II. Free Speech in the Founding: Basic Principles

To understand the founders' view of free speech, we begin with their understanding of the general principles of freedom. In their scheme, freedom of speech is only one aspect—certainly an important aspect—of the freedom that government is supposed to secure.

But what is that freedom? The principles of the American founding are not difficult to understand, yet they are widely misunderstood today. On the right, many conservatives believe (e.g., Robert Bork) that the political theory of the founding elevates liberty and equality above all other concerns. In principle, according to this view of the founding, liberty for the founders meant a complete lack of restraint, the right to do whatever one pleases. So according to these conservatives, the excesses of today's liberalism follow inexorably from the defective principles of the founding.⁹

Both of these positions are demonstrably wrong.¹¹

According to the Declaration of Independence, all human beings are created equal with regard to their inalienable rights, including life, liberty, and the pursuit of happiness. Five of the early state Declarations of Rights add to this list the acquisition and possession of property and the free exercise of religion. Article 1 of Virginia's Declaration of Rights, adopted in 1776, is typical: “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” Article 16 reads: “That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”¹²

Equal natural rights also imply equal natural duties. Your right to life and liberty means that I have a duty not to harm or enslave you. The founders sometimes used the expressions “law” or “laws of nature” to make this point: reason discovers what the Declaration of Independence calls “the laws of nature and of nature's God.” These are laws or rules that nature imposes on us, requiring everyone to respect the fundamental right to liberty of all, including the right to a “separate and equal station” (as stated in the Declaration of Independence) that all peoples or nations are entitled to, as well as the liberty and property of the individual.

Why, one might ask, did the founders believe in human equality in this sense: that no one has the right to rule another without that other's consent? Although the Declaration of Independence and the state Declarations of Rights do not offer an explanation, there are other official documents in the founding that do. And when they do, they tend to make the same argument. The reason that no one has a natural right to rule is because men are neither gods nor angels. Human beings, even the best among them, lack the wisdom and virtue that it would take to justify rule without consent. To put it in nontheological terms: the founders agreed wholeheartedly with Plato and Aristotle that perfect virtue is a just title to rule, but they denied that any human being has perfect virtue. Therefore, no one has the right to rule without consent. This means that all have an equal right to liberty. In a 1773 document published by the Massachusetts Council, James Bowdoin wrote:

Human nature is a combination of reason and passions, as was frequently observed in the founding era. God, in contrast, may be said to be pure mind without passion, while the “irrational creation” (as Madison calls them in Federalist No. 54), such as dogs and cattle, are purely passionate without reason. Thus, God has a right to rule men, and men have a right to rule dogs and cattle, and in neither case is consent necessary. But no human being is so far superior to any other human being that he or she may rationally be trusted to govern without that other's consent (except for children and those with severe mental defects). This truth is an inference from the fact that men are neither altogether rational nor altogether passionate, but a mixture of both. Therefore, they can be counted on to be both prone to error and not fully devoted to the common good. As Madison sums up the point in Federalist No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

These preliminaries lead to two conclusions about the purpose and foundation of good government. First, its purpose: “To secure these rights, governments are instituted among men,” says the Declaration of Independence. Our rights are insecure when there is no government, because, as Jefferson later wrote, “it frequently happens that wicked and dissolute men, resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties, and property of others, and the secure enjoyment of these” is what “principally induced men to enter into society.”¹⁴

The founders' equality principle—that all are equal with respect to their natural rights—leads to a second conclusion about good government, this one concerning its proper foundation. The Declaration of Independence says that governments derive “their just powers from the consent of the governed.” If we are born equal with respect to the right to liberty, the only way that the rule of some human beings over others can be justified is if that rule is based on the consent of those who are ruled. Consent must be given in two ways. First, we consent when we become members of a political community. Second, we consent collectively to the laws we live under through periodic elections of those who make the laws. Accordingly, as part of its proof that the consent principle has been violated, the Declaration gives numerous examples of the British denial of the right of Americans to be ruled by their elected representatives.

Before we turn to the particular question of free speech, we have to consider in the broadest terms how government secures our natural rights. To deal with threats to our rights from abroad, government must provide a common defense by means of diplomacy and, in the extreme case, of arms. For threats to our rights from our fellow citizens, government must establish criminal and civil law.

The rule of law—especially criminal law—is the most obvious remedy for the insecurity of the state of nature, which is the state of human beings living together without a common government. In the state of nature, as John Locke rightly notes, there are three major defects that make life, liberty, and possessions insecure. First, there is no clearly known law (for the law of nature, mandating that no one is to be injured except for just punishment, is not obvious to everyone). Second, there is no impartial judge (for each is judge in his own cause, which often leads to bias and error in judgment). Third, there is no effective punishment for those who violate the law of nature. A well-constructed government provides clear laws (defining injuries and the appropriate punishments), impartial judgment (through jury trials), and reliable punishment (by fines, imprisonment, or execution).¹⁵

The primary protection of free speech, therefore, is not normally discussed in the literature on the right of free speech. It is not constitutional limitations on government; rather, it is government's willingness and capacity to punish anyone who injures any person or group because of something published or said by that person or group. When a violent mob threw abolitionist Elijah Lovejoy's printing press into the Mississippi River in 1837, the city government, writes Michael Kent Curtis, “refused to act, except to advise Lovejoy and his friends not to reestablish a press in Alton.”¹⁶

Liberals sometimes fail to notice that in the founders' view, although government can be the enemy of liberty, a good government is indispensable for securing liberty. Law professor Owen Fiss, for example, makes this error when he writes that “classical liberalism … puts the state at war with liberty.”¹⁸

Of course, free speech can also be curtailed by government's own action against noninjurious speech that it does not like. This kind of failure to protect free speech is the focus of most scholars who write on this topic. The various state and federal constitutional provisions affirming the right of free speech are directed against this kind of government mischief.

In sum, government protects free speech in two ways: first, by protecting controversial speakers and publishers from private violence; and second, by controlling its own temptation to limit speech that it does not like.

This is the theoretical framework within which the founders understood freedom of speech and of the press. The first kind of protection of free speech—protecting individual speakers from private violence—is provided by the normal course of the criminal law, condemning robbery, trespass, destruction of property, assault, murder, and so on, and by the civil law, defining and protecting property and contract. The second kind of protection is more complicated, and I will discuss six topics that, taken together, collect the main elements of the founders' approach to setting limits on government's desire to curtail the speech of citizens:

1. There is a fundamental right of noninjurious speech.
2. Government is obliged to discourage or limit injurious speech.
3. Punishment of injurious speech must be by due process of law.
4. Government may not impose ‘prior restraint’ on speech (e.g., through licensing the right to publish).
5. Private associations may limit or dictate speech of guests, employees, and students.
6. Government as property owner (speaker, employer, and schoolmaster) has the same speech rights as private associations.

III. First Element of Free Speech: The Fundamental Right of Freedom of Noninjurious Speech

James Wilson and James Madison are the two founders who gave the most attention to freedom of speech. Wilson was a signer of the Declaration of Independence, a leading member of the Constitutional Convention of 1787, principal draftsman of the Pennsylvania Constitution of 1790, and later a justice of the U.S. Supreme Court. The more famous Madison was an even more influential member of the Constitutional Convention than Wilson. Madison became the principal author of the Bill of Rights in the first Congress and was later twice elected president of the United States.

In his Lectures on Law (1790–91), in which Wilson showed himself to be the foremost legal scholar of the founding generation, he explained the general principle that government must permit all noninjurious activity, whether in speech or deed: “Every wanton, or causeless, or unnecessary act of authority, exerted or authorized, or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to liberty, personal as well as mental, in the highest possible degree which can consist with the safety and welfare of the state.”²⁰

This liberty to which citizens are entitled includes, as a matter of course, the right to communicate opinions through speech and publishing. While Madison was preparing his speech introducing the Bill of Rights to the first Congress, he wrote that speech was one of the “natural rights, retained,” in contrast with government-created rights such as trial by jury.²²

The founders did not hold a “self-expression” or a “democratic governance” theory of free speech. Such theories, which became fashionable in the twentieth century, leave unprotected many forms of noninjurious speech. For the founders, speech is simply a part of the overall natural right to liberty, which it is the main job of government to secure. As legal scholar John McGinnis notes,

McGinnis correctly calls free speech a “property right” because in Madison's 1792 essay on property, speech is a form of property: “a man has a property in his opinions and the free communication of them.”²⁵

Besides being defended as a fundamental natural right, freedom of speech was also appreciated by the founders for its usefulness. Its social benefit is often mentioned in founding documents. For example, the Massachusetts Declaration of Rights of 1780 says, “The liberty of the press is essential to the security of freedom in a state: it ought not, therefore to be restrained in this commonwealth.”²⁶

For these reasons—speech being both a natural right and highly useful to society—ten of the fourteen early state constitutions or Declarations of Rights, and the Bill of Rights in the U. S. Constitution, name freedom of speech or of the press as a fundamental right, but never a right that is limited to speech about political matters only.²⁸

In the founders' approach, all citizens enjoy the right of free speech and the right to publish. Today, the organized news media often claim that they should enjoy heightened privileges that are not available to other citizens. For the founders, the “press” is not a “Fourth Estate.” It is a means of communication. When Pennsylvania's 1790 Constitution says that “the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government,” it means that government may not stand in the way of any person or organization that has the resources to purchase a printing press or any other means of duplicating written material. (Today, these would include movies, television, and the Internet.) Pennsylvania's phrase “every person” means that there are no special privileges for corporations or bodies that make money by selling newspapers.

IV. Second Element of Free Speech: Government Must Punish or Limit Injurious Speech

The speech that we have been discussing so far is noninjurious speech. As for injurious speech, government not only may punish it, but is obliged to do so (or at least to provide legal recourse for those injured), for the same reason that government is obliged to punish murder and rape. Speech, no less than assault or theft, is capable of harming others.

Government accomplishes its main purpose, namely, to secure the natural right to one's own person and the fruits of one's labor, primarily through the penalties of the criminal law and the compensations of the civil law. Jefferson explained the connection between the criminal law and the purpose of government in his preface, part of which I quoted earlier, to a proposed 1778 bill on crimes and punishments in Virginia:

The Massachusetts Declaration of Rights, Article 11, affirms the same point:

Jefferson and Massachusetts are both stating an implication of the basic purpose of government, which, as stated in the preamble to the Massachusetts Constitution, is “to furnish the individuals who compose it [that is, the body politic], with the power of enjoying, in safety and tranquillity, their natural rights.”

Article 11 of the Massachusetts Constitution speaks of injury not only to person and property but also to character. An example would be libel that injures a person's reputation, such as a false rumor, deliberately spread, to the effect that a certain doctor's patients frequently die because of the doctor's incompetence. In this case, as in others, reputation would be a condition for the exercise of one's natural rights.

When limits on speech are discussed today, it is often said that the right of free speech must be balanced against the needs or interests of society. This approach implies that there really is no fundamental right of free speech that government is obliged to respect and protect. This “balancing” approach to rights was first developed during the Progressive Era.³⁰

In the U.S. Constitution, as in most of the early state constitutions, the right of free speech is not explicitly limited. The limit was implicit in the very concept of freedom. Freedom of speech is not freedom for licentious speech. However, later state constitutions, starting with Pennsylvania's 1790 revision, made the limit explicit: “The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”³³

There was only one exception to the general rule that injurious speech should be punished, and it was stated explicitly in both the Massachusetts and the United States Constitutions: anything at all, however harmful, may be said in the legislative body.³⁴

The founders recognized four principal kinds of injurious speech:

1. Personal libel: speech that injures an individual.
2. Seditious libel: speech that injures the government.
3. Speech that injures public health or the moral foundations of society.
4. Speech used in the course of, or promoting, other injurious conduct. This would include planning a bank robbery or encouraging others to commit a crime.

One important corollary of the idea of authorial responsibility is that there is no right to publish where an author or publisher cannot be determined, because otherwise no one can be held legally accountable in case of abuse. The Federalist and many other writings in the founding era were published anonymously, but always in a newspaper or book whose publisher was known. Nevertheless, it was thought that government should not require the actual writer of an article to be named. During the debate over ratification of the U.S. Constitution, “Philadelphiensis,” an Antifederalist writer, noted that a suggestion had been made in a Massachusetts newspaper “that every writer, for or against the constitution, should leave his name with the printer, to be published if required.” “Philadelphiensis” responded:

Today, because of rules limiting anonymous donations to nonprofit organizations, to ballot initiatives, and to candidates, government officials are easily able to target businesses and individuals who support candidates or political positions that they do not like. For example, when the owner of a major computer company publicly supported the 1993 school choice initiative in California, his company lost important state government contracts in retaliation.³⁶

According to the founders' theory, it would follow that government may not limit the amount of money that a person spends publishing his own opinions about candidates for election, even (or rather above all) if he happens to coordinate his activities with one of the candidates. Yet precisely such limitations are currently the law of the land in the United States. In 1976, when the Supreme Court considered whether restrictive legislation was constitutional, it reasoned that government may ban expenditures on publishing one's views of candidates for election if the expenditures are coordinated with the candidate. The Court wrote: “It is unnecessary to look beyond the [1974 amendments to the Federal Election Campaign] Act's primary purpose—to limit the actuality and appearance of corruption resulting from large individual financial contributions—in order to find a constitutionally sufficient justification for the $1,000 contribution limitation.”³⁷

It would also follow from the founders' principles that government may not ban the presentation of factual truth in the marketing of nonharmful commercial products. Further, government may not require employers to punish speech that the government disapproves of (e.g., telling jokes that some women or minorities find “harassing”), for government may never compel a private party to do something that government itself is not permitted to do.

V. Third Element of Free Speech: Restraint of Injurious Speech Must Be by Due Process of Law

It is not enough to say (for example, in a Bill of Rights) that noninjurious speech should be free and that only injurious speech is punishable. “Will it be sufficient,” Madison famously asks in Federalist No. 48, “… to trust to these parchment barriers against the encroaching spirit of power?” How is government to be prevented from abusing its duty to protect people against injury? The founders' answer here, as in domestic politics generally, was to require government to operate through laws or general rules passed by elected representative bodies, applied and enforced through an independent executive and judiciary.

The rule of law is meant to enable government to secure our natural rights (protecting against injuries to individuals or to the society at large), while discouraging government from misusing its great power to oppress those with whom government officials happen to disagree. If government censors are in a position to decide behind closed doors which persons or companies will be denied a right to a broadcast or printing license, without having to answer in open court before a jury of ordinary citizens, the likely result is that broadcasting or printing will tend to be limited to friends of the views of government. This was, in fact, the case through most of the history of broadcast regulation, until the late 1980s.⁷⁶

What the rule of law requires is ‘due process’. Before government may take away anyone's liberty (including liberty of speech, press, or broadcast), it has to make a general rule that defines the kinds of injurious speech for which people will be held accountable. If government believes that an injury has taken place, it must proceed with a jury trial should the defendant request one.⁷⁷

VI. Fourth Element of Free Speech: No Prior Restraint

At the Pennsylvania Ratification Convention of 1787, James Wilson said: “what is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual.”⁷⁹

This principle of ‘no prior restraint’ is a fundamental requirement not only of free speech, but of the rule of law altogether. John McGinnis explains: “Like a licensing law, a prior restraint can be understood as a deviation from the common law's treatment of business enterprises; under the common law, other enterprises were not normally subject to licenses or prior restraints, but rather only to after-the-fact liability for damages they caused.”⁸⁰

One might respond by pointing out that the government owns the airwaves and, like any other property owner, is therefore legally entitled to dictate the terms of their use. This objection is correct, but its premise is that it is proper for government to ban private ownership of the most important medium of communication in existence. A parallel would be if government insisted that it should own all land because it is a scarce resource that government alone can allocate justly. Government would grant licenses to use this public land on whatever terms government happened to impose. (This arrangement, by the way, already exists on the 54.2 percent of land in the Western states that is owned by the federal government). From the founders' standpoint, a government's refusal to allow any private ownership of the right to broadcast is the equivalent of government ownership of all the land in the country. A society in which government owned the preponderance of the land would not be a free society.

VII. Fifth Element of Free Speech: Property Owners May Limit or Dictate Speech of Guests, Employees, and Students

How do these principles affect the private workplace or other private associations? The general rule is that private associations are permitted to do the same things as a private individual. Everyone is permitted to use his own property and money to promote and publish the views that he believes to be right, assuming that these views are noninjurious, as stated above. Everyone has the right to spend his own money to publish his own sentiments. No one is required to spend his own money or to allow the use of his own property in order to promote views that he disagrees with. Every homeowner may exclude from his property anyone who speaks or acts in a way that the homeowner does not approve. He may exclude atheists, Christians, white people or black, women or men, the disabled, the intelligent, or anyone else for any reason, however arbitrary. But he is not permitted to injure them in their persons or property. The same rule goes for every business, church, private school, club, or any other private association. The owner may set rules on what is permitted or required to be said and done on his property by those who visit or work there. If the visitor or worker does not approve of the rules, he or she may leave or quit. Likewise, if a visitor, worker, or student does not conform to the owner's rules, the owner is free to send him or her away.

In the founders' view, a private school or college may expel a student for insisting that 2 + 2 = 5, or for stating in or out of class that the teacher is a fool (even if this happens to be true). Unless a contract dictates otherwise, an employer may fire all workers who argue that Hitler was a good man (or a bad man). For the same reason—namely, the right to the noninjurious enjoyment of one's liberty and property—a worker may quit if he dislikes the conservative or liberal opinions of his boss.

Today, civil rights law has significantly curtailed these freedoms. In the same era when American governments turned the marriage contract into an at-will arrangement by creating no-fault divorce, they greatly limited traditional at-will employment.⁸²

These laws would have been thought by the founders to violate the employer's or employee's fundamental civil right of free speech and freedom to use one's property in a noninjurious way. This long-standing legal doctrine was not questioned until the twentieth century, when liberal Supreme Court justices promoted a right of access to private property for First Amendment free exercise of religion and free speech purposes. In one of the early cases creating this right, Marsh v. Alabama (1946), Justice Stanley Reed's dissent hewed to the older view:

In other words, the traditional doctrine was that the owner of private property has complete control over what is permitted to be said on his property. In a 1964 case in which the Court created a constitutional right to picket inside a privately owned restaurant, Justice Hugo Black defended the older view in his dissent: “The right to freedom of expression is a right to express views—not a right to force other people to supply a platform or a pulpit.”⁸⁴

Today, conservatives and libertarians have attempted to carve out an “expressive association” exception to civil rights laws. For example, in Boy Scouts of America v. Dale, the Boy Scouts were vindicated when the Supreme Court declared them to be an “expressive association” whose “speech” would be coerced if they were compelled to retain Dale, a homosexual assistant scoutmaster.⁸⁵

VIII. Sixth Element of Free Speech: Government as Property Owner (Speaker, Employer, and Schoolmaster) has the Same Speech Rights as Private Owners

The founders applied the rules outlined above to government officials no less than to private citizens. Within some minimal limits—such as the Establishment Clause and the provision in the U.S. Constitution against religious tests for public office—government schools, workplaces, military bases, and libraries were originally understood to be free to decide what would be allowed or required to be said, or not said, as a condition of being on the property or being admitted to the agency or institution. If government wanted to require all state university students to live in coed dorms, or to admit only those who believed in racial equality, these requirements would violate no one's right of free speech. (Of course, government officials must operate within the limits of the civil and criminal law that applies to everyone in society.) The homeowner owns his property and may legally expel or admit on the basis of what is or is not said by those who enter his property. For the same reason, government's freedom to set admissions standards, hiring standards, and the content of school curricula and libraries was thought to be a normal and necessary implication of the fact that government owns the property in question. Therefore, government was free to choose to buy or remove library books from its own public or school libraries. It could admit students to or expel them from government-operated high schools and universities because of what they said. It could hire and fire workers on whatever criteria it wished, including political party affiliation or preferential treatment by race.

The older view was affirmed in 1892, when Justice Oliver Wendell Holmes, speaking for the Massachusetts Supreme Judicial Court, rejected the petition of a policeman who had been fired for violating a regulation restricting his political activities: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman…. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him.” A few years later, Holmes upheld the right of the City of Boston to require that speakers on the Boston Common first obtain a permit from the mayor: “For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary right interferes, the Legislature may end the right of the public enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain purposes.”⁸⁶

The same right of free speech for government as for private owners also means that when government speaks, it can say whatever it wants. Government “speaks” by funding certain activities, such as book publishing or art, or by teaching in public schools and universities.

Under the founders' approach, many issues that are hotly debated today would be solved easily. Government would be free to refuse to fund “art” for reasons of indecency alone, such as public nudity displayed in “performance art.” Government could hire chaplains for the armed forces or to give prayers in Congress or state legislatures with no concern for “diversity.” The university press of a public university could reject a manuscript for any reason whatever, even for “discriminatory” reasons. To the founders, a government agency or school was not a public forum.

IX. Modern Liberalism: Basic Principles

We now turn to a comparison of the founders' approach with that of modern liberalism. The founders aspired to establish a society in which each person's right to liberty, including his right to acquire and use property, would be protected by government. Except for injury to person or property, and matters regarding sex, marriage, and other things connected with the propagation of children, government would mostly leave people alone to live their private lives as they pleased. Government coercion would generally be used only after actual injury had occurred, and it could only be applied through due process of law, with clear rules, prosecutions in open court with jury trials, and punishments established and limited by law. Liberals reject the founders' approach as unjust and unhistorical. I will explain what I mean by this in what follows.

Before I do, however, I should note that the typical liberal probably would not agree with all the elements that I will attribute to liberalism. It is equally true that the typical conservative would not agree with all the elements of the founders' position on free speech. One reason for this is that government, public opinion, and elite opinion in America today are neither fully liberal nor fully conservative, but an inconsistent blend of both. From the point of view of the founders, America today has become very liberal. But from the point of view of the most consistent and radical proponents of liberalism, America today remains a very old-fashioned nation, regrettably still living in many ways under the principles and constitutional order established by the founders.⁸⁸

Rorty, a lively and intelligent liberal, provides a useful summary of the main elements of modern liberalism in his book, Achieving Our Country: Leftist Thought in Twentieth-Century America. I will condense his argument into three points:

First, liberals believe that the “moral and social order” bequeathed to Americans by the founders became, by the late nineteenth century, “an economic system which starves and mutilates the great majority of the population.” For this reason, liberals believe that there is “a constant need for new laws and new bureaucratic initiatives which would redistribute the wealth produced by the capitalist system.” Before the 1960s, liberals “tried to help people who were humiliated by poverty and unemployment, or by … the ‘hidden injuries of class.’ ” After the 1960s, liberals turned increasingly to helping “people who are humiliated for reasons other than economic status,” such as women, blacks, Hispanics, and homosexuals. Liberals' goal is “a classless and casteless society.”⁸⁹

Second, the liberal conception of liberty is an ideal that Rorty calls “self-creation” or “self-individualization,”⁹⁰

These first two liberal principles rest on a third and more fundamental claim: according to Rorty, liberals deny that there is any fixed meaning in the world. Neither God nor nature set any significant limits on the human will. Human beings should be free, not just from oppression by other human beings, but above all free from any “higher” authority either in religion or in a transcendent moral law that binds everyone and limits their wills. (Therefore, liberals tend to be strongly opposed to the moral teachings of traditionalist Christianity and Judaism.) For liberals, the meaning of human life is something that is a product of human making, not divine will or natural law. “The subject is a social construction,” writes Rorty. Life must not be “subjected … to some ‘authority’ alleged to exist outside the process of experience.” To state the same point in religious language, “we put ourselves in the place of God…. We redefine God as our future selves.”⁹²

In contrast to liberals, the founders believed in what Rorty disparagingly calls “Platonic and theocentric metaphysics”—that is, standards that are “built into human nature.”⁹³

Rorty refuses to give any theoretical justification for the three liberal principles described above, choosing instead to advise the Left to “put a moratorium on theory” and “try to kick its philosophy habit.”⁹⁶

St. Paul, quoting a Greek poet, said that in God “we live and move and have our being.”⁹⁹

If there are no permanent limits or standards, human life can become whatever we collectively want it to be. For liberalism, then, the question becomes how human beings can use their collective power to liberate every individual from whatever restrains his or her will. Freedom, in the view of modern liberals, is something radical. It is not freedom from the will of other human beings under the law of nature, as it was for the founders. It is freedom from all permanent limitations—from every constraint that human beings have traditionally believed was imposed on them by God or nature. Government, therefore, becomes an ongoing project of liberating human nature not only from political oppression, but above all from such limits as poverty and traditional morality.¹⁰¹

Man's natural vacuity or openness means that there is no such thing as the right or wrong way of life. Compared to Rorty, Dewey was practically the incarnation of old-fashioned decency. Dewey strongly opposed the notion that random or merely self-indulgent activity constitutes genuine freedom. He once wrote that “[i]t is equally fatal to an aim to permit capricious or discontinuous action in the name of spontaneous self-expression.” But the terms of Dewey's argument anticipate the “rock-and-roll, drugs, and the kind of casual, friendly copulation” celebrated by Rorty. In his chapter on “Moral Reconstruction” in Reconstruction in Philosophy, Dewey calls for greater diversity in life choices. We must “advance to a belief in a plurality of changing, moving, individualized goods and ends.” “Growth itself is the only moral ‘end.’ ” In an earlier statement, anticipating the way we talk now, Dewey called the human task “self-realization.”¹⁰²

Dewey was the greatest liberal theorist of the twentieth century. During that century, liberalism gradually took over American intellectual life. Now liberalism dominates the universities, the movie industry, journalism, and the world of writing and publishing. Liberalism has also made significant inroads into American political institutions, but its victory in politics is very incomplete compared with its academic and literary successes.

In 1992, four members of the Supreme Court gave voice to the relativistic side of liberalism celebrated by Dewey in this way: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”¹⁰³

X. First Element of Liberal Free Speech: “Complete Freedom for Noninjurious Speech” Redefined

I will now discuss the liberal alternative to the six elements of the founders' approach to free speech. We will see that liberalism does not reject the first two elements (freedom for noninjurious speech and government punishment of injurious speech), but it does redefine injury in a way that the founders would not have recognized. Liberalism rejects the other four elements (due process, no prior restraint, free use of private property, and similar freedom for government to control speech on its property).

It might seem surprising to say that liberals do not favor unlimited freedom of expression, but Stanley Fish is right when he writes that politics is always “the attempt to implement some partisan vision.” Therefore, he says, it is inevitable that “a line must be drawn between protected speech and speech that might in some circumstances be regulated, and that line will always reflect a political decision to indemnify some kinds of verbal behavior and devalue others.”¹⁰⁴

Liberals agree with the founders' view that there should be complete freedom for noninjurious speech, but they understand it differently. For liberalism, the purpose of government is, first, to make sure that the resources of society are made sufficiently available to the disadvantaged and underprivileged, and second, to foster the limitless diversity that will allow every person to achieve the ideal of moral autonomy and self-realization. What follows is that two kinds of speech that the founders disfavored now become favored: speech criticizing government in the name of radical reform, and speech that is obscene, pornographic, or otherwise immoral from the earlier standpoint.

In the first half of the twentieth century, when socialists and communists were sometimes prosecuted for advocating disobedience to the law or revolutionary overthrow of the government, liberals wanted to get rid of laws prohibiting such advocacy. In Brandenburg v. Ohio (1969), the Supreme Court accepted the liberal view that such laws are unconstitutional.¹⁰⁵

Liberals believe people should be free to be morally autonomous, to express themselves as they please. Liberals, therefore, deny the founders' position that there is an unchanging moral code (e.g., sex confined to marriage and oriented toward the procreation of children) that government should promote to secure the liberty of all. Thus, liberals view with suspicion all government limitations on pictures or descriptions of sexual conduct. Law professor Cass Sunstein writes, “Sexually explicit works can be highly relevant to the development of individual capacities. For many, it is an important vehicle for self-discovery and self-definition.”¹⁰⁶

The liberal view of pornography received an unusually frank defense by the late Supreme Court Justice William O. Douglas. In his concurring opinion in A Book Named “John Cleland's Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts (1966), Douglas included, as an appendix, a speech defending Fanny Hill by Reverend John R. Graham of the First Universalist Church of Denver. Fanny is the whore who is the leading character of the pornographic novel that was the subject of the Memoirs case. (In his dissent, Justice Tom Clark described the novel in these terms: “Though I am not known to be a purist—or a shrinking violet—this book is too much even for me…. Memoirs is nothing more than a series of minutely and vividly described sexual episodes.”) Graham argued against the view that sexual desire is something that we should try to control. He proposed to replace the old ideal of self-control with the new ideal of self-expression.

According to Graham, the old ideal is of “a closed world, where life is predetermined and animal-like.” The Fanny Hill view is “an open encounter of the total person in the world. Growth and spontaneity and expression are the goals.” It means people are free “to choose themselves.” The older view offers “warm blankets and cocoons for those who want to lose their humanity.” In other words, from the point of view of Justice Douglas and Reverend Graham, those who follow the founders' view of sex and marriage “lose their humanity,” while those who follow the free and easy ways of Fanny Hill gain their humanity.¹⁰⁸

Here is a manifesto for the sexual revolution, which was just getting under way in 1965, when Graham gave the speech published by Douglas. Far from injuring society, obscenity and pornography are, according to this version of liberalism, important vehicles for liberating society from its puritanical, constricted past.

The Douglas view was the culmination of a line of thought that was long marginal to the development of liberalism, but which became part of its mainstream by the 1960s. One of the early opponents of the founders' approach to obscenity was Theodore Schroeder, author of “Obscene” Literature and Constitutional Law (1911). Schroeder, trained in the law, was the leading activist in the early twentieth century for the abolition of all limits on freedom of expression. At the time, few took Schroeder's book seriously, but it articulated many of the themes that came to be widely accepted later in the century. Schroeder especially emphasized the argument, later taken up by Douglas, that opponents of obscenity are themselves corrupt, repressive, perverse, and monomaniacal. Morality is “relative and progressive.” For Schroeder, only hysteria and superstition make people believe that there is anything wrong with obscenity.¹⁰⁹

Political scientist Stanley Brubaker correctly explains why the founders held the opposite view. For them, “freedom of speech is meaningless unless tied to self-government, using that term in both its public and personal sense…. [F]reedom presupposes character, and character presupposes self-discipline or self-government. But self-discipline is not self-acquired. It is virtually impossible without cultivation by family, society, and, at least indirectly, by government.”¹¹⁰

XI. Second Element of Liberal Free Speech: Government Must Punish or Limit Injurious Speech

For the founders, as we saw earlier, injury is harm to the person or property of another, including his reputation; harm to the government that secures his natural rights; or harm to the morals necessary for the preservation of society. All speech that is injurious in any of these ways may be limited or banned by government. This includes speech injuring reputation; speech injuring the government that secures individual rights; speech injuring the public health, safety, or morals; and speech used in the course of committing ordinary crimes. All other speech is to be permitted.

For liberals, injury is thought to be endemic in a system of free markets, where human beings exchange goods and services on the basis of voluntary contracts. For the founders, free markets are an indispensable element of a free society, in which individuals are expected to take care of most of their daily needs through voluntary private associations freely interacting with other associations. It is a basic tenet of modern liberalism that the freedom achieved by such a system is largely illusory, because it leaves the weak and marginalized at the mercy of the strong and dominant classes. Early in the twentieth century, liberal Progressives emphasized that such a system leaves the underprivileged at the mercy of corporate capitalism. More recently, liberals have focused on the ways that a system securing the individual rights of life, liberty, and property putatively promotes heterosexual bigotry, male dominance of women, and discrimination by whites against people of color. When government fails to provide these victimized groups with the support they need, they are doubly injured by the system.

Woodrow Wilson, a Progressive, illustrates the early liberal position in his 1913 book, The New Freedom:

C. Edwin Baker makes a similar argument in his contribution in this volume. Government, he writes, must “create the conditions that enhance meaningful autonomy…. [T]he concern is not with having the maximum abstract freedom of choice but with having opportunities to make those choices one actually wants to make.”¹¹²

The late Supreme Court Justice Thurgood Marshall gave a clear statement of the same point in his 1980 dissent in Harris v. McRae. Congress had passed a law excluding the funding of abortions through Medicaid. As Marshall saw it, the question was whether the Constitution requires government to pay for poor women's abortions. The Court said no. Marshall thought otherwise. He complained about the Court's decision:

Here is Marshall's argument in the form of a syllogism:

Marshall's argument, like Baker's, implies that government has an “affirmative funding obligation” to pay, not only for abortion, but also for anything a poor woman has a constitutional right to do. Otherwise, she has (in Baker's words) “abstract freedom of choice,” but not “the opportunity to make those choices.”

The liberal understanding of injury has a direct application to the question of what kind of speech is injurious. For liberals, speech that undermines the task of helping the poor and other disadvantaged groups is injurious. So also is speech that advances the interests of the dominant classes at the expense of those who are excluded. Here, then, is the ground of two kinds of liberal limitations on speech.

The first kind of limit is on what may be said to or about the underprivileged or marginalized classes of society. For liberals, whatever expression perpetuates the existing system of dominance by groups such as whites, males, heterosexuals, the rich, and the nondisabled is injurious speech. Examples would include speech defending the traditional male-headed family, criticizing working women who leave their children in day care, denouncing homosexuality and single motherhood as immoral, pointing out the fact of high crime rates among people of color, defending the right of employers to discriminate on the basis of the employer's view of merit, and making disparaging remarks or jokes at the expense of people of color, women, the poor, the disabled, and homosexuals.

Few liberals would go as far as Catharine MacKinnon, who argues that legal action should be permitted against schools that assign “academic books purporting to document women's biological inferiority to men, or arguing … that Fourteenth Amendment equality should be repealed.”¹¹⁴

The second kind of liberal limit on speech is that privileged speakers from the dominant class must not be permitted to speak too much. As Owen Fiss writes, the state “may even have to silence the voices of some in order to hear the voices of the others. Sometimes there is simply no other way.”¹¹⁵

Many liberals would still be reluctant to make such a blunt declaration that they favor “official suppression of speech.” This does not affect my argument. Within the broad framework just sketched, there is plenty of room for dispute over particular applications of the two liberal limitations on speech. As we will see, there is, in fact, a broad liberal consensus on quite a few policies that lead to “official suppression of speech.” Even those liberals who regard themselves as civil libertarians often endorse the liberal approach to at least some of the policies discussed below.¹¹⁷

My argument goes further than this, emphasizing the continuity between the earlier, civil-libertarian position once preferred by most liberals, and today's growing embrace by liberals of “official suppression of speech” in the name of “democracy.” That is, my view is that liberals have always favored, in some degree, government regulation of the content of speech. The most obvious example is broadcast regulation, which began with the Radio Act of 1927. Another is campaign finance regulation, which began in the Progressive Era. This is not to say that no difference exists at all between the earlier liberalism and today's. John McGinnis, noting today's liberal preference for suppression of speech, offers this explanation:

XII. Third Element of Liberal Free Speech: Rejection of “Due Process of Law”

In the founders' view, if government wanted to punish or restrict speech, it was supposed to do it through due process of law. What this meant in most cases was the right to be accused only under a law that had a clear meaning, the right to a jury trial, the right to confront one's accusers and cross-examine them, the right to a lawyer, and the right to require government to make its case in public. Hamilton's remarks in the Croswell case emphasized the importance of juries to guard against government misconduct.¹⁴⁷

In the liberal policy areas that we have discussed so far, and in some to be discussed later, due process in this sense is not available to those who are accused of injurious speech. It is difficult for there to be personal accountability if one's membership in a class (i.e., “the wealthy”), instead of one's unlawful conduct, determines one's right to speak. The “privileged” whose voices are determined by government to be too loud have no opportunity to defend the noninjuriousness of their speech. They are never accused of anything; they are simply silenced. The law treats all speech emanating from certain classes of people as ipso facto injurious, and there is nothing that the accused can do about it. For example, it is a criminal offense for a person to spend his own money publishing and mailing a book explaining and defending the views of a friend who is running for public office, if he spends more than the amount permitted by campaign finance law. The crime is in the amount spent, not the words spoken.

Similarly, enforcement of harassment law against accused employees or students rarely reaches a court of law. Typically, an internal investigation conducted behind closed doors in the business or educational institution (and sometimes no investigation at all, as I have observed at my own university) resolves the question, and the accused may find himself without a job as well as without an explanation. For it is often the case that employers deliberately conceal from an employee what the charges against him are, citing “privacy” concerns of the accuser. The employee is also often deprived of an opportunity to defend himself, to hire a lawyer, to cross-examine his accusers, or even to know who his accusers are. These “private trials” are not exactly mandated in the law, but the government puts employers and schools on notice that if they do not respond vigorously to claims of sexual and racial harassment, they will be liable for damages in lawsuits filed by the victims.

Finally, through all the years of regulation of broadcast content by the FCC, government has never had to prove that the speech it disapproved of was injurious. The only question was whether the broadcaster followed FCC guidelines. As discussed in the previous section, when the Fairness Doctrine was applied only against conservatives, silenced broadcasters had no effective legal remedy. That is, the real matter at issue—whether the broadcast content was improper or injurious—never came before a jury. As long as license renewal is based on a vague standard like “the public interest, convenience, or necessity,” in the words of the 1934 Communications Act, a broadcaster has no opportunity to defend his broadcast content in a trial proceeding on the basis of clear legal definitions of injurious speech.

XIII. Fourth Element of Liberal Free Speech: Prior Restraint through Licensing is Permitted and Sometimes Preferred

Licensing is a hallmark of liberalism, but if owners must ask permission of government to use their property, they do not really own it in the founders' sense of ownership. A basic tenet of liberalism is suspicion of private owners and trust in government. As Owen Fiss writes, instead of viewing government with suspicion, as Americans used to, “we must contemplate the possibility that the state will use its considerable powers to promote goals that lie at the core of a democratic society.”¹⁴⁸

The liberal preference for licensing over private ownership may be seen most dramatically in the fact that the federal government owns over fifty percent of the Western land in the United States, but only four percent of land east of the Mississippi.¹⁴⁹

Most liberals and conservatives seem unaware that the government today operates a vast system of prior restraint on electronic broadcasting through its licensing system. Yet all scholars know that the founders' concept of free speech precluded the use of prior restraint through licensing. Benno Schmidt, the former president of Yale University, writes, “the First Amendment tolerates virtually no prior restraints [on speech or the press]. This doctrine is one of the central principles of our law of freedom of the press…. the doctrine is presumably an absolute bar to any wholesale system of administrative licensing or censorship of the press, which is the most repellent form of government suppression of expression….”¹⁵⁰

Parenthetically, we should note the weakness of a much belabored canard that broadcast regulation is necessary because of a scarcity of broadcast frequencies.¹⁵¹

For liberals, the real justification for licensing is to make sure that what gets broadcasted actually serves the “public interest” as they conceive it.

We saw earlier the effect of licensing on broadcast content. If government can pull the plug on a business at will, it can dictate how that business conducts itself. It can regulate, as FCC critics have long noted, “by raised eyebrow.”¹⁵³

Cass Sunstein is an enthusiastic proponent of government licensing of broadcasting. In Democracy and the Problem of Free Speech, Sunstein calls for a “New Deal for speech.”¹⁵⁴

Sunstein himself is rather moderate in the practical inferences he draws from his radical premises. These premises would easily justify measures that most Americans (and Sunstein himself) would regard as extreme. For example, why not establish a Federal Publishing Commission (FPC), on the model of the FCC or the Equal Employment Opportunity Commission? Rejected authors could be given the right to sue publishers on the ground of discrimination against diverse viewpoints. If editorial policies had a disparate impact on points of view that have traditionally been underrepresented in print, the new FPC and the courts could order remedies, with appropriate goals and timetables. Book publishers whose lists were insufficiently inclusive might be required to publish a certain percentage of “diverse” manuscripts. Magazines and newspapers could be ordered to set aside a certain portion of each issue for groups representing “discreet and insular” minority viewpoints.

Using the FCC model, publishers would have to send a copy of everything they publish to the Federal Publishing Commission. Every few years the FPC would consider whether to renew the publisher's license. Renewal would be granted only if the publisher's product included sufficient diversity, access to those “whose views should be expressed,” and “balance” in presentation of controversial topics.

These inferences, which follow from Sunstein's premise, are not as far outside the mainstream as one might hope. As we saw earlier, in the 1969 Red Lion decision, the Supreme Court strongly affirmed government's right to dictate the content of electronic broadcasting. Far from being forbidden by the First Amendment, the Court wrote, “Because of the scarcity of radio frequencies, the government is permitted to put restraints on licensees in favor of others whose views should be expressed…. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” Otherwise, said the Court, the public would not hear from “those unable without government assistance to gain access to those frequencies for expression of their views.”¹⁵⁶

In sum, according to Sunstein's version of the liberal understanding of free speech, in principle government is required to supervise the content of what gets published and broadcast, in order to promote an appropriate diversity of viewpoints in the marketplace of ideas. Sunstein's “New Deal for speech”—along with the radical policy implications already noted—is the logical culmination of this understanding.

Sunstein's position is widely shared by academic liberals. His Democracy and the Problem of Free Speech won a book prize from Harvard in 1994.¹⁵⁸

XIV. Fifth Element of Liberal Free Speech: Speech Rights Must Be Redistributed from Privileged to Oppressed by Limiting the Right of Private Owners to Use Their Property to Say What They Want or to Exclude Those with Whom They Disagree

For the founders, it was a fundamental natural right that property owners have an almost unlimited right to do whatever they wish with their property. The only limit was the principle that one must not harm others. This limit was to be defined in the civil law. The courts in the first century of American history often quoted the phrase sic utere tuo ut alienum non laedas: “use your own in such a way that you do not harm another's.” Generally, if government believed that your use of your own property was injurious, it had to prove so in a court of law.

For the founders, it was also a gross violation of a fundamental natural right for government to take the property of one person and transfer ownership to another. Justice William Paterson wrote in the 1795 Supreme Court case of Vanhorne's Lessee v. Dorrance:

For the founders, the private workplace or school was the equivalent of the private home or club. It was a place where the owner enjoyed complete freedom to dictate the terms on which guests, workers, or students would be invited to join or remain.

John Dewey regarded the distinction between the public and the private spheres as disastrous to the cause of liberty in the modern world. He believed that if government is required to leave the private sphere alone except for the punishment of overt injuries, the weak and underprivileged members of society will remain oppressed. Therefore, businesses and private schools are not viewed as private, but rather as quasi-public, or at least affected with a public interest. The employer is no longer free to operate a workplace as he wishes. Instead, he must conform to government rules on what may or may not be said. The purpose of this government intrusion is to protect the vulnerable groups in society: workers, racial minorities, women, the disabled, homosexuals, and any other categories that seem to be disadvantaged. For liberalism, the purpose of government is not to secure the natural rights of the governed, but, rather, to make sure that everyone has appropriate access to the resources that are needed to live as one wishes. This means that government has to micromanage relations between all persons in society who are unequal in power. It has to break down the integrity of the private sphere.

Therefore, liberals reject the founders' view that it is a fundamental right, both natural and civil, for private property owners and associations to do or say whatever they want, and to exclude or invite whomever they want, as long as they do not injure anyone. Liberals view the private sphere as inherently suspect, that is, as potentially oppressive of liberty or self-expression. Civil rights law in modern times has come to mean especially laws that limit the freedom of private employers and schools to conduct themselves as they wish. It is widely believed that if it were not for government coercion of private property owners, workers would have low wages, and women and racial minorities would not have access to decent jobs or schools. Part of the agenda of government oversight of the internal management of private associations is the regulation of what employers may or may not say; this limitation has been extended to employees as well. This follows naturally from the liberal view that owners of businesses and schools cannot be trusted to act responsibly unless their rights of free association are limited by government. How can the workplace be made comfortable for women and minorities unless government punishes employers for their employees who make jokes or unpleasant remarks about these groups?

Liberalism begins with the premise that private property is at the disposal of the public for the sake of the public welfare. If one citizen has more, and another less, government is authorized to transfer property without compensation. This kind of transfer is viewed as necessary because, as Mark Graber writes, “Many Americans are still financially unable to participate effectively in the marketplace of ideas. Hence, some policy must address whether, under contemporary conditions of material inequalities, persons should have unlimited power to convert their economic advantages into political resources.”¹⁶²

One liberal solution to this problem, as we saw earlier, is to “mute” or “silence” those who spend “too much” publishing or broadcasting their views. Another approach is to take speech rights (in the form of the use of a printing press or broadcast facilities) away from those who have “too much” and reallocate them to those who “need” them more. As Fiss writes, government “may have to allocate public resources—hand out megaphones—to those whose voices would not otherwise be heard in the public square.”¹⁶³

This mandatory reallocation of private resources was what the FCC's Fairness Doctrine did. A station would broadcast something that the FCC viewed as biased or partisan (usually, that meant nonliberal); it would then have to provide free air time to someone to respond. Liberals continue to favor “access regulation,” that is, compelling owners of electronic media to turn some of their broadcast time over to people whose views they disagree with. The “need” for access is to be decided by government agencies, such as the Federal Communications Commission, staffed by supposedly nonpartisan experts. As Jeffrey Abramson and Elizabeth Bussiere write, “the public interest also requires that the crucial channels of mass communication be open to the citizenry at large, that political debate over the media be open to as wide an array of views and voices as is practically possible. If it takes legal regulations to achieve these access goals, then so be it.”¹⁶⁴

A similar liberal policy compelled private owners of shopping malls or airports to allow the uncompensated use of their property by demonstrators. The Supreme Court has upheld the right of state legislatures to compel private use of private property belonging to someone else.¹⁶⁵

XV. Sixth Element of Liberal Free Speech: Government Has Little Right to Control Expression in Public Funding of the Arts, Public Education, and Government Workplaces

For the founders, property owned by government could be used on the same terms as private property. Government could set the terms of use in any way it pleased. The only limit would be general principles such as “No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public” (Massachusetts Declaration of Rights, 1780, Article 6). In other words, government ownership of property, and allocation of its use, is limited by the principle that government exists for the common good, not for the private advantage of particular persons or groups. Other than the citizen's privilege of access to public sidewalks and highways for the purpose of travel, this gave government a lot of leeway in its use of its property.

Today, liberals and most conservatives reject this view. Now there is constant litigation over what opinions government is allowed to favor or disfavor in its use of its own property. For example, as I stated previously, in the older view, a public school would be permitted to buy any books it wanted for a school library, and it would also have full discretion to get rid of any books from that library. Liberals argue, however, that once a public school buys a book for a school library, it is not permitted to remove that book, if its motive is objection to the book's ideological content. This view was upheld by the Supreme Court in 1982.¹⁶⁷

In the founders' view, public schools, acting in the place of parents, could treat students as they wished, short of injuring them in the legal sense. School authorities could spank students, expel them, or honor them on any basis the authorities pleased. Now, liberals argue that the right of free speech means that students must be allowed to express their political views in public school. In Tinker v. DesMoines Independent Community School District (1969), when a student was disciplined for wearing a black armband in protest of the Vietnam War, the Supreme Court took the side of the student, saying that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”¹⁶⁸

Similarly, in government employment, as I noted earlier, government was permitted to set any terms it wished. By 1983, this position had long been abandoned, as Justice Byron White wrote in Connick v. Myers:

Liberals also argue that when government gives grants to artists, it must not exclude some art on the grounds of indecency, because indecency is protected by the right of free speech. Owen Fiss writes that government's refusal to fund indecent art has a “silencing effect” that “arises from the scarcity of resources.”¹⁷⁰

It might seem, by Fiss's reasoning, that any art not funded, whether indecent or not, is silenced. If this is the argument, then every artist in America who is not funded has suffered from government censorship. Here the logic of the liberal position returns us to Thurgood Marshall's extravagant claim that any constitutional right that government fails to fund is, in effect, being denied by government. Fiss avoids this absurd conclusion by adding that since government must silence some artists by failing to fund them, the ones silenced should be those whose point of view is already available to the public; that is, the First Amendment “can be viewed as a mechanism for protecting the robustness of public debate, for exposing the public to diverse and conflicting viewpoints on issues of public importance.” Since the late Robert Mapplethorpe's homosexual photographs “challenge orthodox views about sexuality,” the First Amendment requires that such art be funded, while pro-heterosexual art is not required to be funded.¹⁷¹

Liberals argue that the older view was based on a distinction between rights (which government must protect) and privileges (which government may give to some but not others). Legal scholar Rodney Smolla correctly notes that this distinction is based on the Lockean approach of the founders. But he objects on the ground that the rights-privilege distinction “is intolerable in a modern society that aspires to make itself genuinely open and free. Government is now so large … that freedom of speech would be rendered an empty guarantee if government retained carte blanche to attach to the receipt of government benefits any restrictions on speech that it pleased.”¹⁷²

The obvious problem with this liberal view is that government often attaches to the receipt of benefits all kinds of restrictions on speech. It cannot help doing so. Approval of a grant from the National Endowment for the Humanities is contingent on saying and writing certain things that please the reviewers—things that, if left unsaid, would lead to the disapproval of the proposal. Grants approved generally must fall within the bounds of orthodox academic scholarship. The winning scholars have the privilege of a government grant, while the losers get no grant, because of what they said in their applications. From the founders' standpoint, the most serious objection to the liberal approach is that when government dispenses grants, it should discriminate on the basis of the public benefit that the grants are intended to secure. This is what justifies taxation in the first place: the public good. If government chooses to hire a teacher, it not only may but should refuse to hire those who believe that Nazism is the best form of government, or that sexual liaisons between teachers and students are desirable. (I am assuming that speech defending these beliefs is not against the law.) As Holmes said, there are a great many things a person has a constitutional right to say and do that might disqualify one for a government job or grant. This is as it should be.