Managing Deliberation: The Quandary of Democratic Dialogue

Abstract

Some of our best and most influential constitutional scholars have recently revived the view that the essential objective of the First Amendment is to promote a rich and valuable public debate. Their claim is that First Amendment issues ought to be decided not by "reference to ... personal autonomy, or the right of self-expression," but rather by reference to the Amendment's "positive purpose of creating an informed public capable of self-government.") Because this understanding of the First Amendment subordinates individual rights of expression to collective processes of public deliberation, I shall call it the "collectivist" theory of the First Amendment. Moved by the disreputable state of contemporary democratic dialogue in America, proponents of the collectivist theory of the First Amendment have used the theory to advance a powerful reform agenda, ranging from statutes designed to correct the corrosive effects of private wealth on elections, to legislation calculated to free the marketplace of ideas from the distorting effects of large media oligopolies. The Supreme Court has been largely hostile to this agenda, objecting to its tendency to achieve its purposes through the suppression of individual speech. Thus in Buckley v. Valeo the Court struck down limitations on independent campaign expenditures, stating that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment ...." And in Miami Herald Publishing Co.v. Tornillo the Court sought to protect a private and independent sphere of editorial autonomy by striking down a Florida statute providing candidates a right of reply when attacked by the press. Advocates of the collectivist theory of the First Amendment view these decisions as misguided, because they invoke private speech rights to circumscribe government efforts to enhance public debate. The touchstone of constitutional analysis should rather be, as Cass Sunstein has written, what "will best promote democratic deliberation." Instead of fetishizing private rights, the Court should engage in a nuanced, contextualized, and pragmatic inquiry. The criterion for constitutional analysis ought to be whether public debate is "sufficiently rich" to enable "true collective self-determination," and this criterion is analytically independent of the value of autonomy. Once this premise is granted, the collectivist theory of speech presents a cogent and powerful argument for revising traditional First Amendment jurisprudence. The question I wish to explore in this paper is whether, and if so under what conditions, this premise can be rendered constitutionally coherent.