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Negative Liberty and What the First Amendment Ought to Be

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8 Responses

  1. Brett Bellmore says:

    “So, essentially, applying these norms in the normative analysis is just a sophisticated way of saying: you lose because the First Amendment is committed to negative-liberty.”

    To be fair, an amendment which starts, “Congress shall make no law” sure sounds like it has to do with a negative liberty. The words themselves, (And the words themselves must have something to do with what the amendment means!) direct that Congress NOT act in a particular context, not that it ACT.

  2. But Brett, it says Congress shall make no law “abridging” the freedom of speech, not “addressing” or even “respecting.” So law promoting freedom of speech is fine by the text. At best, the textual argument you’re making is one against a requirement that Congress promote speech, but you can’t say anything about whether Congress is permitted to.

    It might also be possible to find a requirement for promotion of speech, if you consider a world in which current legal structure (the laws Congress has made) lead to no avenues for speech, such as the world in which almost all our speech is done over privately controlled media, owned by only a few companies, which might object to certain viewpoints and shut them out. There, the laws Congress has made are abridging a great deal of speech. That’s still a negative liberty argument at its core, demonstrating that the text doesn’t tell us much here.

  3. Joe says:

    “You decide you’d like to convince others that the First Amendment should be concerned with ensuring that all Americans have access to plentiful spaces to engage in speech.”

    The 1A prohibits Congress from abridging certain liberties, including the right to assemble peacefully and petition for redress. This helps to “ensure spaces remain open for speech” and so forth. The government regulates public spaces more so than ever these days. The 1A counsels that it must do so in a way that honors 1A values.

    Also, even w/o the 1A, Congress has a general obligation to carry out its powers in a way that honors the principles of the Preamble. Positive liberty is one way this is done. The Constitution should be seen as a whole, not piecemeal. Free expression is not only honored via the 1A.

  4. PrometheeFeu says:

    @Marvin Ammori:

    My problem with your argument is a misalignment of interests. While media companies do have interests which may be harmed by some speech, they also serve a wide variety of other interests which can be put into conflict with their restrictions on speech. (If they restrict speech excessively, they may start losing customers and money) On the other hand, the sole interest of elected officials is to get elected again. They therefore have a strong interest in taking action that will assist the speech of those who would help them be reelected at the expense if necessary of those who would oppose their election. The very speech that is most important for democratic governance is the one that would be most distorted by a positive interpretation of the First Amendment.

    Also, I would like to say that while large media companies still have significant power, that power is decreasing rapidly and so I would find it untimely to go fiddle with the 1A in order to solve a problem which is rapidly becoming moot.

  5. “The very speech that is most important for democratic governance is the one that would be most distorted by a positive interpretation of the First Amendment.”

    I’m not sure what you’re seeing here as a positive rights interpretation. In both positive and negative senses, viewpoint discrimination is harmful, so the fact that government would be promoting some speech does not give them license to promote their preferred speech. The role of government in a positive rights interpretation is just to make sure that certain private actors are not choking off speech completely and trampling on the speech rights of others.

    Also, I have a problem with your idea of “distortion.” There is no good reason that the way speech is done today should be the baseline. The media interests you cite, namely money from advertisers, causes them to want to be less controversial, and shut out the very views that are most in need of protection. That’s not distortion?

    “Also, I would like to say that while large media companies still have significant power, that power is decreasing rapidly….”

    Yes big media’s power is dropping (though not as fast as you might think), but the power is shifting to other private actors, such as Google, Facebook, ISPs. Still our speech is almost all controlled by large, powerful actors, and only our cultural identification with liberal free speech values, and not law as we see it now, stops them from shutting down any blog they want. If anything, more and more of our political speech is done electronically (aside from the anomaly that is OWS, though that was as much about social media as it was about Zucotti Park). Think of the recent anti-SOPA campaign, and the Komen-Planned Parenthood episode. All electronically organized. Now think of Wikileaks, and the decision by Amazon to stop hosting them based on their speech content? What if all the websites decide to do that for something pretty controversial? In what sense is there free speech then?

    “I would find it untimely to go fiddle with the 1A”

    One final point. As I see it, Prof. Ammori is not suggesting in this post that we “fiddle” with the 1A, but rather, that we’ve been ignoring all the media-focused decisions in 1A doctrine that are about creating more speech, or dare I say, a more level playing field. They already exist – it’s just that the narrative we’ve been told about the First Amendment is wrong.

  6. PrometheeFeu says:

    “I’m not sure what you’re seeing here as a positive rights interpretation. In both positive and negative senses, viewpoint discrimination is harmful, so the fact that government would be promoting some speech does not give them license to promote their preferred speech. The role of government in a positive rights interpretation is just to make sure that certain private actors are not choking off speech completely and trampling on the speech rights of others.”

    The problem is that the government will have to make policy decisions as to how enforce such a positive right. What those decisions are will inevitably benefit some speakers while leaving others out. It seems almost inevitable that there will be opportunities for the government to use its discretion under such a positive-right interpretation to favor speakers it likes.

    “Also, I have a problem with your idea of “distortion.” There is no good reason that the way speech is done today should be the baseline. The media interests you cite, namely money from advertisers, causes them to want to be less controversial, and shut out the very views that are most in need of protection. That’s not distortion?”

    I’m not taking today as a baseline. I’m taking as a baseline a situation in which people are not required to spend their dollars to enable speech in a way which may not be content-neutral in practice.

    “Yes big media’s power is dropping (though not as fast as you might think), but the power is shifting to other private actors, such as Google, Facebook, ISPs. Still our speech is almost all controlled by large, powerful actors, and only our cultural identification with liberal free speech values, and not law as we see it now, stops them from shutting down any blog they want.”

    It is also more distributed and there are more and more avenues to speak in. Don’t like the way wordpress, google, facebook, twitter, etc are all treating you? Start your own website. It takes no more than a few dollars.

    “Now think of Wikileaks, and the decision by Amazon to stop hosting them based on their speech content?”

    As I understand it, Amazon chose to stop hosting Wikileaks based upon threatening phone calls by government officials. Joe Lieberman as I recall is the guy who went around making it clear to Internet companies that the sky just might crash around their heads if they didn’t dump Wikileaks. And Wikileaks as I understand it is still up and running. They shifted to a different hosting service.

    “What if all the websites decide to do that for something pretty controversial? In what sense is there free speech then?”

    Well, in the sense that there are hundreds of thousands of people who could in about a month set up new websites to host something like Wikileaks. I mean, you’re talking about having thousands and thousands of people coordinate to wipe some information off the face of the earth taking the risk of losing lots of money in the process even though those people often have very little in common and are highly unlikely to have common cause against that information being made available. On the other hand, it is possible to have 283 people (217 congressmen, 60 senators, the president and 5 SCOTUS judges) work together to wipe out some unpopular speech or promote some speech they like. I should add that many of those 283 people have highly aligned interests, see each other every day and are even encouraged to work together to “solve problems”. Seems to me you are fearing the wrong monster.

  7. A.J. Sutter says:

    “Rejecting an ought argument based on an is reflects a well-known argument fallacy (the is-ought fallacy).” — I’m not sure this is accurate: it may be more or less fallacious depending on whether you’re rejecting an ought argument or inferring one. Also, your sentences are heterogeneous. Your article criticizes the following proposition:

    (1) A is => ~(B ought to be the case),

    where A is “the First Amendment has been judicially construed only as a negative liberty,” and B is “the First Amendment ought to be construed to include some positive guarantee of a place for speech.” (Squiggles ~ mean negation, BTW.) But the logical form of (1) isn’t the same as

    (2a) A is => A ought to be the case
    (2b) ~A is => ~A ought to be the case

    which are the usual is/ought fallacies.

    We can imagine situations where implication (1) is valid — in fact we encounter them every day. E.g., let A be “humans are air-breathing animals that cannot hold their breaths for more than a few minutes at a time” and B be “humans ought to stay underwater for hours at a time without any external breathing assistance”. (OK, so maybe this doesn’t get argued about every day.) Whether (1) is fallacious depends case by case on the content of A and B. And of course even when it is fallacious, that doesn’t necessarily mean that B ought to be the case.

    I think what you mean in your post is that many scholars argue against you à la (2a), where A is “the First Amendment has been judicially construed only as a negative liberty,” and the inference is that it ought always to be so construed. Even if A were correct (which apparently you deny), that inference would instantiate the is/ought fallacy — absent other premises, at least.

  8. A.J. Sutter says:

    PS: since my aquatic example as stated has an implicit “ought” premise — that humans ought not to drown, absent some compelling reason for doing so — let me re-phrase it: let A be “humans are air-breating animals that will die within minutes underwater without external breathing assistance,” and B be “humans ought to live underwater for hours or days at a time without any external breathing assistance.”

    BTW, it’s also easy to find instances when implication (1) is true when A is analytically true: e.g., let A be “a triangle is a figure having three sides” (by definition, so analytically true) and B be, e.g., “every triangle ought to have four sides.” But all the other examples I’ve given involve premises that are at most synthetically true, in which case the truth or fallacy of (1) is hit or miss.

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