Law and the ideal citizen

The theme identified for this lecture series is the subject of responsibility. I assume Washington and Lee has selected that topic out of a sense that it has not received sufficient attention, as compared, for example, to the subject of "rights." I select "rights" as the counter-example because we often hear of the two in tandem - "rights and responsibilities." As such, the concept of responsibility connotes a sense of obligation as to what is due from us to others and to the community. It is, in that sense, easier to be in favor of rights than it is of responsibility. Rights give us freedom to do as we wish, while responsibilities impose limits or affirmative burdens on us that accompany privileges or benefits we have at our disposal.

I wish to discuss the responsibility side of the ledger, though I think it is described more accurately as the formation of character, of our public intellectual character, to be more precise. Although public life, just like private life, certainly is not made up solely of liberty, or freedom, or rights, public life poses a dilemma of the first order to describe of what that life consists. Many have stumbled when they moved from an analysis of negative liberty into the realm of public duties, and many have stumbled even more in analyzing the intellectual and emotional capacities needed by the democratic citizenry. It is commonplace to say that one may far more easily define the limits of power than to prescribe the nature of its exercise.

Yet, sometimes we find that things are different from. what they seem, and what may appear to be the protection of "rights" in fact may be part of a process of defining a social character. This is what I have found after studying the First Amendment over many years. Nearly everyone believes, and they are largely correct in doing so, that the First Amendment is concerned with protecting "rights," or establishing the limits of official censorship with respect to the human behavior known as "speech." In this century, which has been the period in which the modern jurisprudence of freedom of speech and press has been formed (the very first Supreme Court cases interpreting the First Amendment not having arisen until 1919% the vast majority of the cases have involved debates over the extent to which the government may prohibit speech because it is dangerously persuasive or offensive. We know, more or less, that the sum of these cases now establishes that speech is protected even speech advocating illegality or speech that is deeply offensive to our core values (e.g., so-called hate speech) - unless it is just about to cause serious criminal activity or unless it falls within one of the established exceptions to the First Amendment (obscenity, fighting words, libel, etc.). The traditional rationale for this constitutional state of affairs is that such an open, "uninhibited," system is more likely to yield "truth" and good democratic decisionmaking than a more censored expressive environment.

On a few occasions, both state and federal legislatures and the courts have toyed with the idea of using the First Amendment as a "sword." By saying "sword," these groups mean to use the First Amendment to restrict some speech so that speech opportunities are distributed more "fairly" or evenly. The belief is that the purpose of freedom of speech and press is to preserve an "uninhibited" and "wide-open" "marketplace of ideas," and if prohibiting censorship will not achieve that level of openness because, for example, the economic system distributes wealth in such disparate ways that some citizens as a result will have greater access to the marketplace of ideas than others, then the state (including the courts) should be able to restrict some speech in the effort at creating fair opportunities. At this point, the case law is all over the lot on this perspective of the First Amendment. It is not helpful on this occasion to explore the intricacies and contradictions of this jurisprudence, but the point is worth making that, on a number of occasions, there have been significant efforts to take the rationale for the "right" of freedom of speech and turn it into an instrument for societal reform. "Rights," in that way, can become methods of achieving what have been referred to as "positive liberties."

Now I want to suggest that the First Amendment in particular has been employed not only to preserve, and sometimes to enhance, speech opportunities of citizens but also, in a more complex way, to share or to affect the intellectual character of the society. This additional purpose or function arises from the fact that there are two sides of free speech - the "right" of free speech, which is what we have been talking about, and the "tolerance" of free speech. Although the traditional angle of vision on free speech assumes the goal to be one of protecting the activity of speech against the evils of censorship, it is also possible, and I suggest that it has happened, to envision the goal as one of dealing with the problematic nature of mind underlying the act of censorship. It even might be true that the "protected" speech is not worthy of protection in itself but is only a means to another end of promoting a certain capacity through the act of tolerance.