The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell

Abstract

Hustler Magazine v. Falwell is the most recent in a long line of first amendment decisions in which the Supreme Court has extended constitutional protection to outrageous or offensive speech. In this article Professor Post analyzes the theory behind this protection. He argues that speech is defined as outrageous by reference to norms of community life. In the culturally heterogeneous environment of the United States, however, first amendment doctrine functions to facilitate communication among communities, so that a common democratic and public opinion may be formed. For this reason first amendment doctrine demarcates a distinct realm of public discourse that is neutral with respect to the norms of specific communities. Professor Post demonstrates how several important themes in the Falwell opinion follow from this separation of public discourse from community values. In particular he contends that the separation illuminates Falwell's rejection of "outrageousness" and "bad motive" as criteria for the regulation of public discourse, as well as its reliance upon the curious and muddy distinction between fact and opinion. Professor Post notes, however, that the constitutional concept of public discourse is inherently unstable, because speech that violates community norms of civility is perceived as irrational and coercive, and hence as incompatible with public deliberation. Thus first amendment doctrine suspends legal enforcement of the very norms that make rational deliberation possible. Professor Post labels this the "paradox of public discourse," and argues that the paradox accounts for the jagged and uneven course of first amendment doctrine. The article concludes with a discussion of the various methods by which the domain of public discourse may be defined.