 'social importance' which I have called a 'governing importance.'"30

The differences between Chafee and Emerson are also more apparent than real. As noted in chapter 4, Chafee thought that societies should protect individual rights because doing so was in the public interest; similarly, Emerson placed individual rights in a broader social context. Following Dewey and other early civil libertarians, he believed that societies would best prosper by adopting policies that fostered the development of each citizen. "The theory of freedom of expression," he declared, "is put forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community."31 Moreover, Emerson claimed that the four values served by free speech are "an integrated set."32 Thus, every regulation of the

individual interest in free speech affected the social interest in expression on matters of public interest.

Emerson's and Chafee's attitudes toward obscenity illustrate the largely illusory difference in their conceptions of expression rights. Chafee offered no protection to such speech because he thought obscenity only advanced individual interests.33 Emerson declared that the right to publish pornography was guaranteed by the First Amendment. "Any communication," he declared, "containing erotic material is protected against any kind of abridgement by the government." Emerson, however, did not see this as an instance of constitutionally protecting a purely personal right. In his view "the judgment of whether any particular expression possesses social value or no social value is not for the government to make."34 In other words, Emerson disagreed with Chafee about who decided whether obscenity might advance social interests, not whether an individual interest in speech should be given significant constitutional protection.

Meiklejohn, Emerson, and Chafee may have placed marginally different emphases on the functions of free speech, but each jurist advanced the same justification for judicial activism on behalf of expression. All three libertarians asserted judicial obligations to police inputs into the democratic process and to accept democratic policy outputs. Courts, they argued, were expected to protect free speech because expression was a procedural requirement of democratic government. Emerson, who offered the most individualistic conception of expression rights, never claimed that judges were empowered to protect purely personal desires to speak. When discussing "the specific function of the judiciary in supporting a system of free expression" he spoke solely in terms of a duty "to ensure that the basic mechanisms of the democratic process will be respected." Towards a General Theory of the First Amendment opposed judicial "supervision over the decisions reached or measures adopted as a consequence of employing democratic procedures." "Judicial institutions," Emerson insisted, "are here dealing with the methods of conducting the democratic process, not with the substantive outcomes of that process."35

Meiklejohn similarly distinguished judicial activism on behalf of expression from judicial activism on behalf of other rights. Although he recognized that legislatures "must be free in their use of their delegated powers," Meiklejohn insisted that "the people must be free in the exercise of their reserved powers of self-government." Elected officials, he proclaimed, were "authorized . . . to limit the freedom of men as they go about the management of their private, their non-political, affairs"; however, "the same men, as they endeavor to meet the public responsibilities of citizenship in a free society, are in a vital sense, which is not easy to define, beyond the reach of legislative control." Thus, Meiklejohn concluded that the Constitution "declares that with respect to political belief, political discussion, political advocacy, political planning, our citizens are sovereign, and the Congress is their subordinate agent."36

Working within the democratic process model of the judicial function, Meiklejohn and Emerson rigidly separated economic and expression rights. As noted above, although both scholars insisted that expression rights were meaningless in the absence of positive economic rights, they agreed that courts could not implement the economic and social policies that would make speech more fruitful. Like Chafee, they believed that the elected branches of government were responsible for such policies. Emerson explicitly placed the economic and social prerequisites of a system of free expression beyond the jurisdiction of "a perfect set of legal rules and an ideal array of judicial institutions."37

For this reason, Meiklejohn and Emerson rarely considered the constitutional relationships between free speech, considered to be democratic input, and economic and social policies, considered to be substantive outputs. The central meaning of the First Amendment, in their view, was its guarantee that government could never regulate speech merely because citizens felt that a particular doctrine was false or dangerous. Nearly all of Meiklejohn's writings and the bulk of Emerson's work, particularly before 1973, were devoted to detailing this interpretation of the constitutional relationship between free speech and lawless or socially threatening conduct. Mid twentieth-century

courts, these jurists indicated, would have performed their assigned function in the system of freedom of expression if they ensured that all Americans had the right to advocate communism enthusiastically, vehemently oppose the Vietnam War, and actively participate in the civil rights movement.

Although Meiklejohn and Emerson briefly discussed some mixed questions of speech and property, they conceptualized those issues in ways that enabled them to ignore the potential impact of material inequalities on a system of freedom of expression. This selective blindness was particularly apparent when both civil libertarians analyzed the constitutionality of statutes regulating the burgeoning broadcast industry. Meiklejohn maintained that radio producers were best understood as part of the entertainment business; as such, broadcasters were subject to the same relatively unrestricted governmental regulation that democratically elected legislatures had over all other commercial enterprises. Radio operators, Meiklejohn declared, were "engaged in making money," and "the First Amendment does not intend to guarantee men freedom to say what some private interest pays them to say for its own advantage."38

Emerson treated broadcast regulation as analogous to state regulation of speech in parks and streets. Because both airwaves and public parks were publicly owned, elected officials had the power to pass legislation ensuring equitable access to those scarce forums. "The government," Emerson declared, "is obliged by the First Amendment to permit citizens to use the facilities without discrimination." Thus, when the people's representatives allowed some persons to broadcast over the public airwaves, they could insist that such licensees grant access to third parties to "assure a fair allocation of the limited facilities both to users and listeners." Of course, legislatures could not censor the contents of particular radio and television broadcasts. However, governmental officials could compel "a licensee to present varied points of view on controversial issues, or . . . fore[e] him to grant access to persons whose interests are affected by a broadcast."39

By emphasizing the natural scarcity of broadcast media, Emerson ignored the constitutionality of policies that, in effect, made wealth a crucial feature in determining which persons

were able to take advantage of these new and powerful modes of communication. This issue does not arise in traditional parks and streets cases because virtually all citizens have the material resources necessary to make speeches in those forums. Significantly, Emerson maintained that identical restrictions on print journalism would be unconstitutional because publishing faculties were privately owned. Limited access to the press, he declared, was only a product of "economic factors," not of "characteristics inherent in the medium."40

The System of Freedom of Expression also briefly analyzed governmental regulation of campaign financing. Although Emerson's analysis was interesting and important, he again failed to explore seriously the constitutional relationships between free speech and private property. Emerson assumed that the First Amendment protected the right to purchase speech. "Funds expended for expression," he stated, had the same constitutional status as expression. For this reason, elected officials could rarely regulate campaign expenditures. Such legislation was constitutional only if "clearly necessary to correct a grave abuse in the operation of the system and [was] narrowly limited to that end." In particular, Emerson declared that restrictions on the money persons could spend to promote their ideas must "not limit the content of expression; . . . [must operate] equitably and with no undue advantage to any group or point of view; . . . [must be] in the nature of a regulation and not a prohibition; . . . [must] not substantially impair the area of expression controlled; . . . [must] be specifically formulated in objective terms and reasonably free of the possibility of administrative abuse." Legislation only satisfied this standard, if "limited to restrictions (1) on the candidate himself, (2) in an election campaign."41

Unfortunately, Emerson's discussion of campaign finance reform emphasized the social interest in preventing political corruption. That interest concerns the effect large political contributions have on political actions taken by elected political officials, but not the effect that large political expenditures have on the political preferences of the electorate. Although he suggested that his analysis "raise[d] questions that go beyond the corrupt practices area," such as whether "the government has almost unlimited power to allocate resources available for ex-

pression,"42 Emerson did not indicate what other "grave abuse[s] in the operation of the system" of free expression would justify campaign finance reform. In particular, Emerson never discussed whether states could regulate political expenditures that unduly influenced the marketplace of ideas.43

More generally, Emerson and Meiklejohn did not believe that courts had a significant role to play in maintaining democratic social and economic institutions. The best courts could do, they argued, was to sustain legislation that provided citizens with the resources necessary to participate actively in public affairs. In other words, like Chafee, Meiklejohn and Emerson left the material prerequisites of the system of freedom of expression in the hands of elected officials, the very elected officials that civil libertarians claimed could not be trusted to regulate political and social debate.

In spite of this weakness, the basic elements of civil libertarian thought were universally endorsed by the other major proponents of speech-protective doctrines who wrote in the 1940s, 1950s, and 1960s. The publication of and response to Leonard Levy's Legacy of Suppression (1960) best illustrated the continuing functionalist orientation of First Amendment analysis. That work advanced the controversial thesis that the framers of the Constitution intended only to abolish prior restraints. Significantly, however, Levy did not think that his historical conclusions in any way affected the proper standards for contemporary First Amendment adjudication. Following Chafee, Meiklejohn, and Emerson, Levy insisted that only "the principles and not their framers' understanding of them are meant to endure." Hence, his contemporaries were free to construct whatever standards they believed would best promote debate on matters of public interest. "That they were Blacksonians," Levy concluded, "does not mean that we cannot be Brandeisians."44

With the exception of Hugo Black, Levy's colleagues endorsed his claim that revisionist understandings of the framers' intentions had little bearing on constitutional doctrine. Edmond Cahn praised Legacy as a "splendid book" while reminding readers that each generation and every era "must build their own path to enlightenment and develop the institutions that suit

their own needs and ideals." Martin Shapiro simply described Levy's "historical evidence" as "irrelevant." The First Amendment, he maintained, "allows—indeed requires—new interpretations to fit new situations."45

Midcentury civil libertarians consistently reiterated Chafee's emphasis on the democratic function of expression rights. In Freedom of Expression: The Supreme Court and Judicial Review, Shapiro contended that "those silenced by speech regulation were cut off from the self-curative powers of the democratic process contained in the central institution of democracy, the communication of political ideas and claims." Harry Kalven de-dared that "in a free society, government may not use its legal sanctions to silence criticisms of its policies and officials." "Relying as it does on the consent of the governed," Cahn maintained, "representative government cannot succeed unless the community receives enough information to grasp public issues and make sensible decisions."46

Scholars who defended judicial activism typically argued that political expression was the most important right courts could legitimately protect. Following Justice (later Chief Justice) Stone, they claimed that federal courts should police the democratic process but not promote their particular notions of substantive policy. In an influential article, Eugene Rostow declared that "the freedom of legislatures to act within wide limits of constitutional construction is the wise rule of judicial policy only if the processes through which they act are reasonably democratic." Robert McKay maintained that "the legislative process is in general well-suited to an examination of competing values in connection with social and economic programs, where the essential balancing can take place within the legislature." He then cited Chafee in support of the proposition that "the situation is different when the opposing values are free speech and the danger of violent acts, or where the balance is between freedom of the press and censorship."47

With the exception of some discussions of broadcast regulation,48 mid twentieth-century libertarians rarely confronted the possible existence of significant issues that could not neatly be categorized as affecting the democratic process or the distribution of social resources. Proponents of free speech implicitly as-

sumed that the system of freedom of expression would function efficiently if only government would stop trying to interfere. In this atmosphere, only a few intellectuals actually insisted that there were no constitutional relationships between free speech and private property. Rather, working within the framework first set out in the Carolene Products footnote and later elaborated by Chafee, most libertarians never considered the matter.