Reply to Bender

Abstract

Paul Bender has interesting and telling points to make, but a good many of them do not concern the paper I have actually published in this volume (or my work generally). Bender cogently argues, for example, that because democratic self-governance is not "the only reason for protecting speech in a democracy," "public discourse . . . is clearly not the entire realm of constitutionally protected free expression, nor should it be." I quite agree with Bender on this point, and I have never anywhere argued anything to the contrary. Indeed, I explicitly observe in my contribution to this volume that the theory of the "marketplace of ideas," which is limited to neither public discourse nor democracy, "does constitute a significant presence in First Amendment jurisprudence." The position that I actually defend is quite different from that attributed to me by Bender. It is that the value of democratic self-governance is the most powerful explanation of the general pattern of First Amendment decisions (and most particularly of its nationally idiosyncratic aspects), and that democratic self-governance is the only value that can convincingly account for the specific set of decisions protecting the abusive, outrageous and indecent speech that are of most concern in this Symposium.