Free Speech is Not Only About Common Good

CHICAGO --- The Supreme Court was widely criticized for ruling in Citizens United that political spending by corporations is indeed a form of protected speech under the First Amendment. 

The condemnation of the ruling is simply wrong, according to a provocative new book by a Northwestern University School of Law professor.

“The Adversary First Amendment: Free Expression and the Foundations of American Democracy” (Stanford University Press, 2013) argues corporations provide information that helps listeners make choices important to advancing their interests -- and that is perfectly okay from a First Amendment perspective. 

The book presents a unique and controversial rethinking of modern American democratic theory and free speech.  

The Supreme Court was on firm constitutional ground in ruling that political spending by corporations, unions and associations is protected speech, said book author Martin Redish, the Louis and Harriet Ancel Professor of Law and Public Policy at the School of Law.

But many scholars today in political science and law reject protection for profit-motivated speech while inconsistently protecting speech designed to protect and advance other speakers’ interests.

Redish considers theories influenced by such thinking as “sorely misguided.”

Traditionally, free speech scholars have seen a connection between free speech and democracy, Redish said. 

“The leading free speech scholars have viewed democracy as a kind of collectivist or communitarian notion, in which people are motivated by a desire to advance the common good,” he said. 

The scholars tend to be very negative about profit-making or profit-driven speech, such as commercial advertising or speech by corporations.   

“They condemn it because of its inherent selfishness,” Redish said. “My book embraces selfishness as a cornerstone of democracy. It is both descriptively and normatively incorrect to suggest that our system has or continues to be driven by some vague notion of the pursuit of the common good.

“It is consistent with notions of liberal democracy for individuals to seek to advance what they perceive to be their own interests.”

Individuals should have the opportunity to affect the outcomes of collective decision making related to their own values and interests, according to the book.

Ironically, Redish pointed to the Civil Rights movement to make his argument.  

“When African-Americans protested in the 1960s against racial segregation, in effect they were basically advancing their own interests,” he said. “No one condemned them, however, because we morally approved of what they were doing.” 

Redish said scholars selectively pick and choose different promotions of self interest on the basis of whether they ideologically approve of what those interests are. But that’s inherently inconsistent with the notion of free expression and democracy, he added. 

“In no other context do we diminish speakers’ First Amendment rights on the grounds of his or her motives,” he said.

The First Amendment arguments relate to a much broader debate in American political theory over whether it’s appropriate or proper to contribute to public debate for reasons other than a good faith attempt to pursue the common good, Redish said. 

“Democracy does not permit us to restrict choices based on whether we agree with them or not,” he said. “Factions and interests groups are a way of life in the United States. We approve or condemn those factions based on whether we agree with what they are pursuing. That’s not permissible when you’re setting up free speech theory.

“Free speech theory must be agnostic to the correctness or morality of the speech,” Redish said. “Otherwise, those in power will inevitably choose to protect only that speech with which they agree. That isn’t a viable system of free expression.”

A leading scholar on commercial speech, Redish considers this book to be a theoretical prequel to everything he’s done since the beginning of his career.

“I have finally dug deeply enough into democratic theory to capture the foundational notions that rationalize the positions taken for 45 years -- that’s why I call it a prequel,” Redish said. “This is about the processes of government.” 

In a recent article in “The New Republic” attacking First Amendment protection of corporate and commercial speech, Columbia Law School professor Tim Wu traced the theoretical foundations of the extension of First Amendment protection to such expression back to Redish’s very first article, written while he was a third-year Harvard Law School student and published in 1971.

In his article, Wu described Redish as “a liberal democrat with a pronounced contrarian streak.” Redish said he gladly embraces that description as a characterization of his long scholarly career.