Freedom’s risks: the danger of safety
The safe life is not worth living. Admittedly, it is a provocative claim, something one might expect in literature but not in law. Then again, when it comes to both the law and philosophy of free speech, this idea has a long lineage tracing back to Socrates and even earlier. In antiquity the proposition was soundly rejected; Athens preferred safety to Socratic wisdom. Of course, history sided, if only romantically, with Socrates. It is against that backdrop that I want to defend, at least experimentally, my bold claim and its relationship to a general approach to free speech in America.
To defend freedom, one must be a risk-taker. That’s how I put it in a recent review I did titled “Freedom and its Excesses.” I now want to elaborate on that point a bit more as I try to make a preliminary case for risk-taking when it comes to free speech liberty.
Holmes and harm
During oral arguments in United States v. Stevens, the animal cruelty video case, Chief Justice John Roberts asked Deputy Solicitor General Neal Katyal, “If you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?” Seemingly dissatisfied with Mr. Katyal’s reply, the Chief tendered his own answer: speech is unprotected when “the evil to be restricted so overwhelmingly outweighs the expressive interest at stake.”
I agree … for any variety of reasons but sans timid applications of that kind of test. Case in point: Debs v. United States (1919) in which Justice Oliver Wendell Holmes shamelessly backed away from the test he first articulated in Schenck v. United States. Gladly, he later reinvigorated, in theory and application, his test in Abrams v. United States (1919).
The idea of harm is at the crux of any risk theory of free speech. At least in the Holmesian mind, this pragmatic principle better served his Darwinian survivalist approach to free speech than did any mix of moral-based theories. But how do we first define harm, and then how do we calibrate it in a given context?
For starters, a real or imminent harm of some magnitude to person or property could trump a free-speech claim. “True threats” of such harm might well fall into this category as might defamation of purely private persons or theft of intellectual property. In certain instances, actual harm or the threat of it to our national security might also fall within this category. That takes us to the calibration issue, and back to Holmes and Schenck, Debs and Abrams.
When the jurisprudential dust settled, Holmes best articulated his harm principle in his Abrams dissent: “the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.” Later, Justice William Brennan reformulated that test somewhat in his per curiam in Brandenburg v. Ohio (1969): “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
There, then, is the theoretical ratcheting of the Holmesian harm principle. In relying on such tests, I would not cabin them to either wartime cases or to advocacy of violence, as the Supreme Court has generally tended to do. That said, such a general application would require yet more refinement, the topic to which I now turn.
The Posnerian perspective
It is a much-overlooked article, but one well worth considering. I refer to Judge Richard Posner’s “The Speech Market and the Legacy of Schenck,” which appears in Eternally Vigilant: Free Speech in the Modern Era (University of Chicago Press, 2002), edited by Professors Lee Bollinger and Geoffrey Stone.
Posner urges an “instrumentalist approach” for resolving certain free speech issues. His approach traces back to Holmes’s opinion in Schenck and moves away from a “moral approach,” which Posner sees as “spongy and arbitrary.” Posner both defends and buttresses Holmes’s thinking in this area and he does so in formulaic terms:
If the benefits of challenged speech are given by B; the cost (a fire, desertion, riot, rebellion, and so on) if the speech is allowed by H (for harm) or O (for offensiveness); the probability that the cost will actually materialize if the speech is allowed by p; the rate at which future costs or benefits are discounted to the present by d (like p a number between 0 and 1); the number of years (or other unit of time) between when the speech occurs and the harm from the speech materializes or is likely to occur if the speech is allowed by n; and the cost of administering a regulation banning the speech by A, then the speech should be allowed but only if … the benefits of the speech equal or exceed its costs discounted by their probability and by their futurity, and reduced by the costs of administering a ban.
By this measure, expression may be banned “if the expected costs of the speech exceed the sum of the benefits of the speech and the costs of administering a prohibition of it.” An alternative way of formulating such trade-offs is to posit that the “net benefits of speech are the gross benefits minus the costs, including both the harm and offensiveness caused by the speech and the costs of regulating speech.”
In developing his Holmesian-like model, Posner stresses that B (benefits) “need have nothing to do with the promotion of social or scientific progress or of political freedom or stability; aesthetic or even sexual pleasure is as much a genuine benefit as democracy or truth, though it need not be as great a benefit.” B can even have a “negative value” as, when “some restrictions on speech actually promote speech” as in the case of “restricting the speech opportunity of the fringe candidates may increase the speech benefits of debate overall.” Notably, in his cost-benefit analysis, offensiveness is assigned no general value. That is, his “pragmatic” approach is ultimately an “argument for banishing considerations of offensiveness from free-speech analysis.”
While much more could be said about Judge Posner’s approach, suffice it to say that it both expands the protective reach of Holmes’s free-speech jurisprudence and does so in a far more methodical way. By and large, I think it is more protective than virtually all other approaches to First Amendment decision-making, with the caveat of the continued need to employ complementary safeguards such the content neutrality coupled with the vagueness and overbreadth doctrines.
The dangers of safety
Now it might be said that I have placed my thumb on the liberty side of the scales at the expense of the safety side. I concede there is a measure of truth to that charge, but I think it is overall a relatively endurable measure. But beyond that, there is a risk, which I allude to by way of quoting from two of Justice Holmes’s famous dissents:
Abrams dissent: “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”
Gitlow v. New York (1925) dissent: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
Risky? — to be sure. That, I submit, is the cost of real freedom. Then again, if you want to be quite safe, pass a bevy of open-ended laws; install surveillance cameras on every street corner and alleyway; establish Orwellian “free-speech zones” on countless campuses; subject the Internet to broadcaster-like government regulations; always keep protestors a binocular distance from people in power; oppose press shield laws; outlaw “dangerous” speech in wartime; further expand the “secondary effects” doctrine and zone out free expression; and create more exceptions to the First Amendment. And then you will be very safe, but alas not free.
Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington Law School and a fellow at the First Amendment Center. His next book is The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, June 2010).