CHAPTER 1

Introduction: The First Amendmentand American Democracy

The assertion that democracy and free expression are inextricably intertwinedin a symbiotic relationship should hardly be controversial. Democracycould not exist in any meaningful sense absent a societal commitmentto basic notions of free expression, nor could free expression flourish ina society uncommitted to democracy. It is therefore not surprising thatamong the most prominent and widely accepted theories of the FirstAmendment are those that explain the Free Speech Clause as either catalystfor or protection of democracy itself. These democratic theories ofthe First Amendment posit that speech receives constitutional protectionbecause it is essential to a functioning and legitimate democracy. Differentdemocratic theories of the First Amendment suggest competing explanationsof exactly how free speech advances or defends democracy. Some suggestthat free speech facilitates the informed decision making that self-rulerequires. Others argue that free speech furthers democracy by allowingindividuals to recognize themselves as self-governing. Still others simplyconclude, without elaboration, that democracy would be "meaningless"without the freedom to discuss government and its policies. Every democratictheory of the First Amendment, though, in one way or anotherviews free speech as a means to a democratic end.

Of course, democracy itself is an amorphous concept, both historicallyand theoretically. Despite the concept's simple translation to "ruleby the people," political theorists since Aristotle have advanced competingtheories of democracy that are inconsistent, if not contradictory. Tosay that the First Amendment advances "democracy" without more, then,is to say much less than First Amendment scholars often assume. Still,"democracy" is not so empty a referent that it is impossible to evaluatewhether so-called democratic theories of the First Amendment are indeeddemocratic.

The goals of this book are threefold: first, to demonstrate that theform of democratic theory that appropriately characterizes the Americangovernmental system—both normatively and descriptively—is adversarydemocracy; second, to establish the inescapable linkage between that formof democracy and the philosophical foundations of the First Amendmentright of free expression; and third, to explore the implications of the frameworkfor specific issues of free expression of current importance. Specifically,doctrinal issues to be examined include the protection of commercialspeech, the constitutional right to anonymity, and the validity of the so-calledanticorruption principle as a limitation on the constitutional right offree expression in the context of the electoral process.

Any democratic theory must encompass two principles. First, democratictheories must respect the principle of self-rule. They may differabout what it means, precisely, for the people to govern themselves, butthey must at least accept the basic premise that democracy requires self-government.Otherwise, democracy would incoherently collapse intoauthoritarianism. Democratic theories, as a result, must respect the principleof epistemological humility. In other words, they must assume thatno determinate "truth" or "good" exists, apart from what the electorateor those accountable to it determine. Democratic theories must thereforecommit such substantive valuations to the people to decide through democraticprocedures. Epistemological humility is a direct outgrowth of theprinciple of self-rule: The people cannot be self-governing if some externalconcept of truth or goodness coercively determines their decisions.

Second, democracy must mean that government follows the self-governingdecisions of the people—either because the people themselvesmake and implement their decisions or because the people's elected representativesare accountable for doing so. Again, democratic theories can differover how exactly this occurs, particularly in a representative democracy.The point, though, is that democracy must at least assume that authority is"controlled by public opinion, not public opinion by authority." This secondprinciple overlaps with the first: Public opinion must be autonomousfrom government to check government. As a result, any democratic theorymust prohibit the government from managing public opinion, whetherby overt coercion or by the indirect manipulation that comes with forcinga people to be ignorant. In the words of Thomas Jefferson, "If a nationexpects to be ignorant and free ... it expects what never was and neverwill be."

A number of respected free speech theorists have understood democraticautonomy in its collective sense. Alexander Meiklejohn, for example,believed that democracy is simply a "compact" among individuals to governin pursuit of the common good. Robert Post likewise begins withthe premise that "democracy is not about individual self-government, butabout collective self-determination" and ends with the conclusion that"democracy requires individual autonomy only to the extent that citizensseek to forge 'a common will, communicatively shaped and discursivelyclarified in the political public sphere.'" Thus, both theorists ultimatelyunderstand democracy largely as a cooperative pursuit in which individualscollectively "plan[] for the general welfare" or "forge a common will." Itis therefore appropriate to characterize each theory as positing a "cooperative"ideal of democracy.

Yet, as much as democracy includes this potential for societal cooperation,it must also embrace the inevitability of competition, among bothcompeting ideologies and competing interests. For democracy to reflectboth the political realities of a large, heterogenous, and pluralistic societyand the normative values that underlie the precept of self-government,it must be grounded in the centrality of diversity and potential competitionamong the backgrounds, statuses, values, needs, and interests of thecitizens. The assumption that all of these competing backgrounds, values,needs, and interests may be forged into a cooperative pursuit of some notionof the common good is quixotic at best and disingenuously manipulativeat worst.

In contrast to these collectivist theories of democracy, the theory of adversarydemocracy both acknowledges the inevitable existence of conflictamong competing interests as a descriptive matter and embraces its pluralismand diversity as a normative matter. This does not necessarily meanthat adversary democracy categorically rejects the value of cooperation.The key cooperative element inherent in adversary democracy recognizesthe need for peaceful and orderly processes by which these often competingneeds, values, and interests may be resolved. Indeed, to deny or ignorethese individual needs, interests, and values would be to deny the individualityand integrity of the citizens, thereby rendering the democraticprocess a counterproductive exercise. At its core, then, American democracyinvolves an ordered form of adversary process, in which citizens mustbe allowed to determine for themselves what governmental choices willimprove their lives or implement values they hold dear and then to seek topersuade others to accept their views.

Contrary to the cooperative ideal of democracy, this book adopts a notionof representative government built on the concept of adversary democracy,drawn from modern political theory. Based on the premise thatdemocracy at its core involves a competition among adverse interests, thisbook argues that the purpose of democracy is to guarantee individualsthe opportunity to seek to affect the outcomes of collective decision makingaccording to their own values and interests as they understand them.The book therefore concludes that a valid democratic theory of the FirstAmendment must be construed to reach all speech that allows individualsto discover their personal needs, interests, and goals—in governmentand in society at large—and to advocate and vote accordingly. Individuals'free speech rights may therefore not be limited or excluded from thescope of the constitutional guarantee either because the speaker seeks toadvance her own personal interests rather than those of the public at largeor because the speaker seeks to exercise her right in a competitive, ratherthan a cooperative, manner. It is true, of course, that no First Amendmenttheorist would actually exclude from the constitutional guaranteeall expression that fits this description. Many scholars who would excludefrom the First Amendment's reach certain expression because of its selfishmotivation readily extend protection to equally self-promoting expressionin other contexts. But that fact is itself a symptom of the pathology thatinescapably flows from theorists' failure to recognize the universality ofadversary democracy as the foundation of the constitutional protection forfree expression. It is the selective exclusion of categories of expression becauseof their adversary or self-promotional nature that underscores theinherently irrational (or on occasion, ideologically manipulative) nature ofthe more communitarian or cooperative theories of free expression.

Those free speech scholars who have shaped democratic theories of freeexpression have almost universally viewed democracy in the cooperative orcollectivist sense. In contrast, this book seeks to provide a global alternativeto the collectivist democratic visions of these scholars. The positiontaken here is that to provide expression with the necessary level of protection,free speech theory must be shaped in accordance with the preceptsof adversary democracy. The common linkage in the mistakes of priortheorists of democratic free speech is their failure to recognize the centralrole that adversary democracy both should and does play in the Americanpolitical and constitutional structures. The adversary theory of democracyemphasizes individual autonomy as theoretically and practically interwoveninto the processes of collective self-government. Based on the adversarytheory of democracy, this book proposes a new democratic theory ofthe First Amendment—one very different from those proposed to date byleading free speech theorists.

In the chapter that follows, the book explores the theoretical underpinningsof the concept of adversary democracy, explains its centrality toAmerican democratic theory, and asserts the inherent symbiotic intersectionof adversary democracy and the theory of free expression. ChapterThree critically examines the free speech theories of the two leading cooperativedemocratic theorists of free expression, Robert Post and AlexanderMeiklejohn. The chapter explores the significant flaws in both of theirtheories flowing from their failure to recognize the centrality of adversarydemocracy in the modern theory of free expression. In Chapter Fourthe book applies the First Amendment theory of adversary democracy tocommercial speech. The chapter argues that free speech theorists' oppositionto the extension of full First Amendment protection to commercialspeech because of its inherently selfish motivation improperly ignores theinherently adversary and self-promotional nature of much noncommercialexpression, which has traditionally been extended full constitutionalprotection. Chapter Five critically examines the so-called anticorruptionprinciple, which seeks to rationalize wide-ranging restrictions on self-interestedpolitical activities. The chapter argues that the core premises underlyingthe anticorruption principle are fundamentally inconsistent withboth the normative foundations of the American democratic system andwell-accepted political practice. Chapter Six recognizes the need for qualificationson the First Amendment right in an effort to avoid the potentialpathologies that potentially flow from a commitment to adversary democracyas the political foundation of free expression. The chapter proposesimposition of strict limitations on any First Amendment-based right ofspeaker anonymity, so that recipients of the expression will be able to discountappropriately for speaker bias or interest. All of the chapters arelinked by their ultimate reliance on the concept of adversary democracyand the democratic theory of free expression that grows out of it.

CHAPTER 2

Adversary Democracy andAmerican Political Theory

DEFINING ADVERSARY DEMOCRACY

"Adversary democracy" is a democratic theory that acknowledges that disagreementcharacterizes collective self-government in a heterogeneous societyand that values democracy precisely for the autonomy it provides theindividual in this setting of conflict. It is adversarial in the descriptive sensebecause it recognizes that individuals' conflicting interests will always dividea heterogeneous society and, to varying degrees, affect individuals'participation in self-government. Adversary democracy recognizes that,in a large and diverse society, the notion of a consensus form of democraticdecision making in which the collective cooperatively seeks to advancethe "common good" is unrealistic at best and manipulative at worst.This form of democracy is adversarial in the normative sense because itrecognizes democracy as a system of collective self-government that managesconflict—and thus protects and facilitates individual autonomy—byinstitutionalizing it as a normal part of democratic life.

The word conflict, as used here, refers to the competing interests andideologies that motivate individuals and that may foreclose the existenceof, or collective agreement on, a singular vision of a substantive commongood. Cooperative theories of democracy either unrealistically assume individualswill ignore their own self-interest or personal ideology to pursuea common good or assume that democratic processes can resolve conflictby somehow forging a common will. By sublimating conflict, cooperativetheories invite it to take a pathological form. In other words, they have theeffect of inviting democracy to deteriorate into a "tyranny of the majority"in which conflict is resolved by exclusion, marginalization of minority interests,and ultimately domination.

Adversary democracy institutionalizes and thus tempers conflict intwo ways. First, it grants individuals equal power to affect the outcomeof collective decision making by virtue of their power to vote. In thissense, adversary democracy understands democracy as an ex ante agreementamong potential opponents to resolve disputes as merely adversaries,rather than mortal enemies. The value of democracy from this perspectiveis simultaneously individuals' power to seek to implement their preferencesand their security from domination even when they are in the minority. Assuch, adversary democracy is a theory of democratic equality: In the wordsof the scholar who first recognized this form of democracy, the centralegalitarian ideal in an adversary democracy becomes "the equal protectionof interests, guaranteed by the equal distribution of power through thevote." In this sense, the theory is "adversarial" because it recognizes thatdemocratic decision making involves a contest between individuals whoeach possess power to affect its outcome. The individual's power to vote,in and of itself, does not automatically constitute the power to institutionalizeand enforce his preferences. Nevertheless, he possesses the ability tojoin with others having shared interests and ideologies to influence publicopinion and shape the outcome of collective decisions by influencingthe votes of other individuals. The relationship is adversarial, rather thancooperative, because it acknowledges that collective decision making willinevitably produce winners and losers.

Although adversary democracy requires the losers to consent to majorityrule, it does not force losers to adopt majority preferences as theirown. In this sense, the theory is adversarial because it rejects Aristotelianharmony as the normative goal of politics, instead accepting ongoingadversarial conflict and dissent as normal—indeed, expected—aspects ofpolitical life. The value of democracy under this principle is individuals'abiding liberty to engage in an adversarial critique of the existing politicalorder itself and, in doing so, to convince others to join them. As philosopherStuart Hampshire has argued, because individuality depends onthe individual's ability to "resist the invasion and dominance of the activethings around it," diversity and conflict are "not a superficial but an essentialand deep feature of human nature—both unavoidable and desirable."The associative value of democracy under this principle, then, is its respectfor individual autonomy.