Jack Balkin
reinvents the wheel
I've posted a draft of my latest article, Cultural Democracy and the First Amendment, on SSRN. This essay is part of a symposium on the First Amendment that will appear in the Northwestern Law Review. It further develops the theory of cultural democracy that I introduced in my 2004 essay Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society.
Here is the abstract:
The First Amendment is designed to secure cultural democracy as well as political democracy. A central purpose of freedom of expression is to guarantee the right of individuals and groups to participate in culture and influence each other. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.
The abstract for "Digital Speech and Democratic Culture"
This essay argues that digital technologies alter the social conditions of speech and therefore should change the focus of free speech theory from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning - making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual's ability to participate in the production and distribution of culture. The essay argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet.
From the paper
...A serious difficulty with the progressivist/republican model has always been that a wide variety of activities, of which art and social commentary are only the most salient examples, have always fit poorly into a democratic theory of free expression. Lots of speech is not overtly political. Nevertheless, it gets protected under the progressivist/republican model because it is useful for political discussion, because it may become enmeshed in political controversies (and thus threatened or suppressed for political reasons), or because it is very hard to draw lines separating what is political from what is not.[61] In like fashion, lots of activities cannot easily be classified as deliberation—like singing, shouting, protesting, gossiping, making fun of people, or just annoying them or getting them angry. Nevertheless, these activities are protected because we can think of them as raw materials for further democratic deliberation or because we cannot easily draw lines separating them from the social practice of deliberation.[62] In both cases, then, we have kinds of speech that are at the periphery rather than the core; we protect them in aid of something more central and precious. In short, the progressivist vision sees democratic deliberation about public issues at the core of constitutional concern and other subjects and other forms of expression as peripheral or supplementary. ...
61. Meiklejohn himself argued that works of art were protected speech because they promoted knowledge, sharpened intelligence, and developed sensitivity to human values, thus helping people to make political decisions. Meiklejohn, First Amendment, supra note 48, at 255–57. Other scholars have recognized that not all artistic expression equally promotes democratic self-government. See, e.g., SUNSTEIN, supra note 49, at 153–59 (1993) (suggesting that nonpolitical art should be relegated to lower tier of First Amendment protection). And of course Robert Bork, who also had a democracy-based theory of the First Amendment, famously argued that art should receive no First Amendment protection if it was not political speech. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 26–28 (1971).
62. Cf. Owen M. Fiss, The Unruly Character of Politics, 29 MCGEORGE L. REV. 1, 2–7 (1997) (noting limitations of Meiklejohnian metaphor of town meeting as applied to confrontational politics).
My parents were doing PhDs in American lit at Berkeley when they met and became friends with
Meiklejohn and
Ann Fagan Ginger, and all of them marched with
Harry Bridges. My parents met doing their MAs in Minnesota where they studied with
John Berryman and became friends with
Jerome Liebling, though my father may have known him from Brooklyn College, where my father went and where his friends studied with
Mark Rothko and they all hung out at the
Cedar Tavern. I think my father fucked
Grace Hartigan. And Ann Ginger's sister died with
Maxwell Bodenheim.
My parents spent 30 years in the thick of politics, from the desegregation of the Berkeley public schools my brother and sister attended, to teach-ins in Philadelphia (through friends in Ann Arbor, who like my father had gone from Brooklyn to Berkeley), to housing draft dodgers and aiding and abetting the theft of the
COINTELPRO files, my mother's 20 years on staff at the ACLU of Philadelphia, and my father's on the state board. I've quoted my mother before and I'll I'm sure I'll do it again: "Rawls isn't interested in people; he's interested in ideas!" Her contempt was absolute. My parents' library was called the best private library in the city of Philadelphia. The Philadelphia lawyers who volunteered their time at the ACLU said my mother could pass the bar easily. She read Hume and Jane Austen; my father read Henry James and Thomas Pynchon. My sister is named for
Anne Halley. Her widowed husband phoned our mother on her deathbed. "Old lovers come to call" she said, before adding hurriedly: "it was not adultery!"
Balkin who has spent his life in the law library, thinks he's
created a new "concept".
Deleuze says that's what philosophers do. He's wrong. The bureaucratic, technocratic, academy is not a model of democratic culture, the culture of self-government, and
it's done more to weaken it than support it. Balkin is better than most. Sunstein has always been an ass.
And again: on
Koppelman and
Graber and
Tushnet [update: and
Leiter, above, since he'd slipped my mind. I can't remember eveything]
"
Democracies have freedom of speech not because governments grant it but because the government is not granted the power to take it away."
The Gettysburg address does not refer to government "of the elite, by the elite" and then tack on, "for the people". Leadership is an ambiguous thing, and Lincoln was a politician not a college professor, least of all a professor of political theory.
Philosophers are comfortable dividing speech into the "propositional" and the merely "expressive";
readers of what's called
literary fiction are not nearly so sanguine. And literature like politics is craft.
Dance is abstract art. One image below depicts religious activity, the other secular. Both images and activities are protected by the US fucking constitution. Anyone who says otherwise, no matter what their title, is a fucking idiot.
Corey Robin
is not always a putz. The law is the law, even if it's made by fools. But laws made by fools should not make you into one yourself. The relations of conscience and democracy are such that one can have both an obligation to the law, and to the need to change it.
